143
1 VOLUME II
STATE OF FLORIDA
2 DIVISION OF ADMINISTRATIVE HEARINGS
3 SUGAR CANE GROWERS COOPERATIVE OF
FLORIDA, INC., ROTH FARMS, INC.,
4 and WEDGWORTH FARMS, INC.,
5 and
6 FLORIDA SUGAR CANE LEAGUE, INC.,
UNITED STATES SUGAR CORPORATION,
7 and NEW HOPE SOUTH, INC.,
8 and
9 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
ASSOCIATION, LEWIS POPE FARMS, 92-3039
10 W.E. SCHLECHTER & SONS, INC., and 92-3040
HUNDLEY FARMS, INC.,
11
Petitioners,
12
vs.
13
SOUTH FLORIDA WATER MANAGEMENT
14 DISTRICT,
15 Respondent,
16 and
17 MICCOSUKEE TRIBE OF INDIANS OF
FLORIDA, the UNITED STATES OF
18 AMERICA, FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION, and
19 FLORIDA WILDLIFE FEDERATION,
20 Intervenors.
. . . . . . . . . . . . . . . . . . . /
21
22
23 DEPOSITION OF MARLENE STERN
24 November 18, 1992
25
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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 18,
6 1992, commencing at 9:30 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
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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
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.
Assistant General Counsel
14 State of Florida
Department of Environmental Regulation
15 Twin Towers Office Building
2600 Blair Stone Road
16 Tallahassee, FL 32399-2400
17
18
19
20
21
22
23
24
25
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1 INDEX TO WITNESS
2 MARLENE STERN PAGE
3 Examination by Mr. Kobelinski 147
4 INDEX TO EXHIBITS
No. MARKED
5
11 148
6
12 184
7
13 191
8
14 198
9
15 202
10
16 204
11
17 206
12
18 223
13
19 227
14
20 231
15
21 233
16
22 237
17
23 238
18
24 245
19
25 248
20
26 251
21
27 256
22
28 259
23
29 278
24
30 283
25
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1 D E P O S I T I O N
2 Whereupon,
3 MARLENE STERN
4 was recalled as a witness, having been previously duly
5 sworn to speak the truth, the whole truth, and nothing but
6 the truth, was examined and testified as follows:
7 EXAMINATION (continued)
8 BY MR. KOBELINSKI:
9 Q Good morning, Ms. Stern, I will remind you that
10 you are still under oath.
11 Ms. Stern, have you, in your tenure with the
12 Department of Environmental Regulation been involved in the
13 permitting of freshwater wetlands use for wastewater
14 treatment?
15 A No.
16 Q Okay. Are you aware whether or not the wastewater
17 wetland rules have been applied to interim permit A?
18 A I am not aware if they have or not.
19 Q I will remind you that when we refer to interim
20 permit A as we did yesterday we are referring to the permit
21 that is the subject of the permit challenge currently
22 pending. Interim permit B, you had previously identified
23 yesterday as the other permit that was submitted by the
24 District related to the SWIM Plan, and then you have the
25 Corps permit that is currently pending relating to the
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1 S-10, S-11 and S-12's, correct?
2 A Right.
3 Q Do you know whether or not the wastewater wetland
4 rules are being applied to interim permit B?
5 A I don't know.
6 Q And the same question, do you know whether the
7 wastewater wetland rules are being to the Corps permit?
8 A I don't know.
9 Q Okay. When did you become involved in the
10 analysis or consideration of the interim permit A?
11 A I guess it was sometime close to when they
12 submitted the application in October of '91, probably a
13 little before that.
14 Q All right. Let me show you what's been marked as
15 Stern Exhibit 11.
16 (Whereupon, Exhibit No. 11 was marked for
17 identification.)
18 BY MR. KOBELINSKI:
19 Q And I ask whether or not you have ever seen this
20 document before?
21 A I am sure I must have seen it, but I don't really
22 remember, I don't remember it.
23 Q Okay. To your recollection are the people that
24 are on, referenced in this memo here, and I will just go
25 through the list -- Howard Rhodes, Mark Latch, Bart Bibler,
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1 Roxane Dow, yourself, Steve Brooker, Janet Llewellyn, Tom
2 Swihart, Frank Nearhoof, Doug Gilbert, Phil Coram, Mark
3 Bardolph, Bob Gough, Dan Thompson, David Crowley and Scott
4 Benyon -- is that the group of people from DER that were
5 assigned to the analysis of interim permit A?
6 A Initially that was the group.
7 Q Okay. Did that change at a certain point in time?
8 A Gradually, less people became involved, and I
9 guess a couple of people left the Department.
10 Q Could you go through this list, here, and explain
11 to me what were the responsibilities of the people that
12 were initially assigned to the analysis and consideration
13 of the interim permit A?
14 A Okay. Bart Bibler was, I guess, in the sense the
15 technical lead. He, I don't -- nobody had sort of titles
16 assigned to them or anything like that. He has a lot, he
17 had a lot of experience with the South Florida Water
18 Management District and the whole system down there, the
19 canals and the water control structures, that type of
20 thing. He is an engineer, and he understood a lot of the
21 history, he understand a lot of the hydrology, and he
22 understood a lot of the policy.
23 Roxane Dow, she was involved early on. I am not
24 entirely sure what her role specifically was. I think
25 she's, at that point she was the head of the Bureau of
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1 Surface Water Management, and she had also, my
2 understanding was she had also had some familiarity the
3 Everglades and some of our rules that would be involved in
4 reviewing, and so her opinion was sought, and her guidance
5 was sought, you know, just to make sure we were covering
6 all the bases, that's my impression.
7 Steve Brooker was just involved very briefly, very
8 early on. He didn't really review anything to my
9 knowledge.
10 Q What was his role at the outset, what was his
11 intended role?
12 A I am not entirely sure. I think, you know, he was
13 included, you know, in case something came up that might
14 pertain to him.
15 Q What would have pertained to him?
16 A Well, he was involved in a lot of interagency
17 review. His job at DER, before this review started was to
18 review all the documents that had come to the Department
19 through review, through the clearing house for review, and
20 that so it involved a lot of interagency coordination, and
21 he might have been involved to facilitate any type of
22 interagency coordination that was needed, that might be
23 needed -- or to keep, if documents were to come through the
24 clearing house for some reason, to be able to understand
25 those documents and review them. For example the Northeast
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1 Shark River Slough GDM came through the clearing house. So
2 you know, he would have known, he would have been the
3 person who it would have come to, and he would have known
4 how it fits in a little bit more, and he would have known
5 that there is a whole series of Everglades permits that are
6 in some way related to the Northeast Shark River Slough
7 project, so, he --
8 Q When did he drop out of the picture?
9 A Very early on. I don't know that he even reviewed
10 the first, the application when it came in.
11 Q Okay.
12 A I don't think he had any, he didn't have any
13 completeness summary questions.
14 Q Okay. Janet Llewellyn?
15 A Janet Llewellyn is the bureau chief for the Bureau
16 of Wetland Resource Management, and she is my supervisor --
17 well, not my immediate supervisor, but the supervisor of my
18 immediate supervisor. She's the head of the bureau that I
19 am in, and --
20 Q Currently in?
21 A Yes, the Bureau of Wetland Resource Management.
22 She, her role was mostly, I went to her for
23 guidance on how to handle certain situations basically.
24 She didn't sit in on any of the meetings, or very few of
25 the meetings, if any. She might have sat in on one or two,
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1 I don't remember offhand, but mostly I went to her if there
2 were something that, if I had to make a decision that I
3 wasn't sure, and I wasn't sure exactly what to do. And she
4 had to approve of course the specific conditions that, you
5 know, went into the permit with respect to the 403.918
6 review.
7 Tom Swihart is in the Bureau of Surface Water
8 Management.
9 Q Before you go on to that, just briefly, if you
10 recall yesterday, and I would refer you to what was marked
11 yesterday as Stern Exhibit No. 5, and that is the draft
12 permit.
13 A Uh-huh.
14 Q We had discussed the last sentence, the statement
15 that's contained, commencing on page 15 and continuing on
16 page 16, the statement that, "The Department deems that if
17 the project minimizes impacts to the maximum extent
18 practicable it meets the public interest test of Section
19 403.918(2)(a)?
20 A Uh-huh.
21 Q Do you know whether or not Ms. Llewellyn was
22 involved in that determination?
23 A It was not, I don't think she was involved in that
24 determination. She was involved in wording it once the
25 determination was made, is my impression.
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1 Q Okay. All right. If we could go back to Stern
2 Exhibit 11, and I believe you were about to start with
3 Mr. Swihart?
4 A Right. Okay, he is in the Bureau of Surface Water
5 Management. He is involved with writing our water quality
6 standards and reviewing them, and his, so he has a very
7 detailed knowledge of what our water quality standards are
8 the anti-dead rule, OFW considerations, that type thing.
9 So he was involved to make sure we were following all the
10 right standards, and he was involved in the evaluation to
11 an extent.
12 Q Evaluation of?
13 A Water quality concerns. The Division --
14 Q Before you go any further, you have mentioned with
15 regard to yourself and Ms. Llewellyn, the Bureau of Wetland
16 Resource Management?
17 A Uh-huh.
18 Q And I believe with Mr. Swihart you had mentioned
19 the Bureau of --
20 A Surface Water Management.
21 Q -- Surface Water Management. Are those particular
22 bureaus within the Division of Water Management?
23 A Uh-huh, yes.
24 Q And this was true as of September, 1991?
25 A I guess so, that's what this memo would indicate,
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1 they -- yes, yes, they are.
2 Q Okay.
3 A Although Roxane Dow is no longer the head of the
4 Bureau of Surface Water Management, so I don't know when
5 that happened.
6 Q All right. And Frank Nearhoof?
7 A Okay. Frank is in water facilities, Division of
8 Water Facilities, and he was very deeply involved in the
9 review of water quality data, and he represented, I think,
10 DER on the Sage Committee and the TOC, very involved in
11 Everglades issues.
12 Doug Gilbert was also involved in analysis of the
13 water quality data.
14 Phil Coram is one of those people who dropped out
15 very early on. I never entirely understand what his
16 purpose was, and I think maybe the same with Mark Bardolph,
17 Phil Coram, and Mark Bardolph. I think maybe it was
18 decided that they really weren't needed and that Frank and
19 Doug could handle what had to be done.
20 Q When you refer to Frank and Doug, you are speaking
21 of Frank Nearhoof and Doug Gilbert?
22 A Right, I mean they might have spoken with Phil
23 Coram and Mark Bardolph at various points in their
24 analysis, I don't know, but their continued interaction,
25 and coming to meetings, and receiving completeness
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1 summaries from me when we got them from the District, that
2 just stopped very early on.
3 Q Did you, you did receive, though, some
4 completeness summary analysis from Mr. Coram and Mr.
5 Bardolph?
6 A I don't think so at all.
7 Q Okay?
8 A But I mean I am saying Frank and Doug might have
9 discussed things with them, I have no idea. I don't really
10 know what their role was, I just know that they stopped
11 coming to meetings very early on, and I stopped copying
12 them on completeness summaries very early on.
13 Q Okay. What bureau or what bureau is Mr. Coram in?
14 A I don't know.
15 Q Okay. And what about Mr. Bardolph?
16 A I don't know.
17 Q Okay. Does their background differ from Mr.
18 Nearhoof and Gilbert?
19 A I don't know.
20 Q Okay. Next there would be Bob Gough?
21 A Yeah, Bob, both Bob and David Crowley, dropped out
22 as far as I know very early on. Bob, I believe had done
23 some work, some legal work pertaining to the Everglades,
24 but I am not sure.
25 I am not exactly sure why David Crowley was ever
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1 included in the first place, but like I said I think this
2 list is when the whole thing first started and there were
3 more, we wanted to make sure that everybody who should be
4 involved was involved so we overdid it at first, and those
5 people really didn't have any, as far as I know, any role
6 in the review.
7 Dan Thompson, well, he is the head of the office
8 of general counsel, and he, I guess he was not involved as
9 far as I know on a day-to-day review of things. He never
10 submitted any completeness summary questions, he didn't
11 come to the majority of our meetings that we had to discuss
12 completeness summary responses, and that type thing. When
13 it came down to drafting the permits and specific
14 conditions he became much more involved, he was always at
15 our meetings with the water management district when we
16 were discussing permit conditions.
17 MR. HETRICK: Excuse me one thing, do you have a
18 correct spelling of Bob Gough? -- G-o-u-g-h, not
19 G-o-f-f, just so we have the record clear.
20 BY MR. KOBELINSKI:
21 Q All right.
22 A And finally Scott Benyon, he is the head of the
23 southeast district office of DER. He was at the time this
24 memo was written. We copied him on everything because the
25 project was taking place in his district, and we wanted to
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1 make sure he was aware of what we were doing up here, and
2 we also wanted to know if he had any input, if he, so
3 whatever he had to say to us, whatever guidance he might
4 have to give us, we wanted to know. I never really got any
5 responses from him on completeness summaries, and he left
6 the Department sometime during the processing of this
7 permit, I am not exactly sure when.
8 Q Now, other than the people, well, one person we
9 have missed thus far initially, this memo was to Howard
10 Rhodes and Mark Latch, were they involved?
11 A Not directly.
12 Q When you say not directly, for instance what, if
13 any, role did Mr. Rhodes have?
14 A As far as I know he had no role. I didn't really
15 deal with him at all. He wasn't at our meetings. He was,
16 I don't know, up to this point, he, this is when he might
17 have been the assistant secretary to the Department, so
18 maybe Carol copied him for that reason, copied it to, you
19 know, sent him a copy for that reason.
20 Q Okay. And Mark Latch?
21 A Mark Latch at the division of division director
22 for the Division of Water Management, and as you can see
23 there are a number of people from the Division of Water
24 Management working on this project, so, and for the other
25 divisions, like, Richard Harvey is the head of the Division
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1 of Water Facilities, so he wasn't copied on the memo
2 directly because, you know, he is the subject of the memo I
3 guess basically. You could argue that he should be copied,
4 but he is the division director for water facilities and
5 obviously he knows what's going on because he is also the
6 project, he is the head of the project.
7 Q Okay. Well, I am going to get to Mr. Harvey in
8 just one moment, but with regard to Mr. Latch, I believe
9 you stated he was the head of the Division of Water
10 Management, did he have any role in the analysis or
11 consideration of the permit application?
12 A Not as far as I know. We kept him up-to-date on
13 what was going on.
14 Q All right. And then finally Richard Harvey?
15 A Like this memo said, well, he is in charge of all
16 permit reviews. He is the, I guess what I would call the
17 project manager for this application, this particular
18 project, and he was at all our meetings, discussed
19 completeness summary reviews, virtually all our meetings,
20 he was, I don't know how much he interacted with Frank and
21 Doug on the technical issues, but --
22 Q Would you get completeness summary reviews from
23 Mr. Harvey?
24 A No.
25 Q Okay. And if you didn't receive them, then he did
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1 not conduct them? I'm sorry.
2 Let me rephrase the question. Were you receiving
3 all the completeness summary reviews?
4 A Yes.
5 Q So if you didn't receive one from him, then in all
6 likelihood he did not prepare one that was included in the
7 completeness summary that was sent to the District is that
8 correct?
9 A That's correct. He could have added questions to
10 Frank's or Doug's completeness summary questions, but I
11 didn't get any from him directly.
12 Q Okay. In addition to the people that are listed
13 in this memo which is Stern Exhibit No. 11, were there any
14 other people that were involved or became involved during
15 the process of the permit consideration? You have
16 mentioned a few that for instance dropped out early on,
17 were there any replacements or was there anyone else that
18 did get involved?
19 A Not that I can recall offhand, certainly all the
20 key players are on this list.
21 Q Okay. Are all the people that submitted
22 completeness --
23 A Oh, there is one other person, sorry.
24 Q That being?
25 A Tim Smith.
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1 Q Okay. And what was Mr. Smith's role?
2 A Well, he was involved in reviewing the specific
3 conditions for the permits, the permit.
4 Q Did he attend the meetings?
5 A Towards the end when we are discussing specific
6 conditions and when we met, I think he came to the meetings
7 when we met with the water management district. It might,
8 no, it might just have been Dan.
9 Q Did he submit any completeness summaries to you?
10 A No.
11 Q Okay. Other than, again, the people on this list
12 and perhaps also Mr. Smith, was anyone else involved that
13 submitted completeness summaries to you?
14 A Not that I can recall.
15 Q Was anyone else involved that is not on this list
16 or in addition to that Mr. Smith that was involved in
17 drafting the draft permit --
18 A Well --
19 Q -- or any portion of it?
20 A Well, Tim was involved in reviewing --
21 Q Okay.
22 A -- and, to the extent that, I'm not exactly sure
23 what he did with Frank's and Doug's, he did editing.
24 Q My question was not, just so you understand, I am
25 not attempting to imply that all of these people were
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1 involved in drafting, I am asking was anyone other than the
2 people on this list and perhaps Mr. Smith involved in
3 drafting any portion of the draft permit?
4 In other words do we have, somewhere in this list
5 including Mr. Smith, everyone involved in the drafting of
6 the draft permit?
7 MR. SAXE: Objection to form.
8 THE WITNESS: I am not sure when you say drafting,
9 what you are considering as drafting.
10 BY MR. KOBELINSKI:
11 Q Okay. Well, who authored the draft permit?
12 A A lot of people.
13 Q Okay.
14 A I am not sure when you say authored, like, there
15 were a lot of people who had input into what the permit
16 should say, but they might not be the people who
17 necessarily wrote it down and put it into words. So I am
18 not sure.
19 Q Who had input as to what the draft permit should
20 say?
21 A Well, I think there were, I think everybody here
22 had input more, more or less, and Tim Smith I believe had
23 input in one way or another, and there might have been
24 other people in the office of the Secretary who had input.
25 I don't, I am not saying I know all the people who had
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1 input, necessarily.
2 Q Are you aware of anyone in the office of the
3 Secretary that had input?
4 A I think everyone that I am aware of we have
5 already discussed.
6 Q Okay. Did Ms. Browner have any input?
7 A Yes.
8 Q Okay. Did she have any responsibility with regard
9 to the application, other than of course being the head of
10 DER, I mean, affirmative responsibility such as what you
11 have listed for certain other people on this list?
12 A Well, I am not sure what you mean by affirmative.
13 Q Okay. Did she attend any meetings with the
14 District?
15 A None that I was at.
16 Q Okay. Did she attend any meetings with regard to
17 the permit that you were at?
18 A Yes.
19 Q Okay. Was she involved in the day-to-day affairs?
20 A No.
21 Q Okay. What exactly was her involvement?
22 A Well, we would, as far as I know we would go and
23 explain our status, where we were, and you know, say what
24 should we do at this point, we could do A, B or C, and she
25 would say, this is what I think you should do, and you
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1 know, so she was involved in making decisions, obviously.
2 She's the one who signed, well, I don't know. I think
3 she's the one who signed the intent, and usually it is not,
4 it is usually division director or a bureau chief who signs
5 intents to issue, it is usually not Carol, so --
6 Q Okay. Who else other than people on this list,
7 Tim Smith, Ms. Browner had input to your knowledge in what
8 the draft permit contained?
9 MR. HETRICK: I am going to object to that.
10 THE WITNESS: No one else that I can think of
11 right now.
12 BY MR. KOBELINSKI:
13 Q Who had responsibility for analysis of the design
14 of the STAs? Do you know what I mean by STA, stormwater
15 treatment area?
16 MR. SAXE: Objection to form.
17 THE WITNESS: Yes, I know what you mean by STA.
18 BY MR. KOBELINSKI:
19 Q Okay. Who had responsibility for analysis of the
20 STAs?
21 A Well, Frank Nearhoof and Doug Gilbert I believe
22 were involved to some extent. Also there is another person
23 who is not on the list, George Baragona I believe was
24 involved, and he had, was working with some consultants.
25 Q What was Mr. Baragona's responsibility in regard
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1 to the permit application?
2 A He is a hydrologist, I assume therefore he was
3 reviewing hydrology.
4 Q Who were the consultants that he was working with
5 on this?
6 A Post, Buckley, Shou and Jernigan.
7 Q Do you know who he work with at Post Buckley?
8 A No.
9 Q Okay. Did you work with Post Buckley with regard
10 to the permit application?
11 A No, I gave George two copies of everything,
12 though, one for him and one for Post Buckley. I shouldn't
13 say of everything, of completeness summary responses.
14 Q Would anyone from Post Buckley attend the meetings
15 related to the permit application?
16 A None of the meetings that I was at.
17 Q Okay. What meetings were you at related to the
18 permit application?
19 A Meetings where we discussed preparation of our
20 completeness summaries, meetings where we planned our
21 progress on drafting the permit, meetings where we updated
22 people on the status of the project, meetings with the
23 water management district when we were discussing
24 conditions, that's about it.
25 MR. KOBELINSKI: Can you read back that answer?
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1 (Whereupon, the court reporter read the requested
2 portion of the record.)
3 BY MR. KOBELINSKI:
4 Q To your knowledge did you attend all the meetings
5 with the water management district related to the permit
6 application?
7 A To my knowledge I did not attend all the meetings
8 with the water management district related to the permit
9 application.
10 Q Were there certain types of meetings with the
11 District that you did not attend?
12 A The, I know that Frank, for example, would fly
13 down to West Palm very often to meet with the water
14 management district because he was on the Sage Committee,
15 he was on the TOC and, you know, I don't know what else he
16 met with them on, and I believe there were, you know, a
17 number of meetings between people in the Department and the
18 water management district to discuss various aspects of
19 this project. I don't, I just, I don't think by any means
20 I was in on all the meetings with the water management
21 district pertaining to this project.
22 Q Approximately how many meetings did you attend
23 with the water management district related to the permit
24 application?
25 A Three, I think.
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1 Q Who was involved with the, well, who at the water
2 management district attended the meetings that you were at?
3 A Okay. That's a lot of people, I can't remember
4 them all. Let's see, Gary Goforth who was the project
5 manager there I believe, he was at them all. At a couple
6 of them we had Larry Fink who is a biologist, Ron
7 Bearzotti. We had another biologist at one of them named
8 Susan -- I don't remember her last name, uh --
9 Q That would be Susan Newman?
10 A Right, yes.
11 Q Okay.
12 A Glen Miller, Ron Brown, Tom MacVicar, Irene
13 Quincy. That's all I can think of right now.
14 Q Okay. Did Paul Whalen ever attend any of the
15 meetings?
16 A That doesn't sound familiar.
17 Q Okay. Other than the people you have just
18 mentioned, do you recall anyone else from the District
19 being involved in the permit application what you dealt
20 with?
21 A I don't recall any other people right now.
22 Q Okay. Do you recall any other people from the
23 District that were involved in the permit application that
24 you did not work with?
25 A I can't recall any other such people right now.
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1 Q Drawing your attention to the draft permit which
2 is Stern Exhibit No. 5, and commencing with the Intent to
3 Issue which is the second page of that exhibit, if you
4 could go through to the best of your knowledge and tell me
5 who were the primary authors of each section of this permit
6 and the Intent to Issue.
7 A Who are the primary authors?
8 MR. HETRICK: Counsel, do you want to go through
9 paragraph by paragraph, is that your idea?
10 MR. KOBELINSKI: If that's the best way to do it.
11 BY MR. KOBELINSKI:
12 Q Would a that be the best way to do it, Ms. Stern?
13 A Well, okay, a lot of this is canned language.
14 BY MR. KOBELINSKI:
15 Q Okay. If you can identify the canned language,
16 and --
17 A Okay, I think we can could do this pretty quickly.
18 A lot of it is canned, but it is difficult to say who are
19 the authors in some cases.
20 Q To the best of your knowledge.
21 A But when there are so many people involved, it's
22 like everybody has input, it is not, but, I will tell you
23 everybody who I think has input, but actually, okay. The
24 first, that's canned.
25 Q We are referring to the first paragraph on our
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1 Intent to Issue?
2 A Okay. The second paragraph we have a description
3 of the project, which I helped draft, Frank helped draft,
4 probably several other people helped draft, too. Probably,
5 you know, it was edited and people probably made changes on
6 up the line.
7 Q Paragraph commencing "The project site --"?
8 A Okay. On page two, this is, it explains the
9 location of the project. I helped draft it, Frank helped
10 draft it, and probably a number of people edited it between
11 us and the final version.
12 Q Okay.
13 A The next paragraph it starts, "The specific
14 conditions --" okay. That's canned except for the word,
15 "the ACT", basically. There were revisions to the canned.
16 I believe either Tim or Dan went through and put in the
17 proper legal citations to the canned language.
18 Q Okay.
19 A Okay. The paragraph that starts, "The applicant
20 has provided --" I believe that's canned except for any
21 references to statutes or rules.
22 Q Would the next paragraph commencing with,
23 "Pursuant to DER rule --" through and including all of page
24 five essentially be canned language?
25 MR. HETRICK: Objection to the form.
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1 BY MR. KOBELINSKI:
2 Q Okay. Let's go back, commencing with the next
3 paragraph, "The applicant --"
4 (Discussion off the record.)
5 THE WITNESS: I am --
6 BY MR. KOBELINSKI:
7 Q Go on?
8 A I am just rereading it to make sure that
9 everything in here is canned, and if there is some sentence
10 that's changed or something, I was going to point it out,
11 but it looks to me like it's all canned except there might
12 have been some of the rule references changed.
13 Q Okay. That's through page five of the Intent to
14 Issue?
15 A Uh-huh.
16 Q Okay. Drawing your attention then to what is the
17 11th page of the exhibit which at the top commences "State
18 of Florida, Department of Environmental Regulation notice
19 of Intent to Issue permit."
20 A Yes.
21 Q If you could again recommence your analysis?
22 A Okay. This is standard form, and, except for the
23 part that describes exactly what the project is and where
24 the project is located, and maybe any references that had
25 to be changed to laws because it is under the Douglas Act,
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1 not 403 specifically, it is all canned.
2 MR. SAXE: One moment, counsel, where are we in
3 this exhibit?
4 MR. KOBELINSKI: This is on I believe it was the
5 11th page, but the page starts the State of Fl --
6 MR. SAXE: Does it say --
7 MR. KOBELINSKI: -- yes, the 11th page of the
8 document, which starts with "The State of Florida,
9 Department of Environmental Regulation notice of Intent
10 to Issue permit."
11 MR. SAXE: Could I see yours, please? Okay.
12 Thank you.
13 BY MR. KOBELINSKI:
14 Q And your testimony there with regard to what you
15 just discussed was that that page and the following page
16 which is approximately a half a page, is that correct?
17 A Right.
18 Q All right. Going then on to the page there on top
19 commence with "Draft", underneath that it says "Draft
20 Permit 502029339, page 1," again if you could start there
21 and proceed forward with the same analysis.
22 A Okay.
23 Q Before you do that, no, never mind. Please
24 proceed forward.
25 A Okay. The information at the top of the page is
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1 different for every project. It states the permit
2 applicant, type of permit, the date we received the
3 application. We include this information for every permit,
4 but obviously it is different for every permit.
5 The permit description is a section that we
6 usually don't include in draft permits, but because this is
7 such an unusual type of permit this language was put in for
8 clarification, to explain exactly what type of permit we're
9 issuing.
10 Q Okay. And who had, who participated in the
11 drafting of this permit description section which is
12 contained on page one of the draft permit, page two, and
13 page two of the draft permit?
14 A I am not sure.
15 Q You did not participate in the drafting of this
16 section?
17 A No.
18 Q Okay. Turning then to what is marked as page
19 three, the draft permit, which commences with "Project
20 Description."
21 A This is the same, virtually the same project
22 description that was in the Intent to Issue, and we have a
23 project description section in every draft permit, just
24 describes in general terms what the project is, and I guess
25 I wrote part of it, Frank wrote part of it, and it was
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1 edited I am sure by a number of other people. The same
2 goes for the "Location" section, which is the bottom
3 paragraph on page three.
4 On to page four, the first specific condition,
5 these are definitions, and I believe Frank wrote the
6 original version, but they were edited by a lot of people.
7 I am not entirely sure who was directly involved.
8 Q Okay. Did you draft any portion of the
9 definitions?
10 A I think I gave, I might have given Frank a rough
11 draft of what definitions I thought should be included, and
12 then he changed it, and from then on I don't know exactly
13 who had their hands in it.
14 Q Turning then to page six at the bottom of the page
15 where, paragraph number two?
16 A Uh-huh. This condition, as with a number of the
17 conditions that follow, were as far as I can tell drafted
18 by committee. I was not involved in drafting specific
19 condition number two. There are just a lot of people who
20 reviewed them, and I am sure made changes, gave guidance,
21 and I was not, I was not directly involved in the creation
22 or drafting or whatever of specific condition number two.
23 Q Would you be able to identify who had primary
24 authority for that condition or primary responsibility for
25 the drafting of that condition?
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1 A I am not sure.
2 Q Okay. I believe that proceeds all the way through
3 page seven and the top part of page eight, proceeding
4 forward then on page eight with condition number three.
5 A Okay. I mean, what I can tell you about these
6 conditions is that they were from, you know, they were
7 prepared by the water facilities part of the review, so
8 they are, generally speaking, water facilities conditions.
9 Q Okay.
10 A Although I don't know if Bart was, you know, how
11 involved Bart was in preparing them.
12 Q Okay.
13 A Bart might have been involved in it too.
14 Q And you are referring to Bart Bibler?
15 A Uh-huh.
16 Q Okay.
17 A Okay. Number three, specific condition number
18 three, what I said about two still applies.
19 Q To your knowledge did Mr. Nearhoof have input into
20 specific condition number three?
21 A Probably.
22 Q Do you know?
23 A No, not 100 percent.
24 Q Okay. Is there anyone that you do know had, you
25 actually have knowledge that had input into this section
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1 that's condition number three?
2 A No, I would get drafts of these, and just because
3 I got a draft from someone doesn't mean that that's who
4 wrote the condition, so I can't really say who wrote these
5 conditions.
6 Q Okay.
7 A You know, specifically with 100 percent certainty.
8 Q Well, to the best of your knowledge do you know
9 anyone who participated in the drafting of condition number
10 three?
11 A To the best of my knowledge it came from the water
12 facilities side of the review, and Bart Bibler might have
13 been involved also.
14 Q With regard to water facilities side, are you
15 referring primarily to Frank Nearhoof and Doug Gilbert?
16 A I don't know primarily. I would imagine they were
17 involved to some extent.
18 Q Okay.
19 A You know.
20 Q All right. And does that testimony hold true for
21 all the subparagraphs, alphabetical subparagraphs of
22 condition number three?
23 A Uh-huh.
24 Q Turning then to page 12 which commences with
25 condition number four, who was involved in the drafting of
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1 this section?
2 A The same as what I said for number three and four,
3 number five.
4 Q In other words number four, you again, you do not
5 really know who was involved? It was primarily a
6 committee, but you are not aware who the members of that
7 committee were?
8 A Well, I am not saying it was formally organized as
9 a committee. I think that there are probably a lot of,
10 well --
11 MR. SAXE: Objection as to form.
12 THE WITNESS: -- a number of people, I would
13 imagine it was more than one specific person who was
14 writing these and having input.
15 BY MR. KOBELINSKI:
16 Q Right. But you are not aware of what people had
17 input with regard to condition number four, is that
18 correct?
19 MR. SAXE: Objection as to form.
20 THE WITNESS: I was not present when these
21 specific conditions were drafted. I was given drafts
22 of these to include into the permit, to give to our
23 word processors to include into the permit.
24 BY MR. KOBELINSKI:
25 Q Do you recall who gave you the draft of condition
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1 number four?
2 A Not specifically.
3 Q Okay. Turning then to page 13 at the bottom of
4 the page where it commences with condition number five, who
5 was involved in the drafting of this section?
6 A The same thing, how about if I just say not me, I
7 was not involved in the drafting of this section, I was
8 given a draft, I was given drafts periodically of this
9 section as it changed.
10 Q With regard to condition five you are not aware of
11 what people had input in the drafting of this section?
12 MR. SAXE: Objection as to form.
13 THE WITNESS: Not specifically.
14 MR. SAXE: One moment, we seem to be missing the
15 rest of Exhibit 5, pages.
16 MR. KOBELINSKI: I don't have a copy of that.
17 Where do you end?
18 MR. HETRICK: 14.
19 MR. KOBELINSKI: That's what we need to find,
20 because this is the original, we had it yesterday, we
21 were actually referring to the pages after this.
22 MR. HETRICK: The staple just came out. There is
23 the rest of it.
24 MR. KOBELINSKI: All right.
25 BY MR. KOBELINSKI:
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1 Q Turning then to page 15, condition number six.
2 Who was involved in the drafting of this condition?
3 A I don't know specifically.
4 Q Okay. Condition seven at the bottom of page 15
5 and following on to the, next page 16?
6 A Okay. This is specific condition number seven.
7 It is a wetland condition. There were, I would say in
8 terms of actually putting the words on paper; myself, Doug
9 Fry and Janet Llewellyn were involved. In terms of
10 guidance on what to put on paper, we received guidance from
11 the Office of the Secretary, and we also, you know,
12 explained what we felt, you know, had to be put on paper.
13 Q With regard to Mr. Fry, what role, if any, did he
14 have in relation to the permit application?
15 A Doug Fry is my direct supervisor. He reviewed my
16 work directly. He is no longer my supervisor, my direct
17 supervisor. His involvement was pretty minimal.
18 Q Did he attend any of the meetings related to the
19 permit application?
20 A Maybe one or two, we were discussing completeness
21 summaries, but I think, I know he was at least one.
22 Q Okay. Did he submit any completeness summaries?
23 A No, he didn't submit any completeness summary
24 questions.
25 Q Okay. Other than reviewing your work did he have
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1 any other role in the permit application?
2 A No.
3 Q Okay. With regard to condition number seven, you
4 had mentioned yourself, Doug Fry and Janet Llewellyn, was
5 there any one else that had, involved in the drafting of
6 this section?
7 A Well, this went through, like, here again when we
8 get, when we start to use the word drafting, I am not sure
9 what you mean, but we received guidance like I said from
10 the Office of the Secretary. Everything went through that
11 office, and so to a certain extent there were a lot of,
12 well, more than just us three who had input into what this
13 specific condition said, to the content and to the form.
14 Q Turning then to page 16 in which I see the second
15 half of the page commencing with condition number eight,
16 who were the primary authors of this section?
17 A This section was written in much the same way that
18 specific condition number seven was written.
19 Q Anyone else other than the people you have
20 mentioned with regard to condition number seven?
21 MR. SAXE: Objection as to form.
22 THE WITNESS: No one else.
23 BY MR. KOBELINSKI:
24 Q Turning then to page 17, at the bottom of the page
25 where it commences with condition number nine which follows
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1 on to pages 18, 19, 20, 21 and 22 --
2 MR. SAXE: Objection as to form, what is the
3 question?
4 BY MR. KOBELINSKI:
5 Q Same question we have been doing throughout this,
6 who were the drafters of this section?
7 MR. SAXE: Objection as to form.
8 THE WITNESS: This, this is a little bit
9 different. This section contains information that we
10 are going to need for, specifically for the 403 review.
11 I wrote most of what was needed, and it was edited by
12 Doug and Janet and the Office of the Secretary.
13 BY MR. KOBELINSKI:
14 Q That's Doug Fry and Janet Llewellyn?
15 A Uh-huh.
16 Q Do you know who within the Office of the
17 Secretary?
18 A I know at one point Tim edited it. I am not sure
19 if anybody else did or not.
20 Q Okay. Turning then to page 23 at the top of the
21 page, condition 10, who drafted this section?
22 A This is canned language. It is a condition we put
23 in all wetland permits.
24 Q Second half of the page 23, condition number 11,
25 follows on to page 24?
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1 MR. SAXE: Objection as to form.
2 THE WITNESS: This is, I didn't right this
3 specific condition, and I don't know specifically who
4 did.
5 BY MR. KOBELINSKI:
6 Q Turning to page 24, middle of that page with
7 regard to condition 12, who drafted that condition?
8 A I don't know specifically who drafted it.
9 Q At the bottom of that page 24, condition number 13
10 which follows on to page 25 and 26, who drafted that
11 section?
12 A I didn't.
13 Q Do you know who did?
14 A Not specifically.
15 Q Okay. Turning to page 26, middle of that page
16 states condition number 14 "Research", follows on to page
17 27 and into page 28, who drafted that condition?
18 A Specifically, I don't know.
19 Q Are you aware of anyone who had input into that
20 section?
21 A The water facilities people, the water facilities
22 group.
23 Q Would that include Frank Nearhoof and
24 Doug Gilbert?
25 A Yes.
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1 MR. SAXE: Objection as to form.
2 THE WITNESS: The water facilities group includes
3 those people.
4 BY MR. KOBELINSKI:
5 Q Are you aware whether or not Mr. Nearhoof and Mr.
6 Gilbert had input into this condition 14?
7 A I don't remember specifically.
8 Q Turning then to page 28, at the top half of the
9 page where it lists condition 15, who was responsible for
10 drafting this section?
11 A I don't know.
12 Q Following that on page 28, condition 16, who
13 drafted this section?
14 A I don't know.
15 Q Following down on the same page, condition 17, who
16 drafted this section? Condition 17 follows on into page 29
17 also.
18 A It is, I don't know specifically who drafted it.
19 Q Okay. Turning then to page 29, the upper portion
20 of that page, condition 18, who drafted this section?
21 A I think Bart had a lot to do with this specific
22 condition, but I don't think he was the only one.
23 Q Do you know who else?
24 A Not specifically, no.
25 Q Okay. The bottom half of page 29 lists condition
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1 19 which follows on to page 30, who drafted this condition?
2 A I don't know specifically.
3 Q And turning to page 30 at the bottom half of page
4 30 which contains condition 20, do you know who drafted
5 this condition?
6 A No, I don't know who drafted this condition.
7 Q Turning then to page 31 which contains condition
8 number 21, are you aware who drafted this condition?
9 A No.
10 Q And the bottom half of page 31, condition 22, are
11 you aware of who drafted this condition?
12 A This condition comes from the Marjory Stoneman
13 Douglas Act. I believe.
14 Q Okay. Are you aware who authored it, not the
15 Marjory Stoneman Douglas Act, but condition 22?
16 A I think it is probably pretty much verbatim. I
17 don't know.
18 Q Okay. And is that the final condition of the
19 permit --
20 A Yes.
21 Q -- draft permit? Are there any other portions of
22 the permit that we have not covered to your knowledge?
23 A No.
24 Q Did the Department receive comments regarding the
25 permit application from anyone outside of the District and
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1 internally within the Department?
2 A Can you say that again?
3 Q Did the Department receive comments with regard to
4 the permit application from anyone other than the District
5 or people within the Department?
6 A As far as I am aware early on we got some
7 communication from the Department of Justice, the U.S.
8 Department of Justice, and I don't remember if any other
9 agencies commented.
10 Q Okay. Were you involved in responding to the
11 Department of Justice comments?
12 A No.
13 Q Okay. Were you involved in analysis of the
14 Department of Justice comments if there was any?
15 A No.
16 Q Who was involved in that?
17 A I don't know.
18 Q As part of the permit application was an analysis
19 done regarding the phosphorous limitations set forth in the
20 permit application?
21 A I wasn't involved in any nutrient analysis, and I
22 don't really, I don't think I can answer that question.
23 Q Okay. Do you know who was involved in an analysis
24 of the nutrient limitations, or nutrient --
25 MR. SAXE: Objection as to form.
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1 BY MR. KOBELINSKI:
2 Q -- concentrations?
3 A Frank and Doug I know for sure were.
4 Q Okay. Anyone else?
5 A Not that I can think of right now, that I am sure
6 of.
7 MR. KOBELINSKI: Want to take a quick break?
8 (Brief recess.)
9 BY MR. KOBELINSKI:
10 Q Ms. Stern, showing you what's been marked as Stern
11 Exhibit 12 -- Off the record.
12 (Discussion off the record.)
13 BY MR. KOBELINSKI:
14 Q I ask you to take a look at this document and let
15 me know whether or not you have ever seen it before?
16 A Yes, I have seen this.
17 Q Okay.
18 (Whereupon, Exhibit No. 12 was marked for
19 identification.)
20 BY MR. KOBELINSKI:
21 Q Okay. Were you at a September 30 meeting with
22 Richard Harvey and Frank Nearhoof and others discussing the
23 permit application?
24 MR. SAXE: Objection as to form.
25 THE WITNESS: I don't remember specifically.
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1 BY MR. KOBELINSKI:
2 Q Okay. Do you recall a meeting in approximately
3 September or October of 1991 where at the meaning of
4 reasonable assurance as stated in Marjory Stoneman Douglas
5 Act was discussed?
6 A I don't remember being at a meeting in that time
7 period where reasonable assurance of the Marjory Stoneman
8 Douglas Act was discussed.
9 Q Do you recall any meetings wherein the meaning of
10 reasonable assurance as set forth in the Marjory Stoneman
11 Douglas Act was discussed?
12 A Well, I had our understanding of reasonable
13 assurance in the Marjory Stoneman Douglas Act explained to
14 me, but I wouldn't call it a meeting.
15 Q Okay. And when was that explained to you? Is
16 this in reference to your testimony yesterday of June or
17 July of 1992?
18 MR. SAXE: Objection as to the form.
19 THE WITNESS: Yes, it was back in that time
20 period of 1992.
21 BY MR. KOBELINSKI:
22 Q Okay. Prior to the June, July, 1992, time frame
23 were you, did you have an understanding as to what the
24 reasonable assurance under the Marjory Stoneman Douglas Act
25 meant?
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1 A No, not really. And not as pertains to my area
2 wetlands.
3 Q Drawing your attention to the fourth page of this
4 document, the first full paragraph, which states, "Terms of
5 the settlement agreement call for a reduction in the
6 pollutant loading rate to the conservation areas on the
7 order of 80 percent. To accomplish that reduction a
8 technology-based approach was proposed which consisted of a
9 combination of BMP implementation in the EAA in
10 construction and operation of stormwater treatment areas.
11 If the permit applications from the water management
12 district reflect that approach, the Department will be
13 satisfied that adequate reasonable assurances have been
14 provided."
15 Do you recall that being the position of the
16 Department in October of 1991?
17 MR. HETRICK: Object to the form of the question.
18 THE WITNESS: That's, well, that's what this memo
19 says, and I remember receiving this memo, so --
20 BY MR. KOBELINSKI:
21 Q Okay?
22 A -- I guess that's my response.
23 Q Was it your understanding that so long as a permit
24 application followed the terms of the settlement agreement
25 that that constituted reasonable assurance required by the
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1 Marjory Stoneman Douglas Act?
2 MR. HETRICK: Object to the form of the question.
3 THE WITNESS: My understanding at this point is
4 that this is part of what is needed for reasonable
5 assurance under the Marjory Stoneman Douglas Act.
6 BY MR. KOBELINSKI:
7 Q Okay. Were you provided with a copy of the
8 settlement agreement?
9 A Yes.
10 Q Okay. When were you provided with a copy of the
11 settlement agreement?
12 A I don't remember, back in the beginning of this
13 whole thing, back in, you know, September, October of 1991.
14 Q Why were you provided with a copy of the
15 settlement agreement?
16 A Just so I could be familiar with the history of
17 these permits that we were getting.
18 MR. HETRICK: Let me go on the record right now as
19 objecting to any questions in terms of relevancy about
20 the settlement agreement that you may ask.
21 MR. SAXE: The objection also from the United
22 States on the same grounds.
23 BY MR. KOBELINSKI:
24 Q Okay. Who provided you with a copy of the
25 settlement agreement?
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