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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 144 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 145 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 146 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 147 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 148 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 149 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 150 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 151 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 152 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 153 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 154 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 155 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 156 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 157 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 158 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 159 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 160 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 161 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 162 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 163 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 164 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 165 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 166 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 167 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 168 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 169 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 170 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 171 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 172 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 173 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 174 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 175 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 176 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 177 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 178 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 179 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 180 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 181 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 182 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 183 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 184 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 185 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 186 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 187 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 188 1 A I don't remember specifically. 2 Q Okay. Other than compliance with the terms of the 3 settlement agreement, what else was required by the 4 Department in order to satisfy the reasonable assurance in 5 the Marjory Stoneman Douglas Act? 6 MR. SAXE: Objection as to form. 7 THE WITNESS: My understanding is that there is 8 also a time component involved in the Marjory Stoneman 9 Douglas Act in that it is the responsibility of the 10 Department to make sure that the District proceeds in a 11 timely fashion in conducting the work they need to do 12 to, in conducting the work they need to do, for 13 example, spelled out in our permit, the interim A 14 permit application; and so that not, not only is it 15 enough to say what they are going to do, we have to say 16 that they are going to do it within certain time frames 17 that we consider reasonable. 18 BY MR. KOBELINSKI: 19 Q Did the settlement agreement impact your analysis 20 of the permit application? 21 MR. SAXE: Objection and off the record, please. 22 MR. KOBELINSKI: I am not willing to go off the 23 record in the middle of a question. If you would like 24 to say something on the record about your objection, 25 feel free to do so. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 189 1 MR. HETRICK: I will object to that question, too. 2 MR. SAXE: There was discussion yesterday 3 concerning the scope of testimony that would be 4 contemplated before instructions to the witness -- 5 MR. KOBELINSKI: Are you instructing the witness 6 not to answer? 7 MR. SAXE: I am addressing you, counselor. 8 MR. KOBELINSKI: It is an objection? 9 MR. SAXE: Counsel, this is an objection. I have 10 invited you to go off the record, if you want this on 11 the record -- 12 MR. KOBELINSKI: I would love it. 13 MR. SAXE: -- I am going to my finish colloquy. 14 MR. KOBELINSKI: Is it a colloquy or is it an 15 objection? If it is an objection, please state the 16 grounds and we can proceed with the witness's 17 response. What is the basis of your objection? 18 MR. SAXE: I am going to ask for a counsel 19 conference. I am going to ask for a break. 20 MR. KOBELINSKI: I am not willing to go off the 21 record. 22 MR. SAXE: You can stay on the record, but I am 23 asking for a counsel conference. 24 MR. KOBELINSKI: Not while the question is 25 pending. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 190 1 Please read back the question. 2 (Whereupon, the court reporter read the pending 3 question.) 4 MR. HETRICK: I object to the question, and 5 instruct the witness not to answer. 6 MR. SAXE: Off the record, counsel, if we can 7 take a brief recess we can perhaps move through this 8 and get clarification on the scope of testimony that's 9 contemplated concerning the settlement agreement. You 10 are not getting what you are looking for. Do you think 11 it would be worth a five-minute break to see if we can 12 resolve the obstacle? 13 MR. KOBELINSKI: What exactly, no, let's do it on 14 the record. It doesn't hurt to have it on the record. 15 Go ahead. 16 MR. SAXE: We had an understanding among counsel 17 yesterday concerning the scope of questioning on the 18 settlement agreement, and I believe that at this point 19 your questioning departs from that agreement. 20 MR. KOBELINSKI: I did not agree to anything. As 21 I recall yesterday after Mr. Smith interrupted the 22 deposition and spoke with Mr. Hetrick, that afterwards 23 Mr. Hetrick made a statement, and I believe you also 24 contained a continuing objection, but I do not recall 25 any agreement of counsel. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 191 1 I certainly have not agreed to any limitation to 2 my ability to question this witness, so if you are in 3 agreement with Mr. Hetrick that does not impact my 4 questioning of this witness. 5 MR. HETRICK: What was your understanding? 6 MR. SAXE: I am satisfied for purposes of being 7 on the record, if you want to proceed with this line of 8 questioning, I think that it is not going to be 9 productive much. 10 BY MR. KOBELINSKI: 11 Q Ms. Stern, what portion, of the settlement 12 agreement, if any, impacted your analysis of the permit 13 application? 14 MR. SAXE: Objection. 15 MR. HETRICK: I am going to object because we 16 don't have the settlement agreement in front of us. 17 BY MR. KOBELINSKI: 18 Q You may answer the question. 19 A Okay. It didn't affect my evaluation of the 20 application. 21 Q Okay. 22 (Whereupon, Exhibit No. 13 was marked for 23 identification.) 24 BY MR. KOBELINSKI: 25 Q Ms. Stern, showing you what's been marked as Stern A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 192 1 Exhibit No. 13, I ask whether or not you have ever seen 2 that document before? 3 A Yes. 4 Q I believe yesterday you mentioned that you had a 5 copy of the settlement agreement in your files? 6 A Yes. 7 Q Okay. What is Exhibit No. 13? 8 A It is the settlement agreement. 9 Q Okay. With regard to the settlement agreement 10 that you have in your files, are there any additional, are 11 there any handwritten notes or have you made any notations 12 on that settlement agreement, your copy? 13 A I think there are probably some things 14 highlighted, some things underlined. 15 Q Okay. With regard to the highlighted portions and 16 underlined portions were those done by you? 17 A They were done, I don't remember. I was reading 18 over it with another person, and we were highlighting 19 things basically as we went along. I don't remember who 20 was holding the highlighter. 21 Q Who was the other person you were going over it 22 with? 23 A Doug Gilbert. 24 MR. HETRICK: Counsel. 25 MR. KOBELINSKI: Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 193 1 MR. HETRICK: Before you get into this too much I 2 am going to rescind my objection on the record as far 3 as your previous question that I instructed the witness 4 not to answer. 5 MR. KOBELINSKI: Is this going to happen often? 6 MR. HETRICK: No. 7 MR. KOBELINSKI: Okay. Because it does interrupt 8 the flow of the testimony. 9 MR. HETRICK: That's fine. But I wanted you to 10 know right from the start. 11 MR. KOBELINSKI: Are you going to continue to 12 instruct the witness not to respond to questions about 13 any settlement? 14 MR. HETRICK: It depends on the type of the 15 question. 16 MR. KOBELINSKI: Okay. Could you go back and find 17 that? 18 (Whereupon, the court reporter read the requested 19 portion of the record.) 20 BY MR. KOBELINSKI: 21 Q Could you respond to that question? 22 A That question? 23 MR. HETRICK: Yes. 24 THE WITNESS: The question did the settlement 25 agreement affect -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 194 1 MR. KOBELINSKI: Would you read it once more? 2 (Whereupon, the court reporter read the requested 3 portion of the record.) 4 THE WITNESS: No, I didn't consider the 5 settlement agreement when I was drafting the specific 6 conditions, the wetland specific conditions, but also 7 I would like to add one other thing about the question 8 about highlighting, how Doug Gilbert and I were reading 9 through the agreement and highlighting things. 10 When we were doing that we were doing it to answer 11 some questions about the Corps application, not interim 12 application A, so -- 13 BY MR. KOBELINSKI: 14 Q Did you review the settlement agreement with 15 regard to interim permit application B? 16 A No. 17 Q Were you involved at all in the negotiation of the 18 settlement agreement? 19 A No. 20 Q Do you know what the purpose of keeping the 21 settlement negotiations secret was? 22 MR. HETRICK: Objection to form. 23 MR. SAXE: Objection as to form. 24 THE WITNESS: No, I wasn't aware that they were 25 kept secret. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 195 1 BY MR. KOBELINSKI: 2 Q Were you aware that the settlement negotiations 3 were occurring during the time that they were being 4 conducted? 5 MR. HETRICK: Object to the form. 6 THE WITNESS: No, I don't know when it was 7 written. The first I heard of settlement agreement was 8 before, a short time before we actually received the 9 permit applications, so unless it was being drafted 10 then, which I don't think it was, I was not aware of 11 when it was being written. 12 Well, I know it was being written, well, I 13 shouldn't say that. I don't know exactly when it was 14 being written. 15 BY MR. KOBELINSKI: 16 Q Did you have to your knowledge any input into the 17 terms of the settlement agreement? 18 A I am sure I had no input into the terms of the 19 settlement agreement. 20 Q Is it normal for a settlement agreement reached in 21 litigation to control the terms of a permit application? 22 MR. HETRICK: Objection as to form. 23 MR. SAXE: Objection as to form. 24 THE WITNESS: No. It, could you say that again? I 25 am sorry, I am not sure I answered the right -- I am A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 196 1 not sure I understood your question properly before I 2 answered it. 3 BY MR. KOBELINSKI: 4 Q Okay. Let me rephrase the question. 5 A I mean normally we don't have settlement 6 agreements associated with permits. 7 Q Okay. So this was an unusual case? 8 A Yes. 9 Q Is this the only case where you had a settlement 10 agreement associated with the permit? 11 A That I know of that, for any permit that I, 12 myself, have handled. 13 Q Okay. Did you compare the terms of the settlement 14 agreement with interim application A? 15 A No. 16 Q Are you aware of whether or not anyone else did? 17 A No. 18 Q Okay. Do you know whether or not the terms of 19 interim application A are in accord with the settlement 20 agreement? 21 A Not specifically. 22 Q Was anyone assigned the responsibility of 23 determining whether or not the permit application complied 24 with the settlement agreement? 25 A Not as far as I know. My understanding is that, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 197 1 well -- 2 Q What's your understanding? 3 A I don't know if anybody went back and compared our 4 permit with the settlement agreement. 5 Q Okay. Do you recall when was the first time you 6 received a draft of the permit application A? 7 A Well, I know we got the application in October of 8 '91, and I can't remember if we received a rough draft 9 before that or not to give some preliminary comments so 10 that they could make their application more complete. I 11 don't know. I don't know if there was a pre-app where they 12 gave us a draft or not. 13 Q Is having a pre-application, being provided with a 14 pre-application draft a normal practice? 15 A Yes. 16 Q Were you involved in any type of review of a 17 pre-application draft? 18 A I don't remember. It is possible, but I just 19 don't remember. 20 Q Do you recall whether or not you had any comments 21 with regard to a pre-application draft of the permit 22 application A? 23 A I don't remember. 24 Q Do you have in your files any document that would 25 reflect whether or not you had made any comments on it, on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 198 1 a pre-application draft of permit application A? 2 A I don't remember. 3 Q Were you involved at all in compiling comments on 4 any pre-application draft of permit application A? 5 A I don't remember. I just don't remember if we did 6 any kind of pre-app or not. 7 (Whereupon, Exhibit No. 14 was marked for 8 identification.) 9 BY MR. KOBELINSKI: 10 Q Showing you, Ms. Stern, what has been marked as 11 Stern Exhibit No. 14, I ask you to take a look at this 12 document and tell me whether or not you have ever seen this 13 document before. 14 MR. SAXE: Did we skip Exhibit No. 13? 15 MR. HETRICK: No, that's the settlement agreement. 16 MR. SAXE: Thank you. 17 THE WITNESS: Yes, I have seen this document. 18 BY MR. KOBELINSKI: 19 Q Okay. Drawing your attention to the first page of 20 this document, the last paragraph, which starts with the 21 sentence, "These projects will be evaluated using criteria 22 set forth in the Marjory Stoneman Douglas Act." Were 23 interim, was interim permit A evaluated using criteria out 24 of the Marjory Stoneman Douglas Act? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 199 1 Q Was it also evaluated using the criteria of 2 Florida Statute 403? 3 A Yes. 4 Q Okay. Was the permit issued under the Marjory 5 Stoneman Douglas Act? 6 A Yes. 7 Q Was it also issued under Chapter 403? 8 MR. SAXE: Objection as to form. 9 THE WITNESS: I don't think so. 10 BY MR. KOBELINSKI: 11 Q Why not? 12 MR. SAXE: Objection as to form. 13 Why doesn't she think it, or why isn't it the 14 case? 15 THE WITNESS: I don't know. The draft permit says 16 it's listed under, issued pursuant to the Marjory 17 Stoneman Douglas Act, so -- 18 BY MR. KOBELINSKI: 19 Q Was an analysis under Florida Statute 403 20 completed of the permit application A? 21 A Well, under 403, I mean, I think an analysis was 22 completed to the extent that information was available, and 23 part of that analysis would be putting specific conditions 24 in the permit that an analysis would require. In other 25 words Chapter 403 influenced the specific conditions we put A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 200 1 in the permit. I mean, it didn't influence it, it directed 2 it. 3 Q Okay. Were the conditions contained in 4 Chapter 403 met by the District in interim application A? 5 MR. HETRICK: Objection as to form. 6 MR. SAXE: Objection as to form. 7 MR. HETRICK: Calls for a legal conclusion. 8 MR. SAXE: Asked and answered, we seemed to have 9 extensive questioning yesterday about the review of 10 the permit application under Marjory Stoneman Douglas 11 and 403. Counsel, if you have some -- 12 MR. HETRICK: Addition, my additional objection is 13 it calls for a legal opinion and speculation on the 14 part of the witness under Florida Statutes. 15 THE WITNESS: I don't remember the question. 16 MR. KOBELINSKI: Go ahead and read it back. 17 (Whereupon, the court reporter read the pending 18 question.) 19 THE WITNESS: Well, the conditions, I guess I am 20 not used to hearing conditions in 403. We have 21 conditions in the permit, but the conditions in the 22 permit are there to meet the requirements of Chapter 23 403. 24 BY MR. KOBELINSKI: 25 Q Does Chapter 403 contain criteria that must be met A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 201 1 in order to issue a permit? 2 MR. SAXE: Objection as to form. 3 THE WITNESS: Yes, Chapter 403 contains criteria 4 that must be met to issue a permit. That doesn't mean 5 that every criterion in Chapter 403 has to be met by 6 every single permit. 7 BY MR. KOBELINSKI: 8 Q Okay. Did the District provide sufficient 9 information to conduct an analysis to determine whether or 10 not interim application A met the criteria contained in 11 Chapter 403? 12 A No, their information was not sufficient to do a 13 complete evaluation under 403, for, of the applicable parts 14 of 403. 15 But with the specific conditions we included in 16 the permit we have assurance that they will, the fact that 17 they have accepted the specific conditions. 18 Q Okay. Drawing your attention to page three of 19 Stern Exhibit No. 14, the section there, In-house 20 Coordination, once you received completeness questions from 21 other individuals within the Department related to interim 22 application A, what would you do with them? 23 MR. SAXE: Objection as to the form. 24 THE WITNESS: I, we mail them to our word 25 processing people, and have the word processors compile A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 202 1 them into one document, and go through and do some 2 general editing to renumber the questions and, you 3 know, just make sure that there aren't any gross 4 editorial errors, then distribute it to all the 5 reviewers. 6 BY MR. KOBELINSKI: 7 Q Did you assist anyone in the preparation of the 8 questions to be included in the completeness summary 9 review? 10 A Not at first, but sometimes I assisted them in the 11 form that the question should take so that I wouldn't have 12 to go back every time and put them in a form that is sort 13 of appropriate to a CS. I mean, for example, sometimes 14 people would send memos saying the District should be asked 15 these questions, and because it was, the questions were 16 framed that way, I would have to go in and make changes to 17 each question so that it was clear to the District when 18 they were getting them, just so that the syntax and 19 everything was correct. It was strictly editorial, I 20 didn't make any comments as to content. 21 (Whereupon, Exhibit No. 15 was marked for 22 identification.) 23 BY MR. KOBELINSKI: 24 Q Ms. Stern, drawing your attention to what has been 25 marked as Stern Exhibit No. 15, I ask you whether or not A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 203 1 you have ever seen that document before? 2 A Yes. 3 Q What is this document? 4 A Completeness summary questions from Tom Swihart. 5 Q Did you participate in the preparation of the 6 questions contained in this document? 7 A No. 8 Q Okay. Is this typical of the type of completeness 9 summary memorandum you would receive from the different 10 individuals working on the interim application? 11 A Well, typically they just had a list of questions, 12 they didn't have, you know, a discussion leading up to the 13 questions in the summaries that I got. You know, basically 14 they just listed the questions, they didn't explain why 15 they were asking these questions. 16 Tom here explains essentially what is leading him 17 to ask these questions. 18 Q For areas other than the wetland impacts of dredge 19 and fill and construction operations, for areas other than 20 that, was your role with regard to the completeness summary 21 merely compilation, perhaps some editorializing and 22 reformatting or were you involved, well, let me just, 23 that's the question. 24 A It was that and coordinating meetings. 25 Q Okay. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 204 1 A Primarily. 2 Q You were not involved in any type of substantive 3 analysis in areas other than, again, wetland impacts, of, 4 resulting from construction, dredge and filling with regard 5 to completeness summary, were you? 6 A No. 7 Q Did you review the comments made by the 8 Department of Justice on interim application A? 9 MR. SAXE: Objection as to form. 10 THE WITNESS: Yes, I think there were some 11 questions, this was back, way back in the beginning. I 12 think they asked questions about the application, and I 13 can't remember if we included the questions or not, and 14 that was the extent of my review was to see that there 15 were questions and wonder if they should be included or 16 not and probably try to find out if they should be 17 included or not. I don't remember if we included 18 them. 19 (Whereupon, Exhibit No. 16 was marked for 20 identification.) 21 BY MR. KOBELINSKI: 22 Q Ms. Stern, showing you what's been marked as Stern 23 Exhibit No. 16, I ask whether or not you have ever seen 24 this document before? 25 A I don't think I have seen this before. I might A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 205 1 have been given a copy of this to put in the file, but I 2 don't, I just don't remember. 3 Q Okay. Did you use any portion of this document in 4 preparing a completeness summary? 5 A I don't remember. The, this doesn't look like the 6 letter I am thinking of from the Justice Department that 7 contained completeness summary questions. That's sort of 8 hazy in my memory, even that. 9 Q Do you know whether or not you have a copy of the 10 letter from the Justice Department which contained 11 questions related to the interim permit application A? 12 MR. SAXE: Objection as to the form. 13 THE WITNESS: I believe I do have a copy in the 14 file. 15 BY MR. KOBELINSKI: 16 Q Okay. Is that part of the documents you have 17 here? 18 A Yes. I, well, I hope it is. Do you want to see 19 it? 20 Q Yes, please. 21 (Discussion off the record.) 22 THE WITNESS: I have another letter from the 23 Justice Department. It is dated January 3, 1992. It 24 looks like more completeness summary questions or 25 comments on -- it is comments on the permit A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 206 1 application -- at that time, probably comments on the 2 revised permit application, revised per our 3 completeness summary questions. 4 BY MR. KOBELINSKI: 5 Q If you could just take a piece of paper and mark 6 that during the break, we could perhaps get a copy of it. 7 Let me just read through this. 8 (Whereupon, Exhibit No. 17 was marked for 9 identification.) 10 THE WITNESS: That's all I have from the Justice 11 Department. 12 BY MR. KOBELINSKI: 13 Q Ms. Stern, showing you what's been marked as Stern 14 Exhibit No. 17, I ask you to take a look at this document 15 and tell me whether or not you have ever seen it before? 16 MR. KOBELINSKI: While the witness is looking at 17 that, I just realized I have not been identifying most 18 of these exhibits on the record. During the next 19 break, and I invite counsel to stay. I am just going 20 to give a brief description of the exhibits we have 21 already gone through. 22 For the purpose of record, the Stern Exhibit No. 23 17 is a 18-page document, first page of which bears 24 Bates number 0891705 through 0891723, contains types on 25 both sides of the pages, and it is, starts with a FAX A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 207 1 transmittal letter from Bart Bibler to Ron Bearzotti, 2 dated October 28, 1991. 3 BY MR. KOBELINSKI: 4 Q Have you had an opportunity to look at that 5 document? 6 A Yes, this is a draft of the first completeness 7 summary. I don't remember seeing this draft specifically, 8 because there were a number of drafts in the course of 9 preparing every completeness summary, but it is a draft of 10 the first completeness summary. 11 Q Would you have prepared this draft? 12 A I would have. It would have been prepared in our 13 word processing center, so I would have been involved in 14 giving all the parts of it, of various questions to our 15 word processors, and I compiled, I wrote some of the 16 questions in this completeness summary and did some of the 17 general editing. 18 Q Which questions did you draft in this completeness 19 summary? 20 A Okay. I believe I drafted number 1, number 2, 21 and, at the request of Bart. Then the actual, my technical 22 questions were, is number 3, number 4, number 5, number 6, 23 number 7, number 8, number 9, number 10, and probably 24 number 11. 25 Q Okay. Drawing your attention to, before I do A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 208 1 that, I withdraw that. 2 Was this draft sent to the District? 3 A Well, it looks like it was FAXed to Ron 4 Bearzotti. 5 Q Is that the normal practice to send draft 6 completeness summary questions to a permit applicant? 7 A It is not uncommon. 8 Q Okay. What is the purpose of sending the draft? 9 A It gives the applicant a chance to see what our 10 questions are and clear up anything that can be cleared up 11 very simply, like gross misunderstanding, so, and by doing 12 that you save time. 13 Q Okay. The District did not have input into what 14 would be required for the completeness summary, did it? 15 A No. 16 Q Drawing your attention to general request number 17 1, first paragraph there, it refers to, or it states, the 18 second sentence, "As you may be aware approximately 15 19 people at DER are involved in the review of this permit 20 application." Would that be the people that we had, you 21 had previously testified about? 22 A That would include those people. I, you know, I 23 think Bart just came up with this number to make sure we 24 had enough -- 25 Q Okay. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 209 1 A -- and stuff like that. It was a round number. 2 Q With regard to general question number 3, what was 3 the purpose of obtaining the aerial photographs for each 4 stormwater treatment area? 5 A Well, we, typically we always require aerial 6 photographs of the project areas, and it just provides you 7 a lot of information on the environment in which the work 8 is going to be conducted. 9 Q Okay. 10 MR. KOBELINSKI: Mr. Hetrick, that reminds me when 11 the documents were produced to me on Monday, there was 12 a note in there that the witness had numerous 13 photographs in her office. I wanted to take a look at 14 those, could we perhaps do that during lunch time? 15 THE WITNESS: Yes. 16 MR. HETRICK: Are they in your office? 17 THE WITNESS: I am not exactly sure where they are 18 in my office. I think there might be some in these 19 boxes, too. I can go find them at lunch time, I hope. 20 BY MR. KOBELINSKI: 21 Q Has anything been added to those boxes after I 22 looked through them? 23 A No, I thought I saw aerials in there yesterday. 24 Q There were some foldout aerial photographs 25 approximately five or six of them. Do you recall A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 210 1 approximately how many aerial photographs you have? 2 A No, in fact those might have been submitted for a 3 different question now that I think about it actually. I 4 don't remember how many we got. 5 Q If you could take a look at those I would 6 appreciate it. 7 A Yes. 8 Q With regard to general request number 3e, what was 9 the purpose of asking them to identify the DER 10 jurisdictional waters which will flow into, or be pumped 11 into the STA or which are crossed by the STA limits? 12 A Well, those are, I was trying to identify areas of 13 jurisdiction that might be changed as a result of this 14 project, and if you have, for example, something like a 15 Class IV ditch in this case flowing into the STA and they 16 are going to put a berm across it, well, you are probably 17 going to sever part of that ditch and so are going to sever 18 something that's in our jurisdiction, so we need to 19 authorize that, that activity. 20 They're, it was, this is to see in as much detail 21 as possible exactly where our jurisdictional limits were 22 and how they were going to be changed by the process of 23 constructing these stormwater treatment areas. 24 Q Would the flow or pumping of DER jurisdictional 25 waters into the STA result in jurisdiction by DER of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 211 1 STA itself? 2 MR. SAXE: Objection as to form. 3 THE WITNESS: Not based on my understanding, I 4 don't think so. We have jurisdictional people who 5 answer, it is a, that's sort of a fine point of the 6 jurisdictional rule which is the jurisdictional rule, 7 and I am not the best person to answer that question, 8 but I know enough to know it was something we needed to 9 know and that I would probably have to take it to one 10 of our jurisdictional people if a situation like that 11 did exist and ask for a determination. 12 BY MR. KOBELINSKI: 13 Q Did you discuss the permit application or any 14 aspect of it with any jurisdictional people? 15 A Yes, I think what I was doing, thinking of 16 jurisdiction in this first phase I think did, and also, 17 yes, yes, I did. Because we had to decide if they were 18 going to be, the interior was going to be jurisdictional or 19 not, and I wanted to make sure that it was not going to be 20 jurisdictional, and it is not. As far as we know at this 21 point it is not supposed to be jurisdictional. 22 Q Who was the jurisdictional person you talked to? 23 A Rick Cantrell. 24 Q Anyone else? 25 A Not that I can recall. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 212 1 Q Did Mr. Cantrell tell you that the interiors and 2 the STAs would not be jurisdictional? 3 A I don't remember exactly what he said at that 4 point. I mean, I don't think he knew exactly at that 5 point, I mean, we -- I think he, you know, said they could 6 be jurisdictional and they could not be, I just, beyond 7 that I don't remember. 8 Q Okay. Was a determination ultimately made as to 9 whether or not the interiors and the STAs would be 10 jurisdictional? 11 A A formal determination was not ultimately made, 12 but further along in the process it became the feeling that 13 that would not be jurisdictional. But that is still not a 14 formal determination, and it is definitely subject to 15 change. 16 Q Okay. Do you recall who else besides Mr. Cantrell 17 was involved in the issue of, jurisdictional issue as to 18 whether or not the interiors and the STA would be 19 jurisdictional? 20 A To the best of my recollection he was the only one 21 involved. 22 Q Okay. Did you receive all the information sought 23 in requests 1 through 11? 24 A Yes, I believe we received all the additional 25 copies we asked for in number 1. In number 2, we didn't A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 213 1 really ask for any information, but I think they agreed 2 with us if I remember correctly on this point. 3 Q Did you receive the information sought in request 4 number 3? 5 A I think we received the aerials showing the 6 approximate limits of the STAs as they were proposed. We 7 didn't receive the plan view of cross sectional drawings. 8 Q Did you receive information as to location of all 9 proposed structures? 10 A Which question are you looking at? 11 Q I am looking at 3g? 12 A I think they showed us the outflow structures of 13 each STA. 14 Q Any inflows also? 15 A I don't think they showed us those on the aerials. 16 I don't remember really. 17 Q Did they provide you all the information sought in 18 request 3h, locations of all proposed dredging within the 19 DER jurisdiction? 20 A No. 21 Q Did they provide you information responsive to 22 request 3i, locations of all proposed filling within DER 23 jurisdiction? 24 A No, these were things they did not know, they had 25 not gotten far enough along in their project development to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 214 1 know the exact locations of these things. 2 Q Okay. Did they provide this information prior to 3 the issuance of the Intent to Issue permit? 4 A Which, are you asking about the specific, certain 5 specific information? 6 Q Yes. For instance, did they provide the 7 information sought in 3f prior to the issuance of the 8 Intent to Issue? 9 A No. 10 Q Did they provide the information sought in 3g 11 prior to the Intent to Issue? 12 A I don't think so. 13 Q Did they provide the information sought in 3h 14 prior to the Intent to Issue? 15 A No. 16 Q Did they provide the information sought in 3i 17 prior to the Intent to Issue? 18 A No. 19 Q Did they provide the information sought in 3j 20 prior to the Intent to Issue? 21 A No, actually, well, let me back up. They 22 provided, in the conceptual design memorandum they show, 23 they show locations of structures and that type of thing. 24 They didn't provide the information to us in the format we 25 want because they didn't know exactly where, we need to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 215 1 know exactly where on the grounds these things are going to 2 be, and they just didn't know that at that point. But 3 later down the line when they considered the conceptual 4 design memorandum, which wasn't in response to this 5 completeness summary, they did provide information which 6 addressed these issues, just not in the level of detail we 7 need. 8 Q Okay. And that's in the conceptual design 9 memorandum? 10 A Uh-huh. 11 Q Okay. Do you have a copy of that in your files? 12 A Yes. 13 Q Okay. Where in the conceptual design memorandums 14 does it indicate the responses or the information that's 15 sought in requests 3f through j? 16 A Well, in the conceptual design memorandum each 17 stormwater treatment area, there is a chapter on each 18 stormwater treatment area, and that generally shows, you 19 know, where structures are, and they, well, they show 20 various designs and then they have a recommended design, 21 and, you know, that gives you some idea of where they are 22 headed. You know, it explains what, where they are 23 up-to-date, up to that point in time. It is better than 24 nothing, but it is not what we need, you know, to, 25 ultimately. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 216 1 Q Do you need ultimately the exact geographic 2 physical location as to where the structures would be? 3 A Yes, for 403, to issue, like if we were going to 4 do a 403 permit only. If there were no Marjory Stoneman 5 Douglas Act, yes, we would need that information. 6 Q And did you receive that information prior to the 7 Intent to Issue? 8 A The specific information? 9 Q Yes, the geographic location. 10 A The exact location of exactly where dredging and 11 filling would be? No, we did not receive that 12 information. 13 Q Have you received that information yet? 14 A No. 15 Q Okay. 16 A We do have a specific condition requiring that 17 information, and we have a specific condition saying they 18 cannot continue construction until we have reviewed that 19 information and think that their impacts are minimized. 20 Those are specific conditions of the permit. 21 Q Okay. Prior to the issuance of the Intent to 22 Issue, did you receive the information sought in request 23 number 4? 24 A Well, in the technical, in the conceptual design 25 memorandum they provide information which addresses this. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 217 1 They, I believe the drawings are probably 8 1/2 by 11, and 2 they show proposed designs for each area in plan view. 3 Q Again, does the information that you are referring 4 to in the conceptual design memorandum, would it satisfy 5 the information necessary to show the exact geographic 6 physical location? 7 MR. SAXE: Asked and answered, objection. 8 THE WITNESS: No. 9 BY MR. KOBELINSKI: 10 Q Would that be necessary to satisfy request 11 number 4? 12 A Yes. 13 Q Did you receive any information sought in request 14 number 5 prior to the Intent to Issue? 15 A No. 16