1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

7 LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, JANUARY 14, 1994

20 (10:00 A.M. - 10:50 A.M.)

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

CAROLYN RAEPPLE, ESQUIRE

5 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

9 and New Hope South, Inc.:

10 WILLIAM L. HYDE, ESQUIRE

Peeples, Earl & Blank, P.A.

11 Suite 350

215 South Monroe Street

12 Tallahassee, Florida 32301

(904-681-1900)

-and-

ROBERT H. BLANK, ESQUIRE (Via Telephone)

15 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

16 Two South Biscayne Boulevard

Miami, Florida 33131

17 (305-358-3000)

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

19 W. E. Schlechter & Sons, Inc., and

Hundley Farms, Inc.:

TERRY COLE, ESQUIRE (Via Telephone)

21 Oertel, Hoffman, Fernandez & Cole, P.A.

Suite C

22 2700 Blair Stone Road

Tallahassee, Florida 32301

23 (904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE (Via Telephone)

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 East 4th Street

Miami, Florida 33138

7 (305-536-4425)

8 -and-

9 KEITH A. SAXE, ESQUIRE (Via Telephone)

STEVE MC FARLAND, ESQUIRE (Via Telephone)

10 Deputy Assistant Attorney General

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue

P. O. Box 663

13 Washington, D.C. 20044

(202-272-4016)

Representing Intervenor, Florida Department of

15 Environmental Protection:

16 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

17 Department of Environmental Regulation

640 Twin Towers Office Building

18 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

19 (904-488-9730)

20 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE

22 Schnobrick & Kaufman, Ltd.

400 International Place

23 100 Southeast Second Street

Miami, Florida 33131

24 (305-539-7222)

25 -and-

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District: (Continued)

RUTH P. CLEMENTS, ESQUIRE (Via Telephone)

4 JOAN LAWRENCE, ESQUIRE (Via Telephone)

Assistant General Counsel

5 South Florida Water Management District

P.O. Box 24680

6 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

7 (407-686-8800)

8 Representing Intervenor, Florida Wildlife

Federation:

LORI ERICKSON, ESQUIRE (Via Telephone)

10 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

11 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

ALSO PRESENT:

MIKE REID (Via Telephone)

* * * * *

INDEX

ITEM PAGE

HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 45

* * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:00 A.M.)

3 TELEPHONE OPERATOR: Mr. Ward is still not

4 available. I'll give you the I.D. number and the office

5 number on his answering machine.

6 HEARING OFFICER: Okay.

7 TELEPHONE OPERATOR: Okay, thank you for your

8 patience. Let me do the roll call. Please answer.

9 Terry Cole?

10 MR. COLE: Yes.

11 TELEPHONE OPERATOR: Thank you. Good morning.

12 Mr. Reid?

13 MR. REID: Yes.

14 TELEPHONE OPERATOR: Thank you. Good morning.

15 Is Mr. McFarland with you?

16 MR. MC FARLAND: Yes.

17 TELEPHONE OPERATOR: Thank you, sir. Good morning.

18 Ms. Clements?

19 MS. CLEMENTS: Yes.

20 TELEPHONE OPERATOR: Thank you. Is Ms. Lawrence

21 with you?

22 MS. LAWRENCE: Yes.

23 HEARING OFFICER: Who?

24 TELEPHONE OPERATOR: Lawrence. Joan Lawrence.

25 HEARING OFFICER: Okay.

1 TELEPHONE OPERATOR: Keith Saxe?

2 MR. SAXE: Yes. Here.

3 TELEPHONE OPERATOR: Thank you, sir. Good morning.

4 Lori Erickson?

5 MR. ERICKSON: Here.

6 TELEPHONE OPERATOR: Thank you, ma'am. Good

7 morning. Suzan Ponzoli?

8 MS. PONZOLI: I'm here.

9 TELEPHONE OPERATOR: Thank you. Good morning.

10 Bob Blank?

11 MR. BLANK: Yes.

12 TELEPHONE OPERATOR: Thank you, sir. Good morning.

13 I understand Mr. Hyde is with someone there?

14 MR. HYDE: That' correct.

15 TELEPHONE OPERATOR: Okay, Mr. Hyde. Good morning

16 to you.

17 The I.D. number, gentlemen, ladies and gentlemen,

18 is WD3-8031.

19 HEARING OFFICER: Okay, what about Mr. Lehtinen?

20 Does anybody know his status?

21 MR. GREEN: Only he was Faxed a status notice,

22 Mr. Menton, by my secretary, and anyone who wished to

23 participate was supposed to get back with us. We never

24 heard otherwise, so far as I know.

25 HEARING OFFICER: Okay.

1 TELEPHONE OPERATOR: Is there someone else you

2 need me to call, Mr. Menton?

3 HEARING OFFICER: No, I think that's it.

4 TELEPHONE OPERATOR: Okay, if you guys need further

5 assistance give me a call at 1-800-232-1234.

6 HEARING OFFICER: Okay. Thank you.

7 TELEPHONE OPERATOR: My pleasure. Thank you all

8 for choosing AT&T.

9 HEARING OFFICER: Okay. Good morning. This is

10 Steve Menton in my hearing room here in Tallahassee.

11 I have Bill Hyde, Bill Green, Carolyn Raepple, Paul

12 Nettleton, Lee Killinger and Tom Fitzgerald/Fitzpatrick.

13 MR. FITZGERALD: Whatever.

14 HEARING OFFICER: Okay. This hearing was set up,

15 I wasn't sure if anybody was going to be here or not, but

16 we set this up tentatively to address first of all the

17 motion for access to the Park that had been filed by the

18 Cooperative prior to the last hearing. We had left it

19 where they were going to try to discuss that issue and

20 see if they could come to some resolution.

21 And, secondly, to discuss any developments that

22 may have occurred as a result of the Water Management

23 District meeting scheduled for yesterday.

24 Let's start off with the easier one, on the access

25 issue. Where are we on that?

1 MR. BLANK: Mr. Hearing Officer, this is Bob Blank.

2 I have one matter I'd like to cover first, if I may.

3 HEARING OFFICER: Okay.

4 MR. BLANK: One of our clients, New Hope South,

5 Inc., has reached a settlement with the federal

6 government, and we were advised yesterday that they

7 will be withdrawing from the litigation. Appropriate

8 documents will be filed to effectuate that. I wanted to

9 just make you aware of that fact.

10 HEARING OFFICER: Okay. Any comments from any of

11 the other parties?

12 MR. NETTLETON: We're happy to hear it.

13 MR. FITZGERALD: It raises an interesting

14 conflict, but I haven't thought it through yet.

15 MR. COLE: Will copies of that settlement agreement

16 be provided to the other parties? This is Terry Cole.

17 MR. BLANK: Terry, we haven't been instructed one

18 way or another with regard to the agreement. I'm

19 assuming it will be available, but I don't know that for

20 sure yet.

21 MR. KILLINGER: This is Lee Killinger. Was it just

22 New Hope South?

23 MR. BLANK: It was not United States Sugar

24 Corporation. It's my understanding they have not reached

25 any agreement.

1 HEARING OFFICER: It was not the League?

2 MR. BLANK: Mr. Hearing Officer, I really don't

3 know what may happen with regard to the League.

4 At this point in time we haven't received instructions

5 on that.

6 New Hope is a member of the League, and we don't

7 know at this point in time how the League may proceed.

8 HEARING OFFICER: Okay. I guess, Mr. Blank, if

9 I'm understanding you correctly then it really shouldn't

10 change anything that we have going here.

11 You have one segment of your segments, segments

12 is a good word we have been using, one segment of your

13 clients who is going to be withdrawing, but the rest

14 of them will be proceeding at this point? Is that

15 correct?

16 MR. BLANK: Certainly United States Sugar

17 Corporation will be proceeding at this point. The only

18 one we have been advised will not be proceeding is

19 New Hope South.

20 HEARING OFFICER: Okay. Well, that's progress.

21 Okay. Well, we'll have to proceed ahead on our course

22 with the other parties who remain in the case, and as

23 those documents become available if there are any

24 issues that impact upon this case we'll just have to

25 take them up.

1 It sounds like to me there's a lot of

2 clarification that needs to occur, and we'll have to

3 proceed ahead and take clarification as the documents

4 and the agreement become more evident.

5 MALE VOICE: New Hope South is the only one out

6 now.

7 HEARING OFFICER: Okay. Well, we have some

8 progress.

9 MR. FITZGERALD: Mr. Menton, we could not hear the

10 last speaker and whoever it was.

11 HEARING OFFICER: I'm not sure who the last

12 speaker was. But as I understood the only comment

13 that was made was that New Hope South was the only

14 representative that was withdrawing at this time,

15 the only party that was withdrawing at this time.

16 Speaker, do you want to identify who you were?

17 He wants to remain anonymous.

18 Okay. Well, I don't think we have any choice.

19 I don't think it's going to impact at all on our

20 preparations at this point. We will just have to

21 deal with the withdrawal as it comes along, and I

22 think we'll just go ahead on the course that we're on

23 until somebody shows me it should be otherwise.

24 Okay, Ms. Raepple?

25 MS. RAEPPLE: Mr. Hearing Officer, with regard to

1 the Cooperative's request for entry into the

2 Loxahatchee Wildlife Refuge and the Everglades National

3 Park, Mr. Fitzgerald and I have begun our discussions

4 and have exchanged further information, but we have

5 also agreed that we will need another week to work it

6 out, and if we are unable to resolve it informally then

7 we will bring it to you next Friday.

8 HEARING OFFICER: All right.

9 MR. FITZGERALD: That's correct.

10 HEARING OFFICER: Okay. very good. We'll roll

11 that over until next week and see if you can work it

12 out.

13 Mr. Nettleton, any developments on your front?

14 MR. NETTLETON: Nothing significant, Mr. Hearing

15 Officer.

16 If anything the Governor and Lieutenant Governor

17 appeared at our Board meeting yesterday, and in

18 essence the administration reflects support for the

19 District's decision to go forth with litigation on

20 the current SWIM plan, so we are going forward. I do

21 have another matter I'd like to raise.

22 MR. COLE: Before you do that may I just on that

23 point address that? Mr. Hearing Officer, this is

24 Terry Cole.

25 HEARING OFFICER: Yes.

1 MR. COLE: I was at the hearing, Board meeting,

2 yesterday where the Governor and Lieutenant Governor

3 appeared and gave a presentation, and it was my

4 understanding that they also announced that they were

5 intending at an appropriate time to substitute another

6 SWIM plan for the current one, and that raises concerns

7 about preparation for this hearing and at what time it's

8 going to be substituted, and I would like some

9 indication from the government as to that timing.

10 HEARING OFFICER: You are saying the Governor

11 made the representation about substituting anew

12 SWIM plan?

13 MR. COLE: I believe it was the Lieutenant Governor

14 in response to a question from one of the Board

15 members.

16 At an appropriate time we would raise that.

17 HEARING OFFICER: Mr. Nettleton?

18 MR. NETTLETON: Mr. Killinger indicated he would

19 like to respond.

20 MR. KILLINGER: I also was in attendance at the

21 meeting yesterday with Lieutenant Governor and the

22 Governor, and it's my understanding the state's position

23 is that should adequate funding be obtained so that the

24 technical medicated plan, the one we have been

25 discussing in mediation, can be pursued and should

1 appropriate legislation be enacted so that that might

2 be possible, it might at that point be appropriate to

3 substitute that plan for the, the remedy portion of

4 that plan for the one we're presently working on.

5 But it's clearly contingent on a number of other

6 elements occurring which have not occurred and are not

7 guaranteed to occur. It's my understanding the

8 representation was to indicate that if those contingencies

9 do come to pass it might then be appropriate to take

10 action to substitute different locations or sizing of

11 stormwater treatment areas such as were contemplated, but

12 until those things come to pass there's nothing to

13 discuss about it.

14 HEARING OFFICER: Okay. Mr. Nettleton, do you

15 concur?

16 MR. NETTLETON: I concur. I would add it's always

17 been understood by our Board as they stated at various

18 Board meetings that simply because we go to trial on

19 the current SWIM plan does not mean they are forever

20 locked in and can never change that at any time in the

21 future.

22 The statute itself reflects there is a normal

23 review process, and they can be amended over time,

24 and as those develop, whether through legislation or

25 new technology and so forth, there's always a

2 possibility it may be amended at some time in the

3 future.

4 HEARING OFFICER: Well, these issues go back to

5 some of the things that we talked about at the last

6 hearing last week.

7 I do have concerns about getting everybody geared

8 up and spending a lot of money in preparation costs to go

9 to hearing on a plan that is withdrawn shortly before

10 the hearing is scheduled to start.

11 Now if that's the intent then I think that should

12 be stated up front so we can save a lot of time and

13 effort in advance.

14 That's one of the reasons why, you know, we

15 talked about a staging approach.

16 MR. NETTLETON: We obviously share that concern,

17 but as Mr. Killinger stated there is a lot of ifs

18 and things can still occur before anything like that

19 would be on the drawing board, and I don't expect

20 there will be that type of change before the hearing

21 date we're talking about here, if at any time in the

22 future.

23 I don't know when that will happen. I think a

24 problem is that the petitioners are challenging the

25 agency action taken in 1992, and what we're concerned

1 about and what everybody is concerned about is the

2 agency may take some additional action, and they

3 want to challenge the new draft before it occurs, and

4 you just can't do that. We have to go forward on

5 what we've got.

6 I understand the concern. We have the same

7 concern. We don't want to waste resources, but at this

8 point our direction is we're going forward with the

9 plan as stated until something changes in the future.

10 MR. FITZGERALD: I concur with Mr. Nettleton

11 and Mr. Killinger's comments.

12 MR. COLE: Excuse me, who is that?

13 MR. FITZGERALD: Sorry. That is Mr. Fitzgerald

14 speaking.

15 MR. COLE: I apologize for interrupting.

16 MR. FITZGERALD: That's all right, Terry. I

17 should have identified myself. When we're all sitting

18 here we lose sight of the little black box.

19 I, too, was at the hearing yesterday in West Palm,

20 and it was quite a group of attorneys, and also at the

21 two previous sessions of the Board just prior to

22 that, and I think we've got a pretty good reflection

23 from everyone about the Board's direction and the sense

24 of what the comments were.

25 I think the Governor was very clear, in fact he

1 laid it down in four words, hierarchy, litigate,

2 legislate, regulate, and mediate as the mechanism, a

3 four-point mechanism, to restore the Everglades

4 ecosystem.

5 Of course the choice of litigate is number one.

6 He was also advised by DEP of what that entails.

7 Clearly the intent is to go forward with the SWIM

8 plan as it exists, and I think my clients as the

9 United States are as sensitive as the others over

10 possible expenditure of taxpayer resources and time on

11 something that could be altered, but the potential for

12 legislative change could enure to our benefit as to

13 potentially our detriment if it was necessary before

14 a hearing.

15 It's not inconceivable that the Legislature could

16 be asked to render moot many of the issues that currently

17 face us, but there is no certainly, and there is no

18 guarantee.

19 I think we more or less have to play this one as

20 it lies and go forward on the plan as to the challenge

21 framed by the petitioners.

22 I don't see we have much choice under the

23 Marjory Stoneman Douglas Act.

24 HEARING OFFICER: Okay. Mr. Green?

25 MR. GREEN: Mr. Menton, the plan that we are

1 litigating actually was settled in 1991. It's almost

2 about three years old or two and a half.

3 What I'm hearing folks say is there may be

4 legislation that could moot the plan, change the plan,

5 and I can't represent this as correct, but I have

6 also heard the legislation options might include

7 changes of the burden of proof in this hearing.

8 It puts us in kind of an impossible position.

9 The Legislature meets in February and March this year

10 in Florida, so we have the unenviable process of

11 going forward with a two- to three-year-old plan, and

12 it isn't just the government resources. It's real

13 people that have different limitations on what they can

14 do, as well as the limitations that our resources that

15 will be used or Your Honor's in your good offices here

16 to deal with the controversy that will sort of stir

17 us in the air.

18 I don't know what you suggest to do about it.

19 We will do whatever you tell us to do. We have to

20 protect our clients' interests, but it's a grave

21 disappointment to be put in this position.

22 I just wish there were a way to deal with it more

23 fairly. We don't think it's fair, and we don't think

24 it's right, and I just wanted to say that for the

25 record.

1 MR. COLE: What we're hearing, again this is

2 Terry Cole, is that the plan is going to change,

3 if they are able to pass legislation, which is going to

4 occur in early April. I mean, that's your bottom line

5 of what we're hearing.

6 In addition they are going to adopt additional

7 regulations according to the Governor which will

8 deal with the relationships between farm discharges and

9 some of the receiving waters, as I understood it

10 yesterday.

11 If I understood it incorrectly, I apologize, and

12 hopefully Mr. Nettleton or Mr. Killinger will correct

13 what I'm saying.

14 If they do change the requirements for on-farm

15 treatments or things like that which are part of the

16 SWIM plan, that may totally moot the construction of the

17 STAs and what's done there if they intend to change

18 the laws or the applicable rules, to change the

19 relationship between the degree of treatment now

20 required on farm, which is 25 per cent as a bottom line.

21 If they change it to some other number that is going to

22 change the loading that goes to the STAs and changes

23 the whole inter-relationships within that SWIM plan,

24 the type of evidence that would be presented, and the

25 opinions that would be elicited from that information.

1 I represent some folks that have a limited

2 ability to participate in this proceeding. They are

3 doing limited discovery, trying to respond responsibly

4 to discovery requests, and they do not have the resources

5 to continue this is an active phase for a long time with

6 a moving target. That's why I raised this, because I'm

7 very concerned about what I have heard.

8 I think we have been told it's going to change.

9 It's going to change in terms of the inter-relationships

10 of all these factors that I just went through, and as

11 Mr. Green said, he said he heard, well, I heard it, too,

12 and I heard it from I believe it was the Governor.

13 If it wasn't the Governor, it was the Lieutenant Governor,

14 that they are going to attempt to change the burden of

15 proof in this proceeding, which goes to as far as

16 I'm concerned the way it's being handled to denial of

17 due process the way it's done now.

18 I'm very concerned about it, and I think we need

19 to deal up front with it, because the bottom line of

20 what you're hearing is it's likely to change. It

21 just depends on when it can be made as unlikely as

22 possible that legitimate concerns that the fruit and

23 vegetable farmers have that when they can get it in the

24 most advantageous position then they're going to change

25 it at that point in time, and that causes a lot of

1 concern if we are trying to get ready for a hearing in

2 April, and we know around about April the Legislature

3 ends, and then everything changes magically that

4 if they are successful in doing what I consider

5 unfair things that have been attempting to be done,

6 which is change them right in the middle of this process.

7 I think we ought to be told that up front if it

8 is what's being proposed, and the SWIM plan ought to be

9 fixed right now if they see problems, rather than

10 trying to go a roundabout way in another fashion.

11 It is in front of you, and you have jurisdiction

12 now, and it's an item you brought up before.

13 So I'm concerned about continuing down a path

14 that we really are being told probably leads to no where.

15 MS. PONZOLI: Well, this is Suzan Ponzoli. May

16 I speak, Mr. Hearing Officer?

17 HEARING OFFICER: Yes. Go ahead.

18 MS. PONZOLI: I think that we have been through

19 a massive resistance. This is not the only piece of

20 litigation on these issues.

21 There have been, I don't know, 37, 37 lawsuits

22 filed by the industry to resist this cleanup and

23 restoration program.

24 At the last hearing we argued staging and

25 bifurcation. Harm and causation in the United States'

1 view will not change, no matter what the remedy

2 will be, and also in our view whether you have a

3 mix of STAs of a certain size or a larger size and

4 BMPs of a certain amount or larger amount, the basic

5 remedial tools remain the same, the STAs and BMPs.

6 This idea I think that it's all in flex is somewhat

7 exaggerated, and I think the cure that the Hearing

8 Officer has suggested because of these rumblings out

9 there, that we split the harm and causation from the

10 remedy at the trial, would be one that would fix

11 many of the problems that perhaps the various

12 petitioners are addressing, because we can do whether

13 the Everglades is being affected by phosphorus or not

14 in April, and then if there's some significant change

15 in the remedies, the mix of the remedy, then we would

16 have that by the second trial.

17 So I don't think that there's any reason that

18 they need to be told today precisely what will

19 happen, nor that we are wasting our time and how

20 we're going forward.

21 MR. COLE: May I respond to that, Mr. Hearing

22 Officer?

23 HEARING OFFICER: Yes. Hold on. Let me hear

24 from Mr. Hyde.

25 MR. COLE: I apologize.

1 MR. HYDE: That's okay, Terry. I think that there

2 is an incorrect impression being fostered by the other

3 side, that we're trying to challenge a future action

4 not yet taken.

5 Our primary concern at this point is whether we

6 are going to be spending a lot of time, effort, money,

7 resources challenging a plan that may well be moot, and

8 more importantly if the new plan, whatever it comes

9 up with, new remedies that are more or less acceptable

10 to us, there may have been an unnecessary and expensive

11 exercise.

12 I think you are hearing here today about

13 proposed legislation which is in my mind revealing

14 something of the government's own discomfort with its

15 own case, but we're sitting here and also hearing

16 some people saying, "Well, we still can have a hearing

17 on causation, and leave remedy to a later date."

18 I think you heard earlier of a proposal made by the

19 Governor or Lieutenant Governor yesterday to

20 legislatively impose a 50 ppb interim standard.

21 Well, that interim standard will go a long ways towards

22 determining some of the other issues in the case,

23 about whether there's any harm, water quality

24 violations, and the like.

25 So there could well be even in that instance a

1 substantial revision of the whole water quality

2 causation case as well.

3 The government is trying to have its cake and eat

4 it, too. It wants to put its case forward to its

5 benefit, but it doesn't want to commit to anything in

6 any meaningful way so that we can be assured that we

7 are engaged in a process that has some logical result

8 from it.

9 I think it's unfair, fundamentally unfair, and I

10 think you should either force the government to

11 stick to something or send it back to the District and

12 tell them to make up their mind about what they are

13 going to do, as we have suggested repeatedly in

14 previous hearings.

15 HEARING OFFICER: Well, but the District is

16 telling me right now they are ready to go to hearing on

17 the plan they adopted back in '92. If they come in and

18 they make those representations to me, the fact that

19 there are discussions going on about legislative

20 changes or about other changes down the road, those aren't

21 before me.

22 There's always discussion about settlement

23 discussions, etcetera, but I'm faced with the

24 legislative directive to expedite this case.

25 The District is telling me to go forward. At some

1 point if they come in and tell me they're not

2 ready to go forward with the plan that they have

3 adopted, we have to go back and revisit and see how

4 that impacts the whole thing, and we have to evaluate

5 a lot of these.

6 But in the meantime I don't know what option I

7 have but to follow the legislative directive given me

8 to expedite. That's what I intend to do.

9 MR. COLE: Mr. Hearing Officer, if I can make a

10 suggestion. This is Terry Cole again.

11 That's why I asked if we could have a copy of

12 whatever agreement was reached between New Hope South,

13 Inc., has the Department of Justice signed this,

14 Ms. Ponzoli?

15 MS. PONZOLI: I have not seen the signed

16 document. I assume the Department of the Interior has

17 signed it.

18 MR. COLE: Has the Department of Justice signed

19 it, Ms. Ponzoli?

20 MS. PONZOLI: I told you I have not seen the

21 signed document, Mr. Cole.

22 MR. COLE: Mr. Hearing Officer, if there is a

23 settlement part of it, if it's based on the

24 mediated talks that were current before, I believe,

25 and I can only state my belief, that that's based upon

1 a mediated plan, and the cost of implementing a plan,

2 that represents a different plan than the one under

3 consideration here.

4 And if that is true, again we have already had an

5 agreement by some of the parties to implement a different

6 plan than the one that's currently at issue before

7 you, and if that has changed and that agreement

8 represents a concurrence on the plan that's before DOAH,

9 as opposed to the one that was addressed during mediation,

10 I would like to know that.

11 I believe that that is already going to be an

12 indication of some of the parties changing and agreeing

13 on another plan.

14 I think that gives us our indication there that

15 we're dealing with different sets of plans, and it's

16 impossible for private entities to continue to hit this

17 moving target until that target settles down. We need

18 an order of some kind settling this down for a

19 respectable period of time, like at least a year,

20 while we go through this process.

21 I believe there has already been an agreement to

22 implement a different plan by at least the Department of

23 Interior and New Hope South, Inc.

24 HEARING OFFICER: Well, Mr. Cole, let me ask you

25 this. First of all, are those plans necessarily

1 inconsistent? And even if they are inconsistent with

2 respect to certain strategy aspects, we get back to the

3 harm and causation issues Ms. Ponzoli raised earlier,

4 and aren't the conclusions regarding harm and causation

5 the same in both the original plan that was

6 adopted and the mediated plan?

7 I don't want to get into the specifics of the

8 mediated plan, because I think those are issues that

9 are beyond the scope of the litigation right now,

10 and that I have to stay away from, but as we discussed

11 in terms of staging or bifurcation earlier there may

12 well be some consistency between all of the various

13 options that are involved here as they relate to harm and

14 causation issues.

15 MR. COLE: You had, Mr. Hearing Officer, you

16 had started off earlier by asking aren't they the same.

17 My answer is, no, they are not the same.

18 HEARING OFFICER: Well, I didn't ask if they are

19 the same. I said are they necessarily inconsistent.

20 MR. COLE: They're inconsistent, I believe. Now

21 I have not seen the final document myself, so it's

22 difficult for us to address this this morning, and

23 that's why I'm stating that, based on believe it or not

24 a thorough evaluation.

25 But, for instance, if it has provisions for

1 increased BMP performance on farm, and it provides

2 for increases or incentives for increases beyond that

3 that's in the SWIM plan now, which is the 25 per cent

4 BMP, that changes in substantial amount the amount of

5 phosphorus going south and the causation question and

6 the remedies and how you address it.

7 HEARING OFFICER: Well, how does it change the

8 causation question?

9 MR. COLE: Because if you have less phosphorus

10 going south from particular parts, I mean, right now

11 you're going to be dealing with elements of where is

12 the harm coming from if they are changing within that

13 SWIM plan or within agreements to change the SWIM plan.

14 HEARING OFFICER: But you're talking about future

15 impacts, as opposed to current conditions.

16 MR. FITZGERALD: Mr. Hearing Officer, if I may for

17 a moment. This is Tom Fitzgerald.

18 With all respect to Mr. Cole, this is a real red

19 herring. The SWIM plan articulates strategy. It's

20 mandated by the Legislature of the State of Florida. It

21 has unanimously told the state agencies to implement

22 a mechanism for addressing a particular problem in the

23 Everglades ecosystem.

24 It really doesn't care what the source is of the

25 phosphorus, whether it be rain water, Lake Okeechobee

1 water, or anything else. They were told to take care

2 of the problem and essentially cure an ail of the

3 Everglades.

4 The only issue it would be germane to is one

5 that the other side says is not in the case at this

6 time, and that is the allocation of expenses for the

7 remediation of that problem. We are not in that issue.

8 It has been clear because of the limitations placed on

9 discovery that the ability to pay is not at issue.

10 They have stated that repeatedly.

11 If we're not addressing the allocation of costs,

12 the remediation plan itself is somewhat distinguished not

13 from the causation of a problem in the Everglades, but

14 the actual individual source, and may in fact not

15 be an issue in this case. That's something we are

16 looking through and sorting out based on the legislation.

17 The plan on the table now is the one we deal with.

18 No one has suggested that the District or DEP has signed

19 into this agreement with New Hope South. That being

20 the case, the proponents of the plan required

21 under Florida law to have something on the table have

22 told you they are prepared to go forward with the plan

23 as it exists. Whatever may emerge, whatever discussions

24 may be going on, you and we and the other parties are

25 not in the position to dictate to the executive or the

1 Legislature of Florida what they can and cannot do in

2 attempting to exercise their public trust. We go

3 forward with what we've got under the law. We go to

4 hearing.

5 If something changes, we cope with it. I don't

6 like that in the sense that we may devote a great deal

7 of work, but it goes with the turf.

8 MR. COLE: It's my understanding, Mr. Hearing

9 Officer, that this is a de novo hearing under 120 and

10 a whole line of cases from Cappeletti on, and under that

11 we're going to be dealing with on your question

12 relating to causation with the information as it exists

13 when we go to hearing, and the questions then will

14 relate to if the phosphorus is the issue that is put

15 forth, where is it coming from.

16 I think you're going to find the facts will show

17 there have been drastic changes during the past year to

18 year and a half, and we're going to be dealing with

19 where it's coming from today.

20 HEARING OFFICER: I'm not sure I'm with you.

21 MR. COLE: In other words, what I think you are

22 going to find that the facts will show is that the whole

23 routing of water, where the phosphorus is coming from,

24 again this will be in my opinion, I guess this should be

25 considered argument, I'm sure you will since one of the

1 attorneys is doing it, is that the water is coming in

2 different quantities and different qualities than what

3 it was when that SWIM plan was first prepared.

4 In addition, this water could be moved around

5 somewhat at will by the Water Management District or

6 the Corps of Engineers against some of the governmental

7 parties that have been represented here by the attorneys

8 for the state or for the government, and these

9 percentages that make up again, and I have said,

10 the quantities and qualities have changed drastically,

11 we maintain, so what might have been an issue two

12 years ago may not be today.

13 Also the parties can agree that their going to

14 decide to not route water to the Atlantic Ocean or

15 to the Gulf of Mexico and send it south. If they do

16 that, that changes what's happening and what we have

17 today.

18 This being a de novo hearing, I believe we're

19 going to be taking into account what happens, and if

20 they have made an agreement that represents an

21 agreement to change the makeup of water between what

22 comes off from the EAA or what comes south from the

23 lake, that changes the very thing we're trying to do

24 in the hearing and makes it very difficult for us to

25 prepare.

1 That's what I was really getting at when I was

2 trying to find out who was agreeing to this, what

3 parties are agreeing to it, because this can represent

4 a major change, and it's going to change how we prepare

5 for the hearing if it substantially represents a

6 change in the operation of the system, which I believe

7 is what the bottom line is that it does.

8 HEARING OFFICER: Well, but, Mr. Cole, let me

9 just ask you a couple of things. Fist of all, how does

10 that change some of the assumptions and conclusions

11 set forth in the SWIM plan and which have been challenged

12 by various petitioners in this case regarding the

13 existence or the current levels of nutrients that are in

14 the Everglades and finding their way down there and the

15 source of those nutrients?

16 MR. COLE: Okay, that's a good way to address it.

17 If these changes were being made and there's a decision

18 that we're not going to send water east and west but

19 we're going to send it south, that means that there

20 may very well be much more nutrients coming from

21 Orlando south through the lake and down through there.

22 There will be more quantities of water and more loading

23 of nutrients if that is true.

24 HEARING OFFICER: That's a future impact.

25 MR. COLE: It's, I don't believe it's a future

1 impact. I believe the decision has been made, and you're

2 just seeing part of it being memorialized in that

3 agreement.

4 I believe it has already happened this past year,

5 and we will demonstrate that.

6 HEARING OFFICER: We can go on and on.

7 MR. COLE: I'm not trying to beat a dead horse,

8 and I apologize for bringing this up, but this is such

9 a moving target.

10 For instance, we don't know if the state or the

11 District are going to sign onto this agreement and

12 onto a different plan or not. It would be helpful for

13 us if they knew whether or not they were if they

14 District and DEP could let us know that, and I still

15 haven't heard whether the Department of Justice if going

16 to approve that or not. I heard the Department of

17 Interior signed it.

18 This is an important new direction being taken

19 if this is being agreed to by the parties, and it's

20 going to change the facts in the case because of the

21 way the water and therefore the phosphorus, because the

22 phosphorus goes with the water.

23 We need to know that in order to prepare, and

24 I'm not trying to be disrespectful, and I'm not trying

25 to continue on a point, but these are very important

1 issues as to what plan we're preparing for, and we

2 don't know that this morning.

3 We think it's probably going to change in a

4 couple of different ways, not only in terms of

5 what's memorialized there but in terms of the

6 legislation.

7 I don't know how we prepare for something when

8 we think that's about to happen. The only way I know

9 is to bring it up and try to explain it to you.

10 Since we haven't seen a copy of it ourselves

11 fully, to be honest I had seen the draft, I hadn't seen

12 a signed copy either, I think that we've got to address

13 that in some way so we don't waste our time and all

14 of our clients' money, whether it's government or

15 private.

16 HEARING OFFICER: We can go on and on about this

17 for a long time. I'll just give everybody a brief

18 opportunity to state their positions, and then we'll

19 move forward. Mr. Green?

20 MR. GREEN: Thank you. Very briefly. I would ask

21 you to, I think you're right. I think this plan is

22 lodged in DOAH, and unless it's changed it's the one

23 plan we're going forward with, and we don't have any

24 suggestion about how to deal with that differently.

25 But the second thing that I would urge you not to

1 give into is because of this situation, just to make it

2 very, very clear, we still believe that it would be a

3 very bad idea to try to segment this hearing.

4 We don't think it's divisible. The plan before

5 you will not work. We will prove STAs are a horrible

6 idea, and they never would have been agreed to today.

7 It goes to the entire credibility of the plan. We

8 think they're trying to change that.

9 Without debating it, we think it gets to

10 credibility and isn't a simple question.

11 When the witnesses come in and testify, "It's my

12 opinion," this and that, we believe you'll need to

13 know when they said that and why they said that and

14 what they think should be done about it. That

15 has to be painted, and it can't be diverted to the

16 remedy stage.

17 You're going to have to judge, Your Honor, where

18 the truth comes down. They are inexplicably

19 intertwined, and if we have to go forward with this

20 wasted effort we would urge you to keep this baby

21 together. That's our best hope in ensuring we have the

22 due process that we feel we are entitled to.

23 And lastly again I think Bob Smith raised some

24 very good points in his memorandum last week, that we

25 would urge you to consider in the event if you have any

1 real interest in segregating that. We would urge you

2 not to do it.

3 HEARING OFFICER: Mr. Hyde?

4 MR. HYDE: Very briefly. I would like to respond

5 to your question earlier as to whether there was

6 inconsistency between the adopted SWIM plan and the

7 so-called technical mediated plan. There is. There's

8 a fundamental difference. In a nutshell I could

9 classify it as follows.

10 MR. FITZGERALD: Mr. Hearing Officer, I would

11 object to this.

12 HEARING OFFICER: Let me hear his objection.

13 MR. FITZGERALD: We are not here to litigate

14 the case. This is a status conference. To the extent

15 a lot of one-sided recitation of what the facts show

16 or what is not really material, it's not material today.

17 If this is in their petitions, fine. We can listen

18 to it throughout the hearing and get learned opinions

19 instead of the expert scientific opinions of the

20 lawyers, with all deference to Mr. Green's being a

21 scientist. This is not the place for it.

22 HEARING OFFICER: Well, I'm going to give him an

23 opportunity to vent his frustration, because no one

24 hand you have, you and the other proponents are telling

25 me, "Let's go to hearing on the plan," and from what

1 I'm hearing from you and I'm hearing from a lot of

2 other sources the plan is not going to be that.

3 I don't have any choice but to go forward with

4 the plan.

5 MR. FITZGERALD: The only solution to that,

6 Mr. Hearing Officer, is they don't want to go on this,

7 then withdraw their petitions. That's what 120 says.

8 HEARING OFFICER: I don't think I have any option

9 but to go forward with the plan, but I'm going to at

10 least give him an opportunity to vent his frustrations.

11 MR. HYDE: It's more than simply venting

12 frustrations. I think you have heard from the other

13 side something to the effect that there's no real

14 difference between the technical, mediated plan and

15 the adopted plan in terms of causation. That's why

16 I think Ms. Ponzoli suggested we should go forward, at

17 least on the causation issues, if not more.

18 That's simply not true. The technical plan recognizes

19 a central role that hydroperiod plays in Everglades

20 related issues.

21 The SWIM plan focuses almost entirely on phosphorus.

22 They are two fundamental differences.

23 We think the technical plan is more correct in

24 that respect. It does recognize the hydroperiod. It

25 is a central element. That's why it's important to

1 know there is a distinction here when you're talking

2 about even causation related issues, between the

3 adopted plan and the technical, mediated plan.

4 That's all I have to say. Thank you.

5 HEARING OFFICER: Certainly if there comes a point

6 when there is a modification of the amended plan or

7 something like that, then we can sit down and figure out

8 what that means and how it impacts upon this proceeding,

9 but I don't think that I have any option at this time

10 but to go forward with the litigation and do it in a

11 manner that gets us ready to go to hearing as soon as

12 possible.

13 We have had a hiatus of approximately nine months

14 during the mediation process over the last year. I don't

15 think I can put it on hold any longer. I think it needs

16 to be in a position to go to hearing.

17 The District and the federal government tell me

18 they're going to hearing on the original plan adopted

19 in '92, and that's what we need to set up our discovery

20 schedules for.

21 If there are legislative changes, we will have

22 to deal with those as they come up.

23 If there are other changes in strategies by the

24 District we will deal with those as they come up.

25 It is not, I don't think it is my role to do

1 anything other than to get this case in a posture to go

2 to trial. That's the way we have to proceed.

3 MR. COLE: Mr. Hearing Officer, this is Terry

4 Cole. Would it be possible for us to get a response

5 from the parties for what this new agreement, what

6 they believe it does for our response in preparation?

7 I'm not doing this to be argumentative. I'd like

8 to know if there is an agreement to go with another

9 plan, for instance if the Department of Interior is

10 about to change their position on that, if they have

11 signed another agreement.

12 HEARING OFFICER: My sense of it is that as we have

13 heard this morning several of these attorneys are

14 still not sure exactly what was agreed to and haven't

15 seen the agreement, and aren't clear how that

16 situation fits into the whole scheme of things. It's

17 probably not appropriate to do that today.

18 We can discuss that next week. We have a hearing

19 set up next Friday.

20 By that time hopefully the agreement will be in

21 wide circulation, and everybody will have a clearer

22 understanding of what it means and how it impacts upon

23 the case.

24 I am obviously interested to hear whether or not

25 the agreement that was reached with New Hope South is

1 based upon the mediated plan, and if so how that

2 impacts upon the decision to go forward with the original

3 adopted plan, if it does at all.

4 But certainly the points you raise are valid ones

5 that we can take up at the next hearing.

6 Everybody needs an opportunity to get a hold of

7 that agreement and digest it, and we can address that

8 next week.

9 MR. COLE: Thank you.

10 HEARING OFFICER: Okay.

11 MR. NETTLETON: Mr. Hearing Officer? Just a

12 couple of comments.

13 Again I would reiterate the SWIM plan is in

14 place, and it is at issue.

15 What I heard Mr. Hyde say is something surprising.

16 He suggested they are in favor of the plan, and if they

17 want to advocate that as a better route, so be it.

18 HEARING OFFICER: I don't think that's exactly

19 what he said.

20 MR. FITZGERALD: I heard it the same way.

21 MR. NETTLETON: With regard to the agreement with

22 Interior, I'm not familiar with the terms of that,

23 and it was not presented to our Governing Board.

24 I can tell you so far as coming back with it, I don't

25 know the Governing Board's schedule, so I will have a

1 different direction.

2 The Governing Board has not signed off on

3 that. I don't know that it will change anything between

4 this week and next week.

5 As far as the legislation and the moving target,

6 that's not something that we can address here. That's

7 the case in any litigation. I agree the only remedy

8 would be if the petitioners are so certain these things

9 are going to be useless they can withdraw their

10 petitions, file their petitions anew when some action

11 is taken if they want to challenge it.

12 If they are not willing to do that, they have

13 to go through the process. That's what we're willing to

14 do.

15 HEARING OFFICER: Okay. Let's, I guess that will

16 end this for today. I don't think there's anything

17 else. Oh, you had one other issue?

18 MR. NETTLETON: Yes, Mr. Hearing Officer, we had

19 filed a motion on Monday for a prehearing conference and

20 order, essentially tracking what Mr. Reid had raised

21 last week, and you had indicated we would be having a

22 hearing on February 11th.

23 We wanted to raise it today because of the time

24 lines involved to ensure that the format we go

25 forward on, and I don't know if there are objections

1 from the petitioners on the format we have suggested.

2 I see head shakings, so I'm sure there are.

3 But I don't want to keep waiting and waiting, and

4 then we're down to a week before, and then we don't

5 have time to file things.

6 HEARING OFFICER: I received your motion, and they

7 have seven days within which to respond, so their

8 time to respond has not run. I did not view it as

9 ripe today.

10 I figured we would take that up next week, since

11 that's really when we have all of the discovery issues

12 and some of the other preliminary matters set to

13 resolve.

14 So I think the appropriate time would be to discuss

15 it next week.

16 There are useful suggestions in the motion. I

17 would be interested to hear what your objections are, and

18 I'm sure I will.

19 MR. GREEN: Mr. Menton, we are attempting to

20 develop a consolidated response to expedite it.

21 We will try to file it as soon as possible. Our goals

22 are your goals, to move this thing along expeditiously.

23 HEARING OFFICER: And certainly if you have

24 particular aspects of Mr. Nettleton's proposal that

25 you don't agree with, maybe he's willing to live with

1 your suggestions rather than get back into a motion

2 practice and everybody writing responses.

3 I don't think that's a productive use of anybody's

4 time. We have discovery we need to conduct, and so see

5 if you can work out some of those matters without

6 having to get into major motion practice.

7 MR. NETTLETON: We have a meeting scheduled on

8 Tuesday to continue with the deposition scheduling.

9 Perhaps we could discuss it at that time.

10 HEARING OFFICER: Okay.

11 MS. PONZOLI: Mr. Hearing Officer, this is Suzan

12 Ponzoli. I'd like an opportunity to speak, I don't

13 need long, either now or later.

14 HEARING OFFICER: All right, I'll give you an

15 opportunity to speak, and I did want to make a couple

16 of additional observations.

17 As I had indicated at the last hearing in the

18 development of the discovery schedule and the

19 preparations for the hearing that we have scheduled to

20 begin April 25th, I want the parties to make sure that

21 we were able to complete the discovery related to those

22 witnesses that are clearly going to be focusing on the

23 causation matters and the nature of the problem.

24 I have not at this point resolved how we will

25 segment the hearing, if we will segment it.

1 I understand Mr. Green's concerns and some of the

2 other concerns voiced last time.

3 But with some of the other matters that are

4 hanging around there is a possibility there could be

5 some change in the strategies.

6 I think with that in mind I want to make sure that

7 we resolve or complete the discovery of these issues

8 that are unlikely to change, and that will leave us

9 the option of going to a segmented or staging

10 hearing if we need to.

11 So I just wanted to make sure the parties in

12 development of the discovery schedule and in their

13 prehearing efforts focus on those issues, so that

14 option is out, and so we can discuss it if we need to

15 in the future. Okay, Ms. Ponzoli?

16 MS. PONZOLI: Well, the anxiety in this case and

17 the rumor mill are so great I wanted to make a certain

18 point clear.

19 The agreement that was referred to by several

20 people has been approved by the federal agencies.

21 While I have not seen this document, it is my very

22 clear understanding the Department of Justice has

23 approved that agreement, so I don't want somehow

24 people to go away and say, "It's only the Department of

25 Interior's agreement." It is my understanding it is the

1 United States' agreement, approved by the federal

2 agencies.

3 And so if I can shut down one more rumor I

4 would certainly want to.

5 HEARING OFFICER: Okay. All right. Any other

6 things we need to talk about today?

7 All right. We've got a hearing scheduled for

8 next Friday, the 21st, 10 o'clock. We can set it up

9 the same way. Those who want to be here can be here.

10 We can use the conference call for the other guys.

11 Mr. Green has been very consistently willing to

12 set it up, so his poor secretary is deserving of a

13 medal.

14 MR. GREEN: We'll be happy to do that, Your Honor.

15 HEARING OFFICER: Okay, is 10 o'clock fine with

16 everybody? All right. 10 o'clock next Friday.

17 Thanks.

18 (WHEREUPON, THE HEARING WAS CONCLUDED AT 10:50 A.M.)

19 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated; that

9 my shorthand notes were thereafter reduced to typewriting

10 under my supervision; and the foregoing pages, numbered page 1

11 through page 44, are a true and correct record of the

12 proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 18th DAY OF JANUARY, A.D. 1994, IN

17 THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

STATE OF FLORIDA )

19 SS

STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 18th day of January, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091