109

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

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,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

18 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

20 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF THOMAS M. SWIHART

24 February 3, 1993

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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 1:30 p.m.

8 Reported by:

9 JERRY L. ROTRUCK

10 Certificate of Merit

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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.

Gary Perko, Esq.

5 Hopping Boyd Green and Sams

123 South Calhoun Street

6 Tallahassee, FL 32301

7 On behalf of the Petitioners Florida Sugar Cane League,

Inc., United States Sugar Corporation and New Hope

8 South, Inc.:

9 William L. Hyde, Esq.

Peeples, Earl & Blank

10 215 South Monroe Street

Suite 350

11 Tallahassee, FL 32301

12 On behalf of the Intervenor United States of America:

13 Cathy Stark, Esq.

Assistant U.S. Attorney

14 155 South Miami Avenue, Suite 600

Miami, FL 33102

On behalf of the Intervenor Department of Environmental

16 Regulation:

17 Keith Hetrick, Esq.

Donna LaPlant, Esq.

18 Assistant General Counsel

State of Florida

19 Department of Environmental Regulation

Twin Towers Office Building

20 2600 Blair Stone Road

Tallahassee, FL 32399-2400

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1 INDEX TO WITNESS

2 THOMAS M. SWIHART Page

3 Examination (continued) by Mr. Hyde 114

7 INDEX TO EXHIBITS

8 No. Marked

9 5 114

10 6 146

11 7 194

12 8 197

13 9 202

14 10 202

15 11 205

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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.

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1 D E P O S I T I O N

2 Whereupon,

3 THOMAS M. SWIHART

4 was recalled as a witness, having been previously duly

5 sworn to speak the truth, the whole truth, and nothing but

6 the truth, was examined and testified as follows:

7 MR. HYDE: Let's go ahead and label this as

8 Exhibit 5.

9 (Whereupon, Exhibit No. 5 was marked for

10 identification.)

11 EXAMINATION (continued)

12 BY MR. HYDE:

13 Q Mr. Swihart, would you identify what has been

14 labeled Exhibit 5?

15 A This is a summary of my travel log to south

16 Florida in 1991 and 1992.

17 Q Are the dates that are reflected on Exhibit 5 the

18 dates on which your technical team convened?

19 A In 1991, right.

20 Q What are the 1992 dates?

21 A 1992 are miscellaneous other trips. I wasn't sure

22 if you would be interested in those or not.

23 Q We will get to those in a minute.

24 How did you go about reconstructing these dates?

25 A I couldn't find my calendar for 1991. I did go

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1 through my travel voucher file, and this is the record of

2 the travel that I have.

3 Q The first date I see here is March 7, to Miami.

4 Is that the date that you flew down there, because Exhibit

5 2 indicates a March 8 meeting date?

6 A I frankly don't know, but these are all separated

7 by a few days, at least, I think, so that is probably the

8 day I flew down.

9 Q Since you have reconstructed this record, do you

10 recall better just what occurred on the -- at these given

11 meeting dates, what subject matters were being discussed,

12 what presentations were being made and the like?

13 MR. HETRICK: Objection. Bill, if you -- again,

14 if we go through now, we have dates, and you can go

15 through who was present at the meetings.

16 MR. HYDE: I asked him generally whether that

17 helps him better remember what occurred at what

18 meetings.

19 MR. HETRICK: But I think, again -- and the

20 distinction I am trying to make is whether any

21 attorneys were present and in what context, since we

22 have specific meeting by meeting. I don't mind you

23 asking your questions if you will lay that predicate.

24 THE WITNESS: Can I answer?

25 MR. HETRICK: Yes, you can answer.

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1 THE WITNESS: No.

2 BY MR. HYDE:

3 Q So none of these -- none of these dates have

4 jogged your memory as to specific discussions or

5 presentations that may have been made on that date?

6 A No. I think I can remember generally the progress

7 of the discussions and tell you maybe approximately when

8 something was discussed, but no, having the dates don't

9 bump my memory.

10 Q I would like for you to relate for me, if you

11 will, the progress of those discussions. Were there

12 certain types of discussions or certain subject matters

13 that were discussed earlier on as opposed to later on?

14 A Yes.

15 Q What were the subject matters discussed earlier?

16 A I believe early on a lot of time was spent talking

17 about what is meant by water quality standards, what was

18 meant by violations of water quality standards, and what

19 were the available data on water quality.

20 Q Were you the person who made the presentations as

21 to what the water quality standards were?

22 A I think I did more of that discussion than anyone

23 else, but certainly Richard Harvey and Frank Nearhoof also

24 contributed and are very knowledgeable about water quality

25 standards.

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1 Q Who are the persons that were involved in the

2 discussion as to whether there were violations of water

3 quality standards?

4 A I think that was principally the representatives

5 of the federal government early on.

6 Q Can you be more specific as to whom you are

7 referring to?

8 A It would have been Dan Scheidt, Mike Soukup, Mark

9 Maffei and possibly Bill Walker, if he was in the earliest

10 meetings.

11 Q Did these federal representatives identify

12 specific areas as having water quality violations?

13 A Yes.

14 Q Where did they possibly get information that there

15 were existing water quality violations in the Everglades?

16 MS. STARK: I have a standing objection to this

17 line of questioning.

18 THE WITNESS: The first series of questions

19 focused on Everglades National Park, so that was the

20 initial area of special focus.

21 BY MR. HYDE:

22 Q Did one of these federal representatives postulate

23 that there were violations of state water quality standards

24 in the Park?

25 A Yes.

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1 Q Who was that person or persons?

2 A I would say it would be Mike Soukup, Dan Scheidt

3 and William Walker; possibly also Ron Jones if he was

4 present at those early meetings.

5 Q What water quality standards were allegedly being

6 violated?

7 A I recall there were statements of multiple

8 violations, OFW baseline as well as Class III standards.

9 Q Can you be more specific as to the Class III

10 standards?

11 A Nuisance species, imbalance of flora and fauna are

12 the ones I recall now.

13 Q When you refer to imbalance, are you referring to

14 the narrative nutrient rule?

15 A Yes.

16 Q Did any of these federal representatives present

17 any evidence as to -- to support their contention that

18 these rules were being violated?

19 A Yes.

20 Q What was that evidence?

21 A Well, there were multiple violations discussed and

22 different evidence for different violations.

23 Q Remember we are discussing particularly alleged

24 violations in the Park now.

25 A In the Park, right.

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1 Q All right.

2 A A substantial amount of time was spent early on in

3 assembling and evaluating available data to try to jointly

4 assess if there were violations, and at that point, a lot

5 of discussions focused upon whether water quality for the

6 OFW baseline year had been violated, and that might have

7 been the first focus of direct investigation.

8 Q What evidence did they present as to or to

9 substantiate their beliefs that there was violation of the

10 baseline OFW standard?

11 A Examining whether water quality concentrations of

12 phosphorus were higher now than they were during the OFW

13 baseline year.

14 Q What did their evidence demonstrate?

15 A Their evidence demonstrated that the concentration

16 of phosphorus was higher now than it was during the

17 baseline year.

18 Q What was the baseline year?

19 A March 1, 1978, and March 1, 1979.

20 Q How was the baseline year determined?

21 A It is defined in the rule, 17-4.

22 Q I didn't ask a good question. How did the federal

23 representatives establish what the baseline conditions were

24 during that 1978 to 1979 period?

25 A We sought out all of the available information on

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1 water quality conditions during that period, and tried to

2 evaluate that data. The principal data set was that

3 collected by the South Florida Water Management District

4 during that period.

5 Q Can you be more specific as to what that water

6 management district data was?

7 A It was data collected principally at the S-12

8 structures at the northern end of the Park.

9 Q So you were just looking at what the phosphorus

10 concentrations were in that data over a period of time

11 since 1978, '79?

12 A We were looking principally at phosphorus at that

13 point in the discussions.

14 Q Which federal representatives were responsible for

15 pulling this data together, if you know?

16 A If I could divide that into steps, I would say we

17 jointly tried to determine what was the available data,

18 what data sets could be assessed. The principal person,

19 the most active person in trying to make statistical sense

20 of the data at first was Dr. Walker.

21 Q What did Dr. Walker do?

22 A Dr. Walker sought to determine any trends in the

23 data and sought to extract meaning from all of the

24 assemblage of data.

25 Q What conclusion did he reach as a result of his

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1 efforts?

2 A It was his conclusion that there had been an

3 increase in trend in phosphorus since the OFW baseline

4 year.

5 Q What did Dr. Walker do other than just look at the

6 water quality data that the district had been collecting

7 since 1978, '79?

8 MS. STARK: Object to the form of the question.

9 BY MR. HYDE:

10 Q Let me explain to you my problem here, and it is

11 fairly simple. If you are postulating that an increase in

12 phosphorus concentrations is a violation of the OFW

13 baseline condition, and it seems to me that would be a

14 fairly simple thing to do, you would look at what the

15 concentrations were in 1978, '79, and then you would look

16 at what they are now, and then the difference would be the

17 alleged violation. Is that a fair summary of what Dr.

18 Walker was doing?

19 A I think that is a brief summary of what was done.

20 Q Is that what Dr. Walker was doing?

21 A That is what Dr. Walker did, but I have to add, in

22 consultation with other people. The same analysis was done

23 different ways by other people, including Dr. Robeson and

24 Frank Nearhoof.

25 Q What additional analysis did Dr. Walker have to do

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1 other than just simply pulling together that data and

2 showing the trend as evidenced by the data?

3 MS. STARK: Object to the form of the question.

4 MR. GREEN: Basis.

5 MS. STARK: It assumes facts not in evidence.

6 MR. HYDE: You may answer.

7 THE WITNESS: It was necessary to handle the data

8 in a statistically valid manner. The data was not

9 monotonically increasing through the whole period, and

10 one had to be sure that what one concluded about

11 differences between baseline year and current

12 conditions was statistically significant.

13 BY MR. HYDE:

14 Q What did Dr. Walker do to ensure that the data

15 that had been generated was statistically valid?

16 A Dr. Walker -- I meant to say Mr. Walker, I think,

17 Bill Walker I believe sought to determine that the data was

18 normally distributed, concluded that it was by statistical

19 tests, and sought to do a regression equation on that trend

20 which he detected, and then calculated confidence intervals

21 on either side of that trend.

22 Q What do you mean when you say normally distributed

23 data?

24 A Data that has a bell-shaped curve.

25 Q Can you be a little more specific? What is meant

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1 by the data having a bell-shaped curve?

2 A A bell-shaped curve is one way to show that data

3 that has a distribution such that you use certain

4 statistical techniques that rely upon a normal

5 distribution, that there be a median close to a mode, you

6 have followed a Gompertz curve exponentially.

7 Q What did you mean by a regression analysis?

8 A It is an attempt to determine a relationship,

9 although not necessarily a causation, between two

10 variables, two or more variables, and the two variables

11 examined at one point under discussion were time and

12 phosphorus concentration.

13 Q How far back did this progression analysis go?

14 A I believe it went back as far as there were data,

15 which I think was 1977.

16 Q You used the terminology, "confidence trend."

17 What did you mean by that?

18 A I think I might have said confidence interval.

19 Q Interval. Okay.

20 A Although the analysis concluded there was a

21 relationship between time and phosphorus concentrations, it

22 wasn't a perfect one-to-one straight line relationship, so

23 there was some variability in the data set, and the

24 confidence interval expressed those intervals on either

25 side of the calculated line which you were a certain level

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1 of percentage confident that you were within the calculated

2 range.

3 I will try to say that again. He calculated a 90

4 percent confidence interval about the regression line.

5 Q What else did Bill Walker do to account for the

6 variability in the data besides this confidence -- the

7 establishment of these confidence intervals?

8 A As I recall, he attempted to see if there were

9 other variables that also had a relationship to phosphorus

10 concentrations. I believe he attempted to see if season of

11 the year showed a relationship with phosphorus

12 concentrations, and I believe he tried other variables also

13 to see if they had a relationship with phosphorus

14 concentrations.

15 He also attempted to determine if flow showed a

16 relationship with phosphorus concentrations.

17 Q Did he -- what conclusions did he reach regarding

18 the possible relationship with flow?

19 A He found that there was a relationship with flow.

20 Q Do you know what the basis was for that

21 conclusion?

22 A They were the results of the statistical analysis

23 performed by him and by others.

24 Q Well, what was that relationship between flow and

25 phosphorus?

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1 A That concentration did vary with flow.

2 Q Would that be the same as saying the more flow

3 there was, the more phosphorus?

4 A I am trying to remember if it was increasing flow,

5 increasing phosphorus or the reverse, but it is in the SWIM

6 Plan and elsewhere.

7 Q What other conclusions did Dr. Walker's analysis

8 reach? In other words, were there any other relationships

9 besides this one between flow and phosphorus and time and

10 phosphorus?

11 A I don't recall any others.

12 Q What was the relationship with time, if you have

13 not already discussed it?

14 A That phosphorus concentrations had increased since

15 1979.

16 Q What was done by Walker to assure that the data

17 upon which he relied were, in fact, reliable or was

18 reliable data?

19 A The team, as I said, sought to inventory all of

20 the available sources of data and agreed upon a data set,

21 and then Bill Walker did the best he could to interpret

22 that data.

23 Q How did the team go about determining what that

24 data set should be?

25 A The water management district and DER and USGS, as

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1 I recall, were really the only significant repositories of

2 data.

3 Q Well, what was done with those several

4 repositories of data to ensure that they were, in fact,

5 reliable sources of data?

6 A The size of the data set, the QA/QC performed on

7 the data were evaluated.

8 Q Why was the size of the data set important to

9 making that deliberation?

10 A Because a very small data set would be unlikely to

11 have statistical significance over that length of time.

12 Q Why -- what quality assurance, quality control

13 procedures were relevant to this determination?

14 A Well, to rely upon the data, one wanted to be sure

15 that QA/QC procedures were followed.

16 Q Were they, in fact, followed?

17 A We concluded that they were.

18 Q How did you go about concluding that they were?

19 A The water management district has had a QA and QC

20 plan extending back for many years at their agency, and we

21 evaluated their QA/QC procedures to see if the data

22 resulting from that set of processes was reliable.

23 Q Are you aware of the QA/QC procedures for testing

24 of extremely low concentrations of phosphorus?

25 A I am somewhat aware of that.

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1 Q Do you know whether those QA/QC procedures require

2 any additional steps be taken for phosphorus concentrations

3 that are at or below 10 parts per billion?

4 MR. HETRICK: I object to the form of the

5 question.

6 BY MR. HYDE:

7 Q Let me ask the question this way. What steps, if

8 any, did the water management district, in collecting this

9 phosphorus concentration data, take in order to ensure that

10 the -- their data was reliable as to the very low

11 concentrations of phosphorus?

12 A Whatever their procedures were, and I don't know

13 if I could answer more than that.

14 Q Well, did --

15 A I myself did not review their procedures.

16 Q Do you know whether the QA/QC procedures they used

17 were uniform for all types of phosphorus concentrations,

18 that is, from types ranging from very low to higher forms,

19 10 parts per billion versus 100 parts per billion?

20 A I do not.

21 Q Are you familiar with any proposed QA/QC

22 procedures that Dr. Wetzel has proposed or has set forth

23 for testing ultra-low concentrations of phosphorus?

24 A I have read a little bit about them in the

25 Everglades research plans, I believe.

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1 Q Are you familiar with them other than just having

2 read about them very much?

3 A No, I am not very familiar with them.

4 Q You don't know what kind of extra steps he

5 suggests for ultra-low concentrations of phosphorus?

6 A No, I do not.

7 Q Did the technical team conclude or agree with Dr.

8 or Mr. Walker's analysis that there was an increasing trend

9 over time in phosphorus concentrations?

10 A Yes.

11 Q Did they likewise agree with his postulated

12 relationship between flow and phosphorus?

13 A Yes.

14 Q Did the technical team conclude as a result of

15 Walker's work that the OFW standard was being violated in

16 the Park?

17 A I want to clarify a little bit there. It wasn't

18 just Walker's work, it was evaluated and assessed by

19 others.

20 Q Let me ask the question, did the technical team

21 conclude that the OFW rule was being violated in the Park?

22 A Yes.

23 Q What were the bases for that conclusion besides

24 Walker's work?

25 A When I say -- again, I don't want to characterize

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1 it as Walker's work, and I will not characterize it that

2 way, but the results of the analysis were that water

3 quality concentrations of phosphorus were higher since 1979

4 than the OFW baseline year would have it.

5 Q Was there anyone besides Walker who did any

6 analysis to support that conclusion?

7 A I can say that Dr. Robeson did, and I can say that

8 Frank Nearhoof did.

9 Q Were they looking at the same data sets?

10 A The exact same data set.

11 Q Were Robeson and Nearhoof, in effect, just redoing

12 Dr. or Mr. Walker's analysis to confirm that he did it

13 correctly?

14 A No. I believe they were performing an

15 independent analysis of the data.

16 Q Did they use some different analytical technique

17 in arriving at those conclusions?

18 A I believe they did.

19 Q What did Robeson do that was different from Dr.

20 Walker's analysis?

21 A Dr. Robeson and Dr. Walker are both Ph.D.

22 statisticians, and I am not, and I can't summarize for you

23 very well at this late date exactly what were their

24 disagreements, but they had extended discussions on the

25 proper way to handle the data. Frank Nearhoof participated

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1 in those and also a water management district statistician,

2 George Shih, S-h-i-h, also participated on discussions on

3 the best way to handle the data, Dr. Shih.

4 Q Do you recall what the significant differences

5 were between Dr. Robeson's and Dr. Walker's analyses?

6 A I think they differed more on the methods they

7 thought appropriate for the data at first than on the

8 results.

9 Q How did their methods disagree, or how were they

10 different?

11 A I cannot recall very distinctly for you.

12 Q Do you have a general understanding as to how they

13 differed?

14 A Only the most general understanding.

15 Q What is that?

16 A I think there was a disagreement about the exact

17 regression technique that should be used at first.

18 Q Okay. Did they ultimately reach some consensus as

19 to which was the appropriate regression technique that was

20 to be employed?

21 A I believe they did.

22 Q Was it Dr. Walker or Dr. Robeson's?

23 A I can't characterize for the final agreed-upon

24 method which fraction of responsibility was borne between

25 the two of them.

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1 Q I believe you stated a few minutes ago that the

2 technical team concluded on the basis of these analyses

3 that the OFW standard was being violated?

4 A Yes.

5 Q How does one -- what is the standard method the

6 Department employs for determining whether the OFW standard

7 is being violated? What is the operative test, if you

8 know?

9 A It would be that contained in the rule.

10 Q Which rule are you referring to?

11 A 17-302 and 17-4.

12 Q Do you regard the OFW rule as not -- as mandating

13 a no-degradation test?

14 A No.

15 Q What is the standard that the OFW rule sets forth

16 for determining whether there is, in fact, a violation of

17 the OFW criteria existing as of the date of the

18 designation?

19 A I would have to look at the rule to be most

20 helpful.

21 Q You can do that if you would like.

22 A Would you reask your question?

23 Q What is the operative test that the Department

24 employs to determine whether there is a violation of the

25 Department's OFW water quality standard?

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1 MR. HETRICK: Are you referring to a specific

2 portion of the rule or the rule in general?

3 BY MR. HYDE:

4 Q Isn't the operative test that there be no

5 significant degradation?

6 A I am looking at 17-4.242.

7 Q Okay.

8 A Paragraph (2), Standards Applying to Outstanding

9 Florida Waters, so I guess all of that section would be the

10 operative said test.

11 Q The paragraph (2)(a) reads, "No Department permit

12 or water quality certification shall be issued for any

13 proposed activity or discharge within an Outstanding

14 Florida Water or which significantly degrades, either alone

15 or in combination with other stationary installations, any

16 Outstanding Florida Waters, unless the applicant

17 affirmatively demonstrates that," and then there is a list

18 of factors beneath that.

19 Would you agree then that the operative test is

20 not a non-degradation standard but a no-significant-

21 degradation standard?

22 A I can only read from the rule like you did, which

23 says, "or any activity or discharge within an OFW or which

24 significantly degrades."

25 Q Did the technical team -- let me start over

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1 again.

2 The phraseology of this rule speaks to proposed

3 activity or discharge, correct?

4 A Yes.

5 Q Aren't the discharges that are occurring through

6 the water control structures, for example, the S-12

7 structures, existing discharges?

8 A They exist.

9 Q Then how does this rule apply to them if they are

10 existing discharges?

11 A I believe this would contemplate a permit in that

12 sense, a proposed activity or discharge.

13 Q So you are saying that the language, "proposed

14 activity or discharge," refers not to the activity or

15 discharge but to the proposed permit for that activity or

16 discharge?

17 A I think so.

18 Q How did the technical team determine that the

19 facts available to them regarding these increasing

20 phosphorus trends in the Park were somehow evidence of a

21 violation of this standard?

22 A I think we pay attention to that provision, but

23 also the other parts of 17-1.2.2, including the part we

24 discussed before lunch in (2)(c) that defines existing

25 ambient water quality.

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1 Q Did the technical team conclude that these

2 discharges through the S-12 structures were significantly

3 degrading the waters of the Park?

4 A I don't know that we reached a conclusion on that.

5 Q Well, if you didn't reach a conclusion as to

6 whether they were significantly degrading the waters of the

7 Park, how did you conclude that there was a violation of

8 the rule?

9 A We concluded that it was lowering the water

10 quality in the Park.

11 Q Does the mere lowering of the water quality

12 demonstrate or is it equated with the notion that the water

13 is being significantly degraded?

14 Let me rephrase that.

15 Does the mere lowering of water quality constitute

16 a violation of the OFW standard?

17 A It can.

18 Q You said that it can, which seems to imply that it

19 might not. Is that correct?

20 A In my view, yes.

21 Q Can you differentiate or can you explain to me how

22 the mere lowering of water quality can constitute a

23 violation in certain circumstances but not in others?

24 A In OFWs, ambient water quality is protected

25 against any lowering from a direct discharge, but protected

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1 against significant degradation from an indirect discharge.

2 Q So if there is a direct discharge, there can be no

3 lowering, period?

4 A No. There are certain exceptions in the rule, but

5 as a simplification, there is a distinction between direct

6 discharges and indirect discharges.

7 Q What do you consider the discharges from the S-12

8 structures to be? Are they direct or indirect discharges?

9 A I understand them to be direct discharges.

10 Q So you would say, in fact, that since they are

11 direct discharges, there can be no lowering of the ambient

12 water quality existing as of the date of the designation of

13 the OFW?

14 A With the qualifications I mentioned a moment ago.

15 Q What are those qualifications?

16 A They are contained, I think, in 17-4.242. For

17 example, in (2)(b), there is an allowance for limited

18 activity for discharges to allow for enhanced public use or

19 to maintain facilities, and there is also in 17-4.242(1),

20 rather, two allowances for blowdown discharges. There is

21 also allowances in (2)(d) for existing activities and

22 discharges, and (e), for activities exempted from permit

23 programs, and (f), there is language applying to navigation

24 projects in the Apalachicola River.

25 Q Did subsection (2)(d) refer to dredge and fill

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1 activities?

2 A Well, it says dredge or fill activity or any

3 discharge.

4 Q Let's back up to 17-4.242. I am not sure I have

5 the right sections here. (2)(b), as in boy, that begins

6 with the phrase, "The Department recognizes," et cetera,

7 are you where I am?

8 A Yes.

9 Q Part of that phrase says that, "It may be

10 necessary to permit limited activities or discharges in

11 OFWs to allow for or enhance public use or to maintain

12 facilities that existed prior to the effective date of the

13 Outstanding Florida Water designation." Would you agree

14 that the S-12 structures fit that definition?

15 A I don't think there is a definition in that

16 section.

17 Q Well, would you agree that the S-12 structures

18 were facilities that existed prior to the effective date of

19 the Outstanding Florida Water designation for the

20 Everglades National Park?

21 A Yes.

22 Q So these discharge structures would then be

23 potentially eligible for this, the application in the

24 provisions of this portion of the rule?

25 A I think an argument could be made that they are

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1 potentially eligible. I don't believe that this section

2 was meant for that type of discharge facility.

3 Q Why not?

4 A It has the special language for different types of

5 facilities. One thing is to allow for or enhance public

6 use, and as I understand, that was meant for things like

7 boat ramps, to allow for or enhance public use in an

8 Outstanding Florida Water.

9 Q I didn't say that it was eligible for that aspect

10 of it, just for the other provision. It says, "or to

11 maintain facilities that existed prior to the effective

12 date."

13 A And I was going to go on. In the second clause

14 there, it says, "or to maintain facilities existing prior

15 to the effective date of the Outstanding Florida Water

16 designation." As I understand it, that language is meant

17 to address a case where the facility, itself, requires

18 maintenance, as in maintenance dredging, not in the sense

19 of maintaining the discharge of the facility.

20 Q What is the basis for that understanding? It

21 doesn't appear on the face of the rule.

22 A It seems clear to me.

23 Q Well, would that be your basis for concluding that

24 this provision in the rule does not provide an out for the

25 S-12 structures?

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1 A I don't think that this provision was meant to

2 apply to things like the S-12 structures. It says, "The

3 Department recognizes it may be necessary to permit limited

4 activities or discharges," and the S-12 structures are

5 pretty big facilities. I don't think they fit within what

6 we mean by limited activities or discharges.

7 Q The way I understand your interpretation of this

8 rule as a hold-in, is that any direct discharge to an OFW

9 is essentially prohibited, any new discharge, unless it

10 happens to fall within these, one of these exceptions like

11 for blowdowns or for facilities that allow or enhance

12 public use or to maintain those facilities, and the other

13 provisions in (d), (e) and (f) of that same rule, is that

14 correct?

15 A There are some other exceptions also I think you

16 considered there. There is a temporary, here during

17 construction, exception, nor does the rule apply to

18 discharges that receive general permits.

19 Q Would you agree that the S-12 contribution level

20 during that baseline year would be grandfathered under the

21 rule?

22 A I don't think I can say.

23 Q Why not?

24 A I don't think the Department has made a

25 determination on that.

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1 Q I would like to call your attention to provision,

2 subsection (1)(b) of the rule, where again the language is

3 used of "a proposed discharge."

4 Doesn't the use of the word "proposed" imply a new

5 discharge as opposed to one that is already existing?

6 A No, I don't think I would agree with that. What

7 the permit applicant is proposing is to receive a permit

8 from DER for a discharge. It wouldn't be sufficient to say

9 I am already discharging and, therefore, I am entitled to a

10 permit.

11 Q Well, why didn't the rule say, then, in

12 determining whether a proposed permit for a discharge.

13 MS. STARK: Object to the form of the question.

14 MR. HETRICK: I object to the form of the

15 question, too.

16 BY MR. HYDE:

17 Q Wouldn't that be a more clear statement of the

18 intent that you believe the rule has?

19 A I don't know if your phrasing would be clearer,

20 but I think the current phrasing is also clear.

21 Q I guess your bottom line is it is the permit we

22 are talking about here as opposed to the discharge being

23 proposed?

24 A The discharge is being proposed.

25 Q Well, I don't wish to be argumentative, and I will

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1 not pursue this much further, but I am trying to understand

2 the distinction between the rule language of the proposed

3 discharge and how that manages to encompass an existing

4 discharge such as that which occurs through the S-12

5 structures. They don't seem to fit to me.

6 A I don't think I can give you a different answer

7 than I did before.

8 Q Just to wrap up this line of questioning, was it

9 the technical team's conclusion that this increase in

10 phosphorus concentrations constituted a violation of the

11 OFW standard for the Park?

12 A I don't recall the technical team reaching some

13 formal statement along those lines. I think there was more

14 an integrated discussion of the OFW requirements and Class

15 III requirements and the Douglas Act requirements.

16 Q Well, do you have an opinion as to whether that

17 increasing phosphorus trend that was noted by Walker, among

18 others, constitutes a violation of the OFW standard in the

19 area of the Park south of the S-12 structures?

20 A I think it is.

21 Q I believe you said that the technical team also

22 looked to whether there were violations of the narrative

23 nutrient standard in the Park?

24 A Yes.

25 Q What was done in that regard?

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1 A There was review of the available information on

2 nutrient impacts in the Park.

3 Q By whom?

4 A By various members of the teams.

5 Q Can you be more specific?

6 A I think that Frank Nearhoof, I think that Dan

7 Scheidt, Ron Jones, Mike Soukup, perhaps Tony Federico were

8 very much involved in that discussion.

9 Q What factors or data did they look to in analyzing

10 this issue of possible violation of the narrative nutrient

11 standard?

12 A I think that is well summarized in the paper which

13 Frank Nearhoof was the principal author of that describes

14 water quality standards violations in the Park and the

15 Refuge.

16 Q Well, do you recall what those factors were or

17 what biological or other changes he was looking at to reach

18 a conclusion?

19 A I can try to recall. Really, Frank did a better

20 job in summarizing that than I could summarize from memory

21 for you.

22 Q Well, did he look to cattail populations south of

23 the S-12 structures?

24 A I believe that was looked at.

25 Q What about benthic macroinvertebrates?

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1 A I don't recall if that was looked at.

2 Q Soil concentrations of phosphorus?

3 A I believe that was looked at.

4 Q Dissolved oxygen concentrations?

5 A I don't recall if that was looked at. I shouldn't

6 say that. I am sure it was looked at. I don't recall what

7 conclusions were reached on dissolved oxygen.

8 Q But you basically -- I guess what you are saying

9 is you would defer to what Frank Nearhoof said in that

10 regard in his report?

11 A It is not Frank's report, it is the Department

12 report that I reviewed, and I accept the conclusions in

13 that report.

14 Q Are you relying upon Mr. Nearhoof's work, or did

15 you go back and independently analyze the data or the tests

16 upon which he was basing his opinion?

17 A Primarily relying upon his assessment of the

18 literature, as well as the other people that participated

19 in writing that report.

20 Q Were those the same factors that were utilized by

21 the technical team to determine or to analyze whether there

22 was a violation of the nuisance species standard?

23 MS. STARK: Object to the form of the question. I

24 don't know what you are referring to as "those."

25 THE WITNESS: When you said "same factors," I

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1 don't quite understand that myself.

2 BY MR. HYDE:

3 Q The factors being cattails, soil phosphorus,

4 dissolved oxygen, were those the things that you also --

5 that the technical team looked at in determining whether

6 there was a violation?

7 A I think there was an overlap of the data set, but

8 the violation or problem with dissolved oxygen was not a

9 nuisance species problem primarily.

10 Q Since we are discussing these two rules, the

11 narrative nutrient rule and the nuisance species rule,

12 let's just go ahead and look at this specifically. I

13 believe that the nutrient rule is 17-302.560(27). That

14 rule reads, "Nutrients," hyphen --

15 A I don't have that.

16 Q Excuse me. .560(27).

17 MR. HETRICK: Here it is.

18 THE WITNESS: Yes.

19 BY MR. HYDE:

20 Q Are we on the same page there?

21 A Yes.

22 Q That rule reads, "Nutrients - In no case shall

23 nutrient concentrations of a body of water be altered so as

24 to cause an imbalance in natural populations of aquatic

25 flora and fauna."

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1 A "Or fauna."

2 Q "Or fauna," excuse me.

3 What do you understand the phrase, quote, "body of

4 water," end quote, to mean within the context of that

5 rule?

6 A I think it would mean a portion or the entirety of

7 a water course.

8 Q Let me ask the question this way. If, for

9 example, you had an area in a water body, let's say one

10 square meter, with a very dense cattail stand that was

11 caused by nutrients, would you conclude that that one

12 square meter of cattails constitutes a violation of the

13 narrative nutrient standard?

14 A Yes.

15 Q There is no geographical component to the rule?

16 A There is a geographical component to what the

17 Department pays attention to on how serious a violation it

18 is. With your assumption that nutrients caused an

19 imbalance of a square meter, I would call it an imbalance

20 in that square meter.

21 Q Doesn't the rule really require the Department to

22 look at an entire body of water?

23 A Could you tell me what you mean by "an entire body

24 of water"?

25 Q If you were correct in that supposition about the

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1 one square meter being evidence of a violation, shouldn't

2 the rule read something like, in "No case shall nutrient

3 concentrations of a body of water or a portion of a body of

4 water be altered so as to cause," et cetera?

5 A No, I wouldn't agree with that.

6 Q Why?

7 A Because I think it makes more sense to interpret

8 the phrase "body of water" as including as advisable

9 portions of body of water.

10 Q But the rule doesn't use that limitation, portions

11 of a body of water, does it?

12 A I am sorry, could you reask that?

13 Q I don't need to reask it. I think it is obvious

14 what the rule says and doesn't say.

15 Is there a geographical component that the

16 Department looks at in determining whether there is a

17 violation of the narrative nutrient rule?

18 A I think so.

19 Q How does or in what respect does it consider that

20 there is a geographic component to the rule?

21 A I think it is one factor in determining whether a

22 violation has occurred or not.

23 Q What other factors might be employed by the

24 Department?

25 A I think the extent of the imbalance, its duration,

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1 magnitude.

2 Q Well, if, for example, there was one square

3 meter --

4 A Could you hold on for a second?

5 Q Sure.

6 A I am trying to find something in the rule here.

7 Go ahead.

8 Q Do you equate -- let me ask the question this

9 way. How do you define the term "imbalance" in the rule?

10 A I would like again to rely upon the Department

11 analysis of water quality standards in determining

12 violation of the nutrient criteria. The Frank Nearhoof

13 paper does a better job of defining that after receiving

14 Department review than I could probably do right now.

15 Q I would like to show you what has been labeled as

16 Exhibit 6.

17 (Whereupon, Exhibit No. 6 was marked for

18 identification.)

19 BY MR. HYDE:

20 Q Would you identify that document for me?

21 A It is headed with a date, June 27, 1991,

22 "Richard," and it is a note that I wrote to Richard on that

23 date, Richard Harvey.

24 Q I would like to take you through this note or

25 memorandum or whatever you want to call it.

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1 Calling your attention to the first two sentences

2 which read, "I have some problems with the latest proposed

3 definition of `imbalance.' The basic problem is that the

4 draft definition purports to be based on Class III criteria

5 but misuses them," can you explain what you meant by that

6 statement?

7 A I can try. As I recall, there was a draft of a

8 settlement agreement that Richard Harvey asked for me to

9 comment upon one morning, and he was, I think, was going to

10 a meeting and I was unable to go, so that morning I wrote

11 this up, so this is comments upon some draft of something

12 that Richard had.

13 Q Okay.

14 A The statement that it purports to be based on

15 Class III criteria I think was based on some language that

16 interpreted the narrative nutrient criteria in a way that I

17 disagreed with.

18 Q Was Mr. Harvey's document that he was utilizing or

19 which he had submitted to you a draft of the settlement

20 agreement that existed as of that date?

21 A As near as I can recollect, that is what I think

22 this was a comment memo on.

23 Q So this was probably referring to a draft that

24 existed just prior to June 27, 1991?

25 A Probably so.

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1 Q Was that criticism subsequently addressed in the

2 settlement agreement process?

3 A I believe it was.

4 Q Do you recall how it was addressed to your

5 satisfaction?

6 A I would have to look at the settlement agreement

7 and the SWIM Plan to answer that.

8 Q Now on numbered paragraph 1 you state, "The term

9 `imbalance' is very hard to define." Do you continue to

10 subscribe to that view?

11 A No.

12 Q Why not?

13 A I think I would take out the word "very."

14 Q It is hard to define, so you agree that the term

15 "imbalance" is hard to define?

16 A Yes.

17 Q Do you think it has been adequately defined for

18 purposes of the Everglades SWIM Plan?

19 A Yes, I do.

20 Q What definition of imbalance were you relying upon

21 in saying that?

22 A The discussion in the Frank Nearhoof paper and the

23 discussion in the settlement agreement.

24 Q Do those two discussions differ from each other?

25 A I think that the DER analysis, parenthesis, the

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1 Frank Nearhoof paper, parenthesis, expands upon the

2 discussion in the settlement agreement but is not in

3 conflict with it.

4 Q I would like to call your attention to numbered

5 paragraph 4 which reads, "Imbalance is apparently not the

6 same --"

7 A Could I interrupt you?

8 Q Sure.

9 A On number 1 here, I don't know if you kind of go

10 back to that or not, but the second sentence, which says,

11 "I don't think, for example," that Water Facilities relies

12 much on the concept of imbalance, I have learned since I

13 wrote this note to Richard that I was wrong on that; that,

14 in fact, they do use imbalance determinations.

15 Q What is your understanding now as to how they use

16 imbalance in determining or issuing water facilities

17 permits?

18 A That they do with some regularity use imbalance

19 determinations in deciding upon permit issuances.

20 Q Is this for discharges like sewage treatment

21 plants, is that what you are referring to?

22 A Those are the ones I am most familiar with, yes.

23 Q Do you know how they do it?

24 A I think they pretty much follow the same method

25 set out in the Frank Nearhoof paper.

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1 Q Do they employ any other tests that might be

2 specific to a particular type of discharge, for example, on

3 a sewage treatment plant outfall?

4 A Any different tests from what?

5 Q Than those specified by Mr. Nearhoof. Not

6 specified, articulated.

7 A I would have to look at Frank Nearhoof's paper and

8 the water facility assessment to give you an answer to

9 that.

10 Q Let's go to paragraph 4, which reads, "Imbalance

11 is apparently not the same as change. The term `change'

12 could have been used easily but was not. Therefore,

13 presumably, some change can occur without being an

14 `imbalance.'" Do you agree with that proposition, still?

15 A I think that may be true, and I think that is

16 consistent with the Department's view in the Frank Nearhoof

17 paper, but I have not had a chance to discuss with Frank

18 Nearhoof, Landon Ross and the other people in the

19 Department who interpret this rule much more often than I

20 do.

21 Q Let's go back to the example you utilized earlier.

22 Let's say you have a 1,000-acre lake and one square meter

23 of that lake is a dense cattail stand. How would that one

24 square meter of cattails within that 1,000 acre lake be

25 indicative of an imbalance?

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1 A Well, I think you would mean it to be a

2 nutrient-induced imbalance?

3 Q Well --

4 A Could I have a clarification on that?

5 Q Let's just say that that one square meter was

6 right at the outfall of a stormwater pond or something like

7 that, and it was the result of nutrients flowing through

8 that stormwater outfall. How would that one square meter

9 be indicative of an imbalance in that body of water?

10 A It can be an imbalance in that one square meter.

11 Q How is it indicative of an imbalance in the body

12 of water, not just the one square meter?

13 A I think it would depend on the factual

14 circumstances of that particular body of water.

15 Q Well, give me an example of how the factual

16 circumstances of a body of water might affect that

17 determination.

18 A I think that is all set out in the Nearhoof

19 paper. It has a pretty comprehensive list of all of the

20 factors that the Department needs in making determinations.

21 Q Well, let me go on now to numbered paragraph 5,

22 which reads, "In principle, there could be large changes in

23 populations due to nutrient additions that do not produce

24 an `imbalance.' `Good' changes cannot cause imbalance,

25 `bad' changes do."

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1 Do you continue to agree with that proposition?

2 A I think in principle I agree with that

3 proposition. I think now there would be few cases, maybe

4 no cases where we could expect large changes in populations

5 or population structure that would not also be an

6 imbalance.

7 Q Would you agree that natural populations of flora

8 and fauna in water bodies can shift radically for a variety

9 of different reasons?

10 A I would agree that they can shift a lot, many

11 reasons.

12 Q By orders of magnitude?

13 A Even orders of magnitude.

14 Q That is not necessarily a bad thing, is it?

15 A I think your question was based on the

16 presupposition of natural changes, and I would agree that

17 natural changes in communities are not bad. Is that

18 responsive to your question?

19 Q In part. You recognize that changes in

20 populations can occur?

21 A Yes.

22 Q But you make the differentiation between there

23 being natural changes as opposed to man- or nutrient-

24 induced changes?

25 A That is one distinction, yes.

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1 Q How do you qualitatively say one is good and the

2 other is bad?

3 A I don't think I said one is good and one is bad.

4 I guess I would refer to 17-302.560 that prohibits nutrient

5 changes that cause an imbalance.

6 Q .560?

7 A (27).

8 Q (27). So the changes have to be reflective of an

9 imbalance in that water body, is that correct?

10 A An imbalance in natural populations of aquatic

11 flora or fauna.

12 Q Your next numbered paragraph 6, you stated, "The

13 definition of the term nuisance species in 17-302.200 seems

14 to me to be close to what is meant by an imbalance. The

15 key point of that definition is that the species, in some

16 way, prevent, or unreasonably interfere with, the

17 designated use of the waters."

18 Do you continue to agree with that proposition,

19 that for there to be an imbalance there must be some

20 prevention or unreasonable interference with the designated

21 use of the waters?

22 A I don't agree with that, and I don't think that is

23 what I meant to say in this note to Richard, either. This

24 was a thinking piece I put together for Richard. My actual

25 words here were that definition of nuisance species seems

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1 to me to be close to what is meant by an imbalance, and

2 then I added some thoughts along that line.

3 Q Okay.

4 A I think I believe now it is not as close as I

5 thought it was in June of 1991.

6 Q So you disagree with the following sentence which

7 states, "Thus, the nuisance species must not only be

8 present, but must be causing unacceptable degradation"?

9 A No. I think that is a paraphrase of the nuisance