224

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 4, 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 4,

6 1993, commencing at 9:00 a.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.

Hopping Boyd Green and Sams

5 123 South Calhoun Street

Tallahassee, FL 32301

On behalf of the Petitioners Florida Sugar Cane League,

7 Inc., United States Sugar Corporation and New Hope

South, Inc.:

William L. Hyde, Esq.

9 Peeples, Earl & Blank

215 South Monroe Street

10 Suite 350

Tallahassee, FL 32301

On behalf of the Intervenor United States of America:

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:

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

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1 INDEX TO WITNESS

2 THOMAS M. SWIHART Page

3 Examination (continued) by Mr. Hyde 230

4 Examination by Mr. Green 272

5 Further Examination by Mr. Hyde 396

6 Further Examination by Mr. Green 409

8 INDEX TO EXHIBITS

9 No. Marked

10 12 241

11 13 244

12 14 247

13 15 248

14 16 252

15 17 255

16 18 271

17 19 308

18 20 309

19 21 313

20 22 314

21 23 320

22 24 321

23 25 328

24 26 330

25 27 334

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1 INDEX TO EXHIBITS (continued)

2 No. Marked

3 28 339

4 29 340

5 30 343

6 31 355

7 32 356

8 33 357

9 34 359

10 35 365

11 36 366

12 37 - 40 (marked and withdrawn)

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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 EXAMINATION (continued)

8 BY MR. HYDE:

9 Q Mr. Swihart, I would like to ask you a few more

10 questions about the OFW standard.

11 Rule 17-4.242(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 Waters which significantly degrades, either alone

15 or in combination with any other stationary installations,

16 any Outstanding Florida Waters, unless the applicant

17 affirmatively demonstrates that," and then it goes on to

18 list the exceptions.

19 When I was asking you yesterday about this

20 provision, I got the impression that you believed the

21 structures that are being permitted by the Department for

22 the district and the Corps are -- fall within the first

23 category of being within Outstanding Florida Waters, isn't

24 that correct?

25 A I think you combined two different sentence

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1 structures in that question. Do you want me to try to

2 answer them separately?

3 Q Sure, however you feel appropriate.

4 A It is my understanding that the S-12 structures

5 are within Everglades National Park.

6 Q So you would say that they are within an

7 Outstanding Florida Water?

8 A Yes.

9 Q What is the basis for that understanding?

10 A I believe I have been told that by representatives

11 of the Park.

12 Q And you make the connection that since they are in

13 the Park they are within the Outstanding Florida Waters, is

14 that basically it?

15 A Yes.

16 Q Okay.

17 A In regard to the Refuge, it is my understanding

18 that there is an area just by the outfall of S-5A that is

19 not within Loxahatchee National Wildlife Refuge, and that

20 small area right by the outfall would not be in an OFW.

21 Q So is it safe to assume that the S-5A structure is

22 not within an OFW?

23 A It is my understanding that it is not.

24 Q So for the S-5A structure, then the latter part of

25 that sentence applies, the "which significantly degrades"

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1 provision?

2 A If my understandings are correct.

3 Q What about the S-6 structure?

4 A I would have to look at a map.

5 Q Maybe we can get one during a break.

6 Did the technical team make a determination that

7 the discharges from the S-5A structure was significantly

8 degrading the ambient water quality of the Loxahatchee

9 Refuge OFW?

10 A As I understand the portion of Conservation Area 1

11 is not part of Loxahatchee, and therefore, not OFW, it is

12 only a trivial fraction of the entire Refuge. I think in

13 practice we treated that as direct discharge, therefore.

14 Q Does the Department have some yardstick or

15 definition by which it determines whether a discharge

16 significantly degrades an OFW?

17 A I think there is some case law that has developed

18 over the years, and some other documents, too.

19 Q Do you recall any of that case law or those other

20 documents?

21 A One thing I can recall right now is an opinion

22 from the Office of General Counsel that attempted to define

23 "significantly degrades" way back in, I think 1981.

24 Q Is there any other document which you can recall

25 that addresses that issue of what is significant

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1 degradation under the rule?

2 A I think there have been some dredge and fill cases

3 that address that.

4 Q Are these administrative cases, or are you

5 speaking of appellate court cases?

6 A I believe they were administrative.

7 Q Do you happen to recall any?

8 A I cannot recall the names of any of them.

9 Q It is your opinion, however, that the S-12

10 structures are located within an Outstanding Florida

11 Water?

12 A Yes. I believe the Park boundary is just at those

13 structures, is my understanding, or very, very close to the

14 structures.

15 Q If you are correct in that regard, how can the

16 Department issue a permit for discharges from the S-12

17 structures without violating the OFW rule?

18 A Only if it would comply with 17-4.242.

19 Q Does it comply with 17-4.242? I thought you told

20 me yesterday it didn't.

21 A Does what comply with 17-4.242? I am not quite

22 following you, I am sorry.

23 Q Would the Department's issuance of a permit for

24 the S-12 structures comply with 17-4.242?

25 A I am afraid I am not being helpful. I don't quite

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1 understand your question. My initial answer was, we could

2 issue it if we were consistent with the rule.

3 Q Well, we discussed at some length yesterday the

4 various provisions of the rule, and how one obtains a

5 permit for a proposed activity or discharge within an

6 Outstanding Florida Water, and the way I believe you

7 explained the rule and the exemptions to that general

8 provision, I don't see how the Department can permit the

9 S-12 structures without obtaining a variance from the OFW

10 rule.

11 For example, it is, by your lights, not a

12 grandfathered structure, or may not be, it is not a dredge

13 and fill activity, subsection (d) of the rule. It is not

14 exempted from permit programs under subsection (e). It is

15 not on the Apalachicola River, subsection (f), so I am just

16 wondering how the Department can issue a permit for the

17 S-12 structures that doesn't violate the provisions of the

18 OFW rule.

19 A That is a question?

20 Q Yes.

21 A Okay. I think I would have to examine the Douglas

22 Act and the rule to think about that, but the Douglas Act

23 does contemplate a permit for the structures in the

24 Everglades Protection Area. I don't still fully understand

25 the concern.

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1 Q Let me --

2 A But perhaps it is based on the ambient water

3 quality definition.

4 Q No. It is based on the provisions of (2)(a) of

5 the rule, which states that, "No Department permit for

6 water quality certification shall be issued for any

7 proposed activity or discharge within an Outstanding

8 Florida Water," and then you go on, "unless the applicant

9 affirmatively demonstrates that," and then there is the

10 list of exceptions after that, and the way I understood you

11 to explain those exceptions yesterday, it does not appear

12 that the S-12 structures fall within any of those

13 exceptions, and since it is within an OFW, the S-12

14 structures, that is, then it would seem that they are not

15 eligible for a permit because of the provisions of the OFW

16 rule?

17 A I believe the Douglas Act requires a permit be

18 submitted for the S-12 structures, and to my knowledge, the

19 Department has not yet decided upon that permit.

20 Q Are you saying, then, that the Marjorie Stoneman

21 Douglas Act would in effect preempt or overrule this

22 provision?

23 MR. HETRICK: I am going to object to that. It

24 calls for a legal conclusion.

25 / / / / /

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1 BY MR. HYDE:

2 Q You may go ahead and answer.

3 A I think that I agree, it calls for a legal

4 conclusion. I don't think I said that. I think that the

5 Douglas Act calls for a permit for structures in the

6 Everglades Protection Area.

7 Q Let's back up to the S-5A structure now. What is

8 the basis for your conclusion that discharges from that

9 structure should be considered as being within the OFW,

10 that is, the Loxahatchee Refuge?

11 A My understanding is that the distance from the

12 outfall of the S-5A structure, which can be billions of

13 gallons a day, is only a couple hundred feet from the

14 boundary of the Outstanding Florida Water, and in effect,

15 amounts to a direct discharge.

16 Q Is that a conclusion that you arrived at yourself,

17 or were you advised that that was the agency opinion in

18 that regard?

19 A That is my opinion.

20 Q Do you know whether the Department has taken an

21 official position in that regard?

22 A Not to my knowledge.

23 Q Has anyone else, to your knowledge, expressed any

24 views on that subject within the Department?

25 A There may have been some discussions during the

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1 Everglades settlement meetings about significant

2 degradation, and the question of how far the outfall is

3 from the OFW boundary might have been discussed.

4 Q Do you recall who was involved in those

5 discussions?

6 A I think Richard Harvey and Frank Nearhoof and I

7 might have discussed that.

8 Q Do you recall the gist of those discussions?

9 A I really cannot. But we were aware that there is

10 only a very, very short distance from the outfall to the

11 OFW boundary, if, in fact, that is the case. I believe

12 that question was posed during the Douglas Act permitting

13 process.

14 Q By whom?

15 A By the Department.

16 Q To the district.

17 A The water management district.

18 Q Was this in, for example, one of your completeness

19 summaries?

20 A Yes.

21 Q Do you recall what the district's answer was in

22 that regard?

23 A No, I do not.

24 Q Do you know whether a legal opinion has been

25 requested concerning that issue from the Office of General

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1 Counsel?

2 A Which issue?

3 Q Whether the discharges from the S-5A structures

4 should be considered, quote, within an Outstanding Florida

5 Water, within the contemplation of the OFW rule.

6 A Not to my knowledge, nor is your question the way

7 you phrase it quite the way I conceive of it.

8 I think my point was that "significantly degrades"

9 in that particular circumstance is undistinguishable

10 factually from "being within."

11 Q And is the basis for that statement the simple

12 proximity of the discharge to the boundary of the OFW?

13 A With the massive amount of water that is

14 discharged to S-5A.

15 Q I asked you a few moments ago whether you had any

16 yardsticks by which one determined significant degradation,

17 and you alerted me to the possibility of there being an

18 agency General Counsel opinion and perhaps some

19 administrative decisions in that regard.

20 Do you recall what that test was, or are you

21 unaware of what it is at this point?

22 A I can try to recollect the Office of General

23 Counsel opinion.

24 Q What is your general understanding of that?

25 A It said something to the effect of that it meant a

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1 lowering that diminished the value of the Outstanding

2 Florida Water as a resource.

3 Q Did it set forth any tests or factors by which the

4 Department measures whether a discharge lowers the value of

5 the resource, or is it just generally a rather subjective

6 test?

7 A I cannot recall the details.

8 Q Mr. Swihart, did you review the Everglades SWIM

9 Plan for consistency with the provisions of the Marjory

10 Stoneman Douglas Act?

11 A I think I would say I reviewed the Everglades SWIM

12 Plan, and I am somewhat familiar with the requirements for

13 consistency.

14 Q Well, did you go, in effect, line by line through

15 the Act to make sure that the SWIM Plan was consistent with

16 the Act?

17 A No, I did not.

18 Q Did you review the Everglades SWIM Plan for

19 consistency and compliance with the provisions of the

20 general SWIM Act which are set forth in Chapter 373?

21 A Yes.

22 Q Did you go through that in a line-by-line fashion?

23 A No.

24 Q What did you do in that regard, if you can explain

25 it to me in general terms?

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1 A I have read 373 and the SWIM Act and the Douglas

2 Act, and my comments upon it reflected my understanding of

3 what it required.

4 Q Did you review the Everglades SWIM Plan for

5 consistency in compliance with the other provisions of

6 Chapter 373?

7 A I don't recall making that type of specific

8 connection in any comments that I made.

9 Q Were you involved in the Department's review of

10 the water management district permits, otherwise known as

11 interim application A?

12 A Yes.

13 Q From this point on, I will just refer to it as the

14 Department permit application for convenience sake.

15 What was your role in that review process?

16 A I was one of a number of DER staff members asked

17 to comment upon the draft application.

18 Q By whom were you asked to do so?

19 A It was probably either Marlene Stern or Richard

20 Harvey.

21 Q Do you recall who the other persons were who were

22 involved in that review process?

23 A Approximately. It was Frank Nearhoof, Marlene

24 Stern, I think Doug Gilbert, I think Landon Ross, I think

25 George Baragona, and probably a few others.

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1 Q What was your particular assignment in that review

2 process?

3 A I don't think I had a particular assignment.

4 Q You had no charge from Mr. Harvey or whomever was

5 involved in it?

6 A I was asked to comment and review the interim

7 application.

8 Q Were you asked to look at some particular part or

9 parts of the interim application or just the application as

10 a whole?

11 A The latter.

12 Q Can you tell me what you did in general terms in

13 that review process?

14 A I recollect reading the application and trying to

15 link it to the draft of the SWIM Plan as it existed then in

16 providing my best judgment of comments upon the draft.

17 Q Did you propose any questions for additional

18 consideration by the district in any of the completeness

19 summaries?

20 A Yes.

21 Q That would be yes?

22 A Yes.

23 (Whereupon, Exhibit No. 12 was marked for

24 identification.)

25 BY MR. HYDE:

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1 Q I would like to show you a document which has been

2 labeled Exhibit 12. Would you identify Exhibit 12 for me?

3 A This is a memorandum dated October 18, 1991, from

4 Tom Swihart to Marlene Stern.

5 Q You were the author of that document?

6 A Yes.

7 Q What was your purpose in putting this memorandum

8 together?

9 A It was responsive to the request that I review the

10 interim application.

11 Q On page 1 of that document, there are a series of

12 questions under the general subheading of Water Quality

13 Standards. Why did you ask that series of questions, A.1

14 through A.5? Doesn't the Department know which ones are

15 the Class III waters, which are Class IV and which are OFW

16 waters?

17 A I think the Department routinely asks permit

18 applicants to state what are the relevant water quality

19 standards, so we both understand what is applicable.

20 Q What about the reasons for identifying the classes

21 of the waters involved here?

22 A The same response.

23 Q Was there some question in your mind as to where

24 OFW boundaries were?

25 A I think that was one of the reasons I asked, I

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1 requested that question be asked.

2 Q Addressing specifically the Water Conservation

3 Area 1, is it your understanding that the boundaries of

4 WCA-1 and the Loxahatchee Refuge are the same, one and the

5 same, or are they different?

6 A I have been told that they are different at some

7 points.

8 Q What is your understanding of that difference?

9 A We discussed the one difference already, that

10 there is some small area at the extreme northern end of the

11 conservation area not part of Loxahatchee. I have also

12 been told that there are some portions of the Refuge that

13 extend beyond Water Conservation Area 1.

14 Q What portions of the Refuge, if you can locate

15 them geographically, extend beyond the boundaries of WCA-1?

16 A I am not sure there are any. I have been told

17 there may be some.

18 Q Who advised you of that possibility?

19 A It might have been staff at the water management

20 district.

21 Q Do you understand the -- or is it your belief that

22 the perimeter canal is part of the Refuge for OFW

23 purposes?

24 A I don't know.

25 Q If the perimeter canal is not a part of the Refuge

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1 and thus not part of the OFW, would that have any impact

2 upon the Department's concerns about water quality within

3 the Refuge?

4 A I think it could.

5 Q Why could it?

6 A If it were a different water quality standard, it

7 could lead to different permitting requirements.

8 Q Well, did the technical team of the Everglades

9 federal litigation assume that the perimeter canal was a

10 part of the Refuge?

11 A I don't recall that being a subject of discussion

12 or a necessary thing for decision, because the interim

13 limits we arrived at were based upon interior water quality

14 monitoring stations.

15 Q That is all of the questions I have on that

16 document.

17 (Whereupon, Exhibit No. 13 was marked for

18 identification.)

19 BY MR. HYDE:

20 I would like to show you a document that has been

21 labeled Exhibit 13. I apologize, I didn't bring a whole

22 bunch of copies of this one.

23 Would you identify Exhibit 13 for me?

24 A This is a memorandum from myself to Marlene Stern

25 dated February 25, 1992.

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1 Q Was this in conjunction with the district permit

2 application?

3 A Yes.

4 Q I would like to call your attention to the second

5 full sentence in your memorandum, which is about four lines

6 down, and it reads, "It puzzles me what kind of permit can

7 be issued if the applicant states that certain required

8 information is not to be provided until after permit

9 issuance."

10 Could you explain that concern to me?

11 A As I recall, the interim application at the time

12 of this memorandum contained certain information. It also

13 contained statements that other information would be

14 forthcoming after permit issuance. It was unclear to me

15 that that met the requirements in the Douglas Act for the

16 Department to issue a permit.

17 Q Is this something akin to a concern as to whether

18 the applicant was providing the necessary reasonable

19 assurances of compliance with the particular standards?

20 A I think so.

21 Q How was that issue ultimately resolved by the

22 Department?

23 A There was some additional information received

24 from the water management district after the date of this

25 memorandum, and the Department deemed the application

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1 sufficient.

2 Q Is it ordinarily a practice and requirement of the

3 Department that reasonable assurances have to be

4 demonstrated before a permit is issued instead of after?

5 MR. HETRICK: Object to the form.

6 THE WITNESS: I think that is a broad question,

7 and I believe the Department found for this particular

8 permit application that reasonable assurance was

9 provided in advance of issuance.

10 BY MR. HYDE:

11 Q Well, does the Department ordinarily require that

12 a permit applicant demonstrate reasonable assurances before

13 a permit is issued?

14 A That is my understanding.

15 Q And it is your belief that the District, in fact,

16 did that for this permit application?

17 A I wasn't involved in the final stages of the

18 permit application. I believe the Department did make that

19 finding.

20 Q At what point did you sort of slip out of the loop

21 on the permit application?

22 A Maybe slide away from the loop would be a better

23 way of putting it, but I think the application was

24 submitted maybe three months after this, and I don't recall

25 reviewing anything after this draft I reviewed.

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1 Q This is February of 1992?

2 A Yes.

3 Q So you didn't actually review the permit

4 application that was finally submitted by the District, is

5 that what you are saying?

6 A I can't say for sure.

7 (Whereupon, Exhibit No. 14 was marked for

8 identification.)

9 BY MR. HYDE:

10 Q Would you identify what I have labeled as Exhibit

11 14?

12 A This is a letter from Richard Bonner, of the

13 Jacksonville District of the Army Corps of Engineers, to

14 Carol Browner, Secretary of DER, dated July 1, 1992.

15 Q May I see that copy? I think I may have given you

16 one that I have a comment on. Let me give this back.

17 Do you recognize this letter and the attached

18 information?

19 A Yes, I do.

20 Q Was this document brought to your attention at

21 some point in the Department's review of the permit

22 application for the Corps structures?

23 A Yes.

24 Q Why, if you recall?

25 A I think I may have been asked to provide comments

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1 on this letter.

2 Q Let me call your attention specifically to the

3 third page of the document that I think is paragraph 3-A:a,

4 which is the second full paragraph on the third page, which

5 begins with the words, "To address this question." Is that

6 one of the provisions of the letter that you were requested

7 to address by the Department?

8 A I think I had an oral discussion with Bart Bibler

9 about this letter.

10 Q Did Mr. Bibler request you to prepare a response

11 to the concerns that were raised by the Corps in that

12 paragraph?

13 A Yes. Actually, I don't want to say yes to that.

14 I think I was asked to provide my thoughts on the entirety

15 of the letter which would include this paragraph.

16 Q Well, did you subsequently take issuance with the

17 observations that are contained in this paragraph?

18 A I think I may have written something on that. If

19 you have that, I would be happy to look at it.

20 Q Well, let me provide you a copy of another

21 document, which I will label Exhibit 15.

22 (Whereupon, Exhibit No. 15 was marked for

23 identification.)

24 BY MR. HYDE:

25 Q Could you identify what I have labeled Exhibit 15?

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1 A Yes. This is a memorandum from me to Marlene

2 Stern dated July 10, 1992, Subject, Comments on Army Corps

3 of Engineers Response to Completeness Summary for Permit

4 Application.

5 Q Is this memorandum intended to be responsive to

6 the concerns that were expressed by the Army Corps of

7 Engineers in Exhibit 14?

8 A It must have been.

9 Q Going back to Exhibit 14, the third page, that

10 paragraph reads in part, "At this time while current

11 scientific opinion seems to indicate that water quality

12 standards for nutrients are being exceeded there is no

13 consensus on just exactly what the indicator of that

14 exceedance is."

15 What is your understanding of that observation?

16 Do you know what the author of that comment was driving at?

17 A No.

18 Q Did you take issue with or differ with him, his

19 opinion or the Corps's opinion, that there is no consensus

20 as to just what the indicator of that excedence is?

21 A The July 10 memorandum didn't take issue with

22 that particular statement.

23 Q Well, do you now disagree with it?

24 A I am not sure I fully understand what is meant

25 there. So to that extent, maybe I would disagree with it.

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1 Q Well, the next sentence, the Corps appears to be

2 questioning whether their structures are point sources of

3 discharge. Do you agree or disagree with their

4 observations in that regard?

5 A I can't disagree that the Corps may have arguments

6 about legal precedence.

7 Q Well, did you agree, then, that the Corps

8 structures are not point source discharges, point sources

9 of discharges, excuse me?

10 A I don't think I was asked to address that

11 question, and I am not sure what was the significance to

12 the Corps bringing that up.

13 Q Well, in your opinion, do the Corps's structures

14 require permits from the Department?

15 A Yes.

16 Q What is the basis for that opinion?

17 A I understand that the Douglas Act contemplates a

18 permit, and I understand also that the Corps has agreed to

19 apply for a permit for the S-12 structures.

20 Q Leaving those considerations aside, would the

21 Corps have to apply for a permit for those structures under

22 the normally applicable provisions of Chapter 403?

23 A I think that is a legal opinion that I can't

24 answer.

25 Q I would like to call your attention now in Exhibit

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1 14 to the sixth unnumbered page, question 14, which is at

2 the bottom of that page. Well, let's skip that page. If

3 you could, turn to the last page. I just have one

4 question.

5 On Table 1, do you know where the data on Table 1

6 came from?

7 A The date or data?

8 Q Data.

9 A I believe this was an attachment to the letter

10 from the Corps.

11 Q In my review of it, I wasn't really sure where all

12 of this data came from. I am just wondering if you might

13 know.

14 A I can't say beyond it was provided by the Army

15 Corps of Engineers, and I see a note here where I shared

16 your question, apparently.

17 MR. GREEN: Could I ask one question to save

18 time?

19 Mr. Swihart, do you have any idea, on this table

20 you are talking about, where it says ENP-3, 7, 8, 9,

21 10, 11 and so forth, where these stations might be

22 located?

23 THE WITNESS: No, I don't.

24 MR. GREEN: Thank you.

25 / / / / /

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1 BY MR. HYDE:

2 Q I would like to turn your attention to the second

3 page of Exhibit 15. About halfway down the page, there is

4 the phrase, "Question: Is it the position of the Army

5 Corps of Engineers that water quality standards are not

6 being violated, as specified in the settlement agreement?"

7 Why did you feel it necessary to pose that

8 question to the Corps in the completeness summary?

9 A As I recall, the July 1 letter from the Corps

10 didn't state that position as clearly as I thought the

11 settlement agreement would have them saying it.

12 Q Did the Corps ever subsequently answer that

13 question to your satisfaction?

14 A I think there was a response from the Corps to our

15 completeness summary, but I don't recall seeing that.

16 Q Well, to your knowledge, was the Department

17 ultimately satisfied that the Corps was not taking such a

18 position?

19 A I don't have knowledge on that.

20 (Whereupon, Exhibit No. 16 was marked for

21 identification.)

22 BY MR. HYDE:

23 Q I would like to show you a document which has been

24 labeled Exhibit 16. Can you identify that for me?

25 A This is a letter from Richard Harvey of DER to

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1 Richard Bonner of the Army Corps of Engineers dated July

2 31, 1992.

3 Q Do you recognize this letter?

4 A I don't remember seeing this letter, but I see it

5 includes some text that is familiar to me.

6 Q Could you take just a moment to review it, then?

7 A Sure.

8 Q Just the first two pages.

9 A Okay.

10 Q Not the attachments.

11 A Sure. All right.

12 Q Now that you have completed that review, does that

13 letter appear to be, for lack of a better term, a follow-up

14 to the comments and concerns that you expressed in your

15 July 10 memo, which is Exhibit 15?

16 A I see some of the ideas in my July 10 memorandum

17 are also in this July 31 letter from Richard Harvey.

18 Q Did you review the Everglades SWIM Plan for

19 consistency with the state water policy that is found in

20 Chapter 17-40?

21 A Not specifically.

22 Q Will you be offering any testimony as to whether

23 it is, in fact, consistent with the state water policy?

24 A I don't expect to.

25 MR. HETRICK: I don't believe so.

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1 MR. HYDE: That is a good answer, saves a lot of

2 time.

3 BY MR. HYDE:

4 Q Do you know who would be the person that would be

5 addressing that issue?

6 A It could be Bart Bibler.

7 Q Did you review the permit application of the

8 District for compliance with the state water policy set

9 forth in Chapter 17-40?

10 A No.

11 Q Do you intend to offer any testimony in that

12 regard?

13 A No.

14 Q Did you review the Everglades SWIM Plan for

15 consistency or compliance with the provisions of Chapter

16 17-43 concerning the SWIM Act?

17 A That was one of the considerations in my mind when

18 I reviewed it.

19 Q Well, do you intend to offer any testimony as to

20 whether the SWIM Act is, in fact, consistent and in

21 compliance with the provisions of Chapter 17-43?

22 A I don't expect to.

23 Q Do you know who within the Department may have

24 conducted such a review?

25 A It could be Bart Bibler.

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1 Q I would ask the same question about the permit

2 application, that is, whether you reviewed the permit

3 application for compliance and consistency with Chapter

4 17-43.

5 A That was one of the considerations in my mind.

6 Q Do you intend to offer any testimony in that

7 regard?

8 A No.

9 (Whereupon, Exhibit No. 17 was marked for

10 identification.)

11 BY MR. HYDE:

12 Q I would like to show you a document which is

13 labeled Exhibit 17.

14 MR. HETRICK: Excuse me. Could I see 17-43?

15 MR. HYDE: I have a copy over here if you need it.

16 MR. HETRICK: Okay.

17 BY MR. HYDE:

18 Q Mr. Swihart, would you identify for me what has

19 been labeled Exhibit 17?

20 A Yes. This is a memorandum from me to Richard

21 Harvey dated August 11, 1988.

22 Q The subject matter of this memorandum concerns the

23 definition of, quote, significant lowering, end quote, of

24 water quality.

25 Was this intended to be responsive, or did it

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1 concern the OFW notions of significant degradation, or was

2 it in the context of a different rule?

3 A It was in the context of a different rule.

4 Q Do you know what this memorandum was then

5 referring to?

6 A Yes, and at that time in 1988, we were considering

7 whether to propose amendments to 17-302 that would affect

8 lowering of water quality other than OFWs.

9 Q Was this definition subsequently adopted and

10 incorporated into the Department's rules or practices?

11 A No.

12 Q Do you recall why it was rejected?

13 A A different conceptual alternative was adopted.

14 Q What was that different alternative?

15 A It was decided to adopt a rule that water quality

16 could be lowering only if it could be, quote, clearly in

17 the public interest, quote.

18 Q Does that find expression in some particular

19 provision in the Department's rules and regulations?

20 A Yes.

21 Q Could you identify where that is?

22 A It is found in one place, at least, in 17-302.300,

23 subparagraph (7), and it is also found in 17-4.242.

24 Q Does it have any relationship, then, to

25 determining whether something is a significant degradation

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1 of OFW standards?

2 A Are you referring to my 1988 memorandum?

3 Q No. Just strike the question.

4 I had a few questions to ask you about the

5 nuisance species rule. The nuisance species rule reads,

6 "Substances and --"

7 MR. HETRICK: Excuse me.

8 THE WITNESS: Could you give me a citation?

9 BY MR. HYDE:

10 Q It is under the minimum criteria, 17-302.51,

11 okay? It is at page 14 of the January 5, 1993, draft of

12 the rule.

13 "Substances and concentrations which result in

14 the dominance of nuisance species, none shall be present,"

15 and then if you return to the definitional section of

16 17-302, nuisance species is defined by Rule 17-302.200,

17 paren (14), as "Species of flora or fauna whose noxious

18 characteristics or presence in sufficient number, biomass

19 or areal extent may reasonably be expected to prevent or

20 unreasonably interfere with a designated use of those

21 waters."

22 Now, with that preface, let me ask you the

23 following questions. What is the designated use of the

24 waters in the several water conservation areas?

25 A I think they are all Class III waters in the

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1 designated use of recreation, propagation and maintenance

2 of a healthy, well-balanced population of fish and

3 wildlife.

4 Q Would you agree, then, that for a species such as

5 cattails to be considered a nuisance species, they have to

6 prevent or unreasonably interfere with the designated use

7 of those Class III waters?

8 A I believe it says may reasonably be expected to

9 prevent or unreasonably interfere with a designated use of

10 those waters.

11 Q With that, with the rule and the statutory or the

12 rule definition in mind, are there any nuisance species in

13 the water conservation areas?

14 A Yes.

15 Q Can you identify them for me?

16 A Cattails in places in the conservations areas are

17 nuisance species.

18 Q Anything else?

19 A Melaleuca would be another. Brazilian pepper

20 could be another.

21 Q Can you tell me how cattails may reasonably be

22 expected to prevent or unreasonably interfere with the

23 designated use of those waters?

24 A When cattails are present in sufficient number,

25 biomass or areal extent, I believe they can interfere with

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1 the designated uses, for example, reclamation.

2 Q Is it your belief, then --

3 A Let me finish.

4 Q Sure.

5 A The designated use of Class III waters, quote,

6 multiple uses, and cattails can interfere with several of

7 those designated uses. I was starting to list those, but I

8 guess we can all read.

9 Q Is it your opinion, then, that cattails are, by

10 reason of their number, biomass or areal extent,

11 unreasonably interfering with those designated uses?

12 A Yes.

13 Q Where?

14 A In the large areas of fairly dense monocultures of

15 cattails in the conservation areas.

16 Q Can you be more specific?

17 A I would have to refer to a map, probably an

18 aerial, to be more specific.

19 Q Does the map that is behind you on the wall

20 refresh your recollection at all?

21 A The map is a 1 to 500,000 square map of the state

22 of Florida, and it shows Water Conservation Area 1.

23 As I recollect, on a smaller scale map, they have

24 clearly shown tens of thousands of acres of cattails in

25 Conservation Area 1.

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1 Q Tens of thousands of acres within Conservation

2 Area 1?

3 A Yes.

4 Q Do you know what percentage of Water Conservation

5 Area 1 these cattail monocultures geographically occupy?

6 A No.

7 Q Is that an important consideration under the rule,

8 that is, the geographic extent?

9 A I think it is a consideration.

10 Q Do cattail monocultures constitute a nuisance

11 species in any other portions of the water conservation

12 areas?

13 A I am most familiar with the mapping of Water

14 Conservation Area 1, but I believe there are also large

15 areas of cattails in other conservation areas where we

16 would not expect them to be.

17 Q Well, do you think that the presence of these

18 cattail monocultures interferes with the designated use of

19 the entire water conservation areas or entire Everglades

20 Protection Area or just portions of those areas?

21 A I think both.

22 Q Well, in the first instance, tell me how cattail

23 monocultures interfere with the designated use of the

24 Everglades Protection Area as a whole.

25 A I think that the Frank Nearhoof paper goes on at

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1 considerable length about that, and I can't improve on it.

2 Q So you would adopt and incorporate by reference

3 his comments in that regard?

4 A I reviewed the drafts of that paper and offered

5 comments and suggestions in a current draft that I have

6 seen.

7 Q Do you know what percentage of the overall land

8 mass of the Everglades Protection Area is occupied by

9 cattail monocultures?

10 A No, but I know it is relatively -- no, I don't

11 know.

12 Q Would you agree that it is a relatively small

13 percentage?

14 A Small relative to what?

15 Q Under one or two percent.

16 A I don't know.

17 Q If they were merely one or two percent or even

18 less than that, would that have some influence or

19 relationship to the rule definition of nuisance species?

20 A I think areal extent is a consideration.

21 Q Does an areal extent relate also to the other two

22 factors of number and biomass?

23 A I don't know the areal extent always relates

24 closely to the number and biomass.

25 Q Does it in the case of cattails?

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1 A I think it would.

2 Q So would you still say that a species that

3 occupies, at most, one to two percent of the land mass of

4 the water conservation area -- excuse me, of the Everglades

5 Protection Area constitutes a nuisance species within the

6 contemplation of this rule?

7 A I think it could.

8 Q Why?

9 A Because it would -- could reasonably, in

10 principle, it could reasonably be expected to prevent or

11 unreasonably interfere with the designated use.

12 Q Does that observation assume that the cattail

13 monocultures will continue to expand?

14 A I don't think it depends upon that conclusion.

15 Q Well, let's assume for a moment that the cattail

16 monocultures are essentially static, that is, they are not

17 growing or expanding.

18 Would that change your opinion as to whether they

19 constitute a nuisance species under the rule?

20 A No.

21 Q It doesn't?

22 A No.

23 Q Even if they only occupy one or less percent of

24 the geographic extent of the Everglades Protection Area?

25 A I think that question had a negative in it. I am

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1 trying to figure out whether I want to say yes or no to it.

2 Q Let me see.

3 A I don't think it changes my opinion.

4 Q Why not?

5 A Because the current status meets the definition of

6 a nuisance species.

7 Q You are saying the current status unreasonably

8 interferes or prevents the designated use of those waters?

9 A Yes.

10 Q Even though it is only one percent or less of the

11 geographic extent of those waters?

12 A Of the Everglades Protection Area. I am sure it

13 is an even smaller percentage of the state of Florida or

14 North America.

15 Q Well, isn't the body of water at issue here the

16 Everglades Protection Area?

17 A Not to me.

18 Q What is the body of water?

19 A The body of water is the water of concern.

20 Q How do they differ?

21 A Well, I think that Apalachicola Bay is

22 Apalachicola Bay, it is also the Gulf of Mexico. That

23 doesn't mean Apalachicola Bay is an insignificant fraction

24 of water.

25 Q I don't think I am implying that. I am just

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1 asking you what the body of water is for purposes of the

2 determination that there is a violation of the nuisance

3 species standard. I assume people understand that to be

4 the Everglades Protection Area?

5 A And I have a different understanding, and I think

6 I have said that.

7 Q Well, what is the body of water, then?

8 A The body of water is the water of concern, in the

9 meaning of 17-302.

10 Q Are you referring to some specific provision in

11 the Chapter 17-302?

12 A No.

13 Q I am not trying to be difficult here. I just

14 don't understand what you mean by the water body of

15 concern. It seems like a term of art that I am just not

16 familiar with.

17 Let me give you an example by way of contrast.

18 The narrative nutrient rule speaks to the, quote, body of

19 water, and I think I recall that Mr. Nearhoof said that the

20 body of water that he was looking at when considering that

21 was the Everglades Protection Area, and I just sort of

22 assumed that the body of water was the same thing for

23 purposes of the narrative nutrient rule, and I think the

24 Everglades SWIM Plan, itself, identifies the body of water

25 as being the Everglades Protection Area, and you have come

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1 up with a new concept to me, a water body of concern, which

2 I can't fit into any of those categories, and I wonder if

3 you could just explain to me what the water body of concern

4 is.

5 A I probably should have said water, rather than

6 water body of concern.

7 Q Is there some geographic limit or boundaries to

8 that water? You are not including the Atlantic Ocean, are

9 you?

10 A Insofar as this part of Florida, I would, that is

11 part of the waters of the State.

12 Q Is there --

13 MR. HETRICK: Let me interject here, this is

14 probably a good example of a question Mr. Swihart is

15 not going to -- and you can continue asking questions,

16 but he is not going to be testifying as to specific

17 areas of violation in the Everglades. What he would be

18 testifying to, and this is a good example, if you want

19 to ask him and you can continue asking him about the

20 Everglades and keep pointing specifically to the

21 Everglades, but as to how he interprets the definition

22 of body of water in the rules, that is the kinds of

23 things he will be testifying to.

24 MR. HYDE: That is what I thought I was getting

25 at.

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1 MR. HETRICK: If you want to specifically refer

2 him to that, that is fine, but he is not going to be

3 focusing his testimony on specific violations in the

4 Everglades.

5 MR. HYDE: I don't think I was really driving at

6 that. I am just trying to find out how one determines

7 a violation of the nuisance species rule and what

8 the --

9 MR. HETRICK: What his understanding of the rules

10 is.

11 MR. HYDE: The narrative, the nuisance species

12 rule speaks to geographic extent, and so I assume there

13 has got to be some relationship to some geographic

14 area, and I would think normally if you were dealing

15 with, for example, Lake Jackson, you would say that it

16 is the boundaries of Lake Jackson, and I thought I was

17 advancing a fairly simple concept here, and I was

18 talking about the Everglades Protection Area because

19 that is what the SWIM Plan speaks of as being the body

20 of water.

21 MR. HETRICK: So you are looking at how you

22 determine what the body of water is.

23 MR. HYDE: I am a little confused now as to what

24 Mr. Swihart thinks the body of the water is.

25 MR. HETRICK: With that understanding, I think I

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1 will let you go ahead and continue your inquiry and

2 your questioning.

3 BY MR. HYDE:

4 Q Let me just ask that question I thought I had

5 before, but what is the body of water for purposes of

6 determining a violation of any of the Department's rules?

7 I had postulated it to be the Everglades Protection Area,

8 which is, and I will define it, is the Water Conservation

9 Area 1, 2A, 2B, 3A, 3B, and the Park, and I think that is

10 the way it is, in fact, described.

11 A I think the phrase, "body of water," appears only

12 in the nutrient criteria.

13 Q Well, for purposes of the narrative nutrient

14 criteria, what is the body of water?

15 A I think one would have to look at the particular

16 nutrient problem to make that determination, and as I said

17 before, I don't think in looking at Apalachicola Bay or

18 Sippio Creek, one would look necessarily at the Gulf of

19 Mexico as the body of water, nor in south Florida can one

20 look solely at the Everglades Protection Area or

21 necessarily the entirety of Conservation Area 1.

22 Q What does one look to?

23 A I thing principally one seeks to prevent

24 violations at all places at all times.

25 Q Let's harken back to the nuisance species rule for

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1 a moment. The definition speaks to sufficient number,

2 biomass or areal extent, which, to my mind, seems to imply

3 some geographic component to the rule. You wouldn't

4 consider, for example, one cattail or one melaleuca tree to

5 be a nuisance species under this rule, would you?

6 A I think state law declared melaleuca a nuisance

7 species, even one tree.

8 Q Let's discard for the moment then melaleuca.

9 Would you consider one cattail to be a nuisance species?

10 A I can't think of a place where one cattail would

11 be a nuisance species.

12 Q Then is it fair to say that for cattails to become

13 a nuisance species they have to occupy a sufficiently high

14 percentage of an area? You might have 1,000 cattails in

15 1,000 acres, and that won't be a nuisance species, would

16 it?

17 A It would be only if it could reasonably be

18 expected to prevent or unreasonably interfere with a

19 designated use.

20 Q But let's assume they are not expanding. Let's

21 just say there is the 1,000 cattails in 1,000 acres. Is

22 that a nuisance species?

23 A Only if it would be expected to prevent or

24 unreasonably interfere with a designated use.

25 Q Well, I am not going to belabor this any further,

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1 but it just seems to me that when you look to the

2 definition of nuisance species which speaks to sufficient

3 number, biomass or areal extent, you have got to be

4 relating it to some area. Otherwise, you are talking about

5 whether cattails are reasonably expected to interfere with,

6 you know, the entirety of the water bodies in the state of

7 Florida. I am just trying to get an idea of what the

8 geographic extent of a water body is for purposes of

9 determining a violation of this rule. Can you respond to

10 that?

11 A I think I said that the geographic extent is a

12 consideration in making that determination, but it is only,

13 only one of several considerations in making that

14 determination.

15 Q Mr. --

16 A It is measured against the plain language of the

17 rule, whether it may reasonably be expected to prevent or

18 unreasonably interfere with a designated use of the waters.

19 Q Of those water