224 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038 9 ASSOCIATION, LEWIS POPE FARMS, 92-3039 W.E. SCHLECHTER & SONS, INC., and 92-3040 10 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF THOMAS M. SWIHART 24 February 4, 1993 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 225 1 2 DEPOSITION OF THOMAS M. SWIHART 3 Taken in the above-styled cause, pursuant to 4 notice, at the Department of Environmental Regulation, 2600 5 Blair Stone Road, Tallahassee, Florida, on February 4, 6 1993, commencing at 9:00 a.m. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 226 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms, 3 Inc.: 4 William H. Green, Esq. Hopping Boyd Green and Sams 5 123 South Calhoun Street Tallahassee, FL 32301 6 On behalf of the Petitioners Florida Sugar Cane League, 7 Inc., United States Sugar Corporation and New Hope South, Inc.: 8 William L. Hyde, Esq. 9 Peeples, Earl & Blank 215 South Monroe Street 10 Suite 350 Tallahassee, FL 32301 11 On behalf of the Intervenor United States of America: 12 Cathy Stark, Esq. 13 Assistant U.S. Attorney 155 South Miami Avenue, Suite 600 14 Miami, FL 33102 15 On behalf of the Intervenor Department of Environmental Regulation: 16 Keith Hetrick, Esq. 17 Donna LaPlant, Esq. Assistant General Counsel 18 State of Florida Department of Environmental Regulation 19 Twin Towers Office Building 2600 Blair Stone Road 20 Tallahassee, FL 32399-2400 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 227 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 7 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 228 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) 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 229 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of THOMAS M. SWIHART was taken 5 by agreement for the purpose of discovery, for use as 6 evidence, and for such other purposes as may be permitted 7 by the Florida Rules of Civil Procedure and other 8 applicable law; 9 THAT all objections, except as to the form of the 10 question, are reserved until the trial of this cause; and 11 THAT by agreement of the witness and all parties, 12 reading and signing of the deposition was not waived. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 230 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 231 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" A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 232 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 233 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 234 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 235 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 / / / / / A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 236 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 237 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 238 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 239 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 240 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 241 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 242 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 243 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 244 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 245 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 246 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 247 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 248 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 249 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 250 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 251 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 / / / / / A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 252 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 253 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 254 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 255 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 256 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 257 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 258 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 259 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 260 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 261 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 262 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 263 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 264 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 265 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 266 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 267 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 268 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 269 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 waters. What are those waters? When you 20 say that there is a violation of the nuisance species rule, 21 what waters are you speaking of? You are not speaking of 22 Lake Jackson, are you, in the context of the Everglades 23 SWIM Plan? What waters are you speaking of when you say 24 there is a violation of the nuisance species rule? 25 A Well, I first said the waters of concern, and then A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 270 1 I said water, but I think it is all places at all times. 2 Q What waters are we talking about in the Everglades 3 SWIM Plan? 4 A In the Everglades SWIM Plan, is this coincident 5 with the Everglades Protection Area, or is that a different 6 boundary? Actually, I have accepted your assumption they 7 are coterminous. I am not sure they are. 8 Q It is my understanding that the Everglades 9 Protection Area includes several water conservation areas 10 in the Park. 11 A I think the Douglas Act talks about the Everglades 12 Protection Area. I think the SWIM Plan has a somewhat 13 different boundary. 14 Q Do you know how the boundary between the two 15 differs? 16 MR. HETRICK: I think he has asked and answered 17 that. 18 THE WITNESS: I said I think they may be 19 different. 20 BY MR. HYDE: 21 Q Do you know how they are different? 22 A No, I don't. 23 MR. HYDE: It is 10:30. Why don't we go ahead and 24 take a break here? 25 (Brief recess.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 271 1 BY MR. HYDE: 2 Q Mr. Swihart, did you have any involvement in the 3 drafting of the proposed DER permit to the District? 4 A Yes. 5 Q Did you author any of the conditions yourself? 6 Tell me what your involvement was. 7 A I am trying to remember. We went through some 8 comments I made on the permit application, itself, and I 9 may have reviewed the draft permit. 10 Q Did you prepare or author any of the conditions to 11 that draft permit? 12 A I don't recall. 13 Q Do you intend to offer any testimony about those 14 permit conditions? 15 A No. 16 MR. HYDE: I don't have any more questions. 17 MR. GREEN: Let's mark a copy of the settlement 18 agreement as the next exhibit, No. 18. 19 (Whereupon, Exhibit No. 18 was marked for 20 identification.) 21 MR. HETRICK: You have an extra copy there. While 22 we are going through this, can I just go ahead and get 23 some other copies made? 24 MR. GREEN: Of which? 25 MR. HETRICK: These documents. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 272 1 MR. GREEN: Yes. 2 EXAMINATION 3 BY MR. GREEN: 4 Q Mr. Swihart, can you identify the document I just 5 handed to you? 6 A It is a Settlement Agreement admitted in the 7 United States District Court, Southern District of Florida. 8 I think it is the Everglades settlement agreement. 9 Q Right. I would like to talk a little bit about 10 Appendix A. If you would turn back in Exhibit 18 to 11 Appendix A, page A-1, I would like to follow up on some 12 questions that Mr. Hyde asked. 13 Can you tell me the difference between the interim 14 limits for the Shark River Slough reflected on the top of 15 Appendix A-2, I guess it is, in terms of how those were 16 developed? 17 MR. HETRICK: Excuse me, I am not sure I 18 understood the question. 19 BY MR. GREEN: 20 Q I will give it a preface. Let's look at the 21 middle of A-1, and I am trying to figure this out. 22 It says, "In each basin, long-term discharge 23 limits," are you with me, the middle of the main paragraph? 24 A No. 25 Q "In each basin --" A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 273 1 MR. HETRICK: I got it. 2 THE WITNESS: Yes. 3 BY MR. GREEN: 4 Q "-- long term discharge limits are the limits 5 necessary to meet the OFW water quality criteria as 6 measured at the structures discharging into the Park." 7 As I understand it from testimony yesterday, you 8 concurred with that, that those were based upon the 9 requirements of the OFW regulations. Am I correct in 10 that? 11 A Yes. 12 Q Now, I thought you also said that as applied to 13 the S-12 structures, the OFW water regulations would 14 require phosphorus levels to be reduced to the levels that 15 occurred during the baseline time period, which was March 16 '78 through March 1979. Is that correct? 17 A I think I added, taking into account daily, 18 seasonal and other cyclic fluctuations. 19 Q Okay. I think I understand that. 20 Now, what does the -- how was the interim limit 21 developed, since apparently it was not based upon the OFW 22 regulations? 23 A I think that is described in the appendix to the 24 Everglades SWIM Plan at length. 25 Q What is your understanding of how it was A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 274 1 developed? By the way, just while you are looking at that, 2 Mr. Swihart, I do have a copy of the appendix to the SWIM 3 Plan if you would like to refer to that. 4 A Yes. I don't think that the SWIM Plan, Appendix 5 E, answers my questions. 6 Q Okay. 7 A But I believe the difference was the exclusion, I 8 believe it is called S-333, from the long-term limits but 9 not from the interim discharge limits. 10 Q Then would I be correct in light of your response 11 that the interim limit would also achieve compliance with 12 the OFW regulation and was based upon that regulation? 13 A No, I don't think that would be correct. 14 Q Please explain. Why doesn't it? 15 A As I recollect, the long-term discharge limit 16 reflects conditions as they existed in 1979, but the 17 interim discharge limits includes the effects of, I think 18 it is called S-333. 19 Q Did S-333 contribute to the 1979 baseline 20 discharges through the S-12 structures into the Park? 21 A As I recall, it was discharging in years after 22 1979 in ways that it was not discharging in 1979. 23 Q I see. So long-term limit backs that discharge 24 out of the permissible flows on discharge concentrations? 25 A I believe so. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 275 1 Q Do you have any knowledge of whether the removal 2 of S-333 discharges through the S-12 structures has already 3 occurred? 4 A I recollect that S-333 is being managed in a way 5 different from what it was in the early 1980s, and I don't 6 know how exactly it is managed today. 7 Q Would I be correct in concluding from your earlier 8 comments that it would be changed again before the 9 compliance date for the long-term limit? When I say it, 10 that the S-333 discharge will be modified somehow? 11 A I believe there are plans for that, yes. 12 Q Can you tell me your knowledge of those plans? 13 A They are quite limited. 14 Q But they are plans that have not been done yet, is 15 that your understanding? 16 A I am afraid I don't have a very full understanding 17 of the plans for S-333, Shark River Slough, the northeast 18 Shark River Slough study project of the Corps. I don't 19 have all of those various limit plans straight in any head. 20 Q Would that be part of what is known in common 21 parlance as a general design memorandum for changing 22 discharges into the Everglades National Park that is 23 currently under National Environmental Policy Act review? 24 A I am not sure they are identical, but they very 25 well may be. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 276 1 Q Does this long-term limitation at the top of A-2 2 that we have been speaking about for the Shark River Slough 3 -- and actually, there are also limits there for Taylor 4 Slough and coastal basins -- is the premise for those 5 limitations here in the settlement agreement that the 6 modifications to the S-333 discharges that the Corps is 7 currently evaluating will, in fact, occur before July 1, 8 2002? 9 A I don't know. I would suggest you would have to 10 ask that of the water management district. 11 Q Do you recall whether those issues were discussed 12 by the technical team that you were a member of? 13 A Yes, they were. 14 Q Who at the water management district would be the 15 right person to ask, to the best of your knowledge? 16 A I think it could be Tom MacVicar or Tony Federico. 17 Q Would I be correct in assuming that if the S-333 18 changes we have been discussing did not occur or do not 19 occur in the future that the interim limits would reflect 20 the limits required for discharges into the Everglades 21 National Park to be in compliance with the Department's OFW 22 regulations? 23 A I am afraid I have to say again that I don't 24 understand S-333 and the general design memorandum, et 25 cetera, well enough to answer that question. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 277 1 Q But that plan which you don't understand in detail 2 is, to the best of your recollection, the functional 3 difference between the interim limits and the long-term 4 limits we have been talking about? 5 A I think so. 6 Q Now, if we could move over to Appendix B, Mr. 7 Swihart, Appendix B-1 contains interim and long-term limits 8 for the Loxahatchee National Wildlife Refuge, and there 9 were several questions concerning those limits yesterday, 10 and I just need to clarify in my own mind the differences 11 between those two sets of limits, and I would like to state 12 for you what I thought you said, and please correct me if I 13 misstate, or your counsel will, and then I have got a 14 question about the difference. 15 As I understood the analysis that went on in the 16 technical team by Drs. Walker, Robeson, and Frank 17 Nearhoof -- 18 A And Dr. Shih. 19 Q And George Shih, a certain data set was agreed 20 upon with regard to interior sampling stations, interior to 21 the Loxahatchee, and the data were statistically analyzed, 22 and I believe you said that the team concluded that the 23 strongest statistical trends were between phosphorus 24 concentrations coming -- I am sorry, between phosphorus 25 concentrations and stage and between phosphorus A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 278 1 concentrations and time. Is that basically correct so far? 2 A Yes. 3 Q And that the time part of the relationship was 4 taken out, in other words, the data were detrended for time 5 statistically to determine what the baseline phosphorus 6 concentrations for OFW purposes was, is that correct, sir? 7 A Yes. 8 Q Here is my question. On page B-2 at the first 9 sentence, when discussing interim concentration levels 10 here, the settlement agreement indicates that the 14 11 station interior marsh mean concentration -- 12 A I am sorry? 13 Q The first sentence -- 14 A "The interim levels represent --" 15 Q Represent, and I am going to paraphrase this, my 16 understanding is that the interim levels reflect the 17 observed 14 station interior marsh mean phosphorus 18 concentrations at a given daily stage, and that those 19 concentrations are then adjusted to the baseline time 20 period of June '78 through June '79. 21 Am I correct that the interim levels are, 22 therefore, the levels required to meet the OFW regulation? 23 A The interim levels are defined by the Douglas Act 24 as maximum practicable water quality status. 25 Q Well, aside from the Douglas Act, can you answer A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 279 1 the question I asked? Would the interim levels as you 2 understand it achieve compliance with the OFW regulation of 3 the Department? 4 A I am not sure they would. 5 Q Why not? 6 A Because there was some provisions in this 7 relationship that may not be consistent with how we 8 ordinarily interpret OFW baselines. 9 Q Would you please explain what provisions you are 10 speaking of? 11 A I could think of two right now. 12 Q Okay. 13 A One of them we discussed before, is a question of 14 whether the existing pump stations are grandfathered or 15 not. 16 Q Okay. 17 A If those facilities are not grandfathered, then 18 the effect of discharges must be factored out and would 19 have to meet a much more stringent baseline year 20 definition. 21 Q What was the other? 22 A I think another possible difference would be the 23 use of a geometric mean of 14 stations, rather than an all 24 places at all times throughout the entire Loxahatchee 25 Refuge. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 280 1 Q Let's look at each of those separately. 2 If the Department concluded that the existing pump 3 structures discharging into the Loxahatchee National 4 Wildlife Refuge should be treated as grandfathered, using 5 your term, would the interim levels reflected in Appendix B 6 for the Loxahatchee here comply with the OFW regulation of 7 the Department, with the possible exception of the 8 geometric mean issue that you raised? 9 A I think the geometric mean issue, the all places 10 at all times issue was one concern. I think another 11 concern would be the possible existence of water quality 12 violations during the baseline year, and the baseline year 13 I don't believe incorporates water quality standards 14 violations. 15 Q Well, let's add that. Let's talk about the third 16 caveat, the possible existing of water quality violations 17 during the baseline year. 18 Mr. Swihart, my understanding of the OFW 19 regulation is that -- 20 A Go ahead. 21 Q -- for existing discharges that are, quote, 22 grandfathered, and that the Department agrees are 23 grandfathered and, therefore, whose contributions to the 24 ambient water body that is designated OFW should be 25 included in the baseline, nevertheless even grandfathered A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 281 1 discharges are not grandfathered for that portion of their 2 discharge which would exceed Department water quality 3 standards. Is that a correct understanding? 4 A I don't know if only that portion of a discharge 5 which causes a violation would not be grandfathered or if 6 the entirety of the discharge with not be grandfathered. 7 Q When you say you don't know, does that mean that 8 issue has never -- you have never thought about the issue? 9 A I have never thought about it at length, nor am I 10 aware of any Department determination on that. 11 Q Would that interpretation be consistent with your 12 understanding of the intent of the OFW regulations? 13 A Which interpretation? 14 Q That is, that existing discharges are 15 grandfathered to the extent the discharge does not exceed 16 applicable water quality criteria. 17 A I know for sure that the portion of the discharge 18 that causes a violation is not grandfathered. 19 Q Right. 20 A I simply don't know if the entirety of the 21 discharge might also not be grandfathered under those 22 circumstances. 23 Q Would that be an important question with regard to 24 the regulations and provisions we have been discussing for 25 the Loxahatchee? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 282 1 A I don't think it became an important question 2 during the discussions on the settlement agreement. 3 Q Is it your understanding of the interim 4 concentration levels that we have been talking about at 5 Appendix B-2 that they were arrived at in such a way that 6 the contribution from the S-5A and S-6 pump stations would 7 be grandfathered under the Department's OFW regulation? 8 A I don't think that the Department has made a 9 determination on that question. 10 Q Well, I am not asking a clear question. Pardon 11 me. 12 What I am trying to find out, Mr. Swihart, is 13 whether the result of this limitation is that if the S-5 14 and S-6 structures were grandfathered, that there would be 15 compliance with the OFW regulation for that portion of the 16 baseline discharge that did not exceed Department water 17 quality criteria. 18 A I think I understand the question. I am trying to 19 answer it. 20 Q Okay. 21 A One difficulty I have in answering is because the 22 term "interim levels" is a term from the Douglas Act, and I 23 think that this is an effort to meet the Douglas Act 24 requirements while also being consistent with the water 25 quality standards. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 283 1 I do think that the interim levels have some 2 relationship to the OFW baseline year, as you have 3 discussed, and there are certain assumptions in the 4 derivation of the interim levels, there are certain 5 qualifications of that relationship that we talked about 6 already, about the use of a geometric mean and the question 7 of whether there were violations and the question of 8 grandfathering. 9 Q What is your opinion concerning whether the 10 interim levels would bring those discharges that we have 11 been discussing into compliance with the Department's OFW 12 regulation? Do you have an opinion? 13 A My opinion would depend upon certain legal 14 interpretations about whether, for example, like whether 15 the existing discharges were grandfathered. To my 16 knowledge, the Department has not made certain of those 17 determinations. 18 Q Does that mean you don't have an opinion? 19 A I have an opinion. I would accept the 20 Department's conclusions on the grandfathering. 21 Q Well, if you accept the Department's conclusions 22 on grandfathering, what is your opinion? 23 A I don't think the Department has made a 24 determination on grandfathering. 25 Q Well, let's try it both ways. Let's assume they A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 284 1 said that the discharges were not grandfathered. What is 2 your opinion? 3 A In that case, I don't think that the interim 4 levels would represent the OFW baseline year. 5 Q Because -- 6 A In calculating the OFW baseline year, the effect 7 of those discharges would have to be excluded. 8 Q Let's take the converse. If the Department 9 concluded that they were grandfathered, what is your 10 opinion? 11 A Then the interim levels may represent the OFW 12 baseline year, if questions about violations and these 13 other questions we talked about were considered. 14 Q Well, let's take those one at a time. Let's 15 assume that the Department's opinion was that the discharge 16 levels were grandfathered completely, under the OFW rule. 17 I am separating the last three criteria. I realize that is 18 a separate legal requirement. I am not suggesting that 19 that would be changed, but as far as the OFW regulations 20 are concerned, if the Department concluded that the 21 discharges during the baseline year were entirely 22 grandfathered, what would your opinion be with regard to 23 whether this interim, these interim concentration levels 24 would achieve compliance with the Department's OFW 25 regulation? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 285 1 A That includes an assumption that there are no 2 violations we need to worry about in the baseline year? 3 Q Yes. I am assuming that those would be dealt with 4 separately in terms of requiring compliance with Class III 5 criteria. 6 A I am not following -- I would subtract the effect 7 of the violations from the OFW baseline year. 8 Q Well -- 9 A I can't set those apart that way. 10 Q Let me ask you to assume that. 11 A To assume that there were no violations? 12 Q No. Assume that even if there were, that those 13 would be deemed to be excedences of Class III criteria that 14 could be dealt with under separate rules of the Department, 15 separate from the OFW rule. Are you with me? 16 A No, I am not, because I don't think that is what 17 we mean by the OFW rule. 18 Q What do you think you mean by that? 19 A I think that the OFW ambient baseline year does 20 not include pollution-caused violations of Class III water 21 quality standards. If you wish to define for the purposes 22 of your question the baseline year to be different from 23 what I understand it to be, I can try to answer that. 24 Q Well, let's try it the way I defined it, and then 25 I will try to do it in a way that you think is more A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 286 1 compatible with your understanding. 2 Let's assume that, just for purposes of applying 3 Department rules, the Department took the position that the 4 OFW regulation is a non-degradation over baseline 5 regulation and that whatever was going on in the baseline 6 year is grandfathered, under that rule -- 7 A Okay. 8 Q -- but it may be absolutely enforceable under 9 Class III criteria separately to bring down any excedences. 10 Let's assume the Department divided it up that 11 way, for purposes of OFW, it is a non-degradation from 12 baseline, and all of the discharge going on in that year 13 sets the baseline, that what we apply this rule toward is 14 prohibiting any further degradation. 15 If the Department took that position, what would 16 be your opinion on whether these interim levels would 17 achieve compliance with that regulation? 18 A I think they might meet the compliance, and I 19 think the reservation I have is a question of using a 20 geometric mean of 14 stations rather than applying station- 21 by-station compliance. 22 Q Would there be any other reservations besides that 23 one under that hypothetical? 24 A None that I can think of right now. 25 Q Let's talk about the 14-station geometric mean A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 287 1 question here. Are you aware of other situations, 2 permitting situations or enforcement situations or things 3 of that nature, where the Department has developed an OFW 4 baseline? 5 A No. 6 Q Why -- then why does the 14-station geometric mean 7 approach trouble you? I am not being argumentative, I am 8 just wondering about the basis of your concern here. 9 A Because I think there is a possible interpretation 10 of OFW baseline that says that the ambient conditions as 11 existed during the baseline year must be met at all places 12 at all times. 13 Q Has the Department ever applied the interpretation 14 you just described, to your knowledge? 15 A Not to my knowledge. 16 Q Would I be fair in characterizing your concern 17 more as a theoretical possibility than one based on 18 experience and precedent within the Department, to your 19 knowledge? 20 A I don't think I expressed a concern. I said I 21 expressed a reservation about your hypothetical statement 22 being an adequate interpretation of the OFW rule. 23 Q Has -- 24 A I am sorry. I still have not -- I have a mental 25 block trying to separate OFW baseline from Class III A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 288 1 criteria. 2 Q I think that problem is significant. I 3 understand that. 4 A But -- call it a reservation or call it 5 theoretical, but that at least is a conceptual difficulty 6 with your question. 7 Q I am really focusing on the geometric mean. 8 A That is what I meant. Perhaps it is a theoretical 9 or conceptual reservation that I have. 10 Q But it wouldn't bother you, I take it, that if the 11 Department determined that, based upon the best data 12 available and the appropriate statistical techniques, that 13 this appeared to be a justifiable approach? 14 A I think it should be a justifiable approach. 15 Q But you have not reached an opinion one way or 16 another on that, is that fair? 17 A On the interim concentration or on your 18 hypothetical? 19 Q The geometric mean versus -- 20 A No, I have not reached a conclusion upon whether 21 the interim concentration levels definitely are OFW 22 baseline consistent with your hypothetical assumptions. 23 Q But the only reservation you had was the 14- 24 station geometric mean, given the interpretations that I 25 asked you to assume are correct? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 289 1 A That is all I can think of right now. 2 Q Now, let's change the hypothetical more to your 3 liking, as I understand it. Let's assume that the 4 Department determined that the discharges from pump 5 stations S-5 and S-6 into the Loxahatchee during the 6 baseline period were grandfathered, but only to the extent 7 that excedences of water quality criteria would not be 8 created, so, for example -- and these are just 9 illustrative -- it is conceivable that the Department could 10 say 25 percent of the baseline levels would not be 11 grandfathered because that is over and above the amounts 12 that would comply with Class III criteria but 75 percent 13 would be allowed. 14 Number one, I think from your earlier testimony 15 you are not aware of any circumstances where the Department 16 has addressed that type of approach to defining OFW 17 baseline, is that right? You are not aware of any 18 situation where that has happened? 19 A I can think of something that might be analogous 20 on the Suwannee River. 21 Q What can you tell me about that? 22 A The Occidental Chemical Company discharges to 23 Swift Creek on the Suwannee River and discharged during an 24 OFW baseline year. The Department has considered adjusting 25 the permits for Occidental that have an offset provision. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 290 1 The proposition would be that Occidental decrease their 2 discharges into Swift Creek at one point on the river. 3 Occidental might be allowed to increase their discharges 4 downstream of Swift Creek, so long as concentrations were 5 not increased at that downstream point. 6 Q I guess the goal being that you prevent 7 degradation, overall degradation of the water quality 8 during the baseline period? 9 A Yes. 10 Q Let's go to page B-1, the same Exhibit 18, Mr. 11 Swihart, that we have been dealing with. 12 After our lengthy discussion about the interim 13 limits -- and I appreciate your patience, by the way, it is 14 a complex area -- but I would like to understand the 15 difference between the interim concentration levels that we 16 have been discussing and the long-term concentration level 17 that is reflected in the last entry on Appendix B-1, and I 18 think it is also discussed -- I can't find where it is 19 discussed, somewhere else in this appendix. Would someone 20 find that? 21 A You might be looking at B-3 and B-4. 22 Q Thank you. Right. Thank you. B-3, sixth line 23 from the bottom, "Effective July 1, 2002, the long-term 24 total phosphorus concentration levels for the Refuge will 25 be the 10 percent rejection level at stations CA1-5, CA1-6 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 291 1 and CA1-16 at a given mean daily stage." 2 It continues, "These three stations had the lowest 3 geometric mean total phosphorus concentrations during the 4 1978-1983 baseline period." 5 Let me ask you a few questions about that. This, 6 what I just quoted referred to 1978 through 1983 baseline 7 period, whereas for the interim concentration level, third 8 line from the top on page B-2, the baseline time period was 9 June '78 to June '79. 10 Could you explain to me why those periods are 11 different? 12 A I wasn't involved directly in that. I believe I 13 have an understanding of that. 14 Q Okay. 15 A I think it was to address a fact that three 16 stations have fewer data points than 14 stations, and to 17 get the best estimate of existing ambient water quality 18 they took data from a longer period than for the 14 19 stations. 20 The rule requires that the best scientific 21 information available be used. The statistical 22 distribution was tighter if more data points were covered 23 during '78 through '83 than 1978-'79. 24 Q Would it be your understanding that the long-term 25 limits are intended to reflect the concentrations that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 292 1 stations 5, 6 and 16 possessed during the OFW baseline year 2 of 1978-'79? 3 A Let me state it my way and see if that is 4 consistent with what you just said. 5 Q Okay. 6 A I think the conclusion was that the data available 7 for 1978 to 1983, CA-5, CA-6 and CA-16, give a better 8 picture than the condition in 1979, than solely data from 9 1979. 10 It may have been that some individual ones of 11 those stations didn't have many measurements during 1978- 12 '79. 13 Q I am going to use some common phraseology and see 14 if that is close. Does that mean that the long-term limits 15 are developed by an approach that is sort of taking another 16 run in coming up with the OFW requirements? As I 17 understood what you said, the long-term limit may be 18 preferable statistically and in terms of the data base, but 19 it is still an estimate of what was going on in 1979, it 20 may be a better picture of '79? 21 A I think it is still related to 1978-'79 water 22 quality. 23 Q So is it a second, is it also directed at 24 achieving compliance with the OFW rule? 25 A I think the settlement agreement in the SWIM Plan, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 293 1 call it a long-term concentration level, but don't call it 2 an OFW limit, I am not certain of that. 3 Q Besides from what they call it, what is your 4 opinion of what it would accomplish if it were met? 5 A My opinion of the long-term concentration level is 6 that it may be the same as an OFW Level. 7 Q Mr. Swihart, if these long-term limits may 8 achieve compliance with the OFW regulations, what do they 9 assume, if anything, about grandfathering of S-5A and S-6 10 discharges? 11 A I think it would assume a determination upon 12 grandfathering in violations. 13 Q And what would be the necessary assumption on 14 those points? 15 A There would have to be an assumption that the 16 existing discharges were grandfathered in whole or in part 17 and that there were no violations of water quality 18 standards other than those accounted for in the OFW 19 baseline process. 20 Q Mr. -- 21 MR. GREEN: Read that back. 22 (Discussion off the record.) 23 (Brief recess.) 24 BY MR. GREEN: 25 Q Mr. Swihart, you indicated earlier that the long- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 294 1 term phosphorus limits for the Refuge were, based on a 2 calculation that you viewed, provided a better picture of 3 the 1979 baseline, and I think you indicated that you based 4 that conclusion on the fact that the long-term limit used a 5 more extensive data base, but I am not sure that is what 6 you meant. Is that correct? Did I understand that right? 7 A I think I said that I have ideas about how those 8 stations were selected, but I personally wasn't involved in 9 that earlier decision to pick three. I think my 10 explanation is right, and my explanation is based on my 11 understanding from discussions with Frank Nearhoof and 12 Richard Harvey. 13 Q So I take it that for all of these limitations 14 that we have been discussing contained in Appendix A and B 15 of the settlement agreement, Exhibit 18, that you were not 16 responsible for deriving those limits, is that a fair 17 statement? 18 A I would only respond to the word "deriving." I 19 played a role in thinking that led to the limits, but I 20 didn't select individual stations or do the statistical 21 workup. 22 Q Do you recall any evidence or discussions that 23 justified the use of the three stations with a long-term 24 limit as opposed to the 14 stations for the short-term 25 limit that were brought before the technical team? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 295 1 A I think those discussions were at some of the last 2 meetings, and I don't recall, myself, those discussions, 3 and I may not have been at those meetings that discussed 4 that. 5 Q Do you have any understanding -- well, let's look 6 at Appendix B-3 again, the language we were referring to 7 earlier, and the sentence four lines from the bottom that 8 begins, "These three stations had the lowest geometric mean 9 total phosphorus concentrations during the 1978-1983 10 baseline period." 11 What evidence are you aware of that would show 12 that it would be appropriate to use the three stations with 13 the lowest geometric mean total phosphorus concentrations 14 during the baseline period in order to establish the 15 conditions that existed in 1979 in the Loxahatchee? 16 A As I say, I wasn't directly involved in that 17 decision, but do you still want my speculation? 18 Q Well, you are not required to speculate. If you 19 have a view or an opinion, I would like to know it. 20 A I can't say that I do. 21 Q I take it from your response that you don't recall 22 seeing any evidence that would connect the concentrations 23 measured at those three stations with concentrations that 24 might have been measured elsewhere in the Loxahatchee, is 25 that right? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 296 1 A Let's see. I believe I recall an opinion by some 2 people that those three stations might have been closer to 3 a level at which imbalance occurs than the geometric mean 4 of 14 stations. 5 Q Who do you recall might have stated that? 6 A I think it might have been Mark Maffei, Mike 7 Soukup, Tony Federico and Frank Nearhoof, but I cannot 8 recall distinctly. 9 Q Did any of those individuals or did you express 10 any views concerning whether those three stations reflected 11 better the 1979 baseline conditions of the Loxahatchee 12 marsh as a whole than did the calculation reflected in the 13 interim concentration levels that we talked about earlier? 14 A As I understand it, the 14 stations represent 15 water quality of those 14 stations better than the three 16 stations do for the 1978-'79 period. 17 Q I take it, then, that the three stations were not 18 intended to therefore reflect the 1979 baseline 19 concentrations of the Loxahatchee, is that correct? 20 A I think I have reached about the limit of how far 21 I can stretch my understanding of the choice of those 22 stations, other than the 14. I wasn't involved in the 23 decision. I didn't have many discussions on the stations, 24 5, 6 and 16. 25 Q Do you know, Mr. Swihart, whether you will be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 297 1 asked to give an opinion at the final hearing in this 2 matter concerning how these limits comport with DER 3 regulatory requirements? 4 A I think I may. 5 Q I take it those opinions are not final yet, is 6 that fair, based on your testimony? 7 A No. I can give my opinion how they comport with 8 DER standards to the extent I have an opinion. 9 Q Let me ask you about these Loxahatchee long-term 10 limits that we have been discussing. What regulatory 11 requirements provide the basis for these limits? 12 A I think the basis is probably 17-302 and the 13 Douglas Act. I think also there is a probable relationship 14 between the three stations and the OFW rule and the 15 nuisance and imbalance criteria. 16 Q What is that relationship? 17 A Let's see, I am trying to remember. There were 18 several factors I had there. One of them was the OFW rule. 19 Q Right. 20 A I think that the three stations, CA-5, CA-6 and 21 CA-16, may represent the 1979 OFW baseline, particularly if 22 the Department makes a determination that the existing 23 discharges are not grandfathered. I think also it may be 24 that those are the stations that Class III violations could 25 be determined. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 298 1 Q Now, for the OFW, it would reflect OFW if the 2 structures are not grandfathered, but how would they 3 reflect Class III, in your view? When I say "they," I am 4 talking about the long-term limits in Loxahatchee. 5 A I understand those three stations are the stations 6 with the lowest total phosphorus levels during the baseline 7 period. The stations with higher phosphorus concentrations 8 are more likely to have exhibited violations of water 9 quality standards than these clean stations. 10 Q To your knowledge, has anyone determined that that 11 is the case? 12 A The Department has determined there are violations 13 of Class III criteria in the Loxahatchee for several 14 parameters. 15 Q Have they determined that the levels that would be 16 accomplished by the interim concentration limits would 17 still constitute violations? 18 A Not to my knowledge. 19 Q Well, to the extent that the Department has not 20 made that determination, how are these long-term limits 21 justified by Class III criteria, in your view? 22 A As I understand the Everglades SWIM Plan, it 23 includes a research component to better define levels at