1 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038 9 ASSOCIATION, LEWIS POPE FARMS, 92-3039 W.E. SCHLECHTER & SONS, INC., and 92-3040 10 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF THOMAS M. SWIHART 24 February 3, 1993 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 1 2 DEPOSITION OF THOMAS M. SWIHART 3 Taken in the above-styled cause, pursuant to 4 notice, at the Department of Environmental Regulation, 2600 5 Blair Stone Road, Tallahassee, Florida, on February 3, 6 1993, commencing at 9:00 a.m. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms, 3 Inc.: 4 William H. Green, Esq. Hopping Boyd Green and Sams 5 123 South Calhoun Street Tallahassee, FL 32301 6 On behalf of the Petitioners Florida Sugar Cane League, 7 Inc., United States Sugar Corporation and New Hope South, Inc.: 8 William L. Hyde, Esq. 9 Peeples, Earl & Blank 215 South Monroe Street 10 Suite 350 Tallahassee, FL 32301 11 On behalf of the Intervenor United States of America: 12 Cathy Stark, Esq. 13 Assistant U.S. Attorney 155 South Miami Avenue, Suite 600 14 Miami, FL 33102 15 On behalf of the Intervenor Department of Environmental Regulation: 16 Keith Hetrick, Esq. 17 Donna LaPlant, Esq. Assistant General Counsel 18 State of Florida Department of Environmental Regulation 19 Twin Towers Office Building 2600 Blair Stone Road 20 Tallahassee, FL 32399-2400 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 1 INDEX TO WITNESS 2 THOMAS M. SWIHART Page 3 Examination by Mr. Hyde 6 4 5 6 7 8 9 INDEX TO EXHIBITS 10 No. Marked 11 1 8 12 2 88 13 3 91 14 4 91 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of THOMAS M. SWIHART was taken 5 by agreement for the purpose of discovery, for use as 6 evidence, and for such other purposes as may be permitted 7 by the Florida Rules of Civil Procedure and other 8 applicable law; 9 THAT all objections, except as to the form of the 10 question, are reserved until the trial of this cause; and 11 THAT by agreement of the witness and all parties, 12 reading and signing of the deposition was not waived. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 1 D E P O S I T I O N 2 Whereupon, 3 THOMAS M. SWIHART 4 was called as a witness, having been first duly sworn to 5 speak the truth, the whole truth, and nothing but the 6 truth, was examined and testified as follows: 7 EXAMINATION 8 BY MR. HYDE: 9 Q Would you please state your name and address for 10 the record, please? 11 A Thomas Swihart, spelled S-w-i-h-a-r-t. My home 12 address? 13 Q Home or work, it doesn't make any difference. 14 A At work it is DER, 2600 Blair Stone Road, 15 Tallahassee. 16 Q Mr. Swihart, my name is Bill Hyde, and I am with 17 the Peeples, Earl & Blank law firm. I am here today on 18 behalf of Florida Sugar Cane League, U.S. Sugar 19 Corporation, and New Hope South, Inc., in a case we have 20 generically called the Everglades SWIM Plan proceedings. 21 Recently those proceedings were consolidated with DER's 22 issuance of its permit to the water management district. 23 I will be asking you a series of questions about 24 your involvement in that process, and I would like you to 25 tell me if at any time you don't understand the question or A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 1 if you need me to rephrase it. I will try to do so. If 2 you make no such objection, I will presume that you 3 understand what I am saying and that your answer is being 4 responsive to the question. 5 In the event that any of the attorneys note any 6 objections for the record, I would suggest that you just 7 stop your testimony at that point, let us work it out and 8 then we can move on. In most instances, it will be an 9 objection for the record only, and you will still be 10 required to answer the question. There may be some limited 11 circumstances where your attorney, Mr. Hetrick, will advise 12 you not to answer a question. 13 Do you understand all of that? 14 A Yes, I do. 15 Q The first thing I would like to ask you -- 16 MR. HETRICK: Excuse me, I assume we reserve all 17 objections except as to form? 18 MR. HYDE: Yes. That has been the running 19 stipulation throughout these proceedings. 20 BY MR. HYDE: 21 Q Mr. Swihart, were you ever provided with a copy of 22 a Notice of Taking Deposition Duces Tecum in this cause? 23 A I believe I saw one. I don't believe I ever 24 possessed a copy. 25 Q Did you ever review the list of documents that we A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 1 had requested that you produce in connection with this 2 deposition? 3 A Yes. 4 Q Did you, in fact, produce all of those documents 5 that are listed in paragraphs 1 through 10 of that notice? 6 A Yes. 7 Q Have you withheld any documents, either yourself 8 or on the instructions of your attorneys, or have your 9 attorneys withheld any documents? 10 A I am not aware of any documents which were 11 withheld. 12 MR. HYDE: Keith, have you withheld any documents? 13 MR. HETRICK: We have not withheld any documents. 14 MR. HYDE: Would you mark this as Exhibit No. 1? 15 (Whereupon, Exhibit No. 1 was marked for 16 identification.) 17 BY MR. HYDE: 18 Q I am going to show you a document that has been 19 labeled Exhibit No. 1. Would you identify that document 20 for me? 21 A This is a resume I submitted to DER General 22 Counsel a number of months ago. 23 Q Is that resume still current? 24 A No, it is not. 25 Q In what respect is it no longer up to date? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 1 A It has a heading called "1988 to Present: 2 Environmental Administrator, Standards and Monitoring 3 Section." Two weeks ago, I took a job, a different job at 4 DER in the Office of Water Management Coordination as the 5 water policy administrator. That is one difference, and 6 there is an addition I would like to make on the 7 education. 8 My degree from the University of South Florida is 9 in interdisciplinary social science. At the time of 10 graduation, I was two courses short of a degree in 11 interdisciplinary natural science and have since completed 12 those courses. Other than that, I think this is complete. 13 Q What is the difference between the major in 14 interdisciplinary social science and the one in natural 15 science? 16 A It is different course requirements. I attempted 17 to get a double major and didn't succeed. 18 Q So this is a double major, it is two separate 19 degrees? 20 A No. The major was only awarded in one. I have 21 completed the course requirements since graduation but have 22 not gone back and got that second major as a resident of 23 USF. 24 Q Let's go back, then, to your education, beginning 25 with your college experience. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 1 A Okay. 2 Q I note that you first attended Michigan State 3 University? 4 A Yes. 5 Q Why did you transfer from there? 6 A It is hard to recall at this time. Let's say, I 7 was paying out-of-state tuition at Michigan State, and I 8 decided I wanted to be closer to home in Florida where I 9 grew up. 10 Q Your resume reflects that you did get a degree in 11 1973 at USF -- 12 A Yes. 13 Q -- in interdisciplinary social science? 14 A Yes. 15 Q When did you complete the coursework for the 16 degree in interdisciplinary natural science? 17 A The last three years. 18 Q Would you explain to me the difference between 19 those two majors? 20 A Yes. They had an interdisciplinary science 21 program at USF, natural science and social science, and it 22 was a different array of courses required for each track. 23 Q Well, what kind of courses would one take for the 24 social science degree? 25 A I can recall I took a number of political science A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 1 courses, a constitutional law course, and there was a 2 minimum credit hour requirement. 3 Q Did the courses that led to that degree have any 4 bearing upon the work that you do now on behalf of the 5 Department? 6 A I believe they do. 7 Q Could you explain how they do? 8 A The work I do in DER involves policy analysis. I 9 think that began my training in policy analysis. 10 Q What courses did you take at that time in the 11 pursuit of the degree in interdisciplinary natural science? 12 A There was a year of biology, a year of chemistry 13 and a year of calculus, and a set of other natural science 14 courses. 15 Q What would be, or could you describe some of those 16 natural science courses? 17 A Yes. There is a course in oceanography, course in 18 statistics and honors course in ecology. I believe there 19 is a course in limnology and some other courses that were 20 required for the total credit hours. 21 Q Did you have a specialization within that degree? 22 A No. 23 Q What did you do during the year of 1974, between 24 your undergraduate and graduate degrees? 25 A I was employed in Tampa. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 1 Q What as? 2 A I think it was called a Planner I, with a private 3 planning firm. 4 Q What did the general duties of that position 5 entail? 6 A It was reviewing comprehensive plans. I think we 7 did some housing surveys, in fact. 8 Q Your resume next reflects that from '75 to 1984 9 you were working on an MSP in environmental and regional 10 planning from FSU? 11 A Yes. 12 Q What is an MSP? 13 A Master of Science in Planning. 14 Q Why did it take you so relatively long to complete 15 the coursework necessary for that degree? 16 A I was working at DER during most of that time. 17 Q What is that? Can you describe what this degree 18 is? What does it entail? 19 A It was a series of courses in planning theory, 20 planning background, and a specialization in environmental 21 regional planning involved courses in natural resource 22 management, courses in natural resource economics. There 23 was a geography course I had, I believe. I cannot recall 24 any other courses at this late date. 25 Q Did you have or did you prepare a thesis for your A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 13 1 postgraduate degree? 2 A There was not a thesis requirement, but there was 3 a requirement for a paper, as they called it, not formally 4 a thesis. 5 Q What did your paper concern? 6 A It was an analysis of the drawdown of Lake Toho in 7 central Florida. 8 Q What did that analysis reflect? 9 A It was an ex post facto analysis of whether the 10 drawdown conducted by the Game and Fresh Water Fish 11 Commission in fact met the objectives stated for the 12 drawdown, and I concluded that it did. 13 Q How did it meet those objectives? 14 A There was water quality improvement and 15 recreational enhancement. 16 Q Did this paper entail some original research on 17 your part such as site visits, water sampling and the like, 18 or did you rely upon other people's work? 19 A There was -- I relied upon other people's work. 20 Q Did you ever visit the site? 21 A Once. 22 Q Did you have a faculty adviser, a principal 23 faculty adviser for your postgraduate degree? 24 A Yes. 25 Q Who might that be? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 14 1 A Dr. Andrew Dzurik, D-z-u-r-i-k. 2 Q I note from your resume that you have two listed 3 publications. Are those the only publications that you 4 have at this time? 5 A Yes. 6 Q Would it be possible to obtain copies of those 7 documents from you? I don't know that they are 8 specifically relevant here, but they may well be in this 9 case. 10 A Certainly. The first one there, the publication 11 in the Water Resources Bulletin, I gave to Lee Killinger a 12 few months ago, which I believe he intended to pass on to 13 you. 14 Q I just don't recall having seen it, and I would 15 like to obtain a copy of it maybe during a break or some 16 later point. 17 A The second one, you could just photocopy that 18 chapter from the Water Resources Atlas, or I could try to 19 do that. 20 Q Let me discuss the first one, which is entitled, 21 "An Antidegradation Policy for Preserving Surface Water 22 Quality in Florida." 23 Can you describe in general terms what that paper 24 concerns? 25 A Yes. It was a description of the antidegradation A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 15 1 component of Florida water quality standards, including its 2 history and application in Florida. 3 Q Was that paper written more or less as an academic 4 exercise, or was there some specific purpose underlying the 5 creation? 6 A I don't know what you mean by academic exercise. 7 Q Well, was it something that was, in effect, part 8 of your job duties here, to set forth what the Department's 9 policies were in that regard or what the history of the 10 Department's policies were? 11 A I conceived the idea of writing the paper. I 12 thought it was a worthwhile thing to get published in the 13 bulletin. 14 Q Is this something that you did on your own time, 15 or did you do it like during your normal work hours? 16 A I did it both. 17 Q Did you have to obtain any sanction for doing so, 18 from a supervisor, or anything like that? 19 A I received approval before publication, and I 20 discussed it with my supervisor as we were writing it. 21 Q Who was your supervisor at the time? 22 A The second author, O. Eugene Walton. 23 Q Was that document a peer-reviewed publication? 24 A Yes. 25 Q By whom, to your knowledge, was it peer-reviewed? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 16 1 A It was anonymous referees that the editor of the 2 Water Resources Bulletin sent it out to for review. 3 MR. HETRICK: Let the record reflect Mr. Green 4 has left the room. 5 BY MR. HYDE: 6 Q Let me take you through your job history with 7 DER. 8 From 1976 to 1986, you worked as an Environmental 9 Specialist II, III and IV with the Department. Is that 10 description on your resume an accurate summary of just what 11 you did during those years? 12 A Yes. 13 Q When you say that you engaged in water resource 14 planning for the Department, what does that mean? 15 A There was a, at that time, a United States Water 16 Resources Council grant process, and I assisted in 17 preparation of a part of the Department's plan that served 18 as part of that grant application with the Water Resources 19 Council. 20 Q So you, in fact, worked on an application to get 21 funds from that program? 22 A That was part of it. 23 Q Were there any other parts of it? 24 A Part of it was assisting in the writing of the 25 plan, itself, which served as a part of the grant A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 17 1 application. 2 Q Is that document or publication still around? 3 A I don't know. 4 Q What time was it completed, to the best of your 5 knowledge? 6 A I believe there were annual versions of it, every 7 year around that time. 8 Q You next state that you engaged in writing 9 environmental impact statements. 10 A Yes. 11 Q What were those for? 12 A The Department was involved with EPA in writing an 13 environmental impact statement for a proposed drawdown of 14 Lake Apopka, and it was my job to help write that 15 environmental impact statement. 16 Q With whom did you work on that project? 17 A Primarily with Gene Walton. 18 Q Next, it notes that you assisted in water quality 19 standard setting. What duties or responsibilities did you 20 have in that regard? 21 A I was one of the many DER staff involved in the 22 large revisions of the state water quality standards 23 conducted in 1978-1979. 24 Q Did you have some specific responsibilities for 25 the promulgation of those standards? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 18 1 A Toward the end I was, I think, more or less the 2 editor of the whole rule, and I was particularly involved 3 in the Outstanding Florida Waters rule writing. 4 MR. HETRICK: Mr. Green has entered the room. 5 BY MR. HYDE: 6 Q Would you describe your responsibilities regarding 7 those -- that rule promulgation effort as being more of one 8 of an editor, or were you actually engaged in the 9 substantive analysis that led to specific standards being 10 adopted? 11 A I think it was more of an editor. 12 Q Who were some of the other important players with 13 whom you worked at that time on the development of those 14 rules? 15 A Chuck Littlejohn was one, Paul Parks, Bill White, 16 I recall all worked on that. Bill Green here could provide 17 a better list than I could, probably. 18 Q Have you been involved in any efforts that 19 subsequently revised those water quality standards? 20 A Yes, I have. 21 Q When did that occur? 22 A It occurred a number of times through my tenure at 23 DER, and then most intensively in the last several years. 24 Q Why did it occur most intensively in the last 25 several, or seven years? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 1 A Several years. From 1988 to the present, I was 2 the administrator of the Standards and Monitoring Section 3 in DER, which oversaw the revision of state water quality 4 standards. 5 Q Let's get back to what your duties were from 1976 6 to 1986. The next category of duties included water 7 management planning. What did that entail? 8 A I worked with others on the state water use plan 9 primarily. 10 Q Is that now promulgated as Chapter 17-40, is that 11 what you are referring to? 12 A 17-40 is a -- I guess I would say a reincarnation 13 of the state water use plan. 14 Q What was that state water use plan at the time you 15 were working on it, incorporated in some other rule or 16 policy document? 17 A Well, there was a decision to not focus upon a 18 document called a state water use plan, but instead to 19 adopt state water policy by a rule. 20 Q When did this occur? 21 A I think that was about 1981 or '82. 22 Q Who else worked with you in that effort? 23 A Bill Hinkley, Chuck Littlejohn are names that I 24 remember. 25 Q What was your ultimate product from that effort? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 1 A The ultimate product was a move toward adoption of 2 a state water policy rule, and actually I left that 3 function at about that time, I believe. 4 Q In 1982? 5 A I believe so. 6 Q The next category indicates that you were involved 7 in energy planning. 8 A Yes. 9 Q What did that mean? 10 A The Department became very involved with an effort 11 by the Public Service Commission to set energy conservation 12 goals. The Department was interested because energy 13 conservation can also mean natural resource protection, so 14 we participated a lot in the Public Service Commission 15 ruling. 16 Q The next category is designation of waters as 17 Outstanding Florida Waters. From here on out, I will just 18 refer to Outstanding Florida Waters by the acronym, OFWs. 19 That is the way I know them best. 20 What did that entail? Was this the actual choice 21 of water bodies to be designated as such? 22 A I would say it was more overseeing rulemaking that 23 designated individual OFWs. 24 Q Did you have some operative criteria that you were 25 to employ in that process? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 21 1 A The criteria that are specified in 17-3. 2 Q Could you be more specific? What portion of 3 17-3? 4 A Well, 17-3 is now 17-302, but the part that -- 5 there is a part that sets out criteria for OFW 6 designation. 7 Q There is another category just below that which 8 speaks to, "Designation of waters as `Outstanding Florida 9 Waters,' and coordination program with the Army Corps of 10 Engineers for the state public works program." 11 Did you intend that separate listing of 12 designation of waters as Outstanding Florida Waters to be 13 somewhat different from that which you described? 14 A No. That is an error. I have it listed twice 15 there. 16 Q What did the coordination program with the Corps 17 involve? 18 A That is also reflected in the next chronological 19 category here, but I began that at one point and then 20 became the administrator of a program that oversaw it, so 21 maybe you want to talk about that next category. 22 Q Let's move up to the next date, I guess, 23 chronologically is from May '86 to October '86, where you 24 were the acting chief -- 25 A I am sorry, I missed one, yes, okay. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 1 Q You are getting a little bit ahead of yourself. 2 What was that position? 3 A There was a Bureau of Laboratories and Special 4 Programs whose bureau chief took another job, and DER -- I 5 was asked to be the acting bureau chief. 6 Q I gather this was a temporary appointment? 7 A Yes. 8 Q Can you give me an idea of what you did while you 9 were in that position? 10 A A huge amount of paperwork. 11 Q Were you, in effect, the administrator for the 12 program then? 13 A I was acting bureau chief. 14 Q Why did you choose not to apply for that as a 15 permanent position? 16 A I think the principal reason was the knowledge I 17 learned of the job as acting bureau chief. There was a lot 18 of personnel and administrative stuff that didn't appeal to 19 me very much. 20 Q Let's move on now to your 1985 to 1988 position 21 where you were, I guess, environmental administrator of 22 Water Resource Programs Section in the Bureau of 23 Laboratories and Special Programs. 24 Could you briefly describe to me what that 25 position entailed? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 23 1 A Yes. It was primarily two separate tasks listed 2 here. One of them was the state public works program. 3 Under state law, every local sponsor of the Army Corps of 4 Engineers project is supposed to request the State of 5 Florida to approve their request that the Corps do work on 6 behalf of their project. Associated with that, there is an 7 annual Water Resources Development Conference and two 8 publications that we take to Congress and propose funding. 9 Projects in that public works request are the flood control 10 navigation projects in Florida, including the Central and 11 Southern Florida Flood Control District. 12 The second task was a smaller part, which was 13 coordinating some water quality standards changes. 14 Q Going back to the first task, what work, if any, 15 did you do with the South Florida Water Management District 16 regarding the Central and Southern Florida -- what is that 17 called, Flood Control District? 18 A I should say Flood Control Project, because that 19 is the Corps's name for it. They, like other local 20 sponsors, submitted a request that the state sponsor to 21 support their request for appropriations. We would 22 evaluate that request, and we would send that request to 23 other agencies and determine what our recommendation was. 24 Q Was this an annual thing? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 24 1 Q What sort of requests for appropriations were 2 being made by the water management districts in that 3 regard? 4 A As I recall, at that time, they had a Hendry 5 County project, they had a Boles Canal project, of course, 6 they had the Kissimmee River Restoration Project in their 7 package. I don't recall any others right now. 8 Q Did any of these appropriations requests ever deal 9 with the subject matter of this proceeding, in particular, 10 dealing with discharges of waters from the Everglades 11 Agricultural Area to the water conservation areas? 12 A I can't specify for you a direct and intimate 13 connection, but the Central and Southern Florida Flood 14 Control Project is an integrated system. 15 Q Did you say is or isn't? 16 A Is. 17 Q So by that I take it that you mean that if you 18 work in one aspect of it, you are affecting other aspects 19 of it? 20 A You can. 21 Q Did any of those appropriations requests have 22 anything to do with dealing with the alleged eutrophication 23 of the water conservation areas? 24 A I don't recall that they did. 25 Q You say that you also were engaged in changes to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 25 1 water quality standards, including water quality 2 classifications and antidegradation policies. 3 What specifically did that -- what does that 4 mean? 5 A It means rulemaking. 6 Q Could you give me some representative examples of 7 some rules that you were assisting in the process of 8 adopting? 9 A Yes. I believe there is a water quality 10 reclassification I oversaw during that period, and I am 11 sure there were several designations of OFWs during that 12 period. 13 Q When you say designation of OFWs, do you mean 14 whether a particular water body was eligible for that 15 classification and was adopted as such by rule? 16 A Yes. 17 Q Is that what you meant by water quality 18 classifications in this general description? 19 A Yes. 20 Q You were not engaged in any other efforts to 21 reclassify water bodies, say, from Class III to Class II or 22 things of that nature? 23 A I think there was only one reclassification during 24 that period. 25 Q Which one was that, if you recall? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 26 1 A That might have been the Miami River reclassified 2 from Class IV to Class III. 3 Q What work did you do in the development of the 4 Department's antidegradation policies? 5 A OFWs are a part of the Department's anti- 6 degradation policies, and that reference is to, primarily 7 to OFWs. 8 Q Did you -- were you ever called upon to implement 9 any of the moderating provisions that are set forth in 10 Chapter 17-302 in this regard? First of all, do you 11 understand what I mean by that? 12 A Well, I am afraid I don't, because I have a 13 concern with the word "implemented." 14 Q Let me rephrase the question. 15 During this time, were you ever engaged in the 16 development of or the application of the site-specific 17 alternative criteria rule to a given water body or set of 18 water bodies? 19 A I think I may have reviewed a site-specific 20 alternative criterion petition, but -- during that period, 21 but I can't be certain. 22 Q What about mixing zones for point source 23 discharges? 24 A No. 25 Q What about variances? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 27 1 A I don't believe so. 2 Q Do you recall what water body you looked for a 3 SSAC for? 4 A I think there might have been a portion of the St. 5 Johns River. 6 Q Do you know what criterion was being, in effect, 7 deviated from in that regard? 8 A Dissolved oxygen, as I recall. 9 Q Do you recall what the result of that deliberative 10 process was? 11 A No. 12 Q Was it a request that was made by a local 13 government or a particular discharger? 14 A I think it was a power plant. 15 Q Did it concern any portion of the St. Johns River 16 that had been designated as an Outstanding Florida Water? 17 A I don't recall. 18 Q Let's move on now to your job duties from 1988 to 19 the present, where you were the environmental administrator 20 of Standards and Monitoring Section, the Bureau of Surface 21 Water Management. 22 First of all, let me ask, who is your supervisor 23 for that position? 24 A Vivian Garfein, who is the chief of the Bureau of 25 Surface Water Management. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 28 1 Q What do your duties entail? 2 A I should also mention she is my recent 3 supervisor. Before then, it was Roxane Dow. 4 Q What do your duties entail for that position? 5 A There were several prime duties. One of them was 6 overseeing changes to state water quality standards. 7 Another one was overseeing the 305-B report every two 8 years, and there were some other miscellaneous duties. 9 Q What changes to the state water quality standards 10 did you oversee? 11 A We comprehensively reviewed and revised water 12 quality classifications. We comprehensively reviewed and 13 made some revisions and antidegradation policies during 14 that period, and we also made a number of changes in 15 individual water quality criteria. 16 Q When you said you looked to classifications, what 17 specifically did you do? Were you changing a water body 18 from one category to another, or portions of a water body 19 from one category to another? 20 A We conducted a survey of the classification 21 system, itself, to determine if changes in the system were 22 necessary, and then we also reviewed the classifications of 23 some individual water bodies to determine if those 24 individual water bodies should be reclassified. 25 Q Did any of these efforts include what are known as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 29 1 the water conservation areas to the south of Lake 2 Okeechobee? 3 A Only indirectly, in that those water conservation 4 areas are classified as Class III waters, and we were 5 examining whether we needed an overall change in the 6 classification system. We decided not. 7 Q What was the change being contemplated at that 8 time? 9 A We were directed by the Legislature to review the 10 classification system and study several particular 11 subjects. One of them was whether artificial waters should 12 be classified differently. I think there are some other 13 specific subjects the Legislature directed us to look at. 14 What we did was we held six public workshops 15 around the state to receive views on whether the system, 16 itself, required modification. 17 Q Were you looking at any particular proposed 18 changes at that time even if they were not subsequently 19 adopted? 20 A I recall we looked in detail at artificial waters 21 and the other subject that the Legislature directed us to 22 look at, and we also looked, as I mentioned, at some 23 individual waters for reclassification. 24 Q Did you regard the water conservation areas as 25 being in that category of artificial waters? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 30 1 A We had great difficulty defining artificial 2 waters. 3 Q Was there some suspicion that they -- that is, the 4 water conservation areas -- might be considered within the 5 rubric of that classification as artificial waters? 6 A I don't think that we even thought about that 7 particular question. 8 Q What water bodies were you considering for 9 reclassification during that deliberative process? 10 A I think we focused on potable waters, Class I 11 waters and shellfish waters, Class II waters, primarily. 12 Q What is a 305-B report? 13 A Section 305-B of the Federal Clean Water Act 14 requires every state to prepare every two years a state 15 water quality assessment. 16 Q And what is a state water quality assessment? 17 A A state water quality assessment is a summary of 18 the conditions, the condition of the state's waters. 19 In Florida, we prepare a water-body-by-water-body 20 assessment as well as an overall summary assessment that is 21 published every two years. 22 Q That sounds like a rather gargantuan effort to 23 do. Is it? Is it just something that you, yourself, did, 24 or did you work with other people in the development of 25 that report? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 31 1 A No. The real work was done by people like Joe 2 Hand, Mark Friederman, Vicki Tauxe, Leland Smith, Dean 3 Jackman. I supervise them, but they did the great mass of 4 the work, and they deserve the credit for the fine report 5 that it is. 6 Q Did those individuals go out and actually take 7 water quality examples, or were they relying upon 8 information that had otherwise had been made available to 9 them? 10 A Primarily information that otherwise was 11 available. 12 Q You also stated that you were involved in a 13 revision of the state's antidegradation policies in 1989. 14 What was that effort concerned with? 15 A EPA had disapproved part of our antidegradation 16 policies, and we commenced rulemaking to decide if we 17 should make changes. 18 Q Why did EPA disapprove of that effort? 19 A They believed that our rules were inconsistent 20 with their requirements. 21 Q In what respects? 22 A In several respects. They did not think that we 23 had a general antidegradation policy, which they thought 24 their rule required. They disapproved the classification 25 of the Fenholloway River as a Class V water body, and I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 32 1 think there is some other less important changes that they 2 wanted. 3 Q Did the Department subsequently address EPA's 4 concerns? 5 A Yes. 6 MR. HETRICK: I object for the record. 7 BY MR. HYDE: 8 Q Just a brief follow-up question to 305-B program. 9 Did the Department assess the water quality of the several 10 water conservation areas in south Florida? 11 A Yes. 12 Q Do you recall what the Department concluded 13 regarding those several water bodies? 14 A Not in detail, but I recall that the report 15 concluded there were violations of water quality standards 16 in parts of that area. 17 Q Which report would have made that conclusion? 18 A I know at least the 1990 and 1992 versions did. 19 Q Where would I find a copy of those reports? 20 A I think you probably should ask Joe Hand for that. 21 Q Who is Mr. Hand? 22 A Mr. Hand is an environmental specialist in the 23 Bureau of Surface Water Management, who is principally 24 responsible for pulling together the 305-B report. 25 Q Is he located within this building? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 33 1 A Yes. 2 Q What is a triennial review? 3 A The United States Clean Water Act requires each 4 state to review its quality standards at least every three 5 years; hence, triennial review. 6 Q Are you, in effect, the administrator of that, 7 over that review process? 8 A I was. 9 Q Was, as in past tense? 10 A Right. 11 Q You no longer are? 12 A Right. 13 Q Who is currently responsible? 14 A They are recruiting for my successor. 15 Q Is your current position different from that which 16 is listed on your resume for 1988 to the present? 17 A Yes. 18 Q What did you describe your current position as 19 being? 20 A In the Office of the Secretary, it is a new 21 position called Water Policy Administrator. 22 Q What is the water policy administrator? 23 A I am still figuring that out. I think the main 24 task is to oversee revisions to Chapter 17-40, state water 25 policy. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 34 1 Q Do you have a particular charge other than that 2 general description? 3 A There is a position description which has been 4 prepared for my position which includes that as a prime 5 duty. 6 Q What are your other prime duties? 7 A Another duty is to work with other people in DER 8 and the water management districts on the preparation of 9 district water management plans and the state water 10 management plan. 11 Q Is there some time frame within which you are to 12 complete this reanalysis of the state water policy plan? 13 A We plan to take revisions, proposed revisions, to 14 state water policy to the Environmental Regulation 15 Commission by the end of 1993. Chapter 373 requires 16 completion of the district and state water management plans 17 by the end of 1994. 18 Q Do you intend to workshop these proposed revisions 19 to the state water policy plan prior to making any 20 proposals to the Environmental Regulation Commission? 21 A I think you said state water policy plan, and I 22 would make a distinction between the state water policy 23 rule and the state water management plan, but both have a 24 provision for public participation, including workshops. 25 Q But you have not decided when or where those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 35 1 workshops would be? 2 A There was a series of workshops on the state water 3 policy rule late last year. There will probably be another 4 cycle in the summer. 5 Q Why is the Department undertaking that effort? 6 A Which effort? 7 Q I am sorry, the revisions to the state water 8 policy rule. 9 A One of the reasons is that the district and state 10 water management plans are far along now, and there is a 11 need to be consistent between the water management plans 12 and the state water policy rule. 13 There is also some perceived need for changes in 14 17-40, and I can't tell you, since I have only been on the 15 job a short time, exactly what the deficiencies are. 16 Q When did you take over this position? 17 A A week and a half ago. 18 Q Do you know generally what these perceived 19 deficiencies are? 20 A Yes, only generally. I have also been out on 21 family sick leave for a good part of my time in this new 22 job. I can't give you a very complete description of what 23 my job is, every element to it. 24 Q Would you describe for me generally what these 25 perceived deficiencies are? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 36 1 A Yes. One problem apparently is that the state 2 water policy rule has a different organization than the 3 district water management plans, and there is a need to 4 make those consistent. 5 There is also some policy subjects apparently that 6 the workshops late last year recommended be addressed. 7 Some of those policy subjects are water conservation, 8 natural resource protection and water supply. 9 Q What is being sought in those particular regards? 10 Do they want to make them tougher, do they want to make 11 them more flexible? Do you have any idea of what the drift 12 of this reanalysis is? 13 A My understanding is that there are differing views 14 of what the changes should be, and in part this applies in 15 assessing alternatives. 16 Q When you say there are differing views, do you 17 mean within the Department or do you mean within the 18 community at large? 19 A I think I am referring to the latter. 20 Q Let me go back just for a moment. Under your 21 position as environmental administrator for the Standards 22 and Monitoring Section, you also apparently managed various 23 contracts concerned with water quality issues? 24 A Yes. 25 Q Could you describe in a little more detail what A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 37 1 that responsibility entailed? 2 A Yes. There is one contract with Dr. Delfino with 3 the University of Florida for mercury research 4 investigation in the Everglades. There is another contract 5 of Dr. Robert Digner at the University of Florida for the 6 statewide fish consumption survey, and there were several 7 contracts managed by people that I supervised. 8 Q Is that fish consumption survey related to the 9 issue of mercury contamination also, or is it something 10 different from that? 11 A I would say it is related, but the intent is to 12 get a statewide data base on fish consumption in Florida. 13 That could affect mercury fish advisories, because the 14 amount of fish people eat affects their dose. 15 Q So, but is the gist of that study to find out how 16 many people are consuming fish in the state? 17 A Yes. 18 Q Does that include fresh water and salt water, or 19 just fresh water? 20 A Both. 21 Q I would like to back up for a moment to your 22 efforts regarding the issue of mercury contamination. 23 Your resume reflects that you are the agency staff 24 representative to the Governor's Task Force on that 25 subject. Who appointed you to that position? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 38 1 A I suppose my bureau chief did. 2 Q And your bureau chief was Roxane Dow? 3 A Roxane Dow. 4 Q What is your charge for that particular effort? 5 A It was to represent the agency, to represent the 6 agency on the Governor's Mercury Task Force. 7 Q What specifically are you doing in that regard? 8 A Well, that was -- my resume says serving as, past 9 tense, my prior job. In fact, I think about six months ago 10 the Department got a full-time mercury coordinator who now 11 has that responsibility. 12 Q Who is that person? 13 A Tom Atkinson. 14 Q Were you effectively the Department's mercury 15 coordinator prior to that time? 16 A Yes. 17 Q What did you do as that coordinator? Did you pull 18 together information, or did you do something above and 19 beyond that? 20 A I oversaw the preparation of a DER mercury report, 21 and I participated with other members of the Task Force in 22 the preparation of a mercury work plan. 23 Q What is that mercury work plan? Is that a 24 research effort? 25 A It was a set of work objectives for all of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 39 1 involved agencies. There was a separate research plan that 2 the mercury committee oversaw. 3 Q By whom is that research being done now? 4 A The research plan recommended research in many 5 areas, some of which are being performed now. One of them 6 I mentioned is Dr. Delfino who has some sediment mercury 7 investigations underway. There is some other work being 8 done by other parties. 9 Q Other parties within the Department? 10 A Inside and outside. We contracted with KBN 11 Engineering for some of that work, and there is other 12 research. 13 Q Can you give me an idea of what some of this other 14 research is? First of all, maybe you could tell me, what 15 is KBN doing? 16 A KBN conducted, for one thing, an emissions 17 inventory for mercury in Florida. Another thing that, for 18 which we contracted with them was an atmospheric deposition 19 study at Lake Barco in Putnam County. Those are separate 20 efforts. 21 Q When you say an emissions study, what type of 22 emissions, if there is a limitation on that? 23 A The intent was to compile all of the available 24 data on all emissions of mercury from anthropogenic and 25 natural sources in Florida. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 40 1 Q Are you looking at any particular emission 2 sources, or is it just a generic, across-the-board type of 3 thing, assessing what is coming out of the various types of 4 emission sources? 5 A All sources. 6 Q Do you know whether there is any operative thesis 7 as to that program, or is it really just a let's-see-what- 8 we-can-pull-together type of program? 9 A The contract report did come up with estimates of 10 total emissions from various sources in Florida. 11 Q Back to Dr. Delfino -- is it Delfino or Delfino? 12 A D-e-l-f-i-n-o. 13 Q Do you know where Dr. Delfino is conducting his 14 field work? 15 A Generally I do. It is a dozen sites in south 16 Florida. 17 Q Do you know whether any of those sites include the 18 water conservation areas? 19 A There are some sites in the water conservation 20 areas. 21 Q What is Dr. Delfino's first name, if you recall? 22 A Joseph. 23 Q Did he report to you while you were the mercury 24 coordinator? 25 A Not to me as mercury coordinator, but to me as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 41 1 project manager for the contract that DER had with him. 2 Q Do you know whether Dr. Delfino has completed his 3 work? 4 A I know he has not. 5 Q Do you know when he is supposed to complete that 6 work? 7 A I believe early 1994 is when the final report is 8 due. The project manager for that is now Tom Atkinson. 9 Q Has Dr. Delfino or did Dr. Delfino file with the 10 Department any interim reports? 11 A He has filed quarterly reports. 12 Q Who is the current custodian of those quarterly 13 reports for the Department? 14 A Tom Atkinson. 15 Q Is Dr. Delfino employed by the Department, or is 16 he an outside contractor? 17 A Dr. Delfino is the chairman of the Environmental 18 Engineering Department of the University of Florida. 19 Q Do you know whether Dr. Delfino has reached any 20 preliminary conclusions regarding the source or sources of 21 mercury contamination in waters in south Florida? 22 A He has some preliminary data that is discussed in 23 the quarterly reports, and the data is consistent with 24 other data, that the rate of atmospheric deposition in 25 Florida, including the Everglades, is much higher in recent A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 42 1 decades than prior to that. 2 Did I say atmospheric deposition there? 3 Q Yes. 4 A I should have said deposition. 5 Q Is that opinion confined just to south Florida? 6 A His research is contracted, is limited to south 7 Florida. 8 Q Why do you make a distinction between deposition 9 and atmospheric deposition? 10 A Because his data is sediment data. I didn't want 11 to say that he is drawing a conclusion about the source of 12 the mercury. 13 Q Let me see if I understand you. Are you saying 14 that Dr. Delfino has not drawn any conclusion as to what 15 the cause of that increased deposition is in recent 16 decades? 17 A I can't speak for him. I don't want to say that 18 he has. He probably has opinions and is formulating 19 opinions. I don't recall those being expressed in his 20 quarterly reports. 21 Q Have you ever discussed with him whether he has 22 any preliminary or tentative opinions as to the issue of 23 causation? 24 A I don't think I have. 25 Q Is Dr. Delfino the only person who is currently A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 43 1 conducting a mercury-related study for the Department? 2 A No. 3 Q Who are some of the other persons? 4 A There is a sugar cane and mercury study that the 5 DER Division of Air is overseeing. 6 Q Who, in particular, is in charge of that study? 7 A I think that Tom Rogers in the Division of Air is 8 probably still the project manager for that. 9 Q Is Mr. Rogers located here in Tallahassee? 10 A Yes. 11 Q Is Mr. Rogers' study to be completed by a given 12 date, or is there any time schedule that he is supposed to 13 issue a report in? 14 A I am sure there is, but I can't tell you what the 15 dates are. 16 Q Do you know when this study commenced? 17 A I think it commenced probably six months ago. 18 Q Do you know whether the study has some operative 19 thesis as to whether sugar cane is or is not creating a 20 problem for mercury in the Everglades, or south Florida 21 generally? 22 A I think the intent is to determine what amount of 23 mercury might be emitted near the atmosphere by burning of 24 sugar cane, or processing of sugar cane, I should say. 25 Q Have you discussed this study with Mr. Rogers? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 44 1 A Yes. 2 Q Do you know whether Mr. Rogers or his research 3 team have reached any preliminary conclusions? 4 A I don't know. 5 Q Do you know when such a report is to be issued in 6 this regard? 7 A I don't know. 8 Q Are there any other studies above and beyond these 9 two that you have identified? 10 A I believe there are. There is another study, and 11 I believe this commenced, also managed by Tom Rogers, 12 having to do with, I believe, open burning. I am not very 13 clear on that. 14 Q What do you mean by open burning? 15 A Burning of unconfined materials in the open, such 16 as municipal waste or forestry, I think more likely. 17 Q You wouldn't consider a municipal solid waste 18 incinerator as being, quote, open burning, would you? 19 A No, I would not. 20 Q Does this second study by Mr. Rogers also include 21 the, I guess it is, open burning of hurricane-generated 22 debris in south Dade County? 23 A I want to express my lack of confidence in how 24 much I know of that at commencement. I have not been 25 involved in it in six months. I think there was a second A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 45 1 study to be contracted for at that time. That is about the 2 limit of my supposition. 3 Q Regarding this sugar cane study by Mr. Rogers, is 4 that study being done in house? 5 A No. I believe Tom Rogers meant to contract with 6 some outside party. 7 Q Do you know who that contractor is? 8 A No. 9 Q Is this open burning study also to be contracted 10 out to someone outside the agency? 11 A If there is such a study, I believe it would be 12 contracted out. 13 Q Are there any other studies that are existing or 14 contemplated regarding the general issue of mercury? 15 A I can't think of any others. 16 Q I have read in a number of publications in recent 17 years that there has been an operative thesis that much of 18 the mercury problem is or has been caused by municipal 19 solid waste incinerators, in south Florida, at least. 20 Are there any ongoing efforts to analyze those 21 facilities' contribution to Everglades contamination inside 22 Florida? 23 A One such effort is that emission inventory that we 24 discussed, that estimated numerically the relative 25 contribution from all sources. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 46 1 Q Is that the only one to your knowledge? 2 A I believe that the Department, through the 3 Division of Air, is considering rulemaking to require 4 additional control measures and/or additional emission 5 monitoring for that type of source. 6 Q Are you aware of any other studies on the mercury 7 subject matter that are being conducted by persons outside 8 of and not under the control of the Department? 9 A I can think of two quickly. One of them is, the 10 EPA's South Florida Initiative is supposed to include 11 mercury investigations. I recall also the Everglades SWIM 12 Plan research component includes mercury investigations. 13 There is a host of others involved in one way or another in 14 mercury investigation, the U. S. Fish and Wildlife Service 15 to DER to a long list. 16 Q Let me see if you know generally what those given 17 agencies are doing. For example, what is the Game and 18 Fresh Water Fish Commission doing? 19 A The Game and Fresh Water Fish Commission is 20 principally charged in Florida with collecting and 21 analyzing fish for body burdens of mercury. 22 They are also involved in the panther recovery 23 effort, and they have analyzed some other species of 24 organisms for mercury burdens. 25 Q What is the Department of Natural Resources doing? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 47 1 A The Department of Natural Resources, like Game and 2 Fish, is on the Governor's Mercury Task Force and is 3 charged with the responsibility of collecting and analyzing 4 mercury in estuarine and marine fish. 5 Q Back up for a minute. Do you know who the contact 6 person is for the Game and Fresh Water Fish Commission 7 studies? 8 A It would be Forrest Ware and Homer Ryals. 9 Q Are they located here in Tallahassee or in one of 10 the Commission's other offices? 11 A Forrest Ware is located in Tallahassee, and Homer 12 Ryals is located, I believe, in Eustis. 13 Q Who, to your knowledge, are the contact persons 14 for the Department of Natural Resources' study? 15 A At the time I was involved in it, it was primarily 16 George Henderson, who works out of the St. Petersburg 17 marine laboratory of DNR. 18 Q Because of the way you worded your answer, you are 19 uncertain as to whether Mr. Henderson continues in that 20 role? 21 A Yes, I am. 22 Q What are some of the other agencies that are 23 involved in these ongoing mercury studies? 24 A HRS is on the Governor's Mercury Task Force; so is 25 the Department of Agriculture and the Marine Fisheries A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 48 1 Commission. 2 Q What is HRS doing, to your knowledge? 3 A HRS is responsible for issuing fish consumption 4 advisories, and HRS is also working with the Centers for 5 Disease Control on a human epidemiological investigation in 6 south Florida. 7 Q Do you recall who the HRS contact or lead person 8 is for that effort? 9 A The lead person at HRS was Tom Atkinson. He is 10 now working at DER, and I don't know who is the lead person 11 now at HRS. 12 Q What is the Department of Agriculture and Consumer 13 Services doing? 14 A They have analyzed some of the fish for mercury, 15 and they have participated in issuing fish consumption 16 advisories. 17 Q Does the Department of Agriculture have some 18 contact person for that effort? 19 A Yes. I am trying to remember his name. 20 Q Do you have a document which lists these various 21 agencies that are involved and the persons who are the 22 contact for that agency? 23 A I may have it still. I comprehensively cleaned 24 out my files last week. I may not have kept that one, but 25 there is a listing of contact people. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 49 1 Q Do you think Mr. Atkinson would have it? 2 A I am certain he would. 3 Q What, to your knowledge, is the Marine Fisheries 4 Commission doing? 5 A The Marine Fisheries Commission is on the 6 Governor's Mercury Task Force and participates in their 7 discussions. I believe they are monitoring, really, 8 seafood safety. 9 Q Do you know who that contact person is? 10 A I think the contact person that I knew has left 11 the Commission. 12 Q Again, should I just ask Mr. Atkinson about that? 13 A Yes. 14 MR. HYDE: This might be a good point to take a 15 break. Five minutes. 16 (Brief recess.) 17 MR. HYDE: Let's go back on the record. 18 BY MR. HYDE: 19 Q Mr. Swihart, the Department in answering our 20 interrogatories has identified various areas that you will 21 be testifying about in your upcoming, in this upcoming 22 hearing. I would like to go through the general categories 23 and see if they are all inclusive. 24 First, that you will testify regarding the SWIM 25 Plan and the various drafts thereof, does that, in effect, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 50 1 mean that you will be testifying as to the development of 2 the SWIM Plan? 3 A I have not done many depositions. That is a hard 4 thing for me to answer. I will answer whatever I am asked, 5 but that is consistent with my understanding of what I am 6 going to be asked to talk about. 7 MR. HETRICK: Would you be more specific or show 8 him that? 9 MR. HYDE: I am parroting back exactly what the 10 answers say. 11 BY MR. HYDE: 12 Q Let me ask you this, have you discussed with your 13 attorneys the subject matter of your anticipated testimony? 14 A Yes. 15 Q What areas did they advise you or did you discuss 16 as being the appropriate subjects of your testimony? 17 A I brought with me this witness designation of DER, 18 and what is described there as my testimony is what I 19 expect to testify on. Is that the same thing? 20 Q Yes. Well, it states here that you will testify 21 regarding the Everglades SWIM Plan and various drafts 22 thereof, and regarding interpretation of the development 23 and overall structure of water quality standards; that you 24 will also testify regarding specific interpretations of 25 water quality standards as they apply to the Everglades A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 51 1 system, including but not limited to water quality 2 classifications, water quality criteria, moderating 3 provisions and antidegradation policies, including 4 Outstanding Florida Waters. 5 It also states that you will testify or offer an 6 opinion that state water quality standards are not being 7 met in the Everglades based on your experience with the 8 Department in rulemaking and interpretation and your review 9 of information provided to you by other Department 10 personnel. 11 Do you plan on testifying on all of those subject 12 matters? 13 A Yes. 14 Q Do you plan on testifying as to any other subject 15 matters above and beyond those that are listed there? 16 A I do not. 17 Q Will you be testifying at all regarding the 18 Department's review and proposed approval of the South 19 Florida Water Management District permits to the Department 20 for their discharge structures in the water conservation 21 areas? 22 A I have not discussed that with my counsel. 23 Q Will you be discussing or testifying as to the 24 Department's review of the Army Corps of Engineers' permit 25 applications for their structures in the water conservation A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 52 1 areas? 2 A I have not discussed that either with my counsel. 3 Q Were you involved at all in the Department's 4 review of either of those two sets of permit applications? 5 A Yes, I was. 6 Q Will you be offered as an expert in any subject 7 matter or matters as part of your testimony? 8 MR. HETRICK: I believe he is designated as an 9 expert. 10 MR. HYDE: Designated as an expert in what? 11 MR. HETRICK: I believe he is designated as an 12 expert as to his experience in water quality standards 13 and in his capacity right now, in his present position. 14 MR. HYDE: Can you articulate for me, Keith, what 15 the area of expertise is? I think of an expert as 16 being in benthic macroinvertebrates or toxicology or 17 something, not just Department policy. 18 MR. HETRICK: I would say water quality standards. 19 MR. HYDE: The application of water quality 20 standards? 21 MR. HETRICK: The application of water quality 22 standards. 23 MR. HYDE: Any other categories of expertise? 24 MR. HETRICK: I think that is basically what we 25 have discussed in the context of the SWIM Plan and the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 53 1 permit, to the extent that he was involved with the 2 permit. 3 BY MR. HYDE: 4 Q Mr. Swihart, when did you first become involved in 5 the Everglades SWIM planning process? 6 A I reviewed some of the early drafts. 7 Q Do you recall approximately when that early review 8 took place? 9 A Not exactly; perhaps 1991. 10 Q When you say you reviewed, did you do anything 11 substantive or did you just review the -- read the report? 12 A I read the report and provided written comments. 13 Q To whom did you provide those written comments? 14 A The addressee was probably Bart Bibler. 15 Q Do you recall what the substance of those comments 16 were? 17 A I cannot recall exactly. 18 Q Were those comments turned over to us as part of 19 your document production? 20 A I expect so. 21 Q And you think this was 1991, early 1991, 22 thereabouts? 23 A I would have to add that word "perhaps." I cannot 24 recall the year. 25 Q Do you recall generally what your comments were to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 54 1 Mr. Bibler? 2 A I can recall generally my comments were that it 3 was important that water quality standards be met in the 4 Everglades, and that comment probably went on to say that 5 all water quality standards should be met, not just 6 phosphorus. 7 Q What other water quality standards were you 8 concerned about? 9 A All water quality standards. 10 Q Were there some particular water quality standards 11 that you felt were not being addressed in the SWIM Plan? 12 A As I recall, there was a heavy emphasis on 13 phosphorus in the Everglades SWIM Plan, which is 14 appropriate. I thought it was important also to be sure 15 there was a process for ensuring that other water quality 16 standards were adequately assessed and that all water 17 quality standards were complied with. 18 Q Well, let me see if I can ask the question a 19 different way. 20 Were there some specific water quality standards 21 of concern that you felt were not being addressed, or was 22 this more of a generic, we just need to ensure compliance 23 with each and every water quality standard that the 24 Department has ever adopted? 25 A I don't recall. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 55 1 Q Were there any other general concerns that you had 2 or that you expressed in your report to Mr. Bibler? 3 A I don't recall. 4 Q Are you familiar with the so-called moderating 5 provisions in the Chapter 17-302? 6 A Yes. 7 Q Are they considered to be part and parcel of the 8 Department's water quality standards? 9 A I believe so. 10 Q So would it be fair to say that your concern about 11 the SWIM Plan's addressing all water quality standards, you 12 were also talking about the moderating provisions as well? 13 A I don't think that was probably within the scope 14 of what I meant with that comment. 15 Q Well, do those moderating provisions have a place 16 in the Department's review of the SWIM Plan? 17 A Yes. 18 Q What generally is that function or role for the 19 moderating provisions? 20 A That they are a part of water quality standards. 21 Q Well, did the Department in general or you 22 specifically ever consider the application or 23 implementation of those moderating provisions in the 24 context of the Everglades SWIM Plan? 25 A Can you be more specific? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 56 1 Q Did the Department -- let me just ask you, did you 2 ever consider whether a mixing zone should be established 3 in the water conservation areas? 4 A Mixing zone for what? 5 Q For nutrients. 6 A For what discharge or permit? That is associated 7 with a particular permit. 8 Q You said you were involved in the Department's 9 review of the water management district permit 10 applications, were you not? 11 A Yes. 12 Q Did you or did the Department ever consider the 13 implementation of a mixing zone for nutrients for the water 14 management district permit application? 15 A It has been discussed. 16 Q With whom did you discuss it? 17 A I discussed that with Frank Nearhoof, I believe 18 also Doug Gilbert, and possibly Al Bishop. 19 Q Do you recall what that discussion was about? 20 Can you give me a little more detail as to what was the 21 subject matter that you discussed there? 22 A Certainly. I think that perhaps you or another 23 representative of agricultural interests in the Everglades 24 Agricultural Area raised a question with the South Florida 25 Water Management District of whether a mixing zone was A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 57 1 appropriate, and in the discussions, I recall there might 2 have been a response to that. 3 Q Well, what did you or these other individuals come 4 to conclude as a result of that discussion? 5 A Well, the discussion was not principally mine to 6 conduct, but I believe that Water Facilities came to some 7 conclusion about the appropriateness of the mixing zone. 8 Q When you say Water Facilities, what do you mean by 9 that? 10 A Richard Harvey in his capacity as director of the 11 Division of Water Facilities was managing the review of the 12 Douglas Act permit. 13 Q Did they come to some conclusions regarding the 14 appropriateness of a mixing zone? 15 A I don't know for certain. 16 Q Do you know whether they considered it? 17 A People I mentioned, Frank Nearhoof, Doug Gilbert 18 and Al Bishop, were all in Water Facilities and were all 19 involved in the review of that permit application, so I am 20 sure they considered it at least in that context. 21 Q But you don't know anything beyond what you have 22 just mentioned to me about the degree or extent of that 23 consideration? 24 A I think there were a number of discussions at one 25 point. I was involved in some of them, but not all of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 58 1 them. 2 Q How would one go about developing a mixing zone 3 for nutrients? 4 A I think that could be a hard thing to do. I think 5 the first step would be to receive a request for a mixing 6 zone from a permit applicant. 7 Q Does it have to be strictly from a permit 8 applicant? 9 A I understand that to be the case. 10 Q What is the basis for that understanding? 11 A Because a mixing zone is a modification of a 12 permit held by a permittee. 13 Q What about where the permit that is at issue will 14 materially affect the interests of other persons? For 15 example, in this instance, the water management district 16 permit will certainly affect the interests of the 17 Everglades Agricultural Area farmers. Wouldn't you think 18 it appropriate for them to be able to make a request of the 19 Department to consider a mixing zone? 20 A I don't know if it is legally appropriate for 21 another party to propose a modification of a permit held by 22 another party. That seemed to me to open a very broad 23 scope of instability in permits. 24 Q Well, I would like you to assume for the moment 25 that someone could, someone other than the permit applicant A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 59 1 could request the Department to adopt a mixing zone. How 2 would one go about implementing a mixing zone for nutrients 3 in an area, for example, such as the water conservation 4 areas? 5 MR. HETRICK: I am going to object to the form of 6 the question, but I will let him answer with the caveat 7 I think you are asking him in this question to assume 8 the legal conclusions which may be at issue here, 9 and -- 10 MR. HYDE: I think the Department's rules pretty 11 clearly state that someone other than the applicant can 12 request a mixing zone, but if we can just assume that 13 to be the legal fact I would just like to ask the 14 question. 15 MR. HETRICK: I am not going to assume that to be 16 the legal fact, but I will let him answer the 17 question. 18 THE WITNESS: I don't understand the basis for 19 that assumption, either, but -- I think you asked two 20 different questions, and I want to be clear on that. 21 Could you ask that again? Because I think the 22 assumption was one thing and the question referred to 23 something else. 24 BY MR. HYDE: 25 Q I want you to assume that a person other than the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 60 1 applicant can request the Department to implement or adopt 2 a mixing zone for another person's application. 3 Assuming that to be true, how could or how would 4 one go about establishing a mixing zone for nutrients? 5 A On the first question of requesting, if this other 6 party to request it, do you mean that the Department must 7 respond and act as if it were the permit applicant? 8 Q Let me ask the question this way. Forget the 9 hypothetical aspect of the question. I want you to assume 10 that the applicant in this instance, the water management 11 district, requested the adoption or implementation of a 12 mixing zone for nutrients. How would you, that is, how 13 would the Department, go about dealing with that request? 14 A Well, the request should be referred to various 15 people at DER who handle mixing zones, primarily in the 16 Division of Water Facilities, and seek to determine whether 17 that request met the requirements in 17-4. 18 Q Who are those persons? 19 A The director of the Division of Water Facilities 20 is Richard Harvey. The administrator of the Point Source 21 Evaluation Section, who I believe principally handles this 22 kind of thing, is Al Bishop, and their staff in that 23 section who also works on those subjects. 24 Q What factors or criteria would they look to in 25 determining whether a particular request was eligible for A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 61 1 approval for a mixing zone? 2 A There is a long list of factors in that rule, and 3 I presume they look at all of them. 4 Q Can you be more specific as to which rule you were 5 referring to? 6 A Yes. I brought 17-4 with me. I think I did. 7 Q If you don't have it, I have a copy of it. 8 A Yes, I do. Mixing zones are discussed in 9 17-4.244. 10 Q Can you -- 11 MR. HETRICK: Did you say 244? 12 THE WITNESS: Yes, I did. 13 BY MR. HYDE: 14 Q Can you take me through the process by which one 15 would consider the adoption of a mixing zone for 16 nutrients? 17 A I could try, but I have not been involved in the 18 writing or rewriting of this rule on the actual preparation 19 of mixing zones for permits at my time at DER. I could do 20 my best. 21 Q Okay. 22 A There are certain minimum requirements for mixing 23 zones discussed in (1)(a). (1)(a) says that only the 24 minimum conditions must be met in a mixing zone. There is 25 some place in this rule it also talks about antidegradation A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 62 1 policies as part of water quality standards, I believe. 2 Part of that is that existing uses cannot be impaired, so I 3 presume that a mixing zone cannot impair an existing use, 4 and then the rule goes on in (b) and at great length 5 through the rule about individual requirements for mixing 6 zones. 7 Q Based on your understanding of the mixing zone 8 rule, which is 17-4.244, do you have an opinion as to 9 whether that rule would apply to nutrients as well as other 10 water quality standards? 11 A Well, nutrients per se are a different type of 12 water quality standard. Could you specify what you mean by 13 nutrients? 14 Q Let me ask the question this way. Can one 15 establish a mixing zone for nutrients? 16 A I think one can establish a mixing zone for 17 something affected by nutrients, like dissolved oxygen, but 18 you asked me directly about nutrients. 19 Q Right. 20 A I am not sure. 21 Q Why are you uncertain? 22 A Firstly, for that reason I stated, nutrients per 23 se are a different type of parameter and are usually 24 regulated by their effects on other parameters, rather than 25 nutrients so stated. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 63 1 Q So you -- 2 A That is why I asked you to be a little bit more 3 specific. 4 Q Let me see if I can help you in that regard. You 5 wouldn't necessarily create a mixing zone for nutrients per 6 se, but you might look to other factors such as dissolved 7 oxygen? 8 A I think so. 9 Q What other factors might you look to as far as 10 establishing a mixing zone that would have the indirect 11 effect of creating one for nutrients? 12 A You might look to determine if the nutrients would 13 create any other violation of the water quality standards, 14 and that could include concerns about nuisance species, 15 biological integrity, any other parameter that could be 16 affected by the discharge, including nutrients. 17 Q Might you look to vegetative types that is 18 established in the area, I guess that would be related to 19 like the nuisance species, or standard? 20 A It could be. 21 Q Do you recall when this discussion concerning 22 mixing zones took place? 23 A If I am right, as I mentioned before, one of the 24 discussions was after the letter I referred to from 25 agricultural interests in south Florida, that was one of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 64 1 the discussions. 2 Q Was there a second discussion? 3 A I was involved in I believe at least two 4 discussions. 5 Q Was there a more recent one that occurred after 6 Mr. Nearhoof's deposition? 7 A Not that I am aware of. 8 Q Well, you believe at least one was precipitated by 9 that letter from the agricultural interests requesting a 10 mixing zone, is that correct? 11 A Yes. 12 Q Was there -- what precipitated the other 13 discussion or discussions on that subject matter, or was 14 there any event that actually caused them? 15 A I think it was a follow-up to that first 16 interaction. 17 Q Do you recall approximately when it occurred? 18 A It would have been, I think, within a month of the 19 receipt of that letter. 20 Q Did you ever discuss the possibility of 21 establishing a mixing zone during the settlement 22 negotiations that you were involved with in the federal 23 litigation? 24 A Yes. 25 Q When did that occur? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 1 A I recall it at least occurring early in the 2 discussions, and possibly other times. 3 Q What was discussed in that regard? 4 MR. HETRICK: I am going to object to the 5 question. I might instruct him not to answer unless 6 you preface the question with who was involved with the 7 discussions, because I have no knowledge whether any 8 attorneys were present there. There might be some kind 9 of attorney confidential privilege I might want to 10 raise. I don't have problems as the hearing officer 11 said with you going into that to some limited degree. 12 The United States may want to offer other objections, 13 but I need to know who was present during some of these 14 discussions. 15 BY MR. HYDE: 16 Q Do you recall when these discussions first 17 occurred? 18 A Which discussions? 19 Q On the possibility of adopting a mixing zone in 20 the Everglades settlement negotiations. 21 A I recall them occurring early in the discussions. 22 Q Could you pin that down roughly to a date? Was 23 that early 1991, late 1991? 24 A I think you probably know the dates better than I 25 do, but I think that was in the spring of 1991 when those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 1 discussions began. 2 Q You were a member of the Department's, quote, 3 technical team for those settlement negotiations, were you 4 not? 5 A I went to a number of the meetings, yes, but not 6 all. 7 Q Did these discussions take place at these meetings 8 of the technical team? 9 A Yes. 10 Q Were there any other attorneys present there, or 11 were there any attorneys present there? 12 A Both. There were meetings with attorneys. Let's 13 see. I am trying to be responsive to a question. I recall 14 meetings where attorneys were present in south Florida, and 15 I remember other meetings in which attorneys were not 16 present. 17 Q Did any of these discussions on the subject matter 18 of mixing zones take place between you and attorneys for 19 the Department? 20 A I believe they did. 21 Q What about discussions on that subject matter with 22 other members of the technical team? 23 A They did occur. 24 Q What did you or what was the gist of your 25 discussions on that subject with the members of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 1 technical team? 2 MR. HETRICK: Objection. Were any attorneys 3 present in discussion with that technical team? 4 MR. HYDE: I don't think that is relevant. I 5 understood Mr. Menton at most to be saying that there 6 may be a privilege as to communications between an 7 agency person and that agency's attorney, but to the 8 extent that any of these discussions took place among 9 them, between a variety of different parties, I don't 10 think one can legitimately maintain an objection that 11 there is some attorney-client privilege there, and I 12 would just also note for the record I am not even sure 13 that the hearing officer is correct because I think 14 that, given the fact these were settlement 15 negotiations, that attorney-client provisions had been 16 waived anyway, but in any event, given the resolution 17 of those proceedings, it is terminated. 18 MS. STARK: The government would put on the record 19 its objection to any conversations involving federal 20 attorneys in the federal litigation. 21 MR. HETRICK: I think, Bill, if you could try to 22 distinguish here who -- 23 MR. HYDE: I have been trying to. 24 MR. HETRICK: I know you have been trying to. We 25 headed it technical team for some meetings, some A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 1 meetings, some attorneys were present, and some 2 meetings maybe they weren't, and if you would explore 3 that in a little more detail, I would be a lot less 4 concerned about raising my objections about what may or 5 may not have been discussed, but I am not going to 6 waive any privilege, any attorney-client privilege that 7 may arise in the context of attorneys being present 8 with the technical team or -- 9 MR. HYDE: I don't think I have to establish the 10 nonapplicability of your privilege. I think you have 11 to establish that your privilege exists, and I will see 12 if I can ask some follow-up questions that might 13 address your objections, but I don't regard your 14 objections as imposing upon me some affirmative 15 obligation to demonstrate that nonapplicability. 16 MR. HETRICK: That is up to you. I would prefer 17 not to instruct him not to answer, because I want to 18 get through this, too. 19 BY MR. HYDE: 20 Q Mr. Swihart, with whom did these discussions 21 regarding the possibility of mixing zones take place? 22 MR. HETRICK: Maybe. What meeting? 23 BY MR. HYDE: 24 Q If you can be precise and tell me what meeting or 25 meetings those discussions took place, that would be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 1 helpful. 2 A Are you referring to, in context to the Everglades 3 litigation? 4 Q Yes. 5 A I recall discussing mixing zones at meetings of 6 the technical team more than once, and I recall also some 7 other meetings with attorneys present, interested parties 8 and members of the public present, at which I discussed 9 mixing zones. 10 Q Let's deal first with the members of the technical 11 team. 12 First of all, could you tell me generally who 13 those persons were? 14 A For DER, I think the principal participants were 15 Richard Harvey, Frank Nearhoof and myself. I believe for 16 the Everglades National Park, the principal participants 17 were Michael Soukup and Dan Scheidt, and I believe with the 18 U. S. Fish and Wildlife Service, it was Mark Maffei and at 19 times, Robin, Robin someone, I can't remember her last 20 name, and there were some other people that attended some 21 meetings as the meetings went along. 22 Q Were there attorneys from the various parties 23 present at these meetings? 24 A I recall -- I think attorneys were present for 25 parts of some of the meetings in order to lay the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 1 groundwork for particular meetings. 2 Q Would it be correct, though, to say that for the 3 most part they weren't there, and these were intended to be 4 unfettered discussions between the technical team persons 5 from these various agencies? 6 A I believe that is correct. 7 Q Did you make any presentations as to the subject 8 matter of mixing zones or any of the other moderating 9 provisions to the members of the technical team? 10 A Yes, I did. 11 Q What did you do in that regard? Did you simply 12 read the rule to them, or did you engage in more in-depth 13 presentation as to how those rules work? 14 A First I believe an overview of water quality 15 standards, and discussed the various elements including 16 mixing zones. 17 Q Were your discussions of the subject matter of 18 mixing zones or the other moderating provisions just an 19 identification of the process, or -- of those standards, or 20 did that presentation go beyond that? For example, did you 21 approach the notion of these mixing zones possibly having 22 some applicability in these Everglades settlement 23 negotiations? 24 A I recall discussing all of the elements of water 25 quality standards. I don't recall saying that mixing zones A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 1 were or were not applicable. They were a part of water 2 quality standards. 3 Q Did anyone, including yourself, ever suggest that 4 the technical team ought to consider the possibility of 5 applying a mixing zone in the water conservation areas? 6 A I think that the agreement that we reached 7 incorporated things comparable to a mixing zone, but did 8 not, itself, include a mixing zone for individual 9 structures. 10 Q What do you mean? Whose discussions incorporated 11 something comparable to a mixing zone? 12 A Well, I would have to refer to the settlement 13 agreement to be perfectly accurate. There is provisions 14 that provide moderating provisions comparable to a mixing 15 zone. 16 I can give you an example. There is an interim 17 limit for the Loxahatchee National Wildlife Refuge 18 expressed in a geometric mean of 14 monitoring stations in 19 the Refuge. None of those stations is sited by the pump 20 station S-5A discharging into the Refuge, so in that sense, 21 perhaps a discharger has a break, a moderating provision 22 akin to a mixing zone by our forcing a geometric mean of 14 23 stations, some of which are far distant from the discharge, 24 rather than expressing the criterion applying right at the 25 outfall. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 1 Q Are there any other aspects of the settlement 2 agreement in the federal litigation that you deem 3 comparable to a mixing zone? 4 A I think that the Douglas Act requires that interim 5 concentration be achieved to, I believe it is to the 6 maximum extent practicable, modifies water quality 7 standards, perhaps in a way akin to a mixing zone or some 8 other relief mechanism. 9 Q Do you regard that statutory language, quote, "to 10 the maximum extent practicable," to authorize some 11 deviation from the strict application of the state water 12 quality criteria? 13 A I would like to look at the Douglas Act to be sure 14 about that, but I believe there is a section that says that 15 the Douglas Act makes no alteration in water quality 16 standards except the section that contains that provision. 17 Q So do you regard that particular section as 18 perhaps creating an exception to the general rule that 19 state water quality standards apply? 20 A I think I would rather say that the Douglas Act 21 creates something new in permitting and perhaps something 22 new in water quality standards, and that DER has to be sure 23 to comply with the Douglas Act. 24 Q I believe you stated a few minutes ago that you 25 made a presentation about the state water quality standards A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 73 1 that included a discussion of the moderating provisions, 2 including mixing zones. 3 Other than your presentation, is that general 4 subject matter of moderating provisions discussed by and 5 among the various representatives to the technical team? 6 A I recall that the individual moderating provisions 7 were discussed. 8 Q Well, what was bandied about between the various 9 representatives concerning the mixing zone, then? 10 MS. STARK: Object to the form of the question. 11 BY MR. HYDE: 12 Q Let me rephrase the question. 13 Other than your presentation on the general 14 subject matter, what did the various persons at the 15 technical team meetings discuss concerning the possibility 16 of implementing a mixing zone concept in the Everglades 17 Protection Area? 18 A I think I recall only a general discussion of 19 mixing zones early in the discussions, and the way in which 20 the discussions progressed, they included these moderating 21 provisions that we just discussed. We didn't come back and 22 discuss mixing zones in detail. 23 Q Well, you did say, though, that you discussed 24 mixing zones at the beginning, in one of the first 25 meetings, is that correct? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 74 1 A Yes. 2 Q Was the possibility of implementing a mixing zone 3 vetoed by any party? 4 A No, it was not vetoed by any party. 5 Q Well, did the technical team reach a consensus 6 that mixing zones would not be applied in the context of 7 those settlement negotiations? 8 A I don't recall any discussion along those lines. 9 Q Did you just -- when I say "you," did the 10 technical team just opt not to discuss them anymore after 11 that first or those first settlement discussion meetings of 12 the technical team? 13 A As I have tried to explain it, it didn't seem 14 necessary or advisable with the particulars of the 15 agreement that we were heading toward. 16 Q Why was it not? 17 A For the reasons I have discussed before. 18 Q Are those the reasons, that you essentially feel 19 the settlement agreement has concepts within it that are 20 akin to a mixing zone? 21 A I think that is one reason. I think another 22 reason is that, as I understand a mixing zone, it has to be 23 requested by a permit applicant. A permit applicant in 24 this case would be the water management district, 25 apparently was not contemplating requesting a mixing zone. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 75 1 Q Was there any discussion as to the development of 2 a site-specific alternative criterion or a SSAC for the 3 Everglades Protection Area for any water quality parameter? 4 A I included SSACs in my overview of water quality 5 standards that I gave early in the discussions. 6 Q Did the technical team ever discuss the practical 7 application of a SSAC for the Everglades Protection Area? 8 A I don't recall any detailed discussion, but at 9 this time, I don't think that a SSAC seems very 10 appropriate. 11 Q What discussion do you recall regarding SSACs? 12 A I recall explaining what the criteria were for 13 SSACs. 14 Q Did that discussion ever go beyond that limit? 15 A Not that I recall. 16 Q How does the Department go about establishing a 17 SSAC for a given water quality parameter, let's say for 18 dissolved oxygen? 19 A By following the procedures in 17-302. 20 Q Would you tell me which procedures you are looking 21 to? 22 A That is in 17-302.800. 23 MS. STARK: What was the number, .800? 24 THE WITNESS: Yes. 25 BY MR. HYDE: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 76 1 Q What page is that on? 2 A On my version, it is page 82. 3 Q Did the technical team ever discuss the possible 4 implementation of a SSAC for dissolved oxygen in the 5 Everglades Protection Area? 6 A I don't recall any discussion of a SSAC for a 7 particular parameter. 8 Q Are you familiar with the state water quality 9 standards for dissolved oxygen?