1 1 VOLUME I 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 3 SUGAR CANE GROWERS COOPERATIVE OF 4 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 5 and 6 FLORIDA SUGAR CANE LEAGUE, INC., 7 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 8 and 9 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, 15 Respondent, 16 and 17 MICCOSUKEE TRIBE OF INDIANS OF 18 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 19 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 20 Intervenors. 21 . . . . . . . . . . . . . . . . . . . / 22 23 DEPOSITION OF MARLENE STERN 24 November 17, 1992 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 1 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. 7 8 Reported by: 9 DEBRA ROTRUCK KRICK 10 Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 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 7 On behalf of the Intervenor United States of America: 8 Keith E. Saxe, Esq. 9 United States Department of Justice Environment & Natural Resources Division 10 601 Pennsylvania Avenue NW Washington, D.C. 20044 11 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 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 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 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 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 -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 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.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 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 13 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 14 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 15 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 16 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 17 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 18 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 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 21 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 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 23 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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 45 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 navigation, historical artifacts, and a 22 general, well, I guess discussion of any other functions 23 that may be provided. But those are the, those are the key 24 functions. That, you know, that's about it. There might 25 be one or two other things that we'll list. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 46 1 Q Are the negative impacts at all affected by the 2 type of wetland? 3 A I am not sure -- do the negative, does the type of 4 wetland, okay. Are the negative impacts affected by the 5 type of wetland? 6 I think, I am not exactly sure what you're getting 7 at there. The type of wetland, yes, would affect, it's 8 sort of inherent in your review, certain things are 9 inherent in a review -- based on the type of wetlands. For 10 example, in a beach restoration project you have, you know, 11 the area between mean high water and mean low water, which 12 is in a tidal, which is what a lot of wetlands fall into 13 that category, they are emerging in that area, and you 14 don't really have the concerns about water quality 15 functions there, because that area doesn't provide water 16 quality functions, it is not a, you wouldn't really address 17 that kind of question in a beach restoration project. You 18 would look at turbidity under the water quality 19 certification rule, the turbidity standard being violated, 20 but in terms of other water quality functions -- like water 21 storage for flood prevention, or the opposite of that, 22 nutrient cycling. The, you don't really consider those 23 things in a beach restoration project for example. 24 MR. KOBELINSKI: We only have two choices, we can 25 go ahead and break early or break late, what's your A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 47 1 preference? Since we both know I have things to do. 2 MR. HETRICK: Whichever will get us out of here 3 soonest this afternoon. What do you need? We can 4 break now, I don't have any problems with it. 5 MR. KOBELINSKI: Yes, as I said I have to go 6 through my documents, you are going to go through 7 those. Would you prefer breaking at 12 and going to 8 1:30 or would you prefer breaking now and going until 9 1? 10 MR. HETRICK: Now until one. 11 MR. SAXE: That's fine with me. 12 MR. HETRICK: Is that okay with you? 13 MR. KOBELINSKI: Yes. 14 MR. HETRICK: Are you at a point you can? 15 MR. KOBELINSKI: Yes, I am at a point, because I 16 think it just would be easier if I go about a different 17 manner. So we'll break for lunch then. 18 (Lunch recess.) 19 MR. KOBELINSKI: Back on the record. 20 MR. HETRICK: Do you want to start or do you want 21 me to start what we have? 22 MR. KOBELINSKI: Yes, if you could go ahead and 23 show me what you have, I would appreciate that. 24 MR. HETRICK: Let me just start off by saying we 25 will run through them with you. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 48 1 (Discussion off the record.) 2 MR. HETRICK: You know, I went through your 3 document production, and, you know, basically 4 everything from one through four, except for number 5 five, is documents she relied upon in preparing and 6 formulating expert opinion subject to the matter of 7 this action and regard to the EPA and specifically in 8 regard to impacts and permits being sought by the EPA, 9 and all three boxes -- prefacing what we discussed 10 prior to lunch -- all three boxes contain response of 11 documents that in some degree reflect or went into 12 formulating her opinion on wetlands impacts which is 13 the subject of this action related to the permit. 14 You asked for all the documents, and we have 15 produced all the documents for that. You can ask her 16 any questions about any of the documents that we have 17 produced, but what she has for you right now are some 18 of the things that came to mind during the past hour 19 that may be useful to you, some things that you might 20 want to focus on, you might not want to focus on. It 21 is simply to simplify the number of documents that we 22 have produced in this deposition regarding the permit. 23 She has no idea, or at least we haven't exhaustively 24 gone through and reviewed every document to be able to 25 assess what the criteria of importance is of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 49 1 document, or you know, the extent she may have relied 2 upon it in formulating her opinion. 3 So, these are things, I am certainly not going to 4 limit her testimony, you know, in this proceeding. We 5 have supplied you with everything, everything in your 6 documents to be produced is in regard to the permit, 7 and that's, you know, what we have supplied, and we 8 have highlighted some things, like I said, to simplify 9 this deposition, and you know, that's -- 10 MR. KOBELINSKI: Okay. Just so I understand and 11 you've stated previously that you have attempted to 12 provide me with everything that the witness has related 13 to the permit, okay? 14 MR. HETRICK: Right. 15 MR. KOBELINSKI: What I am asking to review is 16 documents she has relied upon in formulating her expert 17 opinion and you are saying everything -- 18 MR. HETRICK: Everything. 19 MR. KOBELINSKI: -- related to the opinion, or 20 related to the permit that she has relied upon in 21 formulating her opinion? 22 MR. HETRICK: Exactly. 23 MR. SAXE: For clarification, those three boxes, 24 are those boxes responsive to this subpoena duces tecum 25 attachment -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 50 1 MR. HETRICK: That is correct. 2 MR. SAXE: -- documents to be produced? 3 MR. HETRICK: That is correct. 4 MR. SAXE: Okay. So these are all documents -- 5 this old reference is testimony? 6 MR. KOBELINSKI: Anticipated expert witness 7 testimony. 8 MR. SAXE: Right. Not so much permit versus swim 9 or anything to that effect, but simply -- 10 MR. KOBKELINSKI: No. 11 MR. SAXE: -- anticipated expert testimony -- 12 MR. HETRICK: Relating to wetlands impacts of 13 permit. 14 MR. SAXE: -- relating to the subject matter of 15 the action? 16 MR. HETRICK: Exactly. 17 MR. SAXE: Okay. 18 MR. HETRICK: Relating to wetland impacts and the 19 permits being signed for the EPA, or subject to the 20 matter of this action. 21 MR. SAXE: So these three boxes, then, are all 22 the -- 23 MR. HETRICK: That's everything. 24 MR. SAXE: -- expert witness documents? 25 MR. KOBELINSKI: Well, if that's the case, let's A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 51 1 do some preliminary questions before we start going 2 through them. 3 (Whereupon, Exhibit No. 3 was marked for 4 identification.) 5 BY MR. KOBELINSKI: 6 Q Ms. Stern, I am showing you what's been marked as 7 Stern Exhibit No. 3, and I direct your attention to the 8 section 403.918, Criteria for Granting or Denying Permits. 9 Would you review that for me, please? Let me know when you 10 are finished reviewing it. 11 A Okay. 12 Q Are these the factors that during the period in 13 time that you were an ES II that you would review in 14 determining the impacts of dredge and fill and construction 15 activities related to permits? 16 A They are the factors that we would weigh. 17 Q Okay. Did you also weigh these factors in 18 considering the wetland impacts of construction and dredge 19 and filling related to interim permit A? 20 A These factors are in a specific condition saying 21 they will be weighed for that project. 22 MR. KOBELINSKI: Could you read back that answer? 23 (Whereupon, the court reporter read the requested 24 portion of the record.) 25 BY MR. KOBELINSKI: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 52 1 Q All right. Perhaps if I can narrow your 2 attention, are these the factors that you considered in 3 determining whether or not there were wetland impacts 4 resulting from the construction of dredging and filling 5 related to the interim permit A? 6 A I considered these. 7 Q Okay. Are there any additional factors that you 8 considered other than these contained in 403.918? 9 A In assessment of impacts? 10 Q Yes. 11 A No, not other than the information that they gave 12 us to clarify, you know, what they were doing. 13 Q When you mentioned information that they provided, 14 and I assume the they, you are referring to is the 15 District, is that correct? 16 A Yes. 17 Q When you refer to the information that the 18 District provided, did you consider that information again 19 in light of satisfying these criteria listed in 403.918? 20 A I think that's fair to say, yes. 21 Q So just again so I understand, was there any 22 additional criteria other than these that you considered in 23 making a determination of whether or not there were wetland 24 impacts resulting from the dredge and fill or 25 construction-related to interim permit A? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 53 1 MR. SAXE: Objection as to form, I am unclear. 2 Counsel, you are referring to 403.918 as criteria for 3 analyzing whether there are wetland impacts, is that 4 based on the witness's testimony or on the reg? The 5 reg basically says criteria for granting or denying 6 permits. 7 MR. KOBELINSKI: Correct. 8 MR. SAXE: I am confused as to the, as to the 9 question that you are asking the witness. 10 MR. KOBELINSKI: Would you read back? 11 (Whereupon, the court reporter read the pending 12 question.) 13 THE WITNESS: Shall I go ahead and answer it? 14 MR. SAXE: If you understand the question. 15 MR. HETRICK: Do you understand the question? 16 THE WITNESS: Well, I think the question is word 17 in kind of a strange way. I am not entirely, I am 18 answering what I think you are asking. 19 It is my understanding I think these are, these 20 are the criteria we consider in evaluating a project. 21 BY MR. KOBELINSKI: 22 Q What criteria did you consider in determining 23 what, if any, impacts there were to wetlands resulting from 24 the construction, dredge or filling related to interim 25 application A? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 54 1 A In determining the impacts that there were, I said 2 I relied on what the District told me the impact would be. 3 In weighing the impact and -- well, they told me that 4 information, I looked at this and said, how does that weigh 5 on this 403.918. 6 Q How does it fit the criteria -- 7 A Yes. 8 Q -- sets forth in 403.918? 9 A Uh-huh. 10 Q Okay. Are these the same factors that you would 11 consider, or you did consider previously in the permits you 12 analyzed when you were an ES II? 13 A Yes. 14 Q Okay. Were there any -- 15 MR. SAXE: Again, objection, go ahead. 16 BY MR. KOBELINSKI: 17 Q Were there any additional factors or different 18 factors that you would use in considering the permits that 19 you analyzed as an ES II than from the factors you used in 20 analyzing interim permit A? 21 MR. SAXE: Objection as to form, I am still 22 concerned with assuming a line of evidence that I 23 haven't heard at this deposition, namely that these 24 criteria are criteria for determining whether there are 25 wetland impacts as opposed to determining whether in A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 55 1 the light of wetland impacts that may be shown or 2 evident on a permit application, a permit should be 3 granted or denied. 4 The way you are phrasing your questions continues 5 to assume that these, I believe the question was, are 6 these the same criteria that were used in determining 7 whether there were wetland impacts in other permit 8 applications, and I think that assumes matters that 9 haven't been testified to in the deposition. 10 MR. KOBELINSKI: Could you read back the 11 question? 12 (Whereupon, the court reporter read the pending 13 question.) 14 THE WITNESS: No. 15 BY MR. KOBELINSKI: 16 Q Okay. Did your analysis of the wetland impacts 17 resulting from construction and dredge and filling related 18 to interim permit A differ at all from any of your prior 19 analysis of permits relating to wetland impacts from dredge 20 and fill operations? 21 MR. SAXE: Objection as to form. I don't 22 understand the question. 23 MR. HETRICK: I'll object to that too, I don't 24 understand the question. 25 BY MR. KOBELINSKI: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 56 1 Q Do you understand the question? 2 A I think I understand what you mean. 3 BY MR. KOBELINSKI: 4 Q Let me rephrase it if you don't understand. This 5 is a good question. 6 Did your method of analysis of the impacts upon 7 the wetland from the dredge and fill operations related to 8 interim permit A differ in any way from your analysis of 9 wetland impacts of other dredge and fill permit 10 applications that you analyzed during your tenure as an 11 ES II? 12 A Okay. Yes. 13 Q Okay. How did it differ? 14 A They differed in that they were, there was also 15 the Marjory Stoneman Douglas Act, I think I showed you the 16 Marjory Stoneman Douglas Act that had to be considered. 17 Q All right. Did you consider that criteria? 18 A Yes. 19 (Whereupon, Exhibit No. 4 was marked for 20 identification.) 21 BY MR. KOBELINSKI: 22 Q I am showing you what has been marked as Stern 23 Exhibit No. 4 and ask you to review that document. 24 Having done so, if you could identify for me what 25 additional criteria the Marjory Stoneman Douglas Act was, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 57 1 you considered in analyzing the wetland impacts related to 2 the interim permit A? 3 A Okay. I am just going to get my copy of the 4 Douglas Act, because I know where the things are. 5 MR. SAXE: Objection, could you clarify what in 6 this exhibit you are referring to as the Marjory 7 Stoneman Douglas Act? 8 MR. KOBELINSKI: I, the exhibit speaks for itself, 9 and she is no longer using this exhibit. 10 MR. SAXE: Okay. 11 THE WITNESS: Okay. I am looking at part (6) 12 under "Permits". 13 MR. HETRICK: Of what document, chapter? 14 THE WITNESS: The Marjory Stoneman Douglas Act. 15 BY MR. KOBELINSKI: 16 Q You are referring to Chapter 373.4592 (6), Permits 17 section? 18 A Yes. 19 Q Okay. 20 A There are basically two. 21 This, the Permits section spells out the permits 22 that are required, and it says reasonable assurance has to 23 be provided pursuant to the Marjory Stoneman Douglas Act. 24 It gives deadlines for when the application has to be 25 submitted and when the permits have to be issued. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 58 1 And those were important things in the evaluation, 2 then. Also under applicability, parentheses (8), 3 Applicability of Laws and Water Quality Standards: 4 Authority of District and Department. Okay. Go down to 5 parentheses (c). This basically says that Chapter 403 is 6 not supplemental to this, to Chapter 373.4592, the two are 7 used together, or, well, it says one is not supplemental to 8 the other. 9 MR. SAXE: Excuse me. May I take a quick look at 10 the version of the statute that you are referring to, 11 because it is not the same as the exhibit that has been 12 marked and distributed? 13 MR. HETRICK: We can attach this. Is this a copy? 14 MR. SAXE: It is. 15 MR. HETRICK: That's the same thing. 16 MR. SAXE: When you referred to parentheses (8) 17 and then referred back to parentheses (c), what 18 specific provisions were you referring to? 19 THE WITNESS: Okay. There is a section number (8) 20 called -- 21 MR. HETRICK: Is this yours? 22 MR. SAXE: Yes, well, it's the exhibit, my copy of 23 the exhibit that was -- 24 THE WITNESS: Okay. Applicability of Laws and 25 Water Quality Standards: Authority of District and A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 59 1 Department. 2 MR. SAXE: No, you see that's different. 3 THE WITNESS: Yes, his (8) is different. 4 MR. SAXE: There is a -- 5 MR. KOBELINSKI: Perhaps you are referring to what 6 is on Exhibit 5 under (7)(c)? 7 THE WITNESS: It is number (7). 8 MR. HETRICK: Number (7), where is it on the list? 9 THE WITNESS: On the right. 10 MR. SAXE: I am not sure that it does, I wanted to 11 clarify what references were being made. 12 MR. HETRICK: That's (7), this is (7)(c)? 13 THE WITNESS: Oh, I am sorry. It is (7)(c). Wait 14 a minute. 15 MR. HETRICK: See, (7). (8). 16 THE WITNESS: Let me just see if these words are 17 the same. 18 MR. HETRICK: Yes, I am going to. What version 19 of the statute is this, the subject of this, at issue, 20 is this '92? 21 MR. KOBELINSKI: Yes. 22 MR. HETRICK: This was amended in '92? 23 MR. KOBELINSKI: I don't know I just took it out 24 of the '92 book. 25 MR. HETRICK: Okay. Let me see. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 60 1 THE WITNESS: They look the same to me. 2 MR. HETRICK: Yes, I mean, I don't have any 3 problems in cross referencing. I mean this is the law, 4 this was amended? 5 MR. KOBELINSKI: Counsel, I really would like to 6 pursue this if we can. I don't know if there is a 7 difference with regard to the questions I am going to 8 ask. If there is perhaps we should go ahead and do so. 9 I am not asking anyone to stipulate as to what this 10 document is. 11 MR. HETRICK: I understand, I just want to make 12 sure we are talking off the same document that's the 13 subject to this deposition. 14 Could you refer to this document, because this is 15 the law as, well this is FS '91, now. 16 MR. KOBELINSKI: It's still, now, there was no 17 change at the time, you are right. There is no 18 difference in the sections other than the numbering 19 that the witness is referring to. 20 MR. HETRICK: Yeah, okay. 21 MR. KOBELINSKI: And I am not going to go ahead 22 and impeach her as to numbers of the statute. My 23 concern is only with regard to what is it she 24 considered, and there is no difference between the two 25 documents. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 61 1 BY MR. KOBELINSKI: 2 Q Now, Ms. Stern, you mentioned an additional 3 consideration of reasonable assurance, where would you find 4 that in the act? 5 A The act, it is the act, itself, is, we required 6 reasonable assurance under the Marjory Stoneman Douglas 7 Act. 8 Q What provision of the act requires that? 9 MR. HETRICK: I want you to refer to this copy. 10 She's going to, for the record, she's referring to the 11 document that is marked as Exhibit 4 to this depo. 12 Okay. 13 THE WITNESS: The (6), section (6) under 14 Permits. 15 BY MR. KOBELINSKI: 16 Q Okay. Are you referring to section (6)(a), excuse 17 me, (6)(b)? 18 A I think so. 19 Q All right. 20 A Well, it is (6)(b) under my copy. 21 Q Refer to page 1079, that's on Exhibit 4. 22 A It looks the same. I am not going to sit here and 23 read all the rest of it, but it looks like what (6)(b) 24 under my copy, just looking at the first, skimming over it, 25 looks like what (6)(b) on this exhibit. It is, whatever, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 62 1 Exhibit No. 4. 2 Q Okay. With regard to the reasonable assurance 3 what do you understand that to require? 4 A Reasonable assurance that the district was 5 progressing and was planning their project with respect to 6 their wetland impacts to be evaluated and constructed in a 7 timely fashion. 8 Q Was this another area of your responsibility, to 9 determine that the District was evaluating its project to 10 be constructed in a timely fashion and providing reasonable 11 assurance to that effect? 12 A The question as it was put to me during my 13 evaluation that I had to answer, is the District, do you 14 think the District is moving along with these plans as they 15 should be and do you think that they are headed in the 16 right direction to enable you to do an evaluation under 17 403? 18 Q And who provided that explanation to you? 19 A That was from legal, the legal department. 20 Q Do you know who specifically? 21 A No, not specifically. 22 Q Was this during a meeting, was this the same 23 instruction given to everyone to your knowledge? 24 A No. 25 Q Just so I understand your response, it is that you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 63 1 don't know whether it is, or no it is not the same 2 instruction? 3 MR. SAXE: Objection as to form, it is a compound 4 question. Please clarify your question. 5 THE WITNESS: I don't know if it was the same 6 instruction given to everyone. 7 BY MR. KOBELINSKI: 8 Q Okay. At what point in time were you provided 9 with that instruction? 10 MR. SAXE: Objection as to privilege, to the 11 extent this line of questioning is inquiring as to 12 attorney/client communications with the legal counsel. 13 I think that needs to be clarified. 14 MR. KOBELINSKI: Counsel, is this your client? 15 MR. SAXE: I am objecting -- 16 MR. KOBELINSKI: Under Florida law do you have any 17 right to raise an objection as to attorney/client -- 18 MR. SAXE: Absolutely. 19 MR. KOBELINSKI: No, Counselor, I am afraid you 20 are not entitled under Florida law. 21 BY MR. KOBELINSKI: 22 Q You may answer the question. 23 A Okay. At what point in time was I provided with 24 this? 25 Q Instruction. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 64 1 A Do you want a date? 2 Q Just an approximate date. 3 A June or July of this year. 4 Q Okay. Prior to June or July of 1992 did you take 5 into consideration the reasonable assurance requirement of 6 the Marjory Stoneman Douglas Act in determining, in your 7 analysis of the interim permit A? 8 A I knew they both had to be addressed. I, my 9 initial, as I proceeded with this project I knew they both 10 had to be addressed, but I knew I needed to get information 11 on wetland impacts first and foremost, and then the 12 information on the GDM, why the GDM was going to be done, 13 when the GDM was going to be done, that type of thing. I 14 knew they both had to be in there. 15 Q It is something you focused on prior to June or 16 July of 1992? 17 A It wasn't the primary focus. 18 Q All right. Did it impact at all the information 19 you requested or required from the District? 20 MR. HETRICK: Would you repeat the question? I am 21 sorry, I don't mean to interrupt, but I didn't, I did 22 not hear. 23 (Whereupon, the court reporter read the pending 24 question.) 25 MR. HETRICK: Did what impact? That was, I guess A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 1 was my question. 2 BY MR. KOBELINSKI: 3 Q I will rephrase, it was a follow-up question and 4 that's why. 5 Did the reasonable assurance requirement of the 6 Marjory Stoneman Douglas Act impact at all the information 7 you requested from the District? 8 A I am not sure I entirely understand what you mean 9 by that, did it impact the information? 10 Q Did you, I will rephrase the question. Did you 11 ask for any additional information or a different type of 12 information than you otherwise would have but for the 13 Marjory Stoneman Douglas Act reasonable assurance 14 requirement? 15 A Slightly, I became more concerned with their 16 project plan than perhaps with the average project that is 17 not under the Marjory Stoneman Douglas Act, so I may not 18 have, there are projects that are strictly, that are not 19 Marjory Stoneman Douglas Act, which we become concerned 20 with, you know, the future plans and that type of thing. 21 But, and that depends on the project, the deadlines. Their 22 planning, their timing was important. 23 Q Why was the timing important? 24 A Because we had to, well, their time frame is 25 specified in the Marjory Stoneman Douglas Act for one A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 1 thing, and one of our goals we had to accomplish with this 2 permit, or one of the important aspects of the permit is to 3 get, is to ensure that the water management district would 4 proceed with developing their plans in a timely fashion and 5 to make sure that we understood what their schedules were 6 so that we could our conditions, say, you know, you know, 7 we want to be involved, you know, in your planning at such 8 and such a point, you know, that type of thing -- and so 9 that they would get us the information within a certain 10 period of time. 11 For example, we, they were scheduled to complete 12 the GDM by a certain date, and we said, okay, well, you 13 definitely, you have to get us that information -- after 14 you complete the GDM, the general design phase, you have to 15 get us information on your, on certain wetland impacts as 16 soon as possible after you complete the design phase, and 17 under no circumstances more than a year after you complete 18 the design phase -- so that they, that is, that type of 19 specific condition goes to our assurance that they are 20 moving along on this project in a timely fashion. 21 Q At the time the District provides notice of intent 22 to issue interim permit application or interim permit A, 23 had the District, or excuse me, DER already completed its 24 completeness summary? 25 A By definition, yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 1 Q Okay. 2 A You have to, you're through with completeness -- 3 Q Okay. 4 A -- before you do an intent. 5 Q Then why were you concerned with the District 6 providing additional information at a subsequent date? 7 A Well, it was information that pertained to what 8 they were doing in the Everglades. Have you looked at the 9 permit? 10 Q Well, I will respond and say I have, but in 11 reality the way this does work is that I get to ask the 12 questions. 13 A Well, I think the permit, if you look at the 14 permit it sort of explains what was going on. We often 15 have in permits specific conditions that say by such and 16 such a date you must provide us something, you know, by 17 such and such a date you, you know, have to do this or 18 that, by such and such a date if you give us this 19 information and it says thus and so you may do such and 20 such, or you know, that type of thing. 21 Q Okay. 22 A It is not uncommon that beyond the completeness 23 phase that there are things, pieces of information that we 24 ask for in permits to address, you know, aspects of the 25 project. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 1 Q All right. At the time the -- 2 (Discussion off the record.) 3 (Whereupon, Exhibit No. 5 was marked for 4 identification.) 5 MR. HETRICK: Apparently what we, and what I mean 6 by we, is the United States, our office, DER, and your 7 office, and I will represent this to the extent that it 8 was discussed this morning, but we are going to make a 9 blanket objection with regard to the settlement 10 agreement as to the relevancy of that settlement 11 agreement in this proceeding as being handled in 12 another proceeding, the Sunshine proceeding. What we 13 will, the only specific thing with regard to settlement 14 that we will instruct her not to answer is any 15 attorney-to-attorney information that she may have 16 knowledge of that was relayed, you know, and that's 17 basically it on the settlement. 18 MR. KOBELINSKI: All right. 19 MR. HETRICK: You know, that's I guess why Keith 20 was trying to inquire how far you were going to go with 21 that line of questioning, but we do have a continuing 22 objection onto the record of any questions about the 23 settlement agreement, number one. 24 And, number two, we would, you know, we will get 25 into the whole attorney/client privileges, if you want A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 1 to, if it's attorney-to-attorney communications that 2 you start asking about. Is that accurately -- 3 MR. SMITH: Right, or if it is attorney-to- 4 witness, but it is, you know, shared confidences 5 amongst the parties with a common interest. That would 6 include the water management district in an agreement, 7 by the way, and the only way we would get into an 8 instruction not to answer the situation would be once 9 you establish, and I know you are going to establish 10 it, because I met with Marlene, too, and she doesn't 11 know anything about the settlement negotiations to 12 speak of, she wasn't a participant in them, as far as I 13 know, if you were to carry on for a half hour or 45 14 minutes with the same kinds of questions, Counselor, 15 and be an unreasonable guy, as I know you are not, then 16 we would have to take a firm stand, and I don't think 17 that's going to happen. 18 MR. KOBELINSKI: It doesn't sound like it will. 19 MR. SMITH: Okay. So we're all on the same wave 20 length? 21 MR. KOBELINSKI: Appears to be we are now. Thank 22 you, very much. 23 MR. SMITH: Sure. 24 (Whereupon, the court reporter read the portion 25 of the record.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 1 BY MR. KOBELINSKI: 2 Q With respect to the area you were assigned related 3 to the interim permit, the wetland impacts resulting from 4 construction or dredging and filling, why was that a 5 consideration of DER in the permit process? 6 A Why was wetlands construction a concern of DER in 7 this permit? 8 Q Why was impacts upon wetlands resulting from 9 construction and dredging and filling a concern or a 10 consideration of DER's in evaluating the permit? 11 A Well, it is an area over which we have 12 jurisdiction, so if there is going to be wetland impacts as 13 a result of construction and dredging and filling in 14 wetlands, that's one of our areas we regulate. 15 Q When you say you regulate it, does that mean you 16 disallow it? 17 A No. 18 Q Okay. What importance, then, does wetland impacts 19 play in determining whether or not to issue or not issue a 20 permit? 21 A What, this particular permit? 22 Q Okay, this particular permit. 23 A Well, I can't really answer that question. 24 Q Why not? 25 A Because I am not the one who made the decision on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 1 whether to issue the permit or not, so I don't know how 2 they weighed wetland impacts, how wetland impacts were 3 made, or weighed. 4 Q Okay. Did you have any input in the decision to 5 issue or not issue the permits? 6 A I had to make clear what I knew about the wetland 7 impacts on -- I am not sure, you know, I had to provide 8 information and I did. 9 Q Okay. 10 A Whether or not that was used in making a decision, 11 I can't say for sure. 12 Q Did you, the information you provided, who did you 13 provide it to? 14 A A number of people mostly within the office of the 15 Secretary, which includes OGC, our office of general 16 counsel, and the water facilities people, my supervisors, 17 the Bureau of Wetland Resource Management. 18 Q Okay. Did you provide this information in memo 19 form or orally? 20 A Orally, and then there were the documents that 21 were actually in the file, my questions, the responses, 22 that type of thing. 23 Q Okay. Based upon your analysis of interim permit 24 A, what are the wetland impacts of the -- 25 A From construction? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 1 Q -- construction and dredging and filling 2 activities related to the permit? 3 A The estimate, the written, the actual acreage of 4 impact, is that what you're asking? 5 Q Let me ask you a different question in perhaps yet 6 a different way. 7 Did you make the determination as to what impacts 8 there would be to the wetlands resulting from the 9 construction and dredging and filling related to interim 10 permit A? 11 A Based on the information the water management 12 district gave to me, the water management district gave me 13 a written estimate that there would be 1,300 acres of 14 impact on the jurisdictional areas, worst case. They later 15 revised that estimate verbally to 700 acres. 16 Q Did the District provide that information, the 17 1,300 acres information in writing or orally? 18 A In writing. 19 Q How were those 1,300 acres impacted, and we'll get 20 to the decrease of 700, but at the time it was 1,300, how 21 were those 1,300 acres impacted by construction and 22 dredging and filling? 23 A By dredging and filling, by dredging of canals, 24 creation of berms, that's the primary, primarily they were 25 dredging canals, creating some berms, breaking down some A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 73 1 berms. 2 Q Now, that's the construction and dredging and 3 filling activity that you just described, is that correct? 4 A Yes. 5 Q How did that impact the wetlands? 6 A Well, in terms of the criteria of Chapter 403 we 7 have not done the weighing of those criteria in terms of 8 how were wildlife habitat affected, was there an endangered 9 species habitat there, how the public health, safety and 10 welfare would be affected, productivity. 11 Q If those factors weren't weighed physically, then 12 how were the 1,300, or using, well, let me back up. When 13 was the 1,300 estimate, 1,300-acre estimate provided to you 14 by the District? 15 A The date you mean? 16 Q Approximately when? 17 A Okay. About June, I believe. 18 Q Of 1992? 19 A Yes. 20 Q And when were you provided with the revised 21 estimate of 700 acres? 22 A I don't remember exactly. It was after that -- 23 August maybe, September. I should also say that they also 24 said, they also provided written estimate that 95,000 to 25 150,000 acres of jurisdictional wetlands would have A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 74 1 increased hydroperiod. They also said that, the same time 2 they said that the 1,300 acres were going to be dredged and 3 filled. 4 Q With regard to the 700 acres, if the DER has not 5 done the weighing of the criteria listed in 403.918, how 6 exactly are those 700 acres impacted, are they the acres 7 that are actually literally dredged and turned into berms 8 or are these wetlands adjacent -- 9 A They just revise their, it's the same exact way as 10 the 1,300. They revised their estimate. They said that 11 part of their estimate included canals that already 12 existed, and they didn't calculate it correctly. 13 Q Okay. 14 A They revised their calculation. 15 Q Okay. With regard to the 700 acres, which is the 16 revised calculation, is that correct? 17 A Uh-huh. 18 Q With regard to the 700 acres, is that 700 acres of 19 existing wetlands that will be converted into berms, 20 canals --