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 264 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 265 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 266 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 267 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 268 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. 271 1 Q. Did you prepare this document or 2 participate in the preparation of the document 3 or any part of it? 4 A. Yes, I participated in the 5 preparation. 6 Q. What was your involvement and input 7 in preparing this presentation? 8 A. We attended several meetings with 9 various representatives of the League and 10 discussed, in general, the content of the 11 document. 12 There were certain technical issues 13 -- I say technical issues -- numbers, and 14 calculations that were needed in order to fill 15 in information in the document, that we 16 provided. 17 And, in general, we provided the 18 graphics and production capability to produce 19 these 49 pieces of paper for the League. 20 Q. Does this document, or any of the 21 information presented in this document, 22 reflect or result from your direct work 23 product? 24 A. Yes, it does. 25 Q. Would you go through the document 272 1 and identify those pages, those items that 2 reflect your direct work product. 3 A. Okay. 4 THE WITNESS: Shall we preference 5 them by the Bates number? 6 MR. MCGRATH: We might as well. I 7 apologize to Counsel for the copies that I 8 gave them, because I realize a number of 9 different copies of the same document have 10 been produced and the page ordering in a lot 11 of those is different. 12 All of the documents that you have 13 before you, the order of the documents is the 14 same. I don't know if it's what was intended, 15 but we all have the same Bates numbers as we 16 go through. 17 THE WITNESS: Okay. I will not 18 bother to annotate each page with, "We 19 produced this graphically because we produced 20 -- we graphically produced all of the pages. 21 Also, invariably, every page will 22 have some portion of the text or the content 23 that was contributed by others who were 24 working on the document, and so I won't bother 25 to point those out in this first screening. 273 1 What I will do is read off the page 2 numbers which are substantially a Hutcheon 3 Engineers' product or which we had a 4 significant participation in. 5 MR. MCGRATH: In addition to that, 6 if you could, differentiate between that 7 information or those pages which are 8 substantially Hutcheon Engineers' work product 9 and specifically those information or those 10 pages, those items which are specifically your 11 work product. 12 Would you be able to do that? 13 THE WITNESS: My work product, as in 14 David Stewart? 15 MR. MCGRATH: Yes. 16 THE WITNESS: Everything that is 17 Hutcheon Engineers is David Stewart or 18 vice-versa. I make no distinction there. 19 A. Bates No. 1125466 -- 20 MR. MCGRATH: As we go through, you 21 can read just the last three numbers. 22 A. Bates No. 466, 467, 471, 472, 475, 23 478, 479, 480, 481, 482, 483, 484, 485, 488, 24 489, 494, 495, 498, 499, 501, 504 -- I need to 25 withdraw page 504, or footnote it and come 274 1 back with an explanation. 2 That completes the list. 3 Q. Did you participate in the 4 presentation of this presentation to the South 5 Florida Water Management District? 6 A. I did not have a speaking part, no. 7 I carried a bucket of rocks up to the podium 8 at one point. 9 Q. I take it from that last statement 10 that you were present at the presentation of 11 this presentation? 12 A. Yes. 13 Q. Now, has the presentation identified 14 by Exhibit No. 6, been made anywhere other 15 than to the South Florida Water Management 16 District? 17 A. Yes, it has. 18 Q. Do you know to whom this 19 presentation has been made, other than the 20 South Florida Water Management District? 21 A. I was not present, but it's my 22 understanding that this same presentation was 23 given to SAGE several weeks after the 24 presentation to the District board. And it's 25 my understanding that it was also taken to a 275 1 number of editorial boards of newspapers 2 throughout the state of Florida. 3 Q. Other than to SAGE and presented to 4 editorial boards, are you aware or do you have 5 an understanding that it was made to any other 6 group or presented to any other groups or 7 entities? 8 A. A very similar presentation was made 9 to a local group, I believe it was a Palm 10 Beach County -- it was a business development 11 group or -- I am sorry, I don't have the exact 12 name of the group. 13 Q. Would it be like the Chamber of 14 Commerce or something of that nature? 15 A. I believe it was the Palm Beach 16 County Chamber of Commerce. 17 Q. Any other groups that you are aware 18 of that the presentation or similar 19 presentations have been made to? 20 A. No, not that I am aware of. 21 Q. Are you aware of when the Florida 22 Sugar Cane League first proposed or came up 23 with the idea to make a presentation to the 24 South Florida Water Management District? 25 A. No, I am not aware of when they made 276 1 that decision. 2 Q. Relative to April 9th, 1992, when 3 were you first aware that a presentation was 4 intended and that the Florida Sugar Cane 5 League wanted Hutcheon Engineers to assist in 6 the preparation of a presentation? 7 A. It was several months prior to the 8 presentation. Our client is Phillip Parsons, 9 and, in meeting with my client, I am not 10 always aware of what are his directions and 11 thoughts on what should be done in the next 12 few weeks and what is the League's directions 13 to him to have accomplished in the next few 14 weeks. 15 MR. GAINES: Let me caution you that 16 Mr. Parsons is an attorney representing the 17 League and any of his thoughts on work 18 product, litigation, strategy and trial 19 preparation are privileged, and I instruct you 20 not to answer questions intended to disclose 21 the substance of those matters. 22 Q. (BY MR. MCGRATH) Seeing as there 23 was no such question pending, I am still 24 focusing on how soon before the presentation 25 were you aware that the presentation was being 277 1 contemplated? 2 MR. GAINES: That's been asked and 3 answered. He said several months. 4 A. Several months. 5 Q. (BY MR. MCGRATH) How many several 6 months? Are we talking several months, three 7 months, several months, seven months; can you 8 be more specific? 9 A. I am sorting out the complexities of 10 the attorney/client privilege in trying to 11 answer your question. 12 Q. Right now I am just focusing on 13 dates and times. Relative to April 9th, 1992, 14 when were you first made aware that a 15 presentation was intended and your assistance 16 was sought for that presentation? 17 Were you aware of that in 1991, or 18 early 1992? I am just trying to pick a point 19 in time. 20 MR. GAINES: And he is talking about 21 this particular Exhibit 6 presentation, so -- 22 A. Okay. I think that this particular 23 presentation, essentially, this document was 24 probably first discussed with me in the nature 25 of four to six weeks prior to its 278 1 presentation. 2 I want to say, prior to that time, 3 there were discussions about whether or not a 4 presentation would be made, and, if so, what 5 the content of that presentation would be. 6 But the outline for this and the 7 contents of this was probably first discussed 8 with me in the nature of four to six weeks 9 before the presentation. 10 Q. (BY MR. MCGRATH) Let's go through 11 the document a little bit. I would ask you, 12 first, please, to turn to the page ending in 13 Bates No. 468. It's the economic impact of 14 STAs. 15 MR. GAINES: That's not on his list 16 of pages that he had anything to do with. So 17 I will object to -- well, ask your question 18 and then I will object. 19 Q. (BY MR. MCGRATH) Do you anticipate 20 at the time of trial providing testimony or 21 rendering any opinions regarding the subject 22 matter stated on this page, the economic 23 impact of STAs, and specifically those four 24 point items listed on this page? 25 A. No, I don't anticipate testifying on 279 1 those issues. 2 Q. Going to the next page, the 3 reference to the 150 metric ton reduction of 4 primary pumps by 1996, is your understanding 5 that that is a reference to the phosphorus 6 reduction required under the SWIM Plan? 7 A. Yes. 8 Q. What is identified here generally is 9 FSCL strategies. Are those strategies the 10 things that we have been talking about over 11 the last two days? 12 MR. GAINES: Let me just object that 13 he went through and specified which pages were 14 his work product. This is one of the pages 15 that is not his work product, so there is no 16 predicate for his ability to respond with 17 regard to this page. 18 MR. MCGRATH: Just because it's not 19 his work product doesn't mean that he doesn't 20 know what it means. 21 MR. GAINES: Well, there is no basis 22 to show that he has any -- there is nothing to 23 establish any basis as to what this refers 24 to. 25 Q. (BY MR. MCGRATH) Mr. Stewart, do 280 1 you have an understanding of what is being 2 referred to by the phrase, "FSCL strategies"? 3 A. Yes. 4 Q. What is your understanding of what 5 is being referred to there? 6 A. These three items are a recap, or 7 summary, of the material that is presented in 8 the rest of the document. 9 Q. Do you anticipate testifying at time 10 of final hearing regarding the stated 25 11 metric ton reduction by continuing South 12 Florida Water Management District projects 13 regarding the ENR and Holey Land? 14 A. I may be asked to comment or testify 15 on that. 16 Q. At this point in time, have you been 17 asked to provide testimony and render expert 18 opinions regarding the ENR? 19 A. We have not been asked by Counsel to 20 prepare that subject for expert testimony, but 21 we have discussed these two issues with SAGE 22 and offered our interpretation of the facts 23 relating to these two projects. 24 Q. Would it be accurate to say, with 25 respect to the ENR and Holey Land projects, 281 1 that those are subject matters that you may be 2 called upon to testify at the time of final 3 hearing, but, as of today, you have not been 4 asked to provide testimony to provide 5 testimony regarding those subjects? 6 A. Not those specific subjects. 7 Q. Turning to the next page, under the 8 topic heading, "Everglades Restoration 9 Strategies," do you anticipate, at the time of 10 final hearing, providing testimony and 11 rendering opinions regarding phosphorus 12 reduction strategies? 13 A. Yes. 14 Q. Do you intend or do you anticipate 15 providing testimony and rendering opinions, 16 and I am asking this question as of today's 17 date, regarding hydroperiod restoration? 18 A. I would say, no, but as I recall 19 initial discussions with Counsel, this 20 document, in general, was referred to as an 21 area that I might be asked to testify on, 22 which does not mean the entire document, but 23 those portions of it. 24 There have been no specific 25 conversations about hydroperiod restoration. 282 1 Q. So, understanding the qualification 2 of the potential for future work and analysis 3 of further data and changes to be made prior 4 to the time of final hearing, as of today, is 5 it correct to say that you don't anticipate 6 providing testimony regarding hydroperiod 7 restoration? 8 A. That's correct. 9 Q. The same question with respect to 10 exotic species removal? 11 A. No, I don't expect to testify. 12 Q. The same question with respect to 13 joint ecological monitoring and research? 14 A. No. 15 Q. On-farm monitoring? 16 A. No. 17 Q. Transferrable -- 18 MR. GAINES: Wait a minute, wait a 19 minute. I want to make sure we have a clear 20 record and that you understand what he is 21 going to testify to. 22 I don't know if I understand what 23 the phrase, "on-farm monitoring," refers to 24 here. But it seems to me that there has been 25 aspects of the BMPs that have been discussed 283 1 already in this deposition which have on-farm 2 monitoring as a part and parcel of that. 3 So I would think that in the context 4 of monitoring associated with the 5 implementation of BMPs that his testimony 6 would touch on monitoring. 7 If the witness understands this to 8 mean something aside from that, then I will 9 yield to the witness. I just want to make 10 sure you are not misled by what he is going to 11 testify to. 12 MR. MCGRATH: Let me just clarify 13 that. 14 Q. (BY MR. MCGRATH) First, what is 15 your understanding of what is being referred 16 to here by the phrase, "on-farm monitoring"? 17 A. My understanding is that this phrase 18 refers to what we call a design process of 19 feedback loop. You make a change, you monitor 20 the impact of that change, you use that 21 monitoring to then suggest a different 22 adjustment. 23 And, in this particular usage, I 24 believe they are referring to the 40-E-63 25 monitoring program and the opportunity for 284 1 adjustments to design and adjustments to 2 strategies as a result of what that monitoring 3 program produces in the future. 4 Q. And based on that understanding, do 5 you anticipate, at this period of time, 6 providing testimony and rendering opinions 7 regarding on-farm monitoring? 8 A. I don't expect to be asked to 9 testify to the 40-E-63 monitoring program. 10 Q. And, again, I think we touched on 11 this yesterday, do you anticipate providing 12 testimony or rendering opinions at the time of 13 final hearing regarging transferrable 14 Everglades restoration credits? 15 A. No. 16 MR. MCGRATH: Why don't we break 17 here for lunch and come back at 1:00 o'clock. 18 (A luncheon recess was here had). 19 Q. (BY MR. MCGRATH) Mr. Stewart, we 20 are continuing with Exhibit No. 6, and I am on 21 the page ending with Bates No. 471 that's 22 titled, "Phase I Phosphorus Reduction 23 Strategies." 24 On this list there is a list of 25 various strategies. The second item listed 285 1 entitled, "Other Sources," if you go another 2 two pages into the document on the page ending 3 in Bates No. 473, it defines -- that page is 4 entitled, "Other Sources," and there are five 5 point items enumerated on that page. 6 Do you anticipate at the time of 7 final hearing testifying about or rendering 8 opinions on any of the subject matters set 9 forth under "Other Sources," on Page 473? 10 A. Yes, I would think this would fall 11 within my scope. 12 Q. Let's go down those point items: Do 13 you anticipate rendering testimony or opinions 14 regarding the Bryant Sugar Mill? 15 A. Yes. 16 Q. What did you anticipate the nature 17 of your testimony to be with respect to Bryant 18 Sugar Mill? 19 A. It would follow the information 20 that's been presented to SAGE which identifies 21 -- this site has been identified as a source 22 of phosphorus at a higher concentration than 23 background sugar cane fields. 24 And because of its small size and 25 relatively high concentrations, there are 286 1 opportunities to control and contain the 2 phosphorus at this site which go beyond the 3 agricultural BMPs on on-farm BMPs that were 4 previously discussed. 5 We were asked to evaluate the 6 magnitude of the historic loads and the 7 results of that evaluation are summarized on 8 the page with Bates No. 475. 9 Q. During what period of time was the 10 analysis of the phosphorus loads in Bryant 11 Mill conducted? 12 A. I am sorry -- at what time were the 13 calculations done? 14 Q. At what period of time did Hutcheon 15 Engineers perform work regarding analysis of 16 the phosphorus loads at Bryant Mill? 17 A. Well, it was prior to April 9th, and 18 I am afraid I don't recall when the analysis 19 started. 20 Q. Was there a report prepared by 21 Hutcheon Engineers regarding work relative to 22 Bryant Mill? 23 A. There was a memorandum of perhaps 24 three or four pages, and I don't recall if 25 that memorandum was circulated at SAGE or if 287 1 it was simply prepared and available upon 2 request. I don't recall if that memo was 3 circulated. 4 But the memorandum was simply the 5 calculation of the average monthly loads 6 presented in this figure. 7 Q. Have any steps been taken or 8 programs or strategies put into place to 9 reduce phosphorus loads leaving Bryant Mill, 10 and I am asking specifically with respect to 11 Hutcheon Engineers' involvement and advising 12 such strategies or programs to reduce 13 phosphorus loads? 14 A. Under direct contract with United 15 States Sugar, we reviewed the proposal and 16 participated in developing some of the details 17 of how this work would be done. 18 As I roughly recall, we did not 19 prepare construction plans for it nor produced 20 the South Florida Water Management District 21 permit application for this work. 22 But our review of this project was 23 done some time ago, mid-1992, and I would 24 expect that this work had been submitted as a 25 permit application -- I am sorry -- as a 288 1 permit modification to allow this construction 2 to take place. 3 I don't know whether that 4 application has been filed or whether the work 5 has actually started. 6 Q. Do you have knowledge or an 7 understanding of what is being done or 8 implemented at Bryant Mill to reduce 9 phosphorus loads? 10 A. Yes, I do. 11 Q. And what is being done? 12 A. If I could refer you to the figure 13 on -- 14 MR. GAINES: He just testified he 15 was not sure what the status of it is. But I 16 think what you are asking him for is to 17 describe what is on Page 476. 18 MR. MCGRATH: I am asking him what 19 is being done at Bryant Mill. If what is on 20 Page 476 is related to that, I will be -- 21 A. My understanding is -- my last 22 understanding is that the work being done is 23 the same work that was contemplated on April 24 9th, when this document was prepared, so my 25 testimony is the same in either regard. 289 1 The figure on the page with Bates 2 No. 476 depicts the Bryant Sugar Mill on the 3 north side of a secondary canal which is 4 designated canal No. 2. Canal No. 2 is 5 operated or -- I am sorry -- maintained by the 6 Pelican Lake Water Control District. 7 On the south side of that same canal 8 are the various retention ponds that are 9 utilized by the sugar mill. 10 South of the retention ponds were 11 several agricultural fields dedicated to the 12 production of sugar cane. 13 The proposal involved rerouting 14 canal No. 2 around the north side of the 15 Bryant Sugar Mill so that it did not come in 16 close proximity to the sugar mill or any of 17 its on-site ponds. 18 Also a containment levee was planned 19 to be constructed around the sugar mill, its 20 on-site ponds, and the agricultural fields 21 south of the ponds and all surface discharge 22 -- I am sorry -- all surface water within that 23 containment levee would be directed to an 24 proposed retention pond located in the center 25 of this figure. 290 1 During the grinding season, all 2 surface runoffs from the sugar mill and all 3 surface runoffs from the sugar cane fields 4 would be pumped into that retention pond 5 during dry periods during the grinding season 6 and that water would be taken back out to the 7 agricultural fields as irrigation supply. 8 During the wet season which is not 9 in the grinding season when the mill is 10 inoperable -- I am sorry -- which is not in 11 operation, then I believe these agricultural 12 fields would be managed in the conventional 13 manner and there would be off-site discharge. 14 Q. Are there any other aspects to your 15 knowledge or understanding regarding the 16 strategies or programs that are being 17 implemented or to be implemented at Bryant 18 Mill? 19 A. Not of an engineering nature, but 20 there is a small complexity associated with 21 this. The sugar mill and the lands within 22 this levee are privately owned by U.S. Sugar. 23 The canal No. 2 is owned by Pelican 24 Lake Water Control District, which is a 25 special taxing district with responsibility 291 1 for drainage and irrigation of lands well 2 beyond the limits of this site. 3 The permit -- the surface water 4 discharge permit for this canal is part of the 5 permit held by the Pelican Lake Water Control 6 District. So in addition to the engineering 7 task of rerouting off-site areas around this 8 site and containing the Bryant Mill site, 9 there is the legality of having the 298 10 District permit modified in order to allow 11 this to occur and transferring the operations 12 and maintenance -- I am sorry -- transferring 13 a drainage easement around the mill and 14 operating and maintaining that drainage 15 easement. 16 Q. Other than that, are there any other 17 aspects? 18 A. No. 19 Q. The scheme that you have described 20 for us that is set out on the diagram on the 21 page ending in Bates No. 476, did Hutcheon 22 Engineers or you, in particular, have any 23 involvement in designing or devising this 24 particular strategy? 25 A. No. 292 1 Q. Do you know who did? 2 A. I should say no, I don't know the 3 individual that devised this. But this 4 proposal was brought to my attention, came to 5 me, from U.S. Sugar Corporation. 6 This is a variation on the theme 7 that was used at the Clewiston Sugar Mill as 8 part of the Lake Okeechobee master permit for 9 EPD, so Hutcheon Engineers was already aware 10 of this concept. 11 In fact, at the time we were 12 discussing the Clewiston Sugar Mill, there 13 were conversations about doing a similar 14 operation at the Bryant Mill, and so it was a 15 concept that had been discussed in 1991, and 16 came as no surprise to us. 17 Q. The data that is shown in drawing 18 form on the page prior to that ending in Bates 19 No. 475, does that data represent phosphorus 20 discharge loads from Bryant Mill? 21 A. This represents loads from the 22 entire basin which contains Bryant Mill -- 23 this includes the agricultural lands in the 24 same basin as the Bryant Mill. 25 Q. With respect to the strategies that 293 1 you have been describing that is depicted 2 graphically on the page ending in Bates 3 No. 476, do you know what the proposed or 4 calculated P reduction would be for the load? 5 A. I believe it's on the order of five 6 metric tons, somewhere in the four and a half 7 to six and a half metric ton range. 8 Q. That would be on a per year basis? 9 A. Yes, on a per year basis. 10 Q. Is the work completed for that 11 particular strategy, is it underway or has it 12 yet to begin? 13 A. I would say it's complete. I don't 14 anticipate doing any further study on this. 15 MR. MCGRATH: Maybe I wasn't clear. 16 Q. (BY MR. MCGRATH) I am asking with 17 respect to the actual on-site work 18 construction -- 19 A. Construction? 20 Q. Yes. 21 A. Oh, no, I don't know the status of 22 the construction. 23 Q. Do you know whether it's completed, 24 the actual work? 25 A. No. 294 1 Q. You don't know or, no, it's not 2 completed? 3 A. I don't know. 4 Q. The memo that you referred to, did 5 you produce that with the other documents that 6 you have produced for this deposition? 7 A. I would say yes, it should have been 8 produced in the first group of documents. I 9 have produced documents on three occasions, 10 and, in the first batch of documents, that 11 memo should have been included. 12 MR. ROSENBERG: Let me interject. 13 The witness said he produced documents on 14 three occasions. Is that in response to the 15 duces tecum that the Government produced or is 16 that in response to somebody else's demand? 17 THE WITNESS: That was in response 18 to another notice. I produced documents one 19 time with respect to my own notice. 20 But previous notices to the League 21 and, in particular, Andy Racklee's (phonetic) 22 notice and there was -- it might have been 23 U.S. Sugar or one of the principals was