206
1 STATE OF FLORIDA
2 DIVISION OF ADMINISTRATIVE HEARINGS
3
4 AUTHORIZATION NO. 10988
5
6 Case Nos. 92-3038, 92-3039, 92-3040
7
8 SUGAR CANE GROWERS COOPERATIVE ) Vol. II
OF FLORIDA, a Florida Agricultural )
9 Cooperative Marketing Association, )
ROTH FARMS, INC., AND )
10 WEDGWORTH FARMS, INC., )
)
11 and )
)
12 FLORIDA SUGAR CANE LEAGUE, INC., )
UNITED STATES SUGAR CORPORATION; )
13 and NEW HOPE SOUTH, INC., )
)
14 and )
)
15 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION, LEWIS POPE FARMS, )
16 W.E. SCHLECHTER & SONS, INC., and )
HUNDLEY FARMS, INC., )
17 )
Petitioners, )
18 vs. )
)
19 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an Agency of the State )
20 of Florida. )
Respondent, )
21 and )
)
22 MICCOSUKEE TRIBE OF INDIANS OF )
FLORIDA, the UNITED STATES OF )
23 AMERICA, and FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, and the )
24 FLORIDA WILDLIFE FEDERATION, and )
the FLORIDA AUDUBON SOCIETY, and )
25 SIERRA CLUB, )
Intervenors. )
207
1
2
3
4 A P P E A R A N C E S
5
ROBERT A. ROSENBERG, Esquire
6 Assistant U.S. Attorney
155 S. Miami Avenue, 6th Floor
7 Miami, Florida 33130
8
JOHNATHAN GAINES, Equire
9 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
10 Two South Biscayne Boulevard
Miami, Florida 33131
11
12 DANIEL MCGRATH, Esquire
Popham, Haik
13 Schnobrich & Kaufman
4000 International Place
14 100 S.E. Second Street
Miami, FL 33101
15
16
DEPOSITION OF DAVID W. STEWART,
17 taken on behalf of the Intervenors, on the
13th and 14th days of April, 1993, pursuant to
18 the Federal Rules of Civil Procedure, in the
offices of the U.S. Attorney, Clearlake
19 Centre, Suite 1403, 250 Australian Avenue
South, West Palm Beach, Florida, 33401, before
20 me, Phil Berglan, a Shorthand Reporter and
Notary Public in and for the State of
21 Florida.
22
23
24
25
208
1 (Continuation of David W. Stewart's
2 deposition).
3 MR. MCGRATH: While we are waiting
4 to begin here, let me hand the court reporter
5 the two documents we were discussing with the
6 witness yesterday. I had not marked them at
7 that time because I only had one copy. I have
8 now had a copy made.
9 So let's mark, as Exhibit No. 3, the
10 document which is entitled, "Status Report for
11 the project entitled: 'Implemtation and
12 Variations for BMPs for Reducing P Loading in
13 the EAA,'" dated March 31st, 1992. This
14 begins with Bates No. 1122659.
15 And then Exhibit No. 4 is the Izuno
16 and Bottcher report dated May 15th, 1992.
17 This document begins with Bates No. 1122707.
18 (Stewart Exhibits 3 and 4 were here
19 here marked for indentification purposes by
20 the court reporter).
21 MR. GAINES: Does that have a
22 guidebook attached?
23 MR. MCGRATH: And this has attached
24 to it a guidebook, Best management Practices
25 for Phosphorus Control in the EAA, and that
209
1 portion of the document begins with Bates
2 No. 1122712.
3 Mr. Stewart, good morning. Let me
4 remind you, as we begin, that you are still
5 under oath.
6 Q. (BY MR. MCGRATH) What is your
7 understanding of the total phosphorus
8 reduction that is required to be achieved
9 under the SWIM Plan?
10 A. I recall two numbers, 80 percent and
11 85 percent. The distinction between the two
12 numbers isn't clear to me at the moment.
13 One refers to the total loading into
14 the water conservation areas and I believe the
15 other number refers to the load attributed to
16 the EAA basin.
17 Q. Let me show you Exhibit No. 2 that
18 we had marked yesterday, which is the
19 excerpted portion of the SWIM Plan. If you
20 turn to Page 110, the first page, that first
21 paragraph about halfway down beginning with
22 the sentence:
23 "Accomplishment of this objective
24 will provide overall load reduction of
25 approximately 80 percent from the EAA into the
210
1 EPA and a load reduction of at least 85 from
2 the EAA into the refuge."
3 Does that help refresh your
4 recollection of what the requirements of the
5 SWIM Plan are for phosphorus reduction
6 requirements?
7 A. Yes, it does.
8 Q. Can you relate these percentage
9 figures to a phosphorus reduction as measured
10 by metric tons?
11 A. The base number, or the historic
12 number, varies depending upon which source you
13 are using. The loads that have been
14 attributed to the EAA basin, I recall a range
15 from a low of perhaps 176 metric tons to
16 higher estimates that are over 200 tons.
17 And so the percentage here would be
18 multiplied by that base number in order to
19 arrive at the target load reduction.
20 Q. Is there any specific base number
21 that you used as the target load reduction for
22 the various BMPs and other aspects of the SWIM
23 Plan that we have been talking about?
24 A. It depends upon the time frame of
25 the question. We routinely updated our
211
1 reports and our discussions. As a revised
2 estimate of the base load came into public
3 distribution, we would use that latest
4 figure. I think that's a generality which is
5 true in all of our reports.
6 Q. By that answer, are you saying there
7 was not one specific target number that was
8 used throughout as the goal reduction limit
9 for phosphorus?
10 MR. GAINES: Let me just object to
11 the form. I don't understand the context of
12 what you are talking about, when he was using
13 the number as a goal reduction in connection
14 with what?
15 MR. MCGRATH: I am talking about
16 throughout his involvement in focusing on the
17 Everglades SWIM Plan and those aspects that he
18 has testified that he has been focusing on. I
19 am just wanting to confirm that, with respect
20 to his work, there has never been just one
21 particular number or one specific number that
22 he has used throughout that work.
23 MR. GAINES: I am not sure that he
24 has used any number as a goal reduction in any
25 particular instance but --
212
1 MR. MCGRATH: That's just what I am
2 trying to get at.
3 MR. GAINES: Or that he had a goal
4 reduction in any -- or that he ever had the
5 occasion have to articulate that. Anyway, go
6 ahead.
7 Q. (BY MR. MCGRATH) Did you understand
8 the question and do you have an answer?
9 A. Over the course of two years, that
10 number changed several times, but all of the
11 numbers were in the neighborhood of 200 tons.
12 And so 80 percent of 200 tons is 160, and for
13 discussion purposes, within Hutcheon
14 Engineers, we commonly refer to 150 tons or
15 160 metric tons as being an overall objective.
16 But in our calculations and our
17 reports, we would be more specific citing the
18 source of the base number that was being used
19 at the moment.
20 Q. And of that total overall objective,
21 whatever number that was based on, whatever
22 was available at the time, is it your
23 understanding that, under the SWIM Plan, the
24 BMPs that are proposed therein are anticipated
25 to achieve a 25 percent reduction in that
213
1 total number?
2 A. Yes, that's my understanding.
3 Q. I believe you testified yesterday
4 that because we are dealing with ranges as to
5 what the total amount is, based on whatever
6 data was available, that that 25 percent
7 correlates to between 45 and 50 metric tons
8 depending on whatever data is being used; is
9 that correct?
10 MR. GAINES: You need to answer out
11 loud. Did you answer?
12 THE WITNESS: No, I haven't
13 answered.
14 MR. GAINES: I am sorry.
15 A. I have not changed my testimony. If
16 I said 45 or 50 tons yesterday, then I will
17 stand by the same answer.
18 Q. (BY MR. MCGRATH) Then is it your
19 understanding that, under the current SWIM
20 Plan that is being considered, the remainder
21 of the reduction is to be accomplished through
22 the storm water treatment areas?
23 A. Yes.
24 MR. MCGRATH: Let's mark that as
25 Exhibit No. 5.
214
1 (Stewart Exhibit 5 was where marked
2 for identification purposes by the court
3 reporter).
4 Q. (BY MR. MCGRATH) Let me hand you
5 what we have just marked as Exhibit No. 5. I
6 am representing that that is an excerpted page
7 from Answers to Expert Interrogatories served
8 in this case by the Florida Sugar Cane
9 League.
10 Have you ever seen this document
11 before?
12 A. Yes, some time ago.
13 Q. Did you prepare the information that
14 is set forth with respect to your anticipated
15 testimony in this case?
16 A. No, I did not prepare it.
17 Q. Did you participate in preparing it
18 with whoever did prepare it?
19 A. I don't recall. I discussed this
20 information with Peeples, Earl & Blank either
21 shortly before or shortly after this document
22 was prepared. And, to be honest, I don't
23 recall if I saw it in draft form or in final
24 form.
25 But I did not draft any of the
215
1 language or the text in this document.
2 Q. With respect to that information
3 under the heading of "Subject Matter of
4 Testimony," of your expected testimony it
5 lists, first, agricultural BMPs.
6 Have we identified all of the
7 agricultural BMPs you intend to testify about
8 in this matter, and I am talking about your
9 testimony we had yesterday?
10 A. Our testimony yesterday on the nine
11 BMPs within the SWIM document did not cover
12 the entire range of BMPs that I might testify
13 to.
14 Q. I believe we also discussed, at
15 least briefly, alternatives. And in that
16 discussion, and please correct me if I
17 misstate or am not complete in recounting your
18 testimony, in your discussion we identified
19 on-farm pump BMPs, we identified rock pits, I
20 should say you identified rock pits, you
21 identified chemical treatment, you identified
22 sediment control, you identified lime rock
23 sorption, and you identified deep injection
24 wells.
25 Would those topics or practices, or
216
1 whatever, be included under the subject matter
2 of agricultural BMPs?
3 A. Yes.
4 Q. And then also the nine BMPs that we
5 discussed that are set forth in the SWIM Plan,
6 would those also be included under
7 agricultural BMPs?
8 A. Yes, they would, where they fall
9 within the scope of my expertise.
10 Q. Now, you had also, I believe,
11 identified conventional retention/detention
12 systems. This testimony came up when I was
13 asking you to categorize those practices that
14 address reduction of P concentration and those
15 practices that address reduction in volume of
16 water.
17 Would your listing of the
18 conventional retention/detention systems,
19 would that also be within your understanding
20 of agricultural BMPs?
21 A. Yes, it would be within the general
22 discussion of agricultural BMPs.
23 Q. Now, we didn't discuss further,
24 other than identifying conventional
25 retention/detention systems. By your
217
1 identification of that BMP, is that the same
2 thing as BMP No. 8 in the planning document,
3 which was Exhibit No. 2 to your deposition?
4 And please feel free to refer to
5 that.
6 A. Yes, they are generally the same
7 thing. There is enough latitude in the
8 language of the BMP listed in the Everglades
9 SWIM Plan Planning Document that it could
10 encompass the retention/detention systems that
11 we discussed yesterday.
12 There is a rather wide range in
13 capital costs and a wide range in expected
14 performance among all of the projects that may
15 fit the description of an on-site
16 retention/detention pond. And this general
17 statement encompasses all of those, in my
18 understanding.
19 Q. Besides those BMPs that we have
20 identified, are there other BMPs that fall
21 within your understanding of agricultural BMPs
22 that are going to form the subject matter of
23 your expected testimony?
24 A. No, I think we have covered them
25 all.
218
1 Q. Under the subject matter heading
2 there is listed EAA water management
3 practices. Can you define, with more
4 specificity, what that subject matter area
5 entails.
6 A. I would interpret that phrase as an
7 effort to include other pump BMPs and water
8 table management BMPs that might not be
9 readily identified as agricultural BMPs.
10 The phrase, "agricultural BMP," has
11 been in common usage used to refer back to the
12 IFAS Izuno and Bottcher BMPs of several years
13 ago, and, used with capital letters, has come
14 to refer back to that original list.
15 There have been several additions to
16 that list proposed by others and some of those
17 are related to water management practices and
18 I think this phrase intends to encompass all
19 of those as well.
20 Q. Can you, at this time, identify
21 specifically what other water management
22 practices, beyond those we have discussed,
23 which, in my understanding, is the on-farm
24 pump BMPs?
25 A. Within the perspective of on-farm
219
1 BMPs, what we have previously discussed were
2 pump BMPs, I think, is fairly inclusive.
3 There are a number of different pump BMPs that
4 we have looked at within that one category.
5 Outside the perspective of on-farm
6 practices, to include the regional practices,
7 there are aspects of regional STA designs that
8 relate to EAA water management practices that
9 we may be asked to testify to.
10 Q. At this time, can you identify
11 specific aspects of regional STA designs that
12 you just mentioned that you anticipate
13 rendering opinions on at the time of final
14 hearing in this matter?
15 A. I can't identify all areas that I
16 might be asked to testify to since the scope
17 of my testimony is tied, in part, to documents
18 that have not yet been produced.
19 But I believe, and it's my
20 understanding, that I will be asked to review
21 the assumptions that are made in the STA
22 design documents relating to implementation of
23 on-farm pump BMPs and comment as to how the
24 load and soil reductions which have been
25 assumed in the design of the STAs might
220
1 reflect the actual expected performance.
2 Q. The actual expected performance of
3 what, the STAs?
4 A. The pump BMPs and -- saying, "actual
5 expected performance," is a contradiction in
6 terms.
7 Let me rephrase that and say: I
8 will be asked to testify, based on my work and
9 my opinions, how I think pump BMPs would
10 influence the performance of the STAs and
11 comment on how, in the interpretation of
12 authors of the various design documents, they
13 have assumed the pump BMPs would affect the
14 design of the STAs.
15 Q. Did you just say that you might be
16 expected to testify based on your opinion of
17 how or what the authors assumed that the pump
18 BMPs would effect the design of the STAs?
19 A. Yes.
20 Q. Do you also anticipate testifying on
21 how the authors' assumed pump BMPs would
22 affect the performance of the STAs, or do you
23 use those terms interchangeably?
24 A. The two terms are not
25 interchangeable, but let me add design and
221
1 performance of the STAs to my previous
2 statement.
3 Q. Do you have any opinions today on
4 how pump BMPs influence the performance of the
5 STAs?
6 A. The opinions that I have today are
7 based on conceptual designed documents
8 produced by Burns McDonald under contract with
9 the South Florida Water Management District
10 and I will say dated, I believe, March of
11 1992.
12 And I know that those documents -- I
13 am sorry, that the design of the STAs has
14 moved well beyond the stage that was stated in
15 March of 1992, and that Burns McDonald is
16 looking at alternatives besides managed
17 wetland systems.
18 And so the opinions that I have
19 today are opinions of the March, 1992 concept
20 design and would not represent what may be in
21 the minds of South Florida Water Management
22 District and Burns McDonald today.
23 Q. What is your understanding, again,
24 that there is additional ongoing work and
25 materials and information that you have not
222
1 had the opportunity to review and that you
2 anticipate or expect reviewing and revising or
3 opinions, you are coming up with new opinions,
4 so, with that understanding, what are your
5 opinions, today, based on the March, 1992
6 conceptual design documents regarding the
7 STAs?
8 And I am asking for your opinion on
9 how the pump BMPs influence the performance of
10 the STAs.
11 MR. GAINES: Let me just -- I don't
12 mind him giving a sort of a generic opinion
13 about how the two would interrelate. But you
14 know, everybody knows that the March, 1992 STA
15 design is no longer the one that is going to
16 be used.
17 And I believe we disclosed earlier
18 in the deposition -- I think you asked the
19 question -- and, if not, I can tell you that
20 Mr. Stewart will be asked to critique and
21 review and offer opinions on Burns and
22 McDonald's final alternatives, choices, and
23 their final mix, their final plan that they
24 are coming out with in the next couple of
25 months.
223
1 And I don't think it's appropriate
2 to get something in the nature of what sounds
3 like a final opinion on subject matter that is
4 not going to be presented at the final hearing
5 because that design has now been abandoned or
6 modified.
7 MR. MCGRATH: It's expressly
8 understood, at least by this questioner, that
9 the opinions that are being given, or before
10 that that are being asked, are not final
11 opinions, and I thought my little preamble to
12 the question made that clear.
13 I am just wanting to find out, based
14 on the work that was done and those documents
15 that he has reviewed up until this point, what
16 those opinions are.
17 MR. GAINES: My objection is that
18 since it wouldn't be in the nature of a final
19 opinion that he was going to offer at trial
20 it's essentially work product. But if he has
21 factors that he would consider or apply to
22 that type of a question, and that is the type
23 of analysis that he would do, I don't have any
24 problem with him going into that.
25 So you go ahead and proceed and we
224
1 will see what direction it goes. Doing all
2 that, you can answer.
3 A. There are three main areas that I
4 would identify as hydrologic issues,
5 construction issues, and performance issues.
6 Speaking first of the hydrologic issues, the
7 March, 1992 concept design assumed a uniform
8 volume reduction attributed to pump BMPs for
9 each month and each year within the water
10 balance model that was used.
11 And the work that we have done for
12 the League and presented to South Florida
13 Water Management District illustrates that
14 variabilities in rainfall distribution greatly
15 affects the performance of the pump BMPs, and
16 hence would affect the water balance model
17 that was used in the March, 1992 concept
18 design.
19 We have also recognized and
20 presented, to SAGE and South Florida Water
21 Management District staff, our observations of
22 spatial variabilities in rainfall distribution
23 within the EAA. And it's my understanding
24 that the March, 1992 concept design was based
25 on a limited rainfall data set, which may not
225
1 fully encompass and which may not fully
2 describe the variabilities within the EAA.
3 And, lastly, on hydraulic issues,
4 the March, 1992 concept design took as an
5 assumption -- I need to retract that.
6 I don't know if the drafters of that
7 document made an assumption or did
8 calculations which weren't presented in the
9 document, so let me start again.
10 The March, 1992 concept design was
11 based upon the concept of double pumping the
12 regional flows, which adds to the long-term
13 operation and maintenance costs. And in the
14 absence of a detailed discussion of
15 alternatives that may have been considered to
16 that, we would comment on that aspect of it.
17 Q. (BY MR. MCGRATH) When you say that
18 the concept of double pumping adds to the
19 long-term operation and maintenance costs, are
20 you referring to the long-term operation and
21 maintenance costs of the STAs?
22 A. Yes.
23 Q. What are you referring to regarding
24 the concept of double pumping?
25 A. The March, 1992 concept design at
226
1 all four STAs called for construction of a new
2 regional pumping station approximately equal
3 in size to the existing regional pumps that --
4 I am sorry --
5 At each STA, one regional pump would
6 be used to pump from the primary canal into
7 the STA. At the downstream end of the STA,
8 the second regional pump would be used to pump
9 from the STA into the water quality area,
10 hence the term, "double pumping."
11 The same volume of water would be
12 pumped twice to move it a relatively short
13 distance, and that double pumping adds to the
14 operation costs because a gallon of diesel
15 fuel becomes two gallons of diesel fuel.
16 It adds to the maintenance costs
17 based on the number of engines and structures
18 that have to be maintained and kept in
19 service.
20 Q. At this point, have either you or
21 Hutcheon Engineers performed an engineering
22 economic analysis, essentially a cost
23 analysis, to quantify the cost terms that you
24 are referring to here?
25 A. We have not performed a detailed
227
1 economic analysis. But in reviewing the
2 March, 1992 concept design, the construction
3 costs which are allocated for replacing or
4 duplicating this primary pump capacity is
5 substantial, and I couldn't quote an exact
6 number, but the number is there.
7 We are talking, not tens of millions
8 of dollars, but multiple tens of millions of
9 dollars to duplicate the pumping capacity.
10 And rather than assume that that is the only
11 way to move water to the STAs, we would
12 comment that alternative hydraulic methods
13 should be considered before accepting that
14 single conclusion.
15 Q. With respect to the observation
16 regarding spatial variability of rainfall
17 distribution that you mentioned, what are you
18 talking about when you use the term, "spatial
19 variability," with respect to rainfall?
20 A. Different rain gauges will record
21 different amounts of precipitation on a given
22 day. The difference between two gauges is
23 predominantly influenced by cloud patterns,
24 wind direction, and the size of the storm.
25 When you are studying an area as
228
1 large as the Everglades Agricultural Area,
2 with the influence of Lake Okeechobee, the
3 Gulf of Mexico, and the Atlantic Ocean, you
4 can get highly variable daily rainfall
5 records.
6 One gauge may read zero
7 precipitation and another gauge, five miles
8 away, may record three inches of rain on that
9 same day. That's what I mean by spatial
10 variations.
11 Q. With respect to the first element
12 regarding the the hydrologic issues, you have
13 referenced variability in rainfall
14 distribution, what variability are you
15 referring to?
16 My understanding of your testimony
17 was that one of the hydrologic issues was that
18 variability rainfall distributions greatly
19 affect pump BMPs and that this was not
20 considered in the water balance model used by
21 the modelers of the STAs.
22 Is that an accurate recantation of
23 your testimony?
24 A. Yes.
25 Q. Variability in that respect, what
229
1 kind of variability are we talking about?
2 A. The size and spacing of individual
3 rainfall events has a great influence on the
4 ability of the farm to implement a pump BMP,
5 and on the performance, the volume reduction
6 that that pump BMP can accomplish.
7 In wet years, with a large number of
8 storms with a large volume of rain, closely
9 spaced, the pump BMP will have little effect
10 because the threshold criteria will be met
11 very frequently and the pumps will be operated
12 in a manner very similar to historic
13 practices.
14 But in dryer times when the
15 rainfalls are small or very moderate in volume
16 and are widely spaced, the pump BMP threshhold
17 criteria will not be met. On a number of
18 occasions, the pump will not be operated and
19 although under historic conditions the pump
20 would have been operated, so in those periods
21 of time the pump BMP will have a very high
22 performance.
23 In fact, you will find months of
24 records where there was no rainfall
25 significant enough to trigger the pump BMP,
230
1 and yet the historic records indicates
2 drainage pumping did occur. And so in that
3 particular month, the pump BMP would have a
4 100 percent reduction in the volume pumped in
5 that individual month.
6 And so as we presented to SAGE, and
7 as our modeling indicates, from month-to-month
8 the performance of the pump BMP can vary
9 between 0 and 100 percent, and to assume a
10 uniform 20 percent volume reduction is a
11 simplifying assumption, but may not accurately
12 reflect actual performance.
13 Q. So with respect to this first
14 element regarding hydrologic issues, when you
15 use the term, "variability," are you using
16 that term to incorporate both aspects of
17 spatial variability, spacing of a rainfall
18 event, and the volume variability aspects of
19 just the amounts of rainfall?
20 A. I believe I separated those into two
21 separate comments. The time variability -- I
22 am trying to compose a logical answer.
23 MR. MCGRATH: I guess in return I am
24 suppose to ask you a logical question.
25 MR. GAINES: Then I will make a
231
1 logical objection.
2 (Laughter).
3 MR. MCGRATH: Off the record.
4 (A brief off-the-record discussion
5 was here had).
6 A. The time variation, time
7 variability, affects how you would design all
8 of the STAs for peak design events. But
9 spatial variability may cause one STA to be
10 designed different than another STA.
11 Both issues have an impact on the
12 design of the STA, but they influence it in
13 different ways.
14 Q. (BY MR. MCGRATH) Can you explain
15 for me the impact of time variability on
16 either the performance or the design of STAs.
17 A. Okay. If you assume relatively
18 uniform inflow rates to the STAs, then you
19 tend to average out your volumes, average out
20 your detention times, average out the contact
21 between water and the vegetation.
22 If the actual conditions are going
23 to introduce significant peak flows well above
24 or substantially above the average flows that
25 you have designed for, then you will have
232
1 underestimated the contact time and
2 understated the velocities and hence may have
3 underestimated the performance of the STA.
4 On the other hand, at the other end
5 of the spectrum, if you have failed to
6 recognize the substantial dry periods that
7 occur and can occur, then you may not have the
8 base flow to the STA to maintain the
9 vegetative community that you have sought to
10 develop there.
11 Taken to its extreme, the STA may
12 become a cover crop that has to be irrigated,
13 just as any commercial crop would need to be
14 irrigated in order to maintain that vegetation
15 viable through an extended dry period.
16 Q. Other than the three separate
17 elements or issues that we have talked about
18 under the category of hydrologic issues, are
19 there any other hydrologic issues that you
20 have arrived at based on the present state of
21 the SWIM Plan, the data that you have reviewed
22 and the work that you have done in this
23 matter?
24 A. Those are the three areas that I
25 recall related to hydrologic and hydraulic
233
1 issues.
2 Q. What about construction issues?
3 A. The first construction issue is
4 height of levees, which is clearly tied to the
5 depth of flow and storage volume for peak
6 flows.
7 The second issue relates to
8 restoring adjacent farmlands back to viable
9 production once the STAs are constructed.
10 The third issue relates to more of
11 an O and M cost, operation and maintenance
12 cost, than an initial construction cost, and
13 that is the future need for management of the
14 wetlands, which may include periodic burning,
15 periodic harvesting, periodic removal of
16 exotics or undesirable vegetation, and
17 periodic restoration of sheet flow
18 conditions.
19 Those issues have an influence on
20 long term O and M costs, but there are also
21 design features that can be built in the
22 original project to either facilitate those
23 operations or hinder those operations.
24 And, lastly, on construction issues,
25 I think, is time schedule, whether the
234
1 proposed construction can be completed within
2 the time frame allocated for it.
3 Q. What are the issues that you
4 previously find, right now, regarding the
5 heights of the levees and the depth of flow
6 and storage volume for peak flows?
7 MR. GAINES: The issues -- I am
8 sorry?
9 MR. MCGRATH: He identified
10 generally, as a construction issue, heights of
11 levees and he said that that was -- and
12 correct me if I am not recounting your
13 testimony correctly -- you said that that is
14 tied to the depth of flow and storage volume
15 for peak flows. And I am basically asking him
16 to explain what he means by that.
17 MR. GAINES: I am sorry. I didn't
18 catch what the question was. Go ahead.
19 A. The height of levee dictates the
20 volume of earthwork that must be moved in
21 order to construct the levee. The height of
22 the levee would be selected -- I should say
23 was selected -- based on the anticipated depth
24 of water against the levee and allowance for
25 wave action and wave run-up.
235
1 The width of the levee also impacts
2 the volume of the levee, and the use of the
3 top of the levee as a maintenance route helps
4 determine the necessary width.
5 The shape of the STA and the shape
6 of the levee, perimeter levee, has an
7 influence on the wave run-up and therefore has
8 an influence on the height of the levee.
9 Q. As the second issue under the
10 construction issues, you identified restoring
11 adjacent farmland to viable production once
12 the STAs are constructed. What do you mean by
13 that and how is that a construction issue?
14 A. The land necessary for the STA is,
15 in most cases, already or currently in
16 agricultural production. For the land to be
17 acquired by South Florida Water Management
18 District under condemnation procedures, the
19 District would normally be expected to place
20 the remaining tracts into useable condition.
21 This generally requires, or in many
22 cases requires relocation of road access,
23 drainage and other drainage canals, drainage
24 and irrigation structures, and appropriate
25 measures to prevent seepage out of the STAs
236
1 from adversely impacting the adjacent
2 farmlands.
3 The March, 1992 concept design
4 included a percentage factor that was applied
5 to land acquisition costs. And, as I recall
6 the text, those percentages were recommended
7 by the District to their consultant and there
8 was no real estimate of what the cost would be
9 to make the adjacent farmlands whole.
10 Q. With respect to the first three
11 issues you identified, heights of the levees,
12 restoring the adjacent farmlands, and the O
13 and M costs; are all three of those items cost
14 issues?
15 A. The third item addressing future
16 maintenance costs may not be simply a cost
17 item. The first two can be fixed by throwing
18 money at them. But until someone has sat down
19 and vocalized what the long-term maintenance
20 of these areas will be, it would be difficult
21 to assign a cost to that long-term
22 maintenance, and it would also be difficult to
23 say that it can be technically done.
24 There are some things under some
25 conditions that can't be fixed by throwing
237
1 money at them. The engineering issues just
2 becomes so monstrous that it was a bad idea to
3 begin with, and you will change your concept
4 rather than trying to fix the problems
5 associated with it.
6 MR. GAINES: Is that what you meant
7 by your question, "Are those cost issues"?
8 MR. MCGRATH: Yes. Let me try and
9 recap so I have an understanding of what you
10 just said.
11 Q. (BY MR. MCGRATH) With respect to
12 the first two issues we have discussed, the
13 heights of levees and restoring adjacent
14 lands, would it be accurate to say that your
15 concerns with regard to those two items would
16 be concerns related to cost and cost
17 analysis?
18 A. Yes.
19 MR. GAINES: Wait a minute, wait a
20 minute. Let me object. I don't know -- maybe
21 I am being overly cautious here, but we are
22 talking about in a vacuum, a design for STAs
23 that doesn't yet exist, or alternatively, we
24 are going to come back to the March, 1992
25 design.
238
1 And -- let me just finish -- when
2 you say, "Are these only cost issues," I don't
3 think you mean to exclude that there is an
4 engineering analysis that went into
5 determining if these were costs issues. For
6 example, the height of the levees, there is an
7 engineering analysis as to whether or not the
8 height and width of the levees as depicted in
9 the design is appropriate, based on some
10 engineering analysis.
11 So, in that sense, he is not just
12 taking out a calculator and saying, "Here is
13 the cost issue." There has got to be a
14 component of engineering analysis in there,
15 too.
16 So, I don't know if that was a
17 necessary objection or not, but I am just
18 trying to keep the record clear.
19 MR. MCGRATH: That is understood,
20 and perhaps there was just a misapplication of
21 the term, "only." Very rarely is there only
22 one thing. I am essentially focusing on
23 primary concerns.
24 Q. (BY MR. MCGRATH) Would it be
25 accurate to say, with respect to the issue
239
1 No. 3, that in addition to cost concerns that
2 you also have concerns that the subject or the
3 issue of what operation and maintenance is
4 needed has not been analyzed and there has not
5 been considered what future operation and
6 maintenance costs would be involved in running
7 and maintaining the STAs?
8 A. Yes.
9 Q. As we presently stand with the
10 amount of knowledge and work that you have
11 done up until now working under the March,
12 1992 conceptual design documents, are there
13 any other issues that you have identified
14 under the construction issue?
15 A. No, not that I recall.
16 Q. And I believe that the last issue or
17 the last area was performance issues. What
18 issues, as things presently stand, do you
19 believe exists with respect to performance?
20 A. There are reports by others that
21 indicated the size of the STAs depicted in the
22 March, 1992 concept design is not adequate to
23 meet the reduction goals of the Everglades
24 SWIM Plan.
25 And we would expect that, assuming
240
1 those reports are correct or are substantially
2 correct, that the design of the STAs would
3 need to be modified, either at present or at
4 some point in the future to greatly expand the
5 land area of the STA.
6 There is an initial cost to increase
7 the size of the STAs, and there is also a
8 marginal cost associated with a redesign and a
9 reconstruction at some later date versus
10 including that in the original design and the
11 original construction.
12 Q. Are there any other construction
13 issues which you have identified?
14 MR. GAINES: Performance.
15 MR. MCGRATH: Excuse me --
16 performance, I misspoke.
17 A. In the March, 1992 concept design, I
18 believe that was our major performance issue.
19 Q. You had referenced that based on
20 reports by others and the size of the STAs is
21 not adequate to meet reduction goals of the
22 Everglades SWIM Plan. Has Hutcheon Engineers
23 or yourself undertaken any efforts to evaluate
24 the performance or the anticipated performance
25 goals of the STAs as they exist under the
241
1 March, 1992 conceptual design documents?
2 A. We have not gathered any raw data or
3 sought to reanalyze data collected by others
4 to address the issue of settling rate or
5 phosphorus accretion rate.
6 We have, in several cases, made an
7 effort to repeat the water and nutrient budget
8 models -- I say repeat, I mean reconstruct, by
9 our own or within our own office, the water
10 and nutrient budgets in order to reproduce the
11 calculations that were presented in summary in
12 the concept design documents.
13 Q. And have you or has Hutcheon
14 Engineers been able to reconstruct the water
15 nutrient budgets?
16 A. Only to a first order approximation,
17 because the concept design documents only
18 present monthly subtotals for inflows and
19 outflows. And without having a specific daily
20 data set that was used in the model, we have
21 not been able to reproduce the results
22 exactly.
23 Since the model was built and run on
24 a daily calculation, using monthly subtotals
25 will not reproduce the same results.
242
1 Q. If we could go back to Exhibit
2 No. 5, I believe, just looking at the
3 designation of your expert testimony, we were
4 under the subject matter of expected
5 testimony. We have talked about those items
6 that would fall within the category of EAA
7 water management practices and that has led to
8 some discussion regarding STAs.
9 Other than the matters that we have
10 discussed, namely your anticipated review of
11 the further design revisions that are being
12 performed by Burns and McDonald, any interim
13 opinions that you have, based on the
14 information that you have and based upon the
15 design of the STAs as they currently exist
16 under the March, 1992 documents, are there any
17 other aspects of STAs which is going to form
18 the subject matter of the anticipated
19 testimony at the time of final hearing?
20 A. I expect that the reports being
21 written by Brown and Caldwell and other South
22 Florida Water Management District consultants
23 would be referenced in the Burns McDonald
24 documents, and so we would review those also.
25 We may comment individually on those
243
1 reports and we would make comments on how that
2 report influenced Burns McDonald.
3 Q. What is your understanding of the
4 nature or scope of the work being undertaken
5 by Brown and Caldwell?
6 A. It's my understanding that they are
7 looking at alternative technologies which
8 encompasses chemical, biological, mechanical
9 -- I will say chemical, mechanical, biological
10 means of removing phosphorus.
11 Q. And you say you are waiting for a
12 report being issued by Brown and Caldwell; is
13 that correct?
14 A. There may be several reports. I
15 don't know the details of their contract
16 scope, but it seems to have been -- what I do
17 know is it seems to be issued in the form of
18 amendments where South Florida Water
19 Management District will request a study of
20 this and then a study of that and then a study
21 of this, and I don't know what the current
22 scope of their contract is.
23 Q. Have Brown and Caldwell, up to now,
24 issued any reports?
25 A. Yes, they have.
244
1 Q. Have you reviewed those reports?
2 A. Yes, I have reviewed portions of
3 them.
4 Q. Can you identify those reports that
5 you have reviewed portions of either by date
6 or by title or some identifying means.
7 A. There was a report presented to SAGE
8 by Brown and Caldwell, I believe, in
9 February --
10 Q. Of this year?
11 A. -- of 1993, which presented the
12 results of -- I believe it was their phase two
13 evaluation of alternative technologies, and we
14 attended the SAGE presentation and reviewed
15 portions of that report.
16 Q. Are there any other reports that
17 have been issued by Brown and Caldwell that
18 you have reviewed?
19 A. They also wrote a phase one
20 evaluation report and presented that to SAGE.
21 I saw the final report and I attended a status
22 report that Brown and Caldwell gave to SAGE,
23 but I did not attend the final presentation to
24 SAGE on that report.
25 Q. Let me take a wild stab at it here:
245
1 Was the phase one report prior to the phase
2 two report?
3 A. Yes, it was, but you can't
4 necessarily make that assumption on this type
5 of documentation.
6 MR. MCGRATH: I realized, saying
7 that, but on the record it's going to seem
8 like a silly question.
9 Q. (BY MR. MCGRATH) Are there any
10 other reports that have been issued by Brown
11 and Caldwell that you have reviewed?
12 A. No, to my recollection, that's the
13 extent of it.
14 Q. Do you have any understanding of how
15 many reports are anticipated to be generated
16 by Brown and Caldwell?
17 A. No, I don't.
18 Q. Do you have any understanding of
19 when the next report by Brown and Caldwell
20 will be produced or made public?
21 A. I believe that a report is due in
22 the month of May, 1993 -- I should say it's my
23 understanding. There are very few things I
24 believe, but --
25 MR. GAINES: Very well put.
246
1 Q. (BY MR. MCGRATH) Do you have an
2 understanding of what the subject matter or
3 the scope of the reports, which you have an
4 understanding of being issued in May of 1993,
5 will be?
6 A. I expect it to discuss several
7 alternatives that ranked very high in the
8 phase one and phase two evaluations. The
9 discussion would be in greater detail and
10 include cost estimates for construction and
11 operation and maintenance and an evaluation of
12 their phosphorus removal potential.
13 I don't know if that evaluation
14 would be quantative or qualitative.
15 Q. What was discussed in the phase one
16 report?
17 A. The phase one report was a very
18 preliminary screening of a large number of
19 alternatives, and to put it succinctly, if
20 there wasn't a fatal flaw in the proposed
21 technology, it passed the phase one
22 evaluation.
23 Phase one was intended to screen out
24 alternative technologies that did not seem to
25 have any promises at all.
247
1 Q. And phase two?
2 A. Phase two was a more detailed review
3 of the technologies that survived the phase
4 one screening and included an estimate of
5 performance and an estimate of cost, cost to
6 implement.
7 Q. With respect to the phase, whatever
8 the next phase report is, the report that you
9 understand to be due in May of 1993, you said
10 that you anticipated discussion of several
11 alternatives that ranked high in the phase one
12 and phase two evaluation.
13 What are the Brown and Caldwell
14 alternatives that ranked high in phase one and
15 phase two evaluations, if you recall?
16 A. The one alternative, which I know
17 ranked high, was a chemical treatment process
18 followed by mechanical filtration.
19 There were other alternatives in
20 that phase two report, but my review focused
21 on that one issue. And, knowing that this was
22 not the final document, I did not devote a lot
23 of attention to the other alternatives at this
24 time.
25 Q. Going back to Exhibit No. 5, there
248
1 is the proviso that other areas of testimony
2 may be added as issues in this case develop.
3 At this time, are you aware of any
4 additional subject matter areas, other than
5 those listed here, that you have been asked to
6 testify on at the time of final hearing?
7 A. No, I am not aware of other areas of
8 subject matter.
9 MR. GAINES: This is a good point
10 for me to throw in, and it's probably already
11 been covered by your questions and answers
12 here, but we would also anticipate that
13 Mr. Stewart would be asked to give us an
14 analysis of upsizing the STAs dependent on
15 what the final Burns and McDonald or whatever
16 the final plan is for the STAs.
17 If it's determined that those do not
18 adequately fill the bill and would have to be
19 upsized, he would be asked to give us some
20 analysis of the cost of that, the marginal
21 costs of that, I guess, and whether -- I don't
22 know if that's been covered, but, if it
23 hasn't, then he is also intended to testify to
24 that.
25 MR. MCGRATH: Off the record.
249
1 (A brief recess was here had).
2 Q. (BY MR. MCGRATH) Mr. Stewart,
3 continuing with Exhibit No. 5, under the
4 category regarding substance of expected
5 testimony, the first thing listed is analysis
6 of proposed agricultural BMPs.
7 Now, with respect to that statement,
8 is that referring to those BMPs set forth in
9 the SWIM Plan, and I think you designated
10 those as capitalized BMPs, or is that
11 statement more general?
12 A. I think it's more general, intended
13 to be more general.
14 Q. With respect to those BMPs set forth
15 in the SWIM Plan, it's my understanding that
16 you had not been asked to analyze all of them;
17 is that correct?
18 A. That's correct.
19 Q. Just for record-keeping purposes,
20 and you can refer to Exhibit 2 if that would
21 be of help, could you go through the list of
22 nine BMPs on Pages 113 and 114 and identify
23 those which either you were not asked to
24 analyze or those which you have, in fact, not
25 performed any analysis type work.
250
1 MR. GAINES: I object to the form
2 because I don't understand what you mean by
3 performing analysis-type work. You walked him
4 through all nine of them yesterday, so that
5 was analysis-type work.
6 MR. MCGRATH: As far as his
7 understanding of the work that he was asked to
8 do by his client in this matter, I am just
9 wanting to take an inventory based on -- the
10 testimony and discussion was rather extended,
11 so I am trying to summarize what we have.
12 A. Well, I have reviewed all of the
13 BMPs and have considered their effects as a
14 group. But to answer your question about
15 these particular BMPs, BMP No. 1 on Page 113
16 relating to calibrated soil tests is primarily
17 an agronomy issue, and would fall outside the
18 experience of Hutcheon Engineers.
19 Q. (BY MR. MCGRATH) Would that same
20 statement also apply to BMPs No. 2 and 3 on
21 Page 113?
22 A. No, I was considering the list and
23 was going to identify for you the BMPs which
24 would specifically fall outside of our
25 expertise.
251
1 Q. Okay, then I apologize for
2 interrupting. Please continue.
3 A. BMP No. 7 relating to aquatic cover
4 crops, to the extent that those cover crops
5 provide a form of on-farm retention, we could
6 form an opinion on the hydraulic aspects of
7 it, but would probably not comment on the
8 concentration changes.
9 And the remainder of the list, I
10 would think, would fall within our
11 capabilities of commenting on it, testifying
12 to.
13 Q. With respect to the list and where
14 we stand today, could you identify those BMPs
15 that you have either not been asked to perform
16 analysis work, as that term is used in Answers
17 to Expert Interrogatories, or those which you
18 have not done analysis work, understanding
19 that you may, at some future time, based on
20 future additional work on data, render
21 opinions addressing the other ones within the
22 scope of expertise of Hutcheon Engineers, but
23 as we stand today, and I am trying to focus on
24 those that you have not been asked to analyze
25 or those that you have not, in fact,
252
1 analyzed?
2 Do you understand my question?
3 A. No, I am afraid I don't.
4 MR. GAINES: He has testified that
5 he has reviewed them all and he has considered
6 them all as a group. This document, Exhibit
7 5, I think, violates the witness disclosure
8 form and not the Answers to Interrogatories,
9 but I could be wrong.
10 He didn't draft that, so I don't
11 know if he can tell you what the definition of
12 analysis there was intended to be, but he has
13 reviewed and considered all of these, I think,
14 as he just testified.
15 Q. (BY MR. MCGRATH) Under the
16 substance of your expected testimony, what is
17 your understanding of that first phase and
18 specifically the use of the term and
19 requirements where it says, "Analysis of
20 Proposed Agricultural BMPs and Requirements"?
21 A. I would interpret the word,
22 requirements, to mean Rule 40-E-63 or other
23 rules that may be adopted or proposed for
24 adoption.
25 Q. Do you have an understanding of what
253
1 is meant by the requirement part of that
2 phrase, based on discussions with whoever
3 drafted this?
4 A. No, I am interpreting the word as I
5 see it written here, not based on prior
6 consultation.
7 Q. What is your understanding with
8 respect to the use of the phrase, "Evaluation
9 of BMP Alternatives," as that relates to the
10 subject of your anticipated or expected
11 testimony?
12 A. I would interpret the word,
13 evaluation, differently than analyze. In my
14 usage of the word, evaluation, I place a value
15 on the alternative as opposed to simply
16 commenting on pros and cons or advantages and
17 disadvantages.
18 An analysis may or may not come to a
19 conclusion, but an evaluation generally comes
20 to a conclusion.
21 Q. Can you explain what you mean by
22 placing a value on an alternative.
23 A. In the context of phosphorus
24 reduction, it would be an estimate of the load
25 reduction that would be expected if that BMP
254
1 were implemented, or if an alternative were
2 implemented.
3 Q. Using your differentiation of the
4 term, analyze and evaluate, would any
5 evaluation be a more thorough examination and
6 review of an issue than an analysis?
7 A. No, not necessarily.
8 Q. Why not necessarily?
9 A. I am defining my own terms here.
10 This may not be the same definition as my
11 client's, but there are different levels of
12 detail in both analyses and evaluation.
13 I may make an evaluation after one
14 day of study. I may make an analysis that
15 takes six months, or the reverse may be true.
16 MR. GAINES: Let me just say I
17 didn't personally write this language here.
18 But I don't think that there is intended to be
19 any hair-splitting in these words between
20 analysis and evaluation as it was put on the
21 witness disclosure form here.
22 And if you want to read, each time
23 you see, "analysis and evaluation," as
24 analysis and/or evaluation, I don't think that
25 there is an attempt being made here to draw
255
1 the kind of distinction that you guys are
2 talking about right now.
3 MR. MCGRATH: But to the extent in
4 that the witness believes that there is a line
5 drawn or if there is some difference in the
6 scope of his work regarding particular issues,
7 I will endeavor to clarify that during
8 questioning.
9 Q. (BY MR. MCGRATH) What is being
10 referred to with respect to the phrase,
11 "Analysis of EAA Water Management Practices"?
12 MR. GAINES: Let me -- I don't mind
13 you asking him -- let me object to the form.
14 You are asking him what is being referred to
15 by this phrase, and he has already testified
16 these aren't his phrases necessarily.
17 So, obviously, you are more than
18 welcome to get into what the substance of his
19 expected testimony would be, but I am not
20 comfortable with, "What does that phrase
21 mean," when he didn't write the phrase.
22 MR. MCGRATH: With that, let me just
23 rephrase the question.
24 Q. (BY MR. MCGRATH) Let me ask: What
25 will be the substance of your expected
256
1 testimony with respect to EAA water management
2 practices?
3 A. EAA water management practices would
4 be a broader subject than what may be included
5 under agricultural BMPs, and may include the
6 combined effects of several subbasins, as
7 opposed to an evaluation of individual basin
8 performance.
9 Q. Again, with respect to the EAA water
10 management practices, we are talking, at least
11 in part, about pump BMPs; is that correct?
12 A. Yes.
13 Q. And, again, at this time, can you
14 identify other subject matter areas that would
15 fall within the category of EAA water
16 management practices.
17 MR. GAINES: I think he has already
18 done that.
19 Q. (BY MR. MCGRATH) It's my
20 understanding because we had touched on this
21 when we were discussing subject matter of
22 expected testimony and other than EAA or --
23 excuse me -- other than pump BMPs, it's my
24 understanding that at this time there are no
25 other specific topics or subject matters that
257
1 come to your mind that fall within this
2 category.
3 And, No. 1, is my understanding
4 correct, and I am wondering, based on our
5 testimony your recollection has not been
6 refreshed, if other subject matters may fall
7 within the category of EAA water management
8 practices?
9 MR. GAINES: Other than what he has
10 already testified to concerning regional
11 pumping practices and water management aspects
12 of the STA design as previously listed.
13 A. And the discussions we have already
14 had relating to on-farm retention/detention
15 systems designed in accordance with Volume IV,
16 that would encompass -- I believe, the scope
17 of EAA water management practices.
18 Q. (BY MR. MCGRATH) Now, this next
19 series of questions, if I can get them out
20 clearly, are based on my confusion regarding
21 the use of the term, "alternatives," as it's
22 set forth in Exhibit 5, and as we have been
23 using it.
24 First, do you anticipate testifying
25 at the time of final hearing that there exists
258
1 alternatives to those BMPs listed in the SWIM
2 Plan?
3 A. Yes.
4 Q. Do you intend to testify at the time
5 of final hearing that there are alternatives
6 to implementation of the STAs?
7 A. Yes.
8 Q. Do you differentiate between those
9 practices and systems that we may have
10 discussed, or have yet to discuss, that are
11 alternatives to BMPs as listed in the SWIM
12 Plan and those practices and/or systems which
13 are alternatives to STAs?
14 Do you understand my question?
15 A. Yes, I do. The word, "alternative,"
16 is inprecise and over-used in the discussions
17 of the Everglades SWIM Plan and is not a good
18 title for a process or a procedure.
19 Q. In the context that you have been
20 using the term, "alternative," what has been
21 your intended meeting?
22 MR. GAINES: Let me object to the
23 form. Using it in what context other than
24 that last statement that you just made?
25 MR. MCGRATH: In the context that
259
1 the word has come out of his mouth and he has
2 used it during his testimony here today.
3 MR. GAINES: Well, I assume you mean
4 the entire deposition, and I don't think he
5 can go back and remember every time the word,
6 "alternative," has been said in this
7 deposition and what was meant each time. So I
8 object to the form.
9 MR. MCGRATH: I understand.
10 Q. (BY MR. MCGRATH) To the extent that
11 you understand what I am asking for, when you
12 have been using the term, "alternative," what
13 has been your intended meaning of that term?
14 MR. GAINES: Same objection.
15 A. To the best of my recollection,
16 during the deposition, when I used the word,
17 "alternatives," I am using the Webster
18 Collegiate Dictionary term, lower case A, for
19 alternatives, meaning an option or choice, and
20 depending upon what our topic was at the time,
21 I am not making reference to a specific list
22 of alternatives for a specific proposal when I
23 use the term.
24 Q. (BY MR. MCGRATH) So that we are
25 clear and just so that I am clear, to the
260
1 extent that the term, "alternative," is used
2 in 40-E-63, do you understand that term being
3 used as a choice or alternative and an option
4 to those BMPs listed in the SWIM Plan?
5 MR. GAINES: Wait a minute. I
6 object without the witness having the
7 opportunity to see the rules and how the word
8 is used and the way you are referring to it.
9 Q. (BY MR. MCGRATH) Based upon your
10 understanding of how that term is used in
11 40-E-63?
12 A. I think I would have to say I don't
13 know.
14 MR. MCGRATH: And if I can get a
15 copy of 40-E-63, I will.
16 Q. (BY MR. MCGRATH) Do you anticipate
17 your testimony at the time of final hearing to
18 address alternatives to the SWIM Plan
19 requirements as a whole without
20 differentiating between those things which are
21 alternatives to the SWIM Plan BMPs and those
22 things which are alternatives to the STAs?
23 MR. GAINES: You are talking about
24 the phosphorus reduction requirements or goals
25 of the SWIM Plan?
261
1 MR. MCGRATH: Yes.
2 A. Yes, I would expect to be asked to
3 testify as to our opinion of alternatives
4 without necessarily limiting that scope to
5 BMPs or STAs.
6 Q. (BY MR. MCGRATH) You indicated that
7 you intend to testify and render opinions that
8 there are alternatives to the implementation
9 of the STAs -- there are alternatives to the
10 STAs; is that correct?
11 A. Yes.
12 Q. In your opinion, what are the
13 alternatives to the STAs or the implementation
14 of the STAs?
15 MR. GAINES: It is assuming, for the
16 sake of your question, that the underlying
17 goals are correct and that's a given in
18 your --
19 MR. MCGRATH: Actually that's going
20 to be a follow-up question. But, for right
21 now, just assume what Counsel just said to us.
22 THE WITNESS: If I could restate the
23 question, the question is: What do I consider
24 to be alternatives to the STAs?
25 MR. MCGRATH: Yes.
262
1 A. We have presented in public
2 meetings, or have participated or observed
3 others present in public meetings, a fairly
4 long list of alternatives to STAs.
5 From memory, I will list chemical
6 treatment, sediment control, lime rock
7 sorption -- let me say sedimentation and
8 distinguish that from sediment control.
9 Those topics may be considered as
10 direct alternatives to managed wetlands.
11 There is another list of techniques which may
12 be considered to substantially reduce the need
13 for STAs or reduce the need for one of these
14 alternatives to STAs.
15 And that list would include all of
16 the agricultural BMPs that have been discussed
17 by IFAS, South Florida Water Management
18 District, all of the agricultural BMPs that
19 been proposed by applicants under Rule
20 40-E-63, specifically volume reduction pump
21 BMPs, concentration reduction pump BMPs, and a
22 catch-all phrase, other internal water
23 management BMPs, internal meaning on-farm.
24 It's a very broad question.
25 Q. (BY MR. MCGRATH) I understand.
263
1 A. There are alternatives that have
2 been discussed related to regional diversion
3 of flow which, again, may not eliminate the
4 need for a regional treatment, but could
5 dramatically influence the sizing of that
6 regional treatment.
7 And I think that covers the
8 spectrum.
9 Q. Going back to the category that you
10 labled as those alternatives which would
11 reduce the need for STAs, by that do you mean
12 alternatives that, if implemented, would not
13 require STAs of the size and scale and scope
14 that are now intended -- smaller, by using
15 that term, are you talking better alternatives
16 which, if implemented, would not require or
17 could be implemented with smaller scale STAs?
18 MR. GAINES: Let me object to the
19 form. I think you are mischaracterizing his
20 prior statement. I think he changed -- at
21 first he said would reduce the STAs and I
22 think he changed to, "or other regional
23 treatment technologies," or something along
24 those lines.
25 I think he changed that during the
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1 course of -- given that, you can answer.
2 Q. (BY MR. MCGRATH) Do you understand
3 what I am asking?
4 A. I understand the words. If you are
5 referring to the second group of alternatives,
6 then, yes, I am referring to techniques,
7 procedures and practices that could reduce the
8 size of STAs, and I believe I used the term,
9 "regional treatment," because the first list
10 were regional treatments that are not managed
11 wetlands, which is what is usually referred to
12 as STAs.
13 Q. Just so that I am clear, with
14 respect to the first part of the items listed,
15 the chemical treatment, sediment controls,
16 lime rock sorption, and sedimentation, is my
17 understanding correct in that by
18 implementation of any or all of these
19 alternatives that managed wetlands would not
20 be necessary?
21 A. They may be completely eliminated.
22 Q. With respect to the second grouping
23 of alternatives, is my understanding correct
24 in that this grouping contemplates the
25 existence of managed wetland treatment
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1 systems, but on a different scale than are
2 currently being proposed?
3 A. No. I think the answer is no, you
4 you have misinterpreted what I said; not
5 simply no, that list does not assume wetland
6 treatment.
7 Q. With respect to the second list,
8 what is the relationship between these
9 alternatives and STAs managed wetland
10 treatment systems?
11 MR. GAINES: Given -- well, using
12 the March, 1992 STA design?
13 MR. MCGRATH: Yes.
14 THE WITNESS: The question is: How
15 does the second group relate to the March,
16 1992 concept design for STAs?
17 MR. MCGRATH: Yes, let's proceed
18 under that.
19 A. The second group would expand the
20 list of on-farm BMPs that were anticipated in
21 the March, 1992 concept design.
22 Q. (BY MR. MCGRATH) What effect does
23 the expansion of the on-farm BMPs that are
24 included in the March, 1992 conceptual design
25 have on the STAs as considered under the
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1 March, 1992 conceptual design?
2 A. There are two potentials. The first
3 is, without changing the goals in the March,
4 1992 concept design, the farmer would have
5 greater flexibility in how he accomplishes
6 that goal:
7 Or if the approach is taken to
8 maximize phosphorus removal on the farm, the
9 goals stated in the March, 1992 concept design
10 can be exceeded, which would then suggest a
11 downsizing of the STAs.
12 Q. At this time, do you have an opinion
13 as to whether there exists some -- and this
14 term has been used throughout this litigation
15 and, why, I don't know -- some optimum plan,
16 some combination of BMPs and practices and
17 technologies and concepts, which would be the
18 most effective, the most cost beneficial to
19 achieve the goals, the phosphorus reduction
20 goals set forth in the SWIM Plan?
21 MR. GAINES: Let me object to the
22 form of the question. I don't know if you are
23 asking whether the District has concluded that
24 its reached its optimum plan as that term was
25 used by Pete Rhodes, or whether there is an
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1 optimum plan out there in the air waiting to
2 be discovered, or exactly what the contours of
3 your question are there.
4 MR. MCGRATH: I used that term
5 almost facetiously, meaning using just the
6 dictionary definition of the term, "optimum,"
7 and the term, "plan."
8 Q. (BY MR. MCGRATH) Do you, at this
9 time, have an opinion as to whether there
10 exists a combination of practices,
11 technologies, concepts, different from what is
12 proposed in the current SWIM Plan, that will
13 produce the desired results of the SWIM Plan
14 on a more cost effective or in a more
15 appropriate fashion?
16 MR. GAINES: You are asking whether
17 he is aware as to whether anyone has
18 articulated that combination?
19 MR. MCGRATH: I am asking whether he
20 has.
21 MR. GAINES: Oh, whether he
22 articulated it or not?
23 MR. MCGRATH: No, not whether he has
24 articulated it, whether he seeks to develop or
25 to put it down on paper, whether he has come
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1 to an opinion, whether there exists some
2 optimal combination of technologies,
3 practices, and concepts to achieve the goals
4 of the SWIM Plan?
5 A. Well, the honest answer is no, there
6 is not a single optimum plan in this case.
7 Because of the varied interests of all parties
8 involved, different parties will place
9 different values on intangible factors, and to
10 select the optimum design, you need to
11 maximize the value of the design:
12 And, since there is no one set of
13 rules, decide what is a value and to assign
14 the magnitude of that value, I don't think
15 there is any one plan that could be judged the
16 optimum plan.
17 There is likely to be a family of
18 plans which all fit within a broad definition
19 of the word, "optimum," period, paragraph.
20 (Stewart Exhibit 6 was here marked
21 for identification purposes by the court
22 reporter).
23 Q. (BY MR. MCGRATH) Mr. Stewart, I
24 have just handed you what's been marked as
25 Exhibit No. 6 to your deposition. Can you
269
1 identify what this document is or purports to
2 be.
3 A. This appears to be the presentation
4 booklet which was distributed at the South
5 Florida Water Management District board
6 meeting of April 9th, 1992, authored and
7 presented by representatives of the Florida
8 Sugar Cane League.
9 Q. And this presentation was entitled,
10 "A Strategy to Revitalize the Everglades and
11 Preserve Research Farming"; is that correct?
12 A. Yes.
13 Q. What was the purpose of the Florida
14 Sugar Cane League making this presentation to
15 the South Florida Water Management District on
16 April 9th, 1992, if you know?
17 MR. GAINES: Object to the form,
18 lack of predicate. You haven't established if
19 he had any connection with this.
20 MR. MCGRATH: I understand. I mean,
21 technically, it's a valid objection. I will
22 establish that later on.
23 Q. (BY MR. MCGRATH) But right now, if
24 you have knowledge of why this presentation
25 was made; that is what I am trying to find
270
1 out.
2 MR. GAINES: Well, I object to
3 asking this witness to speak on why was it
4 presented by the Florida Sugar Cane League.
5 If you are asking what the Florida Sugar Cane
6 League's purpose was, I don't think he is the
7 appropriate witness to ask.
8 Q. (BY MR. MCGRATH) Let me ask you
9 this: Do you have an understanding of the
10 purpose of the Florida Sugar Cane League in
11 making this presentation to the South Florida
12 Water Management District?
13 A. Well, I have difficulty in answering
14 that. And I don't mean to split hairs, but
15 what was the purpose of the League making this
16 presentation, I might not be aware of what the
17 purpose was or what their objective was.
18 But, having said that, my
19 understanding of this presentation was the
20 Florida Sugar Cane League wanted to make the
21 board and make the public aware that there is
22 a different approach to addressing the
23 Everglades SWIM problem without -- I am sorry,
24 a different approach besides the approach that
25 is spelled out in the Everglades SWIM Plan.
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1 Q. Did you prepare this document or
2 participate in the preparation of