183
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 RANDALL L. ARMSTRONG
24 February 12, 1993
25
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1
2 DEPOSITION OF RANDALL L. ARMSTRONG
3 Taken in the above-styled cause, pursuant to
4 notice, at the Phoenix Environmental Group, Inc., 911 East
5 Park Avenue, Tallahassee, Florida, on February 12, 1993,
6 commencing at 8:30 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
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Florida Sugar Cane League,
Inc., United States Sugar Corporation and New Hope
3 South, Inc.:
4 William L. Hyde, Esq.
Peeples, Earl & Blank
5 215 South Monroe Street
Suite 350
6 Tallahassee, FL 32301
7 On behalf of the Intervenor United States of America:
8 Steve Bartell, Esq.
U.S. Department of Justice
9 Environmental and Natural Resources Division
General Litigation Section
10 601 Pennsylvania Avenue, N.W.
Fifth Floor, Room 5613
11 Post Office Box 663
Washington, D.C. 20004-0663
12 (202) 272-4248
13 On behalf of the Intervenor Department of Environmental
Regulation:
14
Keith C. Hetrick, Esq.
15 Donna LaPlant, Esq.
Assistant General Counsel
16 State of Florida
Department of Environmental Regulation
17 Twin Towers Office Building
2600 Blair Stone Road
18 Tallahassee, FL 32399-2400
19
20
21
22
23
24
25
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1 INDEX TO WITNESS
2 RANDALL L. ARMSTRONG Page
3 Examination (continued) by Mr. Hetrick 188
4
5
6
7 INDEX TO EXHIBITS
8 No. Marked
9 4 202
10 5 217
11 6 223
12 7 226
13 8 283
14 9 290
15 10 297
16 11 299
17 12 303
18 13 314
19 14 318
20 15 323
21 16 323
22 17 332
23 18 337
24 19 354
25
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1 S T I P U L A T I O N
2 IT IS STIPULATED AND AGREED by and between counsel
3 appearing for the respective parties as follows:
4 THAT the deposition of RANDALL L. ARMSTRONG was
5 taken 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
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1 D E P O S I T I O N
2 Whereupon,
3 RANDALL L. ARMSTRONG
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. HETRICK:
9 Q Mr. Armstrong, I believe you have in front of you
10 Rule 17-4.242.
11 A Yes.
12 Q If you could turn to 17-4.242, for your reference,
13 subsection (2), this deals with Outstanding Florida Waters.
14 A Which subsection?
15 Q Subsection (2) --
16 A Yes.
17 Q -- would be the operative one we are going to work
18 with here.
19 A All right.
20 Q Are you familiar with this subsection on
21 Outstanding Florida Waters?
22 A Yes, I am.
23 Q Did you have any part in the development of this
24 section?
25 A Some.
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1 Q When did it initially come about?
2 A I believe in 1979.
3 Q First, can you tell me what the extent of your
4 involvement was in the development of this subsection?
5 A It was fairly limited at that point in time. I
6 think, as I mentioned yesterday, I was -- in a sense, I was
7 a user at that point in time, in that I was in a technical
8 assistance group that was involved in the use of the
9 Department's water quality standards or implementation of
10 the standards, and a lot of the discussions that went on
11 with our group centered around how would you use and apply
12 this information or this particular language that was being
13 drafted. I don't recall that I drafted any of this
14 proposed language for this section.
15 Q Can you explain to me in your own terms what the
16 concept of Outstanding Florida Waters is?
17 A The section -- this section of the rule
18 essentially sets up a higher degree of protection for
19 waters that are determined to be worthy of such additional
20 protection, either because of their particular attributes
21 or uses by the public.
22 Q What are the requirements for OFW designation?
23 A Well, the Environmental Regulation Commission has
24 to make a finding that the waters are worthy of such
25 designation, as I mentioned, either because of the
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1 attributes of a particular water body or the uses to which
2 the public puts those water bodies.
3 Q Maybe you can tell me, explain to me what the
4 attributes are that they might --
5 A Well, it could be the particular quality of those
6 waters, it could be of an outstanding quality or have
7 outstanding, if you will, biological resources that the
8 Commission feels are worthy of additional protection.
9 Q What kinds of uses by the public might qualify for
10 such a designation?
11 A Well, one obvious one would be recreation, waters
12 that are -- may not have exceptional quality or, in fact,
13 they may be, but they may be highly used by the public for
14 recreation, for water sports, for fishing, activities such
15 as those.
16 Q What are the operative standards for OFW?
17 A Basically, that the quality of those waters should
18 be protected as is or as they existed when the waters were
19 designated and should not be allowed to be lowered to any
20 significant degree.
21 Q If you would look at the subsection under (2), you
22 will see (2)(a), and then number 2 at the bottom where it
23 says the proposed activity or discharge is clearly in the
24 public interest, and then beyond that is little a,
25 paragraph a and little paragraph b. What does it mean --
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1 do you have that section?
2 A Yes, I do.
3 Q What does it mean for a Department permit to be
4 issued or complete on the effective date of an OFW
5 designation?
6 A Well, this particular section speaks to
7 activities, discharges, for example, that are already
8 permitted by the agency when the waters are designated, or
9 activities for which a permit has been applied for and the
10 application has been deemed complete by the Department.
11 Q What would be the effect of this particular
12 provision on a discharge that did not meet the requirements
13 or these requirements?
14 MR. HYDE: I am not sure I understand the
15 question, so I am going to object to its form. Which
16 section are you referring to?
17 MR. HETRICK: Sub (a) and (b), the ones we have
18 been discussing.
19 THE WITNESS: I am a little unclear on the
20 question, too. Maybe if you could restate it?
21 BY MR. HETRICK:
22 Q Let me just go down to sub (b), if you will, where
23 it begins with, "For the purpose of this section --"
24 A Yes.
25 Q " -- the term," quote, "`existing ambient water
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1 quality,'" unquote, "shall mean the better water quality of
2 either that which could reasonably be expected to have
3 existed for the baseline year of an Outstanding Florida
4 Water designation, or," number 2, "that which existed
5 during the year prior to the date of permit application."
6 Then, "It shall include daily, seasonal and other
7 cyclic fluctuations, taking into consideration the effects
8 of allowable discharges for which Department permits were
9 issued or applications for permits were filed and complete
10 on the effective date of designation."
11 Have you interpreted this provision?
12 A Yes.
13 Q On how many occasions?
14 A I really couldn't tell you. I would say
15 frequently or numerous times.
16 Q Can you explain to me what this provision means?
17 A Basically, this provision refers to the quality of
18 the water within the Outstanding Florida Water that the
19 Department should strive to protect. It directs the
20 Department to establish as a goal, if you will, a water
21 quality goal or standard for that water body the quality
22 that existed during the baseline year, which is given to be
23 the year prior to designation, or the existing quality for
24 the year prior to the date of a permit application,
25 whichever is better.
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1 Q What level of effort would be required to be used
2 by the Department to use, quote, "the best scientific
3 information available"? What would they need to undertake,
4 what kinds of analysis?
5 A Maybe nothing. It would depend on how much
6 information was available as to what additional work the
7 Department might have to do or an applicant might have to
8 do, and the information may exist or may not.
9 Q What kinds of information?
10 A Primarily water quality information, since that is
11 really what this subsection speaks to.
12 Q Is 1979 the baseline year for all Outstanding
13 Florida Waters?
14 A No, it is not.
15 Q There are different baseline years?
16 A That is correct.
17 Q Are you familiar with what the baseline year is
18 for the Loxahatchee and Everglades National Park?
19 A I believe that both of those waters were in -- I
20 will say the original designation in 1979. I believe, as I
21 mentioned yesterday, I am not sure if any changes have been
22 made over the years to the boundaries of those OFWs.
23 Sometimes there are additions and modifications to the
24 boundaries during the course of rulemaking, and I couldn't
25 speak to whether the same exact designations are in place
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1 or not as there were in those early years.
2 Q In the analysis of this provision, what does it
3 mean by the term, "it shall include daily, seasonal and
4 other cyclic fluctuations"?
5 A Water quality is not a static trait, it is
6 dynamic. Many of the parameters that can be used to
7 characterize a water body change in a daily, seasonal or
8 other cyclical fashion, and the rule directs the Department
9 to consider those changes.
10 A good example might be if a baseline year was
11 being analyzed that happened to be an extremely dry or
12 extremely wet year or perhaps an extremely cold or warm
13 year, the results of that baseline study might be somewhat
14 unusual, given the normal characteristics of the water
15 body, and it just directs the Department to consider those
16 factors in determining baseline quality.
17 Q Do you know how daily, seasonal and cyclic
18 fluctuations were taken into consideration with regard to
19 the designation of the Loxahatchee as an Outstanding
20 Florida Water?
21 A The designation of the water doesn't necessarily
22 involve the documentation of the baseline quality. In
23 fact, as it mentions, the existing quality the Department
24 would have to consider might be the year prior to receipt
25 of a permit application, so the designation is based on the
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1 attributes of the water --
2 Q Right.
3 A -- the information that is available to the
4 Department and the Environmental Regulation Commission for
5 designation, and in all cases the baseline study for the
6 year prior to designation was not done.
7 Q With respect to the Loxahatchee, how did existing
8 ambient water quality take into consideration daily,
9 seasonal and other cyclic fluctuations?
10 A I don't know.
11 Q How about for the Everglades National Park?
12 A I don't know.
13 Q If we continue on after that, it says, "It shall
14 include daily, seasonal and other cyclic fluctuations,
15 taking into consideration the effects of allowable
16 discharges."
17 What is meant by the term, "allowable discharges"?
18 A I guess the opposite of that would be the
19 discharges that were illegal or should not have been
20 allowed by the Department during that period.
21 Q How would one determine whether a discharge would
22 be allowable during that period?
23 A Well, I think it would be a matter of determining
24 the types of discharges for which the Department would have
25 required a permit in that period, followed by a
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1 determination of whether a continuing discharge that was
2 required to have had a permit did, in fact, have such a
3 permit or have an application on file at the time of
4 designation.
5 Q What does it mean by the term "Department permit"
6 there?
7 A It seems pretty self-explanatory. I am not sure I
8 understand your question.
9 Q It is a DER permit?
10 A Yes.
11 MR. HETRICK: Could we take a two-minute recess?
12 (Brief recess.)
13 BY MR. HETRICK:
14 Q Mr. Armstrong, back to that subparagraph (c) that
15 we have been working on, how would an existing discharge on
16 the date of designation be handled in determining ambient
17 water quality?
18 A How would it be handled?
19 Q Yes, or evaluated?
20 A I think the first question would be whether or not
21 that discharge would have required a Department permit.
22 That is what the test speaks to, to have a permit or an
23 application on file.
24 There were many activities that were going on that
25 were going on when waters were designated that didn't
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1 require permits, but if it required a permit, then the
2 question would be whether that permit had been issued or
3 whether an application was complete for a new activity.
4 Q What if the activity was one that did not require
5 a permit?
6 A I don't believe the grandfathering provision would
7 speak to that. If it existed but did not require a permit,
8 then it would not in a sense be illegal and, therefore, the
9 quality that existed would take into consideration that
10 activity.
11 Q How would a discharge that had a permit be
12 evaluated in defining or determining existing ambient water
13 quality?
14 A Well, for purposes of this OFW section, if it was
15 an existing discharge and it had a permit, then that, then
16 the effects of that discharge on a water body would be
17 included in the baseline quality of the water body for
18 purposes of regulation by the Department.
19 Q So it would, in determining the existing ambient
20 water quality, then it would include the effects of the
21 discharge and not exclude the effects of the discharge?
22 A The permitted discharge.
23 Q The permitted discharge?
24 A That is correct.
25 Q What about for unpermitted discharges?
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1 A Well, I think the question was whether or not it
2 should have required a Department permit. As I said, there
3 were discharges when many of the OFW designations were done
4 that did not need a Department permit. They were perfectly
5 legal, and they were included in that water quality.
6 If the Department would have required a permit and
7 the permit existed, then the quality should have been
8 included in the background determination of the quality of
9 the OFW.
10 Q Then are you saying that that, in effect, would
11 mean they would look at -- if it was not a permitted
12 discharge and it should have been permitted, then they
13 would look at whether or not it was an allowable discharge?
14 A No. If it did not have a permit and it should
15 have been permitted, then -- I will put this -- if it
16 should have had a permit and did not, then it should not
17 be -- its effect should be removed from consideration of
18 the background work, the discharge should have been brought
19 into the permitting process, whether it would have required
20 it to be upgraded or not would be a separate test, or
21 removed, in fact.
22 Q Okay.
23 A I don't think the rules serve to grandfather in
24 unpermitted activities for which a permit should have been
25 required.
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1 Q Let's look at sub (d) for a moment. It is the
2 next one.
3 MR. HYDE: Just to be clear for the record, you
4 are talking about 17-4.242, paren (2), paren (d)?
5 MR. HETRICK: That is correct.
6 MR. HYDE: Okay.
7 BY MR. HETRICK:
8 Q Beginning with Rule 17-4.242, parens (2), if you
9 could just review that paragraph, referring to renewal
10 permits?
11 A I lost it.
12 Q Just paragraph (d).
13 MR. HYDE: Are you referring to a specific clause
14 in paragraph (d)?
15 BY MR. HETRICK:
16 Q I can read it. It is only five lines.
17 "Rule 17-4.242(2) shall not apply to any dredge or
18 fill activity or any discharge to an Outstanding Florida
19 Water permitted by the Department or for which a complete
20 permit application was filed on the effective date of an
21 Outstanding Florida Water designation, nor shall it apply
22 to any renewal of a Department permit where there is no
23 modification in the dredge and fill activity or discharge
24 which would necessitate a permit review."
25 Do you have that?
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1 A Yes, I do.
2 Q Could you just explain the meaning of that section
3 to me?
4 A Basically, what this subsection does is allow the
5 continuation of activities or discharges for which a permit
6 has been issued or had been issued on the effective date of
7 the rule or an application, complete application was on
8 file, as long as there are no modifications to the activity
9 or discharge that would necessitate a review of a new or
10 modified permit, for the purposes of a renewed or modified
11 permit.
12 Q So it contemplates activities that have permits
13 on the date of OFW designation or have complete permits on
14 that date?
15 A Well, it is discussing activities or discharges
16 that have permits or complete applications on the date of
17 designation. I think you used the term "contemplates." It
18 is speaking to that particular case.
19 Q One last thing, going back to sub (c), where we
20 were talking about allowable discharges, would you consider
21 allowable discharges to apply -- well, just to put it
22 bluntly -- to mean the same as having that permit if, in
23 fact, the actual permit is not on record when activity
24 should have been permitted? Maybe I asked you that
25 question.
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1 MR. HYDE: I am going to object to the form of the
2 question. I didn't understand it.
3 THE WITNESS: Please restate it if you could. I
4 am confused, also.
5 BY MR. HETRICK:
6 Q If you look at the term "allowable discharge" in
7 sub (c) -- I am going to strike that.
8 Well, let me just ask you, is allowable discharge
9 the same as having a permit, equivalent to having a
10 permit?
11 A I think for purposes of the language in sub (c)
12 that you are referring to, the sentence is speaking to
13 discharges for which a permit would be required or an
14 application is complete, but there are discharges and
15 activities that go on in waters that don't require permits,
16 and I don't think this subsection speaks to those.
17 There are many activities that are going on, man-
18 induced activities that the Commission has to take into
19 account in deciding whether to designate or not designate.
20 That doesn't mean that those activities are illegal because
21 they don't have a permit. One simply wasn't required. It
22 might be required in the future or it might not, but I
23 don't think that is what this subsection is speaking to.
24 MR. HETRICK: Okay. I will offer this as Exhibit
25 No. 4.
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1 (Whereupon, Exhibit No. 4 was marked for
2 identification.)
3 BY MR. HETRICK:
4 Q If you could review that document just briefly.
5 Do you recognize the document?
6 A Vaguely.
7 Q I guess my general opening question would be, can
8 you tell me what was going on in this document?
9 MR. HYDE: Could we have just a moment to review
10 this document?
11 MR. HETRICK: Sure.
12 MR. HYDE: It is the first I have seen it. Okay.
13 BY MR. HETRICK:
14 Q I just have some general questions about this, and
15 my first is, what was going on in this?
16 A The Department was involved in consideration of a
17 designation of a large portion of the waters in the Florida
18 Keys as Outstanding Florida Waters. The issue had come up
19 concerning the exemption of certain areas from designation,
20 and we were dealing with that issue as a general policy,
21 not just for the Keys, but omitting certain areas from
22 designation had been done by the Commission, and certain
23 other designations, and we were discussing options
24 concerning consideration of that policy, or at least those
25 types of recommendations to the Environmental Regulation
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1 Commission.
2 Q On page 5 of this document, it refers to Key West
3 Sewage Outfall. Can you tell me specifically what was
4 going on with respect to Key West?
5 A The City of Key West operated a sewage collection
6 system that discharged essentially raw sewage south of the
7 city of Key West into the Atlantic Ocean.
8 Q Did the Key West sewage treatment plant have a
9 permit at the date of OFW designation?
10 A It did not.
11 Q Did this cause you -- how did this affect your
12 thinking about OFW designation at that time?
13 A Well --
14 Q Did this cause you any concerns?
15 A It caused us concerns, yes.
16 Q What were the bases for these concerns?
17 A That there may be an area around the outfall in
18 which water quality had been degraded and therefore may not
19 be worthy of designation, and secondly, the outfall was,
20 the Department was in the process of bringing that outfall
21 under permit, and the effect of that effort was unknown at
22 that point in time.
23 Q How would the effect of existing unpermitted
24 sewage treatment plant flow be accounted for in defining
25 OFW ambient water quality?
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1 A How would it be accounted for?
2 Q Yes.
3 A I am not sure.
4 Q How would you evaluate that?
5 A Well, I think there are really two parts to the
6 answer to that question. One is, what is the quality that
7 existed, which we were charged with determining throughout
8 the Outstanding Florida Water, and the second would be what
9 is the anticipated future condition of that area.
10 In other words, is the Department expected to
11 bring that outfall under permit and therefore bring it into
12 compliance with standards, and those were the two issues
13 that I think the section speaks to.
14 Q Let me just ask you in respect to the anticipated
15 future condition, what was the result of your thinking on
16 that aspect of it?
17 A What was the --
18 Q What was the anticipated future condition?
19 A That the outfall would be brought under permit,
20 and therefore the water quality should not continue to
21 degrade and, in fact, might improve, depending on what that
22 permit required.
23 Q This leads into my next question --
24 MR. HETRICK: Could you read back the last part of
25 that question?
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1 (Whereupon, the court reporter read the requested
2 portion of the record.)
3 MR. HETRICK: I mean the answer to the question.
4 (Whereupon, the court reporter read the requested
5 portion of the record.)
6 BY MR. HETRICK:
7 Q So is the relevant water quality standard for the
8 discharge from the Key West STP after OFW designation, if
9 it had no permit on the date of that designation, a non-
10 degradation standard?
11 MR. HYDE: I object to the form of the question.
12 BY MR. HETRICK:
13 Q Let me ask it this way. What would be the
14 relevant water quality standards then from discharge from
15 the Key West STP after OFW designation if it had no permit
16 on the date of designation?
17 A If I recall, the Commission ultimately did exempt
18 the area around the outfall, so the OFW standard would not
19 be applied within that area of exemption.
20 Q In paragraph III, under subpart A of this memo,
21 did the Department identify -- I am sorry. Did the
22 Department adopt this approach outlined in the exemption?
23 MR. HYDE: What approach?
24 BY MR. HETRICK:
25 Q Well, what is identified in paragraph III.
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1 A Well, there is no approach recommended there. In
2 that paragraph, basically, what this language is speaking
3 to is what I just mentioned, that there are two issues
4 here. One is a technical issue, that some water quality
5 degradation had occurred, as is stated here, at least
6 partially abatable; and, secondly this is an activity, a
7 discharge for which a permit should have been required and
8 ultimately will be required, and that is not a technical
9 issue, that is a legal issue that the Department was
10 dealing with.
11 So I guess the point of this paragraph is that the
12 water quality in that area is expected to change or could
13 change as a result of the activities of the Department
14 bringing that under permit.
15 MR. HYDE: Let's go off the record for a moment.
16 (Discussion off the record.)
17 BY MR. HETRICK:
18 Q Mr. Armstrong, one of the purposes or the
19 fundamental purpose of this deposition is to find out your
20 ultimate opinions and the basis of your opinions as to what
21 you are going to testify to regarding the rules in this
22 case and how they may apply to the Everglades, so I am
23 going to ask you, what is your opinion about whether the
24 discharges from the S-5A and S-6 into the Loxahatchee and
25 the S-12 and S-333 in the ENP are grandfathered?
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1 MR. HYDE: Under what, under the OFW rule?
2 MR. HETRICK: Under the OFW rule.
3 THE WITNESS: It is my understanding based on the
4 facts that have been presented to me, and as I said
5 before, I have not done any independent analysis on my
6 own, but it is my understanding those discharges
7 existed when those areas were designated as Outstanding
8 Florida Waters and the Department permit was not
9 required for those discharges, and therefore I feel
10 that they were in place and considered by the
11 Commission in establishing the quality of those waters
12 as worthy of OFW designation.
13 Therefore, they weren't illegal in a sense that
14 there was not a permit required and had not been
15 obtained. I would consider them grandfathered based on
16 the facts that I understand the matter.
17 BY MR. HETRICK:
18 Q And those facts are as you have explained them?
19 A That they -- that is correct, that they existed
20 and a Department permit was not required for them at that
21 time, not unlike an urban stormwater pipe in any other area
22 of the state that existed when that area was designated as
23 an Outstanding Florida Water, there wasn't a Department
24 permitting process for those facilities, and they were
25 perfectly legal and did not require a permit in those days.
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1 Q In your view, does that mean that the Department
2 or the district could never require that nutrient
3 concentration levels or loading be reduced if, in fact,
4 those discharges were grandfathered?
5 A Not at all.
6 MR. HYDE: Was that question addressed to the
7 OFWs's standard or as a broad brush for any standard?
8 BY MR. HETRICK:
9 Q Well, let's take one at a time. With regard to
10 the OFW standard in particular?
11 A Maybe you had better restate the question as it
12 relates to an OFW.
13 Q Assume for the moment that we have discharges that
14 were considered grandfathered under the OFW rule, okay?
15 A All right.
16 Q Could the Department or district ever require that
17 nutrient concentration levels for loading be reduced under
18 that OFW rule?
19 A I think you may be asking two questions. I will
20 answer it this way. I think the Department could
21 subsequently require those discharges to come under permit.
22 Q Okay. Could they require --
23 A For a couple of reasons. One would be if the
24 discharge concentrations or loadings were increasing and
25 the Department felt that that might constitute a violation
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1 of the OFW requirements to maintain the quality that
2 existed, or, secondly, if the Department determined that
3 those discharges might be causing a violation of some other
4 Department rules, for example, a Class III water quality
5 standard that was not an OFW standard.
6 So the answer is the Department could subsequently
7 require a permit.
8 Q Would it have to require a permit in order to, if
9 the facility or the discharge, operative discharge was not
10 permitted in order to require that nutrient concentration
11 levels or loading be reduced if, in fact, they were
12 increasing, thereby causing a violation of Class III water
13 quality standards?
14 MR. HYDE: Object to the form of the question. I
15 think it was unclear as to what was being asked.
16 BY MR. HETRICK:
17 Q Do you understand the question?
18 A Let me try.
19 Q My question is merely towards the permit.
20 A Let me see if I understand it, and I will sort of
21 reask it in answering the question.
22 The question is, would the Department have to, I
23 think, would the Department have to require a permit to
24 require some reduction?
25 Q Sure.
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1 A That is the way the Department functions. The
2 Department couldn't send a letter and ask, it would have to
3 take some legally binding action, and that is what the
4 Department is in the business of doing, either taking
5 enforcement action or permitting action. So to require
6 some abatement of a discharge, that is the process that I
7 would expect the Department to use.
8 Q Is it correct to state, then, that OFW
9 designation does not, per se, authorize a continuing
10 violation of Class III water quality criteria?
11 A That is correct.
12 MR. HETRICK: Let's go off the record for a
13 minute.
14 (Discussion off the record.)
15 BY MR. HETRICK:
16 Q We are about finished with OFW, but I just want to
17 follow up on what we were just talking about.
18 The OFW designation does not authorize the
19 continuing violation of Class III water quality criteria.
20 In your opinion, if grandfathered discharges at the 1979
21 baseline levels are causing violations of dissolved oxygen,
22 would the Department have a right to take some action to
23 abate that condition?
24 A Yes.
25 Q If the discharges at the 1979 levels would be
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1 causing imbalances in flora and fauna, would it be your
2 opinion that the Department would have a right to take some
3 action to abate that condition?
4 A Assuming that that constituted a violation of the
5 standards, yes.
6 Q I want to -- I have been talking about the 1979
7 levels, baseline levels, since we went back on the record
8 after that break. I can go back and reask these questions,
9 but my question specifically in talking about the 1979
10 baseline level referred to Loxahatchee and ENP.
11 Do you want me to go back and reask that question
12 in that context? I assume we are talking about --
13 A I don't think it is necessary. If the Department
14 demonstrated that those discharges caused those violations,
15 then they could take action.
16 Q And the last question in this regard is if these
17 discharges at the 1979 levels are causing an increase in
18 nuisance species in either the Loxahatchee or the ENP,
19 which are OFWs, would the Department have the right to take
20 action to abate that condition?
21 A If those constituted violations of the standards,
22 yes.
23 Q And one last thing on OFWs. Are you familiar
24 with how the OFW baseline was determined for the
25 Loxahatchee and the ENP?
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1 A Vaguely. I remember lengthy discussions about it,
2 but I really don't know specifics off the top of my head.
3 Q Were you aware -- were you a decision-maker in
4 that determination?
5 A I don't believe I was. I remember the
6 discussions, but I don't think I played a major role in
7 that.
8 Q Let's just talk about antidegradation for a
9 minute. Back in -- and I believe that is subsection (1) of
10 17-4.242. You are familiar with that subsection?
11 A In general.
12 Q Did you participate in the drafting of that
13 section?
14 A No, I did not.
15 Q Can you explain to me in general what this
16 subsection (1) is talking about as far as antidegradation
17 is concerned?
18 A Well, I think it is an attempt by the Department
19 to recognize waters that might be -- that might have
20 quality that is better than the applicable standard, and it
21 sets forth the situations in which the Department might
22 serve to protect that higher water quality even though it
23 may be better than the standard.
24 Q Under that subsection (c), actually, it would be
25 paragraph c, where it says in addition to subsection (b)
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1 above, do you see that?
2 A Yes.
3 Q It talks about proposed discharges. What is meant
4 by that term?
5 A I believe this subsection of the paragraph is
6 referring to a proposed discharge which would require
7 Department permit.
8 Q So, in essence, it is a non-permitted discharge?
9 A It could be a nonexistent discharge. It is just a
10 discharge for which a permit would be required, I believe
11 in a sense, in the way it is used here.
12 Q I want to go back to -- shift gears for a moment
13 and go back to Exhibit 3 from yesterday.
14 What was your position with the Department, Mr.
15 Armstrong, on this date, January 29th?
16 A I was the director of the Division of Water
17 Management.
18 Q I just want to be clear. I was a little confused
19 yesterday.
20 You had mentioned to me that the comments in this
21 memo were your staff comments, and I just want to make sure
22 I understand as we go through these documents, and maybe
23 the best way, I will go through some questions here, but
24 when your staff takes any kind of position on an issue when
25 you are with the Department, if you ever disagreed with
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1 that position -- let's put it this way. Did you generally
2 discuss things in house to reach a consensus before you
3 would ever advise the Secretary as to what the position of
4 your division was?
5 A Generally.
6 Q You would not let your staff submit a memo on your
7 behalf unless you had had an in-house agreement as to what
8 your Division's position was on an issue, would you?
9 MR. HYDE: Do you mean in each and every
10 instance?
11 BY MR. HETRICK:
12 Q You wouldn't let your staff simply submit a
13 memorandum to the Secretary without them getting with you
14 to -- or put your name on a memo without them going through
15 you to sign off and get your permission and agreement as
16 division director, would you?
17 A I take that question a little differently. I
18 instructed my staff to send any information that they --
19 that needed to go to the Secretary through me, so I
20 screened that information before it went to the Secretary.
21 Q And when your staff would reach conclusions or
22 develop a position of the division and you had this
23 consensus in house, this consensus building process in
24 house, when they adopted a position, it would be your
25 position?
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1 A No.
2 MR. HYDE: I object. That assumes facts not in
3 evidence. You are assuming there was a consensus in
4 the process in each and every instance, and I don't
5 think that is what the testimony is.
6 BY MR. HETRICK:
7 Q Well, I am just trying to find out -- and this
8 memo is a good example. The memo speaks for itself as far
9 as what was going on in this memo, but it was a memo from
10 yourself to the Secretary reporting on Sugar Interests'
11 Perspectives, on this 30-parts-per-billion standard in the
12 Everglades SWIM Plan, and as I understand this memo, and
13 correct me if I am wrong, there are issues that are
14 highlighted throughout this memo, and then there is some
15 kind of evaluation or response that the Department is
16 giving to the Secretary as to what the division's position
17 was on those issues, is that not correct?
18 A That is correct.
19 Q Now, you signed off on this. Would this have been
20 your division's position on this and would this, in fact,
21 have been -- in your professional capacity as division
22 director, would this, in fact, have also been your
23 position?
24 A This was the division's position, and as division
25 director, I was responsible for that. My position as a
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1 professional was based on the information being presented
2 to me. I did not do an independent analysis of each of
3 those issues.
4 Q I understand that.
5 A But this was the division's position, and I was
6 director of the division.
7 Q It was not in your job responsibility to do an
8 independent analysis, was it?
9 A Or -- that is correct, and it certainly was not
10 possible to do that.
11 Q But then again, if you had questions about any of
12 the positions taken in this, or if you had disagreement,
13 you would have let your staff go ahead and submit this with
14 your name on it?
15 A No.
16 Q Until you arrived at a consensus position that
17 satisfied you, is that not correct?
18 A Well, you keep using the term "consensus
19 position." I had to feel comfortable with the position
20 that was being offered in the memorandum before I would
21 send it on to the Secretary.
22 Q That is what I am trying to --
23 A The staff may not agree with it, or it may not
24 have consensus, but I was responsible for it in the
25 Secretary's eyes.
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1 Q I want to go to Exhibit 5.
2 (Whereupon, Exhibit No. 5 was marked for
3 identification.)
4 MR. HYDE: Give us a moment to review this, too.
5 MR. HETRICK: Sure.
6 BY MR. HETRICK:
7 Q Have you reviewed this?
8 A Yes, I have.
9 Q Who is Katherine Gilbert?
10 A Katherine is a, I would say, a wetland ecologist,
11 probably more than a botanist, who works in the
12 Jurisdictional Evaluation Section of the Division of Water
13 Management. I believe she still works there.
14 Q Does she work in the Tallahassee office?
15 A Yes.
16 Q For DER?
17 A Yes.
18 Q If you will look on the first page -- well, first
19 of all, can you explain to me what was going on in this
20 memorandum, generally?
21 A Yes, I think I can. The South Florida Water
22 Management District had been presenting some preliminary
23 information to us dealing with their evaluation of the
24 Everglades for SWIM planning purposes.
25 The Secretary had asked us to look into the
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1 possibility, not the possibility, the potential options for
2 use of biological control of nutrients and, in particular,
3 nutrient removal by growth and culturing of certain crop
4 species.
5 Katherine, being a wetland ecologist, was asked to
6 look at that from a scientific point of view and give her
7 thoughts on that issue.
8 Q Did she draft any reports?
9 A She drafted this memorandum. I believe she did.
10 I assume she did.
11 Q The second sentence reads, "The high nutrient
12 concentrations in water entering the water conservation
13 areas north of Everglades National Park have had an
14 apparent negative effect on the vegetative communities of
15 the conservation areas as exhibited by the displacement of
16 sawgrass by cattails and disappearance of periphyton," and
17 there is a parentheses, "a basic component of the food
18 chain in the Everglades area."
19 Did you discuss this aspect of it with her?
20 A I don't believe that I did.
21 Q Did you have any opinions on that at the time?
22 A I don't believe that I did.
23 Q Did you -- do you agree with that statement or do
24 you disagree with that statement?
25 A Neither. I think this memorandum and my position
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1 at this point in time was based on information, as the
2 first sentence states, that South Florida Water Management
3 District had been gathering. We had not done any
4 independent analysis, we, the agency or my staff, had not
5 done any independent analysis.
6 This statement is based on information that was
7 being presented to us by the water management district. To
8 my knowledge, it is.
9 Q Were any studies done by the South Florida Water
10 Management District that were being evaluated by Katherine
11 Gilbert at the time this memo was --
12 A I don't believe so.
13 Q What was -- she was your -- were you responsible
14 for her? Did she work for you?
15 A Yes, she was in our division.
16 Q Well, in your professional capacity as her
17 supervisor, what was the basis for this statement that she
18 was making?
19 A My professional capacity, my understanding of the
20 basis of the statement was, the information, as I said,
21 that had been presented to us, to Katherine and myself and
22 others, by the water management district. We did no -- we
23 had not done any independent analysis. She was simply
24 restating facts that had been given her.
25 Q Would that information that had been presented to
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1 her -- what kind of information was that?
2 A I don't know what written materials she might have
3 been supplied with, but at this point in time we had
4 received some briefings from South Florida Water Management
5 District staff, which I believe Katherine sat in on at
6 least one of those briefings.
7 She was asked to do an analysis of the vegetation
8 removal options based on the information that had been
9 presented to her by the water management district, and I
10 believe verbally, although she may have received some draft
11 documents for review. I don't recall any.
12 Q Do you have an opinion as to whether high nutrient
13 concentrations in water entering the water conservation
14 areas north of the Everglades National Park does, in fact,
15 have a negative effect on vegetative communities of the
16 conservation areas as exhibited by the displacement of
17 sawgrass?
18 A I don't have a personal view on that.
19 Q By cattails?
20 A No.
21 Q Do you have a professional opinion?
22 A I don't have opinions. I have information that
23 has been presented to me, and I don't have my own
24 professional, personal opinions.
25 Q Do you have an opinion as to whether nutrients
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1 can cause -- excessive nutrients can cause low levels of
2 dissolved oxygen in a water body?
3 A Yes.
4 Q Do you have an opinion that the growth of cattails
5 is more conducive to an environment with low levels of
6 dissolved oxygen than sawgrass?
7 A No.
8 Q Just out of curiosity, why did she not send this
9 letter directly to Dale Twachtmann?
10 A As I stated before, I had instructed my staff not
11 to send any reports or memoranda to the Secretary without
12 sending them through me. That was one of the Secretary's
13 directives, and I agreed with him.
14 Q What was the purpose of that?
15 A Well, just to control the information going to the
16 Secretary. I was responsible for the work of the division,
17 and the Secretary wanted me to be aware of everything that
18 was going on in our division as best I could, and he held
19 me responsible for that work.
20 Q Would you turn to page 4, the second paragraph?
21 It talks about, the third sentence, which is about six
22 lines down, beginning middle part of it, it says, "Cattail
23 is a native plant. It has been distributed around the
24 world for eons. It is an opportunistic plan which responds
25 well to disturbance and high nutrient levels. There is
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1 information that cattail is an invasive species, produces
2 high concentrations of organic matter, has little wildlife
3 or positive water quality value and can escalate mosquito
4 control problems."
5 Do you agree with that statement?
6 A I don't have an opinion. This is Katherine's
7 opinion.
8 Q And it is not your opinion?
9 A I have heard this kind of information presented
10 before. I can't say I have a personal or professional
11 opinion. I have not done these kinds of studies myself.
12 Q Well, would her report, which did go to the
13 Secretary, vary from your opinion as to a statement which
14 appears to be a fairly generic statement?
15 A Would -- I am sorry?
16 Q Would her opinion differ from your opinion in this
17 regard?
18 MR. HYDE: I think he has already answered that
19 question by saying he has no opinion in this regard, so
20 how could it be different from it?
21 THE WITNESS: Basically I was transmitting her
22 opinion to the Secretary, which I felt was based on her
23 professional experience in the specific field of
24 wetland ecology.
25 BY MR. HETRICK:
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1 Q If you had disagreed with this statement, would
2 this have made it to the Secretary?
3 A No, it would not.
4 ME. HETRICK: Let's go to Exhibit 6.
5 (Whereupon, Exhibit No. 6 was marked for
6 identification.)
7 MR. HETRICK: I apologize.
8 THE WITNESS: The page is difficult to read.
9 MR. HETRICK: We can read along, or I can tell
10 you what it says and we can agree what that page is
11 saying.
12 MR. HYDE: Wasn't this document attached to
13 another exhibit?
14 MR. HETRICK: No.
15 MR. HYDE: Okay.
16 BY MR. HETRICK:
17 Q Who is the person that wrote this memo?
18 A Dr. J. G. Thabaraj, who was the chief of the
19 Bureau of Water Analysis, I believe is the title at that
20 time.
21 Q This is dated August 17, 1981?
22 A I believe so.
23 Q Do you recall this memo at all?
24 A Vaguely.
25 Q What was your relation to his position at the
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1 time?
2 A I believe at that time I was the administrator of
3 the Water Quality Analysis Section. I reported to Dr.
4 Thabaraj.
5 Q I noticed you were CC'd on this memo?
6 A Yes.
7 Q I just had one question on this document. Would
8 you turn to page 3?
9 MR. HYDE: Was that August 17, 1981?
10 MR. HETRICK: That is correct.
11 BY MR. HETRICK:
12 Q I just have two questions. In general, do you
13 recall what was going on in this discussion?
14 A As I said, I vaguely recall the memorandum. I
15 believe yesterday we looked at some correspondence that
16 pertained to proposed nutrient standards submitted to the
17 Department by the Florida Game and Fresh Water Fish
18 Commission. I think that is what this memo -- apparently
19 this document referred to.
20 Q I just have on page 3, where it says Validity of
21 Uniform Standards, under a. it says -- well, right under,
22 it says, "Enough arguments could be made to invalidate the
23 concept of statewide uniform standards for nutrients and
24 chlorophyll. Some major points are listed below."
25 Under a., the caption is Variability of Response
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1 to Nutrient Loading, and the first sentence underneath
2 that, "It is not the absolute concentration of a nutrient
3 per se, rather than its biological manifestation, that is
4 of primary concern."
5 Can you explain that statement to me? What was
6 going on then?
7 A I don't recall who wrote this paper. I can't
8 speak for that person.
9 Q I mean --
10 A I can give you my opinion.
11 Q Yes.
12 A Well, I think what the author is probably
13 referring to is the fact that water bodies respond
14 differently to different nutrient concentrations, and it is
15 not the concentration of a nutrient that might cause a
16 problem; it is whether or not that nutrient or those
17 nutrients cause other problems or characteristics of a
18 water body to change.
19 Q Do you agree with that?
20 A Yes, in general, I think I do.
21 MR. HETRICK: That is all I have for that. Let's
22 take a little break.
23 (Brief recess.)
24 BY MR. HETRICK:
25 Q I am going to hand you what will be marked as
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1 Exhibit No. 7.
2 (Whereupon, Exhibit No. 7 was marked for
3 identification.)
4 BY MR. HETRICK:
5 Q Mr. Armstrong, I have handed out what has been
6 marked as Exhibit 7. Do you recognize this document?
7 A Yes, I do.
8 Q This is the Frank Nearhoof report. Is that your
9 understanding?
10 A Yes, it is.
11 Q I am going to run through probably a series of
12 questions with this document, mostly in terms of the
13 Department's construction of certain rules, and see if you
14 agree or disagree with some of these documents.
15 First of all, have you reviewed this document
16 before?
17 A Yes, I have.
18 Q In great detail?
19 A No.
20 Q But you have read this document from cover to
21 cover?
22 A Yes.
23 Q What was your most recent reading of this
24 document, about how long ago?
25 A Six months, maybe a little longer.
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1 Q What was your purpose in that review?
2 A I was asked by Mr. Hyde to review it and give him
3 my thoughts on it.
4 Q Let's go to the Introduction, which is page 1.
5 A My pages are not numbered. Section 1, entitled
6 Introduction?
7 Q Right.
8 A Okay.
9 Q About seven lines down, two-thirds of the way in,
10 the sentence begins, "The Department has conducted an
11 extensive review of all available information pertaining to
12 nutrient-induced impacts to the Everglades."
13 During your tenure with the Department, had that
14 review begun?
15 MR. HYDE: I am going to object. I think this
16 assumes facts not in evidence.
17 First of all, this document was not prepared, I
18 believe, until well after Mr. Armstrong left the
19 Department, so unless the document is able to -- there
20 is some proof as to when these studies were actually
21 done, then I think it assumes facts that are not in
22 evidence.
23 MR. HETRICK: That is kind of what I am asking
24 him, whether or not any extensive review or whether or
25 not any review --
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1 BY MR. HETRICK:
2 Q Let me phrase the question differently.
3 Was any review pertaining to nutrient-induced
4 impacts to the Everglades begun by the Department during
5 your tenure?
6 A Yes.
7 Q What -- do you recall what time frame, what year
8 those reviews began?
9 A There were reviews ongoing for a number of years,
10 Everglades issues which I believe included nutrient issues.
11 Q With regard to the Everglades?
12 A I think that is what I said. Nonetheless, I am
13 sure there were efforts underway in the Department over a
14 number of years. I was not directly involved, that I
15 recall, in those issues, or at least was not heavily
16 involved. In the months prior to my leaving the agency we
17 had begun reviewing the alleged nutrient impacts that were
18 being identified by the water management district through
19 the SWIM planning process, which is primarily what this
20 document speaks to. So the answer to your question is I
21 think those reviews had begun when I was still with the
22 agency.
23 Q Did you receive any preliminary reports as to --
24 pertaining to what the nutrient-induced impacts were in the
25 Everglades at that time?
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1 A Yes.
2 Q Did you review any of those reports? Can you
3 identify any of those reports?
4 A Not specifically. We had begun to receive draft
5 outputs from the water management district, and I could not
6 off the top of my head identify specifically what those
7 documents were. We had also, as I mentioned previously,
8 begun to receive verbal briefings from water management
9 district staff during the few months before my departure
10 from the agency.
11 Q Did the Department reach any preliminary findings
12 as to nutrient-induced impacts on the Everglades during
13 your tenure?
14 A Well, the Department may have reached some
15 preliminary findings. I don't recall if we took any
16 official position on any of those issues. They were
17 discussed with water management district staff, primarily
18 at the staff-to-staff level. I don't recall any official
19 position on those issues. There may have been some.
20 Q Do you expect to offer any opinions or testimony
21 in this case pertaining to nutrient-induced impacts to the
22 Everglades?
23 A I do not.
24 MR. HYDE: Again, for the record, I think you
25 should be specific. When you say Everglades, what do
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1 you mean?
2 MR. HETRICK: I apologize. Everglades Protection
3 Area.
4 BY MR. HETRICK:
5 Q Let's turn in your rule, you have 17-302 there?
6 A Somewhere.
7 Q Turn to -- I want you to refer to that, but I also
8 want you to keep Frank Nearhoof's, turn to page 3 on Frank
9 Nearhoof's report.
10 MR. HYDE: Which is page 3?
11 MR. HETRICK: Mine has page numbers on it.
12 THE WITNESS: Mine does, on page 3, at least.
13 MR. HYDE: Mine doesn't.
14 BY MR. HETRICK:
15 Q It should say Imbalances of Aquatic Flora and
16 Fauna.
17 A Yes.
18 Q Just for your reference, Mr. Nearhoof starts off
19 by saying, "Criterion 17-302.560(29)," and I wanted you to
20 be able to have that rule at your fingertips so that you
21 might be able to refer to that. Is it (27)?
22 MR. HYDE: It is (27) now.
23 BY MR. HETRICK:
24 Q (27).
25 A Yes, I have it.
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1 Q My questions in this context are how we construe
2 this provision, and we have already talked about imbalance
3 to some extent. Mr. Nearhoof starts off by quoting the
4 rule, which states, "Nutrients," and then, hyphen, "in no
5 case shall nutrient concentrations of a body of water be
6 altered so as to cause an imbalance in natural populations
7 of aquatic flora or fauna."
8 I want you to review the second -- the paragraph
9 right after that statement in Mr. Nearhoof's report and
10 tell me if you agree or disagree with any aspect of that
11 paragraph in the construction of this rule.
12 MR. HYDE: I would suggest you take as much time
13 as you need to do that. It is kind of difficult, in a
14 situation like this to be confronted with long
15 passages, it is difficult to make a snapshot judgment
16 based on one reading without an opportunity for
17 extended contemplation. I think it has to -- any
18 answers have to be subject to that understanding.
19 BY MR. HETRICK:
20 Q You can take as much time as you need.
21 A I have reviewed it. Would you restate the
22 question, please? Reask it.
23 Q Do you agree with that paragraph, or do you
24 disagree with any aspect of that paragraph in your
25 understanding of how the rule works and the Department's
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1 procedure in following the rule and assessing imbalance?
2 A I am not sure if I necessarily disagree with it.
3 I am not sure exactly what was intended by portions of it.
4 In particular, the last sentence states, "The
5 Department's criterion regarding nutrient-induced
6 imbalances of flora or fauna was written as a narrative
7 rather than numeric criterion with the focus of maintaining
8 the assemblage of flora and fauna characteristic of the
9 ecosystem in question."
10 I am not sure I understand exactly what the author
11 meant by that statement.
12 Q What is causing your confusion?
13 A Well, the rule speaks to imbalance, not
14 maintaining an assemblage of flora or fauna, and I don't
15 know exactly what the author intended in that particular
16 description.
17 Q The next paragraph, beginning with, "The
18 Department uses the best available information," if you
19 could review that paragraph which extends into page 4, the
20 next page?
21 A The first sentence, excuse me, the whole
22 paragraph?
23 Q The entire paragraph, and just tell me what
24 aspects of that you disagree with or if you agree with the
25 whole thing, and if you prefer, we could take it sentence
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1 by sentence.
2 A I have read it.
3 Q Do you agree with that paragraph?
4 A I don't have an opinion about much of it. It
5 speaks to what the Department is apparently doing at the
6 point in time when this document was written. I have no
7 knowledge of how this section was being applied at that
8 particular point in time. I do have some problems with
9 some of the language in the paragraph.
10 Q Which language?
11 A Well, reading on down, there is a discussion about
12 how the Department goes about analyzing in a technical
13 sense various factors, and as I said, I have no opinion as
14 to how the Department was applying or determining
15 compliance with this standard at the point in time of this
16 document being authored.
17 The author states in about the middle of the
18 paragraph at the top of page 4, "An ecosystem is determined
19 to be `imbalanced' when significant departures from the
20 expected biological operation of a system occur."
21 I don't -- I am not sure I understand what the
22 author means by "significant departures from the expected
23 biological operation."
24 The rule, the nutrient standard to which I assume
25 this section is still referring, speaks to imbalance in
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1 natural populations of flora and fauna, not biological
2 operations. I am not sure if the author is using the terms
3 synonymously.
4 Q If I were using the terms synonymously, would you
5 agree with that, then?
6 MR. HYDE: It assumes a fact not in evidence.
7 BY MR. HETRICK:
8 Q It is a hypothetical.
9 A Could you restate the question?
10 Q If he was using the terminology "biological
11 operation" in terms of natural population, would you then
12 agree with that statement?
13 A Well, the rule says, an imbalance in natural
14 populations of aquatic flora and fauna. The statement
15 would then say, an imbalance would occur when significant
16 departures from the natural populations of flora and fauna
17 would occur, and again, I guess the question then would be
18 what would "significant departure" mean in the eyes of the
19 author.
20 I think the author seems to be trying to restate
21 the rule in his own words, and I can't say whether I would
22 agree or disagree. If that sentence read the same as the
23 standard, I guess I would agree that it accurately
24 reflected the standard, but I can't say exactly what the
25 author had in mind, so I really don't have -- I can't offer
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1 an opinion about what he intended.
2 Q Can you offer an opinion in your own professional
3 judgment when an imbalance occurs?
4 MR. HYDE: Objection. I think the rule speaks for
5 itself.
6 BY MR. HETRICK:
7 Q Well, let me ask it this way.
8 MR. HYDE: It is an attempt to restate the rule,
9 and as such, it is an attempt to redefine the rule.
10 BY MR. HETRICK:
11 Q Do you agree with the sentence following that,
12 "This is determined by a combination of factors, including
13 professional judgment and measured differences between
14 suspected `imbalanced' and unimpacted or `control' sites"?
15 A Well, there are two statements there. One is, I
16 think there does have to be some professional judgment used
17 in determining what is an imbalance, because there are not
18 specific tests for measuring imbalance offered in the rule,
19 so in my opinion there would have to be professional
20 judgment involved.
21 One of the options available to a scientist would
22 be the comparison between the site to be studied or, as
23 this says, suspected imbalanced site and an unimpacted or
24 control site, if one is available. That is a standard
25 scientific technique that might be applicable.
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1 Q Yesterday we talked about imbalance. I believe
2 you testified, and correct me if I am wrong, that some
3 change in species composition can occur without there being
4 an imbalance, is that correct?
5 A I think that is correct.
6 Q How much change would have to occur for there to
7 be an imbalance?
8 A Well --
9 Q What do you look at to determine change, is the
10 question.
11 A The change in species composition is really not,
12 in my opinion, it is not necessarily part of the test for
13 determining compliance with the nutrient standard. The
14 standard speaks to an imbalance in natural populations of
15 aquatic flora and fauna, so for those natural populations,
16 you would look at changes in flora and fauna.
17 I can't give you an answer as to what would
18 constitute an imbalance, sitting at the table. It would be
19 site-specific, and it would have to be based to a certain
20 extent on the judgment of the investigator. The rule does
21 not give specific criteria for determining when an
22 imbalance would occur and not occur.
23 Q Would the change have to be meaningful or
24 significant in order to cause an imbalance?
25 A I think I would agree with the term
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1 "significant." I am not sure what you mean by
2 "meaningful," but there would have to be -- to cause an
3 imbalance, in my professional opinion, there would have to
4 be a significant change. Change alone is not necessarily
5 an imbalance. At some point, the degree of change would
6 have to be judged to be significant enough to constitute an
7 imbalance in those populations. That point is not well
8 defined.
9 Q Let's look at the last sentence in Mr.
10 Nearhoof's -- in that paragraph, where it says, "Imbalance
11 also includes situations when nutrient addition results in
12 the dominance of nuisance species or violation of numeric
13 standards." Do you agree with that statement?
14 A I don't think I do.
15 Q What do you disagree with?
16 A I think the term "imbalance" as used in the
17 nutrient standard has to be determined based on the natural
18 populations of flora and fauna. If nuisance species become
19 a problem or violations of other numeric standards become a
20 problem, those may constitute violations of the
21 Department's standards in and of themselves, but may not
22 constitute, necessarily, a violation of the nutrient
23 standard.
24 I think we may be talking about -- I think I would
25 say that in a situation where imbalance may have occurred,
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1 other violations may have occurred, but I don't think this
2 is stated properly, this sentence.
3 Q Can you tell me was meant by the term
4 "dominance"? Is that an operative term?
5 A I think it is used in a number of ways. I think
6 in some situations and circles it could mean any number
7 greater than 50 percent, or it could mean a number
8 sufficiently great enough to overshadow other
9 characteristics. I guess it would depend on the situation
10 and the type of use.
11 Q Does it have any operative meaning in the context
12 of a discussion of nuisance species? Is it a term of art?
13 A I guess it can be.
14 Q What would your understanding of that term be in
15 the context of a discussion of nuisance species?
16 A Well, I am not sure if you are referring to a
17 standard or a scientific investigation or -- there are all
18 sorts of discussions that could be taking place.
19 Q In the context of a nuisance species rule?
20 A Can we turn to that maybe and take a look at that
21 language?
22 Q 17-302.510, parens (5)(q).
23 A I have it.
24 Q Under that, it says, "Substances in concentrations
25 which result in the dominance of nuisance species, none
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1 shall be present."
2 What is your understanding of the term
3 "dominance"?
4 A As used in this standard, I would say that it
5 refers to an abundance of or greater portion of nuisance
6 species than native species. The rule refers to any
7 substance that might cause that condition to occur.
8 Q When you say abundance, what do you mean by
9 abundance? Is it a greater than 50 percent standard or
10 not?
11 A No. I don't think I would necessarily restrict it
12 to greater than 50 percent. I think in the way the rule is
13 written, there may be other, there may be several
14 populations of native species. If the greater dominance or
15 the greater makeup of the community is nuisance species,
16 then it could constitute a violation of the rule.
17 Q What if it is equal?
18 A Well, the question is whether the nuisance species
19 dominate in the population.
20 Q Right, and my question is, if the native species
21 is equal to, at the time you are looking at a particular
22 body of water, equal to the presence of the nuisance
23 species, the same, 50-50, is there a dominance in that
24 situation?
25 MR. HYDE: I am going to object unless there is
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1 some specification in the question as to geographic
2 extent. We are talking about a water body as a whole,
3 a portion of a water body?
4 BY MR. HETRICK:
5 Q Well, let's take the water body as a whole.
6 A I think I would say that if the nuisance species
7 constituted greater than 50 percent of the geographical
8 extent of the water body, then they would be dominant and
9 therefore be in violation of this section. If they were
10 less than the population or extent of native populations,
11 then it would not.
12 Q What if it is a portion of a water body?
13 A Well, there, as I read this section, it does not
14 necessarily refer to the entire water body. I believe this
15 section, and let me refer back, refers to surface waters,
16 general criteria, and as I understand these particular
17 portions of the standards, they are applied within water
18 bodies and not necessarily throughout an entire water body,
19 that is correct.
20 Q Is there any definition of body of water anywhere
21 in these rules that you recall?
22 A There are definitions of waters, if I recall. I
23 don't know if there is a definition of body of water. I
24 don't recall whether there is or not.
25 Q So this standard in subparagraph (27) could apply
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1 to a portion of a body of water?
2 A I believe it could.
3 Q The next thing in Mr. Nearhoof's report is, 3.1.1
4 talks about Flow Pattern Description, and this is specific
5 to the Everglades. Are you familiar with flow patterns in
6 the Everglades?
7 A Just in a general sense.
8 Q Do you expect to offer any opinion or testimony
9 that would in some way entail an evaluation of the flow
10 patterns of water in the Everglades National Park?
11 A No.
12 Q How about in any of the WCAs?
13 A No.
14 Q The next section on page 5 deals with, it is
15 3.1.2, Evidence of Phosphorus Enrichment in Soil and Water
16 Chemistry.
17 Are you familiar with any evidence of phosphorus
18 enrichment in soil and water chemistry in the Everglades
19 Protection Area?
20 A Yes.
21 Q How are you familiar with phosphorus enrichment
22 in soil and water chemistry in the Everglades?
23 A Basically from my general knowledge of information
24 that I have that has been presented to me or that I have
25 heard being presented.
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1 Q Do you have any professional opinions on
2 phosphorus enrichment in soil and water chemistry of the
3 Everglades Park area?
4 A No, I do not.
5 Q Do you intend to offer any testimony which in any
6 way relates to specifically phosphorus enrichment in soil
7 and water chemistry of the Everglades Protection Area?
8 A No.
9 Q One more question on that. Would you say that --
10 was there any evidence presented during your tenure at the
11 Department in the context of the draft SWIM plans that you
12 reviewed that showed -- well, that soil or H2O phosphorus
13 enrichment in the Everglades was cause for concern?
14 A Yes.
15 Q Was there ever any evidence during your tenure
16 with the Department that phosphorus enrichment in the
17 Everglades was indicated in surface water and sediment
18 data?
19 A Was there ever any evidence presented, is that --
20 Q Presented.
21 A Yes.
22 Q Did you ever form any opinions during that time in
23 the context of your review of any of the draft SWIM plans
24 that that evidence was, in fact, substantiated?
25 A No.
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1 Q Did you ever have any reason to doubt any of that
2 evidence?
3 A Yes.
4 Q What were those reasons?
5 A There was also information presented alleging that
6 phosphorus may not have been the only cause of problems
7 within the Everglades, or may have been partially the
8 problem but not totally the problem.
9 I don't have an opinion on whether one position or
10 the other is correct.
11 Q Would hydroperiod have been one of those other
12 factors that was a concern?
13 A Yes, it was.
14 Q Do you intend to offer any opinion or testimony
15 that, well, that basically states that whether or not
16 hydroperiod or nutrients have a greater effect on causing
17 problems in the Everglades?
18 A No.
19 Q Page 7 of Mr. Nearhoof's report, it says here,
20 3.1.3, Microbial Community Impacts.
21 Do you have any knowledge of any microbial
22 community impacts in the Everglades park area?
23 A Yes.
24 Q What knowledge is that?
25 A As with other issues, as I stated before, I have
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1 some knowledge of information that was presented to the
2 Department determining microbial impacts.
3 Q That was during your tenure with the Department?
4 A Yes, and my review of this document.
5 Q Do you intend offering any opinions or testimony
6 as to microbial community impacts in the Everglades Park
7 area?
8 A No.
9 Q On page 8, 3.1.4, Periphyton Impacts, do you have
10 any knowledge of any periphyton, well, phosphorus impacts
11 on periphyton in the Everglades?
12 A Yes.
13 Q And that was during your tenure with the
14 Department?
15 A And my review of this document.
16 Q Did you agree or disagree that there are
17 periphyton impacts -- I am sorry, phosphorus impacts on the
18 periphyton community?
19 A I don't have an opinion.
20 Q Do you expect to offer an opinion or any testimony
21 on that issue at all?
22 A No.
23 Q Page 9, 3.1.5 talks about Macrophyte Impacts.
24 Has any evidence been presented to you that
25 demonstrates that sawgrass has lower phosphorus
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1 requirements than other marsh vegetation in general?
2 A I am sorry, could you repeat that question?
3 Q Sure. Has any evidence been presented to you
4 which demonstrates that sawgrass has lower phosphorus
5 requirements than other marsh type vegetation?
6 A Yes.
7 Q Do you agree with that evidence?
8 A I don't have an opinion.
9 Q Why don't you have an opinion?
10 A I don't agree or disagree. I have heard that
11 opinion expressed and seen evidence supporting that
12 opinion. I don't have a personal or professional opinion
13 on that.
14 Q Do you have any reason to disagree with the
15 evidence that has been presented to you?
16 A Not that I am aware of.
17 Q What form did that evidence take that had been
18 presented to you?
19 A It was information presented to the Department
20 during my tenure there and my review of this document.
21 Q Was there any specific reports that you could
22 identify that were presented to you during your tenure with
23 the Department that spoke to the idea that sawgrass has
24 lower phosphorus requirements than other marsh vegetation?
25 A No, I cannot recall any specifically.
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1 Q Have you ever reviewed any historical accounts or
2 early maps of native Everglades environments?
3 A Yes.
4 Q Let me be clear with that. By Everglades
5 environments, I am talking about the EPA.
6 A Okay. Yes, I have.
7 Q Do you recall in your review of those historical
8 accounts or early maps of the native Everglades
9 environments, which I will restrict in this question in
10 particular to the EPA, as to whether cattail -- cattails
11 were present?
12 A It was my understanding from evidence presented
13 that cattails were present as a native species in the early
14 historical Everglades.
15 Q Do you recall whether they were present in
16 unenriched areas or enriched areas?
17 MR. HYDE: I object. It assumes a fact that is
18 not in evidence, and it also doesn't specify any time
19 parameters as to these historical maps. Are we talking
20 about 1850, 1950, 1970?
21 BY MR. HETRICK:
22 Q Well, what -- do you recall what early maps you
23 might have reviewed?
24 A No, I don't recall specifically.
25 Q Would they have been in the late 1800s or early
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1 1900s, 1940s, 1920s?
2 A I really don't remember the period. I remember
3 some maps presented by the South Florida Water Management
4 District staff basically in making the point that cattails
5 were a native species that occurred in the Everglades
6 historically.
7 Q Were they widespread in the information you
8 reviewed?
9 A I seem to recall that they were.
10 Q Do you recall what portion of the Everglades?
11 A No, I do not.
12 Q Do you anticipate offering any testimony as to,
13 first of all, any historical accounts of cattails in the
14 Everglades Protection Area?
15 A No.
16 Q Do you intend to offer any opinions or testimony
17 as to the causation of the presence of cattails in the
18 Everglades today?
19 A No.
20 MR. HYDE: Certainly, I am not going to stop you
21 from asking these line of questions, but I think we
22 have pretty clearly set forth what the scope of Mr.
23 Armstrong's intended testimony will be, as set forth in
24 his expert witness designation. I think I even stated
25 yesterday that we would be focusing on his
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1 interpretation of applicable rules and regulations of
2 the Department and the historic implementation of those
3 rules.
4 As far as specific testimony about, for example,
5 macrophytes in the Everglades Protection Area or the
6 causation of those macrophytes, he is not going to
7 offer any testimony.
8 MR. HETRICK: Okay. His designation is pretty
9 broad, and I am just trying to make sure that it is
10 truly limited as you have stated.
11 MR. HYDE: I have stated the way it is limited.
12 If I came back and did anything differently, I think
13 you would have good cause to raise objections with the
14 hearing officer.
15 BY MR. HETRICK:
16 Q Do you intend to offer any opinion, in your
17 construction of the imbalance, the narrative nutrient rule,
18 the imbalance, as to whether or not any imbalance exists in
19 the Everglades with respect to flora and fauna?
20 A No.
21 Q On page 14 of Mr. Nearhoof's document, the second
22 paragraph, beginning with "Documented impacts to several
23 floral and faunal communities in widespread areas of the
24 Everglades Protection Area constitute violations of the
25 Class III narrative nutrient criterion," do you see that
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1 sentence?
2 A Yes, I do.
3 Q Have you ever seen any evidence to that effect?
4 A Yes.
5 Q Was that during your tenure at the Department?
6 A As best I can recall during that period and again
7 in reviewing this document.
8 Q Was that in the context of your review of the
9 numerous draft SWIM plans that were in process during the
10 end of your tenure with the Department?
11 A Certainly primarily during that period.
12 Q Did you agree at that time in your professional
13 capacity with the Department as to that evidence presented
14 to you?
15 A Well, I didn't -- please restate the question. I
16 am not sure exactly how you asked that.
17 Q Did the Department, make any preliminary
18 conclusions that would, in effect, have substantiated this
19 finding back then?
20 A I think the Department accepted the facts that
21 were presented, that that was an area that was worthy of
22 study in the SWIM planning process. I am not sure if the
23 Department, as I said earlier, ever agreed or disagreed,
24 but --
25 Q But --
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1 A Well, I am not sure if the Department ever
2 officially agreed or disagreed with the evidence.
3 Q Were those studies ongoing during your tenure with
4 the Department?
5 A Yes, they were.
6 Q Were they ongoing after you left the Department,
7 do you know?
8 A I can't say whether they were or not.
9 Q Were any preliminary findings made while those
10 studies were ongoing during your tenure with the
11 Department?
12 A By whom?
13 Q By the Department, preliminary findings by the
14 Department during your tenure with the Department that
15 would substantiate --
16 A I think only as related to the evidence presented
17 by the water management district. I don't recall any
18 independent studies being done by the Department at that
19 point in time.
20 Q Maybe I am just not asking the question clearly.
21 I am just wondering, you mentioned that ongoing studies
22 were taking place to, in fact, investigate documented or
23 investigate impacts to floral and faunal communities in
24 widespread areas of the Everglades to determine whether or
25 not they constituted a violation of the Class III narrative
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1 nutrient criterion, those studies were ongoing and taking
2 place.
3 My question merely was, was there any preliminary
4 findings made by the Department at that time that would
5 substantiate this claim being made here, documented impacts
6 to several floral and faunal communities in widespread
7 areas of the Everglades constitute violation of the Class
8 III narrative nutrient criterion?
9 A I think the Department's preliminary findings were
10 there had been impacts to the Everglades, and pursuing
11 nutrient discharges as a possible cause or portion of the
12 cause of those impacts was reasonable through the SWIM
13 planning process. The Department agreed that the district
14 was, in fact, proceeding appropriately under the SWIM Act.
15 Q Was the Department tracking data submitted to it
16 by the water management district, and by that, I mean was
17 the Department doing more than just taking information,
18 submitting it to them and putting it on a shelf? Was it
19 conducting any kinds of evaluations on its own during your
20 tenure in the review of this information submitted?
21 A Yes.
22 Q I just want to go to Rule 17-302.200, parens (14),
23 if we can for a moment. I think we have not covered this
24 yet, and if we have --
25 MR. HYDE: Definition of nuisance species?
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1 MR. HETRICK: Right.
2 BY MR. HETRICK:
3 Q We have talked about nuisance species, but I don't
4 think we specifically covered the -- this particular
5 subsection, and this is, for the record, 17-302.200, parens
6 (14).
7 You are familiar with this definition?
8 A Yes, I am.
9 Q Can you tell me what is meant by the term "noxious
10 characteristics," what your understanding is of that term?
11 A Well, I think also this is sort of maybe the
12 opposite of beauty is in the eye of the beholder. I think
13 that a certain amount of technical discretion is allowed in
14 this language, but noxious characteristics I would think in
15 the ecological sense would be characteristics of those
16 species that are not desirable from an environmental or
17 ecological standpoint.
18 Q Are they specific characteristics the Department
19 looks to that are defined by rule, or --
20 A I don't believe, I don't know that they are
21 specifically defined anywhere, not that I am aware of.
22 Q You then go forward to -- well, noxious
23 characteristics, your characterization is that involves
24 some subjective determination?
25 A Yes, I believe it does.
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1 Q It is not scientifically based?
2 MR. HYDE: I would like that admission.
3 BY MR. HETRICK:
4 Q I am just trying to be clear.
5 A I am not sure what you mean by that. I guess in
6 determining what is noxious you might use scientific
7 techniques. I am not sure.
8 Q There is no numeric criteria set out?
9 A Not that I am aware of.
10 Q What is meant by, "or presence in sufficient
11 number"? What is meant by the terminology, "sufficient
12 number"? Is there a -- is that an -- does that involve a
13 subjective determination?
14 A Yes, I believe it does.
15 Q What factors might you look to to determine
16 sufficient number? How would you go about conducting an
17 analysis?
18 MR. HYDE: I am going to object. I think the rule
19 provides the answer just in the following phrase,
20 "present or unreasonably interfere with a designated
21 use of those waters."
22 BY MR. HETRICK:
23 Q Well, it says here, "a sufficient number, biomass
24 or areal extent may reasonably be expected to prevent or
25 unreasonably interfere with the designated use."
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1 How would you go about conducting an analysis to
2 determine what would reasonably be expected to prevent or
3 unreasonably interfere with the designated use of those
4 waters?
5 A Well, I guess I would have to survey the
6 population in question, determine the numbers and biomass
7 and areal extent of those populations or those species,
8 compare those to the beneficial uses that were identified
9 for those waters. Obviously, again there would be some
10 judgment call on the part of the investigator as to whether
11 reasonable interference was, in fact, occurring.
12 MR. HYDE: Did you say reasonable interference or
13 unreasonable?
14 THE WITNESS: I believe -- excuse me, unreasonable
15 interference was, in fact, occurring.
16 BY MR. HETRICK:
17 Q Would it be a case-by-case determination?
18 A Yes, I believe it would.
19 Q What would be the meaning, in your understanding,
20 in this context of the nuisance species rule, of the term
21 "sufficient"?
22 A Well, I don't think you could take the term out of
23 context, but basically I think in a simplistic sense it
24 means that if one individual of that particular species is
25 present, or even a few, it might not cause a prevention or
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1 unreasonable interference with a designated use.
2 There would have to be sufficient number of
3 biomass or areal extent to prevent or unreasonably
4 interfere with that designated use. It could be a mere
5 presence of that species would not necessarily be a
6 violation.
7 Q It is a combination of number, of biomass or areal
8 extent?
9 A Yes, it could be one or all of those
10 characteristics or some combination of those
11 characteristics.
12 Q So what you are saying is, and correct me if I am
13 wrong, for example, the areal extent of a particular -- or
14 the extent of a particular problem in evaluating areal
15 extent may, or in deciding what the areal extent is may
16 depend on a number in the biomass to determine what the
17 areal extent is?
18 A If I follow your question, I don't think I agree
19 with it. Maybe if you could restate it?
20 Q How do you determine -- is there a boundary or a
21 certain number that you can attach or look to for
22 determining areal extent of a problem?
23 A I think you may be stating two problems, but let
24 me see if I can answer your question.
25 You can determine the areal extent by fieldwork.
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1 You can determine, for example, if a population of concern
2 has an areal extent of 100 square meters, for purposes of
3 determining compliance with the standard you would then
4 have to look at the body of water in question.
5 If the areal extent of a population was 100 square
6 meters and the water body size was 110 square meters, then
7 it might constitute a violation of the standard, whereas if
8 the water body was 100,000 square meters, it might not. So
9 I think that is a two-part question, what is the areal
10 extent of the population, and secondly, does that areal
11 extent prevent or unreasonably interfere with the
12 designated use of the water. So that really is a two-part
13 test or two parts to determining compliance with that
14 factor.
15 MR. HETRICK: Can you read back what the last two
16 figures were that he quoted? I want to follow up with
17 a question on that.
18 (Whereupon, the court reporter read the requested
19 portion of the record.)
20 BY MR. HETRICK:
21 Q Let's take the example of 100 square meters and
22 100,000 square meters that you gave, and I believe you said
23 there might not be a violation in that context?
24 A That is correct.
25 Q Could there be a violation in that context?
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1 A That is correct.
2 Q What would be the basis for a violation, using
3 your hypothetical, in that context? Would you just walk me
4 through an example?
5 A You would have to identify a use of that water
6 body that would be prevented or unreasonably interfered
7 with because of the presence of that 100 square meter
8 population of individuals.
9 Q Would that be a violation if it were a Class III
10 water or Class III criterion?
11 A Well, it would be a violation of that. It could
12 be a violation of that nuisance species standard which is
13 in the general criteria, I believe, or whatever that
14 section is termed.
15 Q I believe I understood you to say that it is a
16 case-by-case determination, but I am going to ask this
17 question just for my clarification. Do you interpret this
18 nuisance species definition that this rule is not violated
19 until a certain percentage of a water body is affected?
20 A That is not correct, in my opinion.
21 Q So there would be no -- there is no percentage
22 number or no -- that would be attached to the
23 determination?
24 A Not that I read in the rule.
25 Q Could it be one percent?
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1 A I think it could be.
2 Q And it could be 40 percent?
3 A I think it could be.
4 Q Of any particular body of water?
5 A Right. It would be site-specific to a given water
6 body and a given set of species and uses and all of these
7 other factors in the rule.
8 MR. HYDE: Would this be a good moment to take a
9 short break?
10 (Brief recess.)
11 BY MR. HETRICK:
12 Q Could you turn to 17-302.560, parens (9)? This is
13 the biological integrity criterion. Are you familiar with
14 this?
15 A Yes, I am.
16 Q Can you tell me about this rule, what your
17 understanding of it is, how it works?
18 A It basically is a standard that is measured in the
19 body of water in question, as opposed to in the pipe, in
20 the end of the pipe or characteristics of a waste stream.
21 It relates to the diversity of benthic macroinvertebrate
22 populations in that stream and specifies the procedure for
23 measurement of diversity.
24 Q Do you intend to offer any opinions with respect
25 to biological integrity in any portion of the Everglades
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1 Protection Area?
2 A No.
3 Q Do you have any other opinions about the
4 biological integrity standard that you will be testifying
5 to in relation to this case?
6 A Maybe only to my interpretation of the meaning of
7 standard I think is what I have stated before.
8 Q Which you have already described?
9 A Yes.
10 Q Let's look at parens (19), dissolved oxygen. Do
11 you have that in front of you?
12 A Yes, I do.
13 Q Do you intend to offer any opinions in this case
14 or testimony involving dissolved oxygen violations in the
15 Everglades, alleged dissolved oxygen violations in
16 general? Let me rephrase that.
17 Do you intend to offer any opinions or testimony
18 concerning the violation of this standard in any portion
19 of, the dissolved oxygen standard in any portion of the
20 Everglades Park area?
21 A No.
22 Q Do you intend to offer any opinions in this case,
23 any other opinions in this case with respect to dissolved
24 oxygen?
25 A Only as it applies to interpretation and
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1 application of the standard in general.
2 Q How is this standard -- or can you tell me what
3 those opinions might be, then? How this standard is
4 generally applied?
5 A I am not sure I can answer that question. That is
6 rather general.
7 Q I think you just mentioned that you were going to,
8 you would only offer an opinion with respect --
9 MR. HETRICK: Read back his answer to the last
10 question.
11 (Whereupon, the court reporter read the requested
12 portion of the record.)
13 BY MR. HETRICK:
14 Q Can you tell me what you mean by that, or what
15 your opinions are with respect to that?
16 A I am not sure I can. I guess the best way to
17 describe it is, if you would ask me a hypothetical
18 situation or interpretations or definitions that is related
19 to that standard, I would do my best to answer them, but I
20 do not intend to testify as to the specifics in the
21 Everglades Protection Area, dissolved oxygen
22 characteristics and so forth.
23 Q I do have one question I guess, then, on sub (19).
24 What is meant by the term "normal daily and seasonal
25 fluctuations"?
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1 A I think it is a recognition in the Department
2 rules that dissolved oxygen concentrations in a body of
3 water fluctuate naturally, and the intent is to -- for the
4 Department to protect those normal daily and seasonal
5 fluctuations above the standard.
6 Q Is that a measurement made on an annual basis?
7 A Well, it says daily and seasonal.
8 Q Over what period of time, then?
9 A That is somewhat up to the discretion of the
10 investigator. There is no criteria that I am aware of that
11 describe the number of samples in the period of time over
12 which those samples have to be taken to judge compliance.
13 Q What if natural conditions of a marine water --
14 well, marsh water --
15 MR. HYDE: I think it might be better to cast the
16 question in terms of predominantly fresh and
17 predominantly marine, because marsh can be both marine
18 and fresh.
19 BY MR. HETRICK:
20 Q In a predominantly marine water, if the natural
21 conditions were below the levels set out in -- by this
22 standard, would there be a violation?
23 A If the natural conditions were below those levels?
24 Q Yes.
25 A I would not consider those a violation, unless
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1 there was some cause of those. Under your scenario, they
2 are naturally occurring. Perhaps an alternate standard
3 might be appropriate, but not a violation for which the
4 Department would take enforcement action.
5 Q Would that also apply to predominantly fresh
6 water, the same scenario?
7 A Yes.
8 Q Suppose you had a situation in which the -- it was
9 determined that the dissolved oxygen level as a result of
10 natural conditions was below the level set out by this
11 standard, and the Department determined that there were
12 other factors contributing to a worsening of that natural
13 condition level. Would that in fact or in turn be a
14 violation of this standard?
15 MR. HYDE: Is this for predominantly fresh or
16 predominantly marine waters?
17 MR. HETRICK: Both. Based on his testimony, I am
18 not sure it makes a difference.
19 THE WITNESS: As I understand the scenario, if the
20 naturally occurring levels were below the standard as
21 set forth here but there were activities, shall we say,
22 that caused a further depression --
23 BY MR. HETRICK:
24 Q Right.
25 A Then those activities could constitute a
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1 violation for which the Department would or could take some
2 action.
3 Q Right, is that correct?
4 A Thank you.
5 Q Is that yes, that is your answer?
6 A Yes.
7 Q Would the baseline standard then be that the
8 Department would look to the level of DO in that
9 hypothetical that the Department determined to be the level
10 resulting from the natural condition, then?
11 A Yes. I think the Department is basically charged
12 with not trying to abate natural conditions, and it may be
13 that a more appropriate standard should be set.
14 Q Okay. You don't have any opinions, I guess, with
15 respect to specific dissolved oxygen concentrations in the
16 Everglades, per se?
17 A I do not.
18 Q The last thing I guess with regard to DO that I
19 have, would it be appropriate to set a new standard for
20 dissolved oxygen if daily and seasonal fluctuations rise
21 above standards set forth in this rule?
22 MR. HYDE: Does that hypothetical assume that the
23 remainder of the rule is complied with?
24 MR. HETRICK: Yes.
25 THE WITNESS: May I ask a clarifying question?
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1 BY MR. HETRICK:
2 Q Sure.
3 A When you say daily and seasonal fluctuations rise
4 above the levels set, I assume that means that there are --
5 that at other points in time the concentrations fall below
6 the established standard?
7 Q Well, let's take it one at a time.
8 Suppose they don't at other times fall below the
9 standard?
10 A So the absolute values don't fall below the
11 standard?
12 Q Right.
13 A And the fluctuation, the daily and seasonal
14 fluctuations were above the standard?
15 Q Right.
16 A I --
17 Q Well, would the DO naturally -- would the level,
18 would the natural condition -- okay. Let me ask it. I
19 assume -- I see what you are saying now.
20 Let's assume it does fall below, it fluctuates
21 below the baseline limits set out here.
22 MR. HYDE: You are saying it fluctuates below the
23 five milligrams per liter?
24 MR. HETRICK: Right.
25 THE WITNESS: Let me try. If there are measured
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1 values that fall below, let's say predominantly in
2 fresh waters there are measured values that fall below
3 five milligrams per liter, but in a naturally occurring
4 situation, but there are fluctuations that bring the DO
5 levels up above five milligrams per liter, my answer is
6 it still might be appropriate to set a new standard for
7 the minimum criteria if those were naturally occurring
8 fluctuations that fell below the five milligrams per
9 liter.
10 BY MR. HETRICK:
11 Q And again, with respect to that, the time frame
12 involved would be sort of up to the investigator?
13 A Well, the five milligrams per liter, as I read the
14 standard, applies to the minimum criteria that could be
15 measured in the water body, and then the ranges, the
16 fluctuations refer to both daily and seasonal
17 fluctuations. At various points in time if the
18 concentrations were falling below five milligrams per liter
19 for naturally occurring reasons, then it may be appropriate
20 to modify the standard to reflect those minimum
21 concentrations that would naturally occur.
22 Q Let's move on from DO. If you turn to page 16 of
23 Mr. Nearhoof's report, under sub 4, the first sentence,
24 "The South Florida Water Management District, in the draft
25 Everglades SWIM Plan and their application for structures
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1 discharging into or within the Everglades Protection Area,
2 has proposed 50 p.p.b. as a technically-based interim
3 concentration limit for total phosphorus."
4 Do you have any idea where that number came from,
5 how that number was developed?
6 A No, not really.
7 Q Was there any ongoing study of any form of
8 phosphorus limit into the Everglades Protection Area when
9 you were with the Department?
10 A Yes.
11 Q Were any numbers arrived at or recommended during
12 that time? Let's put it this way. Were any numbers
13 considered other than this?
14 A For an interim concentration limit for phosphorus?
15 Q Well, for any concentration limit for phosphorus.
16 A Well, there were various numbers being considered
17 based on the research. I don't think any final decisions
18 had been made when I was with the Department.
19 Q Do you recall what those numbers were at all that
20 were being tossed about?
21 A No. The numbers that were being tossed about were
22 basically reflections of information that had been gathered
23 about the quality of the water within the Everglades and
24 the quality of the water within or rainfall water as it
25 related to phosphorus. Those were the numbers that I am
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1 talking about that were being bantered around.
2 Q Were these numbers higher or lower than this 50
3 parts per billion?
4 A They varied all over the place. It just depended
5 on the issue that was being discussed. As I said, there
6 were ranges of numbers in different situations that were
7 being discussed. There were no goals or limits set for,
8 that I recall, while I was still involved with those
9 discussions.
10 Q Do you recall how many early drafts of this SWIM
11 Plan that you might have reviewed prior to the adoption of
12 the current SWIM Plan?
13 A No.
14 Q During your tenure with the Department?
15 A No. I think the problem or one of the problems
16 was we were receiving bits and pieces of information, and I
17 don't recall whether we received or how many completed
18 drafts versus pieces of drafts. There was a lot of
19 interaction back and forth between staff in those days.
20 Q Were there many drafts? Were there more than 10?
21 A Of the whole?
22 Q Right.
23 A Not that I saw.
24 Q Were there less than 10?
25 A I don't remember. I would say less than 10 that I
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1 recall.
2 Q Phosphorus concentration limits for the
3 Everglades Protection Area were being considered when you
4 were with the Department, then, is that correct?
5 A That is correct.
6 Q What was the process utilized in developing those
7 limits when you were with the Department?
8 A I am not sure I can answer that. The Department
9 wasn't responsible for that process.
10 Q Who was responsible?
11 A The water management district was developing that
12 process.
13 Q Were you monitoring that process?
14 A Yes.
15 Q Was that process ongoing primarily between the
16 years 1988 and 1990, or did it start before then?
17 A Well, my involvement with the process was
18 primarily through the SWIM planning effort, which my
19 involvement was during that, essentially during that period
20 of time that you referred to. There had been efforts
21 underway prior to that, and certainly the efforts have
22 continued since that time.
23 Q The efforts that were underway prior to that
24 period of time, did you have any involvement in those?
25 A Very limited.
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1 Q Do you have any knowledge of those?
2 A Not specifically.
3 Q Do you know if there were any concentration limits
4 for the Everglades Protection Area ever talked about early
5 on, prior to 1988, by the Department and the District?
6 A I don't recall any.
7 Q During the SWIM planning process, did you have any
8 particular staff assigned to monitor or evaluate
9 information that was being submitted to the Department by
10 the district concerning phosphorus concentration limits in
11 the Everglades Protection Area?
12 A Yes.
13 Q Who from your staff were the persons assigned that
14 task?
15 A I will try again, I think I answered this same
16 question yesterday, but the primary people on my staff were
17 Roxane Dow, who was the bureau chief of the Bureau of Water
18 Management; Bart Bibler, who was her assistant; Dave
19 Worley, who was administrator of the Coastal Zone
20 Management Section; I believe Gail Sloane and Peggy
21 Mathews, who were in that section; and there may have been
22 some others. Those were the primary people that came to
23 mind.
24 There were others throughout the Department that
25 were brought in through different parts of that process.
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1 Those names are, I believe, the ones that I gave yesterday
2 as the primary staff members within our division.
3 Q Did you ever have any discussions with any of your
4 staff, the names you just mentioned, concerning --
5 specifically concerning concentration limits of total
6 phosphorus in the Everglades Protection Area?
7 A Yes.
8 Q Do you recall how many discussions you had with
9 them on that subject?
10 A No.
11 Q Was it many discussions or few discussions?
12 A Probably many. I guess many.
13 Q What was the substance of those discussions?
14 A Well, at that point in time, basically I was being
15 briefed on the progress of the water management district to
16 develop concentration limits. That was an ongoing process,
17 and as I said, we were receiving information fairly
18 frequently, and I was trying to stay up to speed on their
19 efforts, as well as the efforts of all of the other water
20 management districts on their SWIM planning
21 responsibilities.
22 Q You mentioned that these -- well, did your staff
23 have any preliminary recommendations to you as to what
24 concentration limits should be imposed for total phosphorus
25 in the Everglades protection area, whether interim or long
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1 term?
2 A I don't recall any.
3 Q Do you recall if they offered any opinions on the
4 propriety of any numbers submitted by the water management
5 district to the Department?
6 A Let me restate an answer I gave you yesterday and
7 try to answer your question.
8 It was our position that we were not to dictate to
9 the water management districts how they were to conduct
10 their SWIM planning effort. We were to review that effort
11 in light of the SWIM statutory requirements, so we were not
12 in a position of telling the water management districts
13 they were doing something the right way or the wrong way.
14 We were primarily commenting on what they were doing.
15 Q Sure.
16 A The comments that I received related more to the
17 technical approach the district was following based on the
18 information they had, the application of the data they were
19 collecting, the problems with that application. Many of
20 these numbers that were being batted about that we talked
21 about earlier ranged widely, depending on the source, the
22 data, the time of the year and so forth, so our discussion
23 primarily centered on what information they collected and
24 how they used that information, not whether it was
25 appropriate to use, to pick a particular number as a
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1 target.
2 Q But with that in mind, with that approach in mind,
3 did any of your staff conduct reviews of scientific data to
4 determine, again, the propriety of information submitted by
5 the district leading up to any proposed concentration
6 limits that were being bantered about for the Everglades
7 Protection Area?
8 A To my knowledge, and I think I said this before, I
9 don't recall any information we reviewed in house other
10 than the information that was submitted by the water
11 management district or referenced by them in their work.
12 Q Did your staff offer any opinions to you as to
13 the -- based on their review of the information?
14 Well, first of all, was this, the information that
15 was submitted to your staff, did it involve scientific
16 information?
17 A Yes.
18 Q Did any of them reach any conclusions or any
19 assessments that, in effect, established any basis for any
20 of the numbers that were thrown about as regarding
21 phosphorus concentration limits?
22 MR. HYDE: I object. I think this has been asked
23 and answered several times.
24 You can go ahead and answer it if you want.
25 THE WITNESS: I will try and answer it again. I
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1 think I have answered the same question repeatedly.
2 As I recall, my staff was briefing me on how the
3 water management district had conducted their studies,
4 how they had analyzed the data and the possible
5 problems with that process. I don't recall any
6 opinions on -- expressed to me on whether district
7 staff were -- or the numbers they were developing were
8 appropriate or correct or incorrect, merely an analysis
9 by my staff of what they were doing, what the district
10 was doing.
11 If they had opinions, then you have to ask them
12 about it. I am answering what I heard my staff saying
13 to me, and that was, here is what the district has
14 done, here are the problems with it. There is not a
15 lot of data in this area, there is a lot of data in
16 that area, there are ranges for these numbers. It was
17 an evaluation of what they were doing.
18 BY MR. HETRICK:
19 Q Did your staff conclude then with regard to
20 concentration limits that they were analyzing the data
21 properly?
22 A In general, I think, yes.
23 Q Do you recall any particular phosphorus
24 concentrations limit proposed in the 1989 Everglades draft
25 SWIM Plan?
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1 A No.
2 Q Would 30 parts per billion sound familiar to you?
3 I am just trying to see if you recall.
4 A I don't recall specific recommendations in the
5 early SWIM plans. There were a number of numbers that were
6 flying around during that period. I don't recall a
7 specific recommendation was made.
8 MR. HETRICK: Let's break for lunch.
9 (Lunch recess.)
10 MR. HETRICK: I would just like to state that the
11 Department of Environmental Regulation wishes Mr.
12 Rotruck a happy birthday. He has been with us
13 throughout all of these depositions, and I speak for
14 myself certainly and the Department, I think we wish
15 you a very happy birthday.
16 BY MR. HETRICK:
17 Q We will try to go through the rest of these
18 documents, Mr. Armstrong.
19 A I have the same opinion on that.
20 MR. HYDE: I guess there is something we can agree
21 upon.
22 MR. HETRICK: Does the United States concur?
23 MR. BARTELL: The United States concurs in its
24 best wishes.
25 MR. HETRICK: And something that has not been
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1 achieved in any deposition before, all sides agreeing
2 on something.
3 BY MR. HETRICK:
4 Q I am going to ask you one question about -- and it
5 is just one I don't think I actually covered when we were
6 talking about nutrients in the definition of imbalancing,
7 and I think you alluded to it, but under the definition of
8 nutrients where it says that -- and it is sub, actually, it
9 is -- if you want to refer to it, it is 17-302.560, parens
10 (27) -- is there a particular areal extent associated with
11 the determination of when an imbalance can occur in a
12 natural population?
13 A The standard speaks to the body of water, and my
14 understanding of that standard is that you have to consider
15 the entire body of water in applying the standard. As to
16 what portion of that body of water would have to be
17 affected in such a way as to cause an imbalance, I think it
18 would be a site-specific determination.
19 Q Would an imbalance in 10,000 acres of Lake
20 Okeechobee, assuming that there were, there was an
21 imbalance in nutrients in 10,000 acres of Lake Okeechobee,
22 be a violation of state water quality standards?
23 MR. HYDE: I am going to object. It assumes facts
24 that are not in evidence. I think also it is a
25 tautology. You are saying, assuming there is an
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1 imbalance in Lake Okeechobee, there is an imbalance, so
2 I think the hypothetical needs more facts.
3 BY MR. HETRICK:
4 Q If there were an imbalance, if it were determined
5 by the Department that 10,000 acres of Lake Okeechobee
6 contained Class III nutrient violations, would that
7 constitute an imbalance?
8 MR. HYDE: I am going to interpose the same
9 objection. I still think you are saying something that
10 is a tautology.
11 BY MR. HETRICK:
12 Q Well, would it constitute an imbalance in any
13 particular portion of Lake Okeechobee?
14 A As you phrased your question, I think the way you
15 stated it, there was a given that there is a violation, and
16 the question was whether that would constitute an
17 imbalance. I think it is really the reverse. If there was
18 a violation there would have to be an imbalance, because
19 that is the test for a violation.
20 Q Well, let's flip it around, then. If there was an
21 imbalance in natural populations of aquatic flora or fauna
22 covering 10,000 acres of Lake Okeechobee, would that be a
23 violation of state water quality standards?
24 MR. HYDE: Same objection; assumes facts not in
25 evidence.
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1 MR. HETRICK: It is a hypothetical.
2 MR. HYDE: Then there is a lot of unstated facts
3 that may impact on it, such as what are the remaining
4 portions of Lake Okeechobee, are they not reflective of
5 an imbalance in natural populations of flora and fauna?
6 BY MR. HETRICK:
7 Q I could ask that question before I ask this
8 question. We can approach it from the standpoint of, let's
9 chuck out 10,000 acres and take the rest of Lake
10 Okeechobee, and assuming that there was an imbalance in --
11 well, assuming that there was an imbalance of natural
12 populations of aquatic flora or fauna and affecting that
13 portion which is most of Lake Okeechobee, would there,
14 would that constitute a violation of state water quality
15 standards?
16 MR. HYDE: Same objection.
17 THE WITNESS: In your hypothetical, if there is an
18 imbalance in the natural populations of flora and fauna
19 and it is in a water body and caused by nutrients, I
20 think by definition it is a violation of the nutrient
21 standard. Your hypothetical states as a given that
22 there has been an imbalance in natural populations of
23 aquatic flora and fauna. If that was caused by
24 nutrients in that water body, then my conclusion would
25 be that it would be a violation. I think that is
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1 independent of the 10,000 acres. Your hypothetical
2 makes the conclusion there has been an imbalance.
3 BY MR. HETRICK:
4 Q Well, I guess what I am trying to get at here,
5 then, is how do you determine what size or portion of a
6 body of water, and it sort of gets to the same question of
7 when does an imbalance occur, but how do you determine at
8 what limits to a portion of a body of water an entire body
9 of water, what are the limits, at what point do you start
10 saying that there is an imbalance?
11 A I don't think there is a given point. I think
12 there has to be some discretion used by the investigator in
13 making that determination. There are no specific criteria,
14 to my knowledge, presented in the Department's rules that
15 assist in making that determination.
16 Q Well, if you had a 40,000-acre lake, could you
17 have a violation of state water quality standards within
18 two acres of that lake if there were an imbalance of
19 natural populations of aquatic flora or fauna?
20 MR. HYDE: Are you saying violation of the
21 narrative nutrient standard?
22 MR. HETRICK: Right.
23 THE WITNESS: I am not sure I can give an absolute
24 answer to the question, but if the lake was 40,000
25 acres, did you say?
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1 BY MR. HETRICK:
2 Q Yes.
3 A And two acres had changes to the natural
4 populations, I think it would be unlikely that I would
5 consider that an imbalance for that water body. If that
6 was 2,000 acres instead of two acres, it would probably be
7 more likely that one could determine that an imbalance had
8 occurred, so the extent of the change in flora and fauna is
9 part of the criteria that I think one would have to look
10 at.
11 Q Is there a percentage rule of thumb that you might
12 go by in determining what portion of a water body might be
13 affected to create an imbalance?
14 A I wouldn't say there was a rule of thumb. Again,
15 I think it would be established on a case-by-case basis,
16 perhaps taking into account previous practices of the
17 Department or other rules that might relate to areal extent
18 of impacts.
19 For example, the mixing zone rule allows up to 10
20 percent change in area extent on a water body, and so even
21 though there is no specific set of criteria given for the
22 nutrient rule, I think you could look to other previous
23 cases and other rules in making that determination, and, of
24 course, the matter pertaining to that water body.
25 Q Could you take two lakes, the same size, but each
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1 lake may have totally different characteristics, based upon
2 what you have said, it has taken into account different
3 factors and construing different departmental rules, could
4 you reach a determination in one instance that there might
5 be an imbalance caused by -- well, that there would be a
6 violation of state water quality standards because you
7 would find an imbalance in one lake versus the other lake?
8 MR. HYDE: I am going to object. It calls for
9 speculation. It assumes a host of facts that may or
10 may not be in consideration.
11 MR. HETRICK: I am trying to explore the nature of
12 his understanding of this rule.
13 BY MR. HETRICK:
14 Q Do you understand the question?
15 A I think so. Let me try to answer it this way.
16 If you had two lakes of the same size and they may
17 have changes to natural populations that affect the same
18 areal extent, then I think it is possible to determine that
19 one might constitute a violation of this standard and one
20 might not. As I said, the application of the standard in
21 reference to these numerical or these narrative criteria
22 would have to be done on a case-by-case basis.
23 Q In looking at two identically geographically sized
24 lakes, whatever that size may be, but they are the same
25 size, could a portion of water in which is determined that
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1 an imbalance occurs be a different geographic size within
2 each of those lakes?
3 A Yes.
4 Q I think we generally discussed this, too, but I am
5 going to approach it from a different way because I didn't
6 ask you exactly this with regard to the Everglades, but you
7 are familiar with the Everglades Protection Area as you
8 have stated, I guess, in this deposition?
9 A Yes.
10 Q We have talked about bodies of water. Do you have
11 a definition of how many bodies of water there are in the
12 Everglades Protection Area?
13 A No.
14 Q How about in the Indian River lagoon? Are you
15 familiar with the Indian River lagoon?
16 A Yes, I am.
17 Q Do you have any definition of how many bodies of
18 water there might be in Indian River lagoon?
19 A No.
20 MR. HYDE: I am going to object to this line of
21 inquiry. I don't think it is relevant, and I don't
22 think it is likely to lead to the discovery of relevant
23 information.
24 MR. HETRICK: I think that both you and Mr. Green
25 have gone into this extensively with Mr. Swihart, as to
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1 what his interpretation of "body of water" is under the
2 narrative nutrient standard.
3 MR. HYDE: I am talking about the Indian River
4 lagoon. I will let you make your inquiry, but I just
5 don't see where it is leading.
6 MR. HETRICK: I am trying to get a feel for
7 different water bodies which we can establish, and I am
8 asking the question different ways to explore his
9 understanding of the rule.
10 MR. HYDE: That was a hypothetical, then. Okay.
11 BY MR. HETRICK:
12 Q 17-302.501, are you familiar with this subsection?
13 A Yes, I am.
14 Q Can you explain to me what it means when it says
15 the criteria, surface water quality followed by, and it
16 cites the rule, shall apply to all surface waters outside
17 the zones of mixing, and then it has two exceptions? Can
18 you explain to me what is going on there?
19 A I would say it is pretty self-explanatory. I
20 guess, to restate it, this subsection presents water
21 quality criteria that the Department is to apply within all
22 waters within their jurisdiction, except within zones of
23 mixing.
24 Q Does this provision impact your thinking in any
25 way, in any way, about imbalance in large lakes versus
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1 small lakes?
2 MR. HYDE: I object to the form of the question.
3 I think it is vague. I am trying to understand what
4 the relationship is between the two, anyway.
5 BY MR. HETRICK:
6 Q Do you understand the question?
7 A No.
8 MR. HETRICK: I am going to mark this as Exhibit
9 8.
10 (Whereupon, Exhibit No. 8 was marked for
11 identification.)
12 BY MR. HETRICK:
13 Q Do you recognize this document, Mr. Armstrong?
14 A Yes, I do.
15 Q Can you explain to me what this document was or
16 what the purpose of this document is for?
17 A We had been having discussions with the Secretary
18 about our review of the Everglades SWIM Plan and basically
19 the extent of the Department's involvement in erecting the
20 conclusions and approaches outlined in the SWIM Plan as
21 required by the SWIM statutes. I think I discussed that
22 earlier, and the Secretary wrote this memo to us to give us
23 some guidance in reviewing the plan, the things he would
24 like to see us address and some deadlines that he would
25 like to see included in that effort.
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1 Q So these were some of the things that he would
2 have liked to have seen included in that effort?
3 A Right. He describes this as a checklist to be
4 used in preparation of our comments to the water management
5 district.
6 Q You mentioned you had had -- you were having
7 discussions with the Secretary about this process. This
8 memo is dated October 17, 1990. At that time from the
9 point of your tenure with the Department, was the
10 Everglades SWIM planning process taking up a majority of
11 your time or a small portion of your time?
12 A A small portion.
13 Q In your discussions that you had with the
14 Secretary with regard to this memo and the discussions
15 leading up to this memo, who were you having most of your
16 discussions with with the Department? And it may have been
17 the same people you have already identified.
18 A I think essentially it would be the same people
19 that I have already identified. As I mentioned, there may
20 have been other staff members involved on specific issues,
21 but I identified the key players, and I would give you the
22 same answer.
23 Q Let's go to sub 1. It says, "On the Phosphorus
24 reduction to get 151 T. out: It must make clear that the
25 minimum amount allowed to go into WCA-1," which is the
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1 Loxahatchee Refuge, "is 25 T. Put in a statement making
2 clear again our requirement that neither WCA 1 or WCA 2A be
3 counted upon for any nutrient removal towards the 151
4 tons." Can you explain that statement?
5 A Just in general, I believe you said "minimum" in
6 the first sentence and the word is "maximum."
7 Q Maximum, excuse me.
8 A Basically, that a goal of 151 tons -- T stands for
9 tons -- of phosphorus removal had been discussed, and a
10 goal of discharge of 25 tons to the Loxahatchee. The
11 Secretary wanted to be sure that there was a specific
12 statement in our comments that would make it clear that no
13 further reduction that might be anticipated in WCA-1 or
14 WCA-2A could be considered in meeting those goals.
15 Q Was this, in fact, done?
16 A I don't know.
17 Q Accomplished, in your tenure? Was it included in
18 comments?
19 A I don't believe so.
20 Q Do you know why not?
21 A Because I left. Drafts were prepared, and I don't
22 recall -- I left the Department on October 30th, and I
23 don't recall the final comments had gone out at that point
24 in time. There were documents being prepared and going
25 back and forth, and I honestly don't remember exactly the
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1 status of these particular comments when I left.
2 Q The 25 tons and the 151 tons that are referenced
3 there, is that translatable into a parts per billion
4 number or not?
5 A It might be if you had other relevant information,
6 but I can't say if that information exists.
7 Q Look on page 2 of the document, paragraph f., if
8 you would review that?
9 A Okay.
10 Q What did the 55,000 acres tract number refer to
11 in that paragraph?
12 A The water management district had identified a
13 potential nutrient removal project in that area, and the
14 numbers have been discussed, whether it was 55,000 or more
15 or less, at different points in time. The point of the
16 statement was that the Secretary wanted to be sure there
17 was some sort of fallback position or different or
18 additional actions ready to be implemented or being
19 implemented in case the goals that were identified for
20 phosphorus removal had not been reached.
21 Q And that would include purchasing this 55,000-acre
22 tract?
23 A It could, but that was not --
24 Q What was the basis for that number?
25 A Well, the district had identified possible lands
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1 that could be used for nutrient removal, possible areas of
2 various sizes. That, at that point in time, I guess, was
3 the size of the acreage being discussed or reviewed by them
4 in their SWIM planning effort.
5 Q Was that a recommended number by them, that be
6 utilized at that time?
7 A I would say it was a number that was identified by
8 them. I am not sure if I'd use the term "recommended." It
9 was a potential nutrient removal area that they had
10 identified.
11 Q Did they geographically specify it or was it --
12 could it have appeared or been assembled in various sorts
13 of configurations?
14 A I don't -- I think in general it geographically
15 identified it. I don't -- at this point in time, there may
16 have been still some confusion over -- not confusion, but
17 ongoing discussions over the exact boundaries and which
18 portions of the lands would and would not be included. I
19 can't say off the top of my head whether exact boundaries
20 had been specified and proposed at this point in time or
21 whether we were still in a general discussion stage about
22 the concept, even though the acreage might change somewhat.
23 Q Had this acreage number been evolving over the
24 previous two or three years?
25 A Yes, it had.
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1 Q Were there ongoing studies during that period of
2 time to -- being conducted by the water management district
3 to assist them in arriving at an appropriate number?
4 A Yes.
5 Q Did you either object or concur with the assumed
6 use of 55,000 acres?
7 A Me personally?
8 Q In your professional capacity as division
9 director.
10 A I don't recall that we either objected or
11 concurred. At this stage, as I said, the discussions were
12 still ongoing about what was available, how large the area
13 should be, what the removal rates were, and that was all
14 still in the process about this time.
15 Q Did you have any preliminary thoughts in your
16 professional capacity as to the viability of this number,
17 based upon the ongoing studies that had been undertaken by
18 the district over the previous two or three years in your
19 professional capacity?
20 A I can't say that I had an opinion on -- I believe
21 just the term viability of the number, I think was a number
22 being presented to us as reasonable as one of the steps
23 that the district was going to be recommending.
24 Q If the number had been 200,000 acres, would that
25 have surprised you?
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1 A Probably would have.
2 Q If the number had been 10,000 acres, would that
3 have surprised you?
4 A Not necessarily. Maybe somewhat to a lesser
5 extent than 200,000 acres.
6 Q What about 100,000? Would that have surprised
7 you?
8 A Well --
9 Q I am trying to get a feel, did you think this
10 number was reasonable? Let me ask you that question in
11 your professional capacity.
12 A Whether surprised or not, this number was based on
13 the district's assessment of what the acreage needed to be
14 to make some steps towards phosphorus reduction, but
15 factored into that was what they felt was reasonably
16 available or might be available, so a lot of factors went
17 into the development of this number, and I am not sure that
18 if it had been higher or lower would have surprised me. I
19 would want some justification from the district on why that
20 number was picked, and that is basically where we were in
21 this stage of the process.
22 Q In your understanding of the Department's rules
23 and regulations and the SWIM planning law, did this -- and
24 your working knowledge of that, the Department, of those
25 rules and laws, did this number appear to be reasonable?
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1 MR. HYDE: Calls for speculation.
2 THE WITNESS: Let me try that. I would say this
3 approach, including the area that they had identified,
4 seemed reasonable as one of the steps that they were
5 identifying that should be taken in this SWIM planning
6 process. It didn't stand alone. It was part of a
7 combination of things that they were working on, and in
8 that sense, yes, I felt it was reasonable.
9 MR. HETRICK: Let's go to Exhibit 9.
10 (Whereupon, Exhibit No. 9 was marked for
11 identification.)
12 BY MR. HETRICK:
13 Q I want to take you through this document. Do you
14 recognize, beginning with, first of all, do you recognize
15 the Routing and Transmittal Slip on page 1?
16 A Yes.
17 Q Was this document that is attached intended to be
18 a part of that routing slip?
19 A Yes.
20 Q Are you familiar with this document?
21 A In general.
22 Q Can you tell me what the purpose of the document
23 was?
24 A If I recall, and from scanning the document, it
25 was an internal memorandum to document the highlights of a
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1 meeting that was attended by Tom Swihart of my staff.
2 Q Is this summary, in effect, an assessment made of
3 what occurred at that meeting?
4 A I don't know. I wasn't there. I assumed that it
5 was. It was presented to me by staff as an accurate
6 summary of that meeting.
7 Q So you would agree that it is your staff's
8 assessment of what occurred at that meeting?
9 A I would agree that my staff told me it was their
10 assessment.
11 Q Did you review this assessment?
12 A Yes, I did.
13 Q If we start with number 1, do you agree with that
14 assessment now that was made in that memo?
15 A Let me go back to my answer. I can't agree or
16 disagree with the assessment. I could simply agree that it
17 was the assessment that was presented to me. I wasn't at
18 the meeting, and I can't speak to its accuracy. All I can
19 say is that I recognize the document and it was presented
20 to me as an accurate assessment of the meeting, so I agree
21 the document was prepared and I do recognize it. As to its
22 accuracy, I really cannot speak to that.
23 Q Well, I am still having a little difficulty
24 discerning the difference between you and your staff, but
25 if we take, for example, subparagraph 5, "The S-12
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1 structures will require more discussion. Should all four
2 be pooled statistically? or kept separate," did you have
3 any opinion at the time on that statement?
4 A No.
5 Q Did you agree with the issues identified in that
6 statement?
7 A I am not sure if -- the statements, as I
8 understand it, presented topics that were discussed at the
9 meeting, some of which will be discussed or were to be
10 discussed further in the future, and I don't -- I can't say
11 that I agreed or disagreed with any one of them. Staff of
12 those agencies were meeting to discuss these issues, and
13 the results of those discussions were being reported back
14 to me. I didn't take a position one way or the other on a
15 particular issue, that I recall.
16 Q I could belabor this, but number 6 in the memo
17 from Tom Swihart to Roxane Dow, "The S-333 discharges will
18 require special handling, because that structure is
19 operated differently now than it was from 1976-81."
20 Then it says, "As a starting point, an analysis
21 will be made of water quality data from January of 1983 to
22 December of 1987 (excluding a 30-day test period in April
23 of 1984 when discharge quality was degraded)."
24 Did you agree or not disagree with that statement
25 at the time or that assessment?
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1 A I don't think I had an opinion. This was a
2 statement of how they were going to handle a particular
3 data set. I did not review the data set or form an opinion
4 as to whether this approach was appropriate.
5 MR. HYDE: I think the fundamental problem here,
6 Keith, I think you are assuming that Mr. Armstrong
7 knows each and every thing that his staff was doing and
8 approves of each and every thing that his staff was
9 doing and understands the opinions or reasons for each
10 and every thing his staff was doing, and that is just
11 not -- that is not the real world. I think you are
12 dealing with Mr. Armstrong as an administrator of a
13 far-flung division within the Department, and he knows
14 certain things, and certain things are just passed up
15 to him for informational purposes. That doesn't mean
16 he buys or accepts everything that is said on a piece
17 of paper that some staff person might have set forth at
18 some time or he understands the reasons why they say
19 something.
20 MR. HETRICK: I guess what I am trying to explore,
21 the memo states here, "I agree with your assessment and
22 issues identified," and I am just trying to find out
23 what assessments were made and which issues are
24 identified and whether he agreed or not. I assume he
25 agreed with it, and now he stated he may not agree with
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1 it or he had no opinion, may or may not have an
2 opinion, or actually what he stated was, "I don't
3 necessarily have an opinion about that," and I am just
4 confused. I am just trying to explore the contents of
5 this document. I think we established early on that --
6 well, there is two issues, Bill.
7 Number one is this memo in particular, but the
8 second, broader one is, even though things pass his
9 desk, if he signs off on something or agrees with
10 something I am assuming --
11 MR. HYDE: But you are necessarily assuming --
12 MR. HETRICK: That is a Department condition.
13 MR. HYDE: -- that he is agreeing with everything
14 that comes before his face, and that is just not the
15 case in any bureaucracy, whether it is corporate or
16 governmental.
17 MR. HETRICK: Well --
18 MR. HYDE: You can continue with the line of
19 questioning. I don't see that it is meaningful or
20 useful.
21 BY MR. HETRICK:
22 Q What did you mean on the routing slip, "I agree
23 with your assessment and issues identified"?
24 A Well, if you read through the document, it appears
25 to me, and it appeared to me at the time, Mr. Swihart was
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1 stating certain facts concerning what they had discussed
2 and how they intended to address those issues. There were
3 a couple of his thoughts concerning the outcome of the
4 meeting that are included, and basically I told him that I
5 felt that it appeared that they were doing what they were
6 charged with doing, and that is discussing these issues,
7 and it was a technical set of issues that they were asked
8 to address. He included a statement at the end that some
9 of the agreement that he perceived may be illusory; perhaps
10 some people who didn't say a whole lot may not have agreed,
11 that was his personal opinion, and I can understand how
12 that might happen, but basically I was agreeing that he had
13 done a good job and had done what he was asked to do.
14 I can't say that had I been in attendance at the
15 meeting and done an independent assessment I would have
16 decided to take the same approach. I was relying on staff
17 and their abilities to make those judgment calls whenever
18 they needed to.
19 Q Well, with regard to number 6, do you know if your
20 staff agreed with this method of handling S-333 discharges?
21 A As it was presented to me, it appears that the
22 group that had met decided that they would take this
23 approach. I don't know whether he personally was in a
24 minority or agreed with the group, but that was, as I
25 understand it, the presentation of maybe the consensus of
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1 the group, but the approach they intended to take for the
2 reasons stated. I had no reason to question that and, in
3 fact, did not question it, that I recall, anyway.
4 Q Were you basically then generically or generally
5 looking at how they intended to address issues and whether
6 that process was appropriate or not? Is that --
7 A In a general sense.
8 Q You did not look at really the substantive
9 discussions that were ongoing?
10 A Well, I didn't look at the detailed information or
11 perhaps certainly not at the discussions that led to these
12 approaches that were identified. I simply could not do
13 that in the position I was in.
14 Q Well, one last thing. If you could look at number
15 8, in the second paragraph of number 8, it is stated, "I
16 expressed substantial concern about the possibility of this
17 method being insensitive to single high values or even a
18 series of them extending, perhaps, over several months.
19 The Park and the SFWMD will perform sensitivity analyses on
20 this question."
21 A Okay.
22 Q In his professional capacity or in Tom's
23 professional -- Tom was responsible to you for this period
24 of time?
25 A Yes, he was.
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1 Q Was this -- would this have been a departmental
2 concern or not, or was this his concern?
3 A This was his concern.
4 Q Did you have any opinion from the Department's
5 perspective as to whether or not the Department would also
6 express such a concern?
7 A No, not at this point. I tend to agree I think
8 that it is appropriate to raise the concern, but concern
9 had not been resolved by the group. It was being studied
10 further, and I don't recall having anything specific to say
11 about it.
12 MR. HETRICK: Let's mark this as Exhibit No. 10.
13 (Whereupon, Exhibit No. 10 was marked for
14 identification.)
15 BY MR. HETRICK:
16 Q Do you recognize this memo?
17 A Yes, I do.
18 Q Do you recall the first draft of the South Florida
19 Water Management District Everglades SWIM Plan?
20 A In general.
21 Q Can you tell me what the purpose was for this
22 memorandum?
23 A This was an internal briefing memorandum to the
24 Rule Review Committee, which consisted of generally the
25 Assistant Secretary and the division directors and a few
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1 other key people within the agency.
2 Q If you look on the front page, the first
3 paragraph, the last line of the first paragraph says,
4 "Instead, the plan refers to water quality," quote,
5 "`targets' and `goals.'"
6 What was the purpose behind that?
7 A I am sorry, could you be more specific, the
8 purpose behind what?
9 Q Why did they, did the ERC -- well, what do the
10 terms "targets" and "goals" mean in the context of what is
11 being discussed here?
12 A If I recall, the issue that the water management
13 district was wrestling with was whether or not to recommend
14 specific standards for adoption by the Environmental
15 Regulation Commission. As explained in the memorandum, the
16 district, instead of recommending specific standards,
17 included in this draft targets and goals that were to be
18 strived for in implementation of the SWIM recommendations.
19 Q Was it decided that the district would not request
20 ERC adopt numeric water quality standards for any part of
21 the Everglades system, Everglades Protection Area?
22 A That apparently was the decision in this draft.
23 Q Was it, in fact, what resulted?
24 A I don't know.
25 Q Why was it decided in this draft?
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1 A I don't know. You will have to ask the district.
2 Q Do you agree or disagree with the decision by the
3 water management district not to propose numeric criteria?
4 Let me put it this way. Did you agree, at the time of this
5 draft did you have an opinion on whether or not the water
6 management district should propose numeric criteria-setting
7 by the ERC?
8 A I don't recall that I had an opinion. I don't
9 remember. We had discussed the good and bad, if you will,
10 factors of both approaches. I don't recall that I had an
11 opinion one way or the other.
12 Q Have you since come to an opinion with regard to
13 that particular issue?
14 A No.
15 MR. HETRICK: We will mark this as No. 11.
16 (Whereupon, Exhibit No. 11 was marked for
17 identification.)
18 BY MR. HETRICK:
19 Q Do you recognize this document?
20 A Yes, I do.
21 Q Can you describe this document to me?
22 A As best I recall, this document represents
23 language that may have been prepared by Charles Lee or at
24 least I think was offered by Charles Lee as some language
25 or actions that might be included in the -- by the water
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1 management district in the Everglades SWIM Plan. It was --
2 as I understand, it was ultimately passed through the
3 Department for review and consideration.
4 Q On page 2 of this document, entitled up at the
5 top, State of Florida, Office of the Governor, it says,
6 "Randy A., Check through carefully and advise which of
7 these we have not covered in our present draft and advise
8 what your division comments are to this. See me on it
9 Wednesday, 31st." Whose signature is that?
10 A Dale Twachtmann.
11 Q Did you indeed have that meeting on the 31st, do
12 you recall?
13 A I don't recall.
14 Q Did you meet with Dale Twachtmann at all about
15 this memo at or about that time?
16 A I do not recall.
17 Q Do you recall ever discussing this -- did you say
18 Sierra Club?
19 A No. Charles Lee.
20 Q -- this Charles Lee document, did you ever discuss
21 this document with the Secretary?
22 A I honestly do not remember. The date on which he
23 wanted to discuss it is the day I left the agency. Things
24 were sort of crazy that last day.
25 Q Did you ever have a chance to review this
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1 document?
2 A If I -- I believe I recall reviewing it in the
3 sense that I skimmed through it.
4 Q Did you ever have any chance in your professional
5 capacity with the Department to form any opinions about
6 this document?
7 A I don't believe that I did. I just don't recall
8 at that point in time whether we got to this before I left.
9 Q In this document, if you look at number 3),
10 paragraph 3), it talks about the 75,000 acres of lands
11 within the Everglades Agricultural Area. Do you see that?
12 A It says 76,000, I think.
13 Q And this memo was dated October 25. There appears
14 to be a FAX on it, October 26, 1990. Do you have -- I
15 assume you got this around October 29, 1990, and you
16 attached that to this. In other words, this was prepared
17 somewhere around late October 1990, is that the way you
18 understand it?
19 A The Secretary's note to me was the 29th, and my
20 transmittal slip to various people in the Department was
21 also dated October 29th, so I assume I received it on that
22 date.
23 Q And this, I guess, would have been a document he
24 received by Charles Lee on or about that time?
25 A I don't know who he received it from. This is a
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1 FAX transmittal from the Governor's office, that I received
2 it from him, apparently.
3 Q This 76,000 acres, back in Exhibit No. 8 in a
4 different context we talked about a 55,000-acre tract, that
5 was mid-October. Do you have any understanding as to the
6 basis for any changes and the thinking that might have gone
7 on to determine this 76,000-acre figure that you might have
8 been a part of during your tenure?
9 A I don't know who prepared this document or what
10 their thinking was. I stated when we reviewed the earlier
11 document that there were several numbers of, acreage
12 numbers that were being passed back and forth during this
13 period of time, and I can't speak to where the 76,000 came
14 from. I don't know who drafted the document.
15 Q Were those figures ever being discussed back and
16 forth or considered back and forth? Do you recall if they
17 were in the range of 55,000 to 76,000 during that time
18 frame?
19 A I recall various parcels of land that were being
20 discussed that were in that range, or combinations of
21 parcels, but as I said, the numbers jumped all over the
22 place for quite some time.
23 Q Are you aware of any response by the Department or
24 the district to this, any -- this memo or any portions of
25 it?
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1 A No.
2 MR. HETRICK: This will be Exhibit 12.
3 (Whereupon, Exhibit No. 12 was marked for
4 identification.)
5 BY MR. HETRICK:
6 Q Do you recall this document?
7 A Yes, I do.
8 Q Can you describe to me what was going on in this
9 document?
10 A Yes. The Department had reorganized, as I believe
11 I mentioned yesterday, that reorganization was effective, I
12 think it was July 1, 1988, and there were some issues that
13 had been hanging on since the reorganization, one of which
14 was how to deal with agricultural systems within the
15 Department's regulatory framework or organizational
16 framework, and the Secretary had asked Howard Rhodes, who
17 was the director of the Division of Water Facilities, and
18 myself as director of the Division of Water Management to
19 meet and discuss the issue of agricultural systems and hold
20 what amounted to sort of a public workshop to discuss those
21 issues with.
22 Q Having to do with stormwater runoff?
23 A Well, agricultural systems and how those would be
24 dealt with organizationally within the Department. We
25 convened that meeting, and the representatives that
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1 attended are listed as an attachment, I believe, to the
2 memorandum, and then we drafted this memorandum to the
3 Secretary in which Mr. Rhodes and myself presented our
4 recommendation and discussed some other issues that
5 probably still needed further discussion.
6 Q Would you look at the third paragraph on page 1,
7 the last sentence that says, "We feel our legislation will
8 give us the statutory authority to implement a watershed
9 approach to solving water quality problems in this
10 fashion," parens, "(even though we could argue that we have
11 it now,)" end parens.
12 What did you mean, "a watershed approach to
13 solving water quality problems in this fashion"?
14 A Give me just a second to read through this, if you
15 will.
16 Q Sure.
17 A The question was what did I mean by a watershed
18 approach, is that correct?
19 Q Correct.
20 A What we were discussing here was possible
21 legislation that might give us the clear authority to deal
22 with a particular set of water quality problems on a
23 regional basis rather than a discharger-by-discharger or
24 activity-by-activity basis, and as the sentence says,
25 arguably, we may have had that authority then, although
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1 some legislation that was being discussed and considered
2 might make that clearer.
3 Q Is there any particular statute that you looked to
4 to base your argument that you already had existing
5 authority to undertake that sort of an approach?
6 A Well, there had been some discussions about our
7 general authority to protect water quality under statute,
8 under Chapter 403, and the extent to which we could
9 implement the requirements under Chapter 373 -- I can't say
10 specifically what sections within those statutes we may
11 have been referring to -- but somewhat argued we had the
12 authority to do what we were talking about currently,
13 although it could probably have written more clearly in the
14 statutes.
15 Q Was that legislation, in fact, passed?
16 A We did pass some water legislation, and I don't
17 recall if it was in '89 or not, I believe it was, dealing
18 with stormwater and with SWIM.
19 Q Did this, in fact, clarify your statutory
20 authority to implement this watershed approach?
21 A Well, one of the things we ended up doing is
22 clarifying the, not only the stormwater regulations, but
23 the SWIM regulations, and as stated in the memo, that this
24 approach basically is SWIM, and looking at water quality
25 and water resource problems on a region-wide basis or
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1 watershed basis is exactly what we were looking for the
2 SWIM process to do, so I think we -- and in that
3 legislation, we did clear up some of the statutory language
4 dealing with stormwater and at the same time cleared up the
5 SWIM legislation as to how that program was to operate.
6 Q Were there ever any specific problems with SWIM
7 that you were trying to get at by cleaning up statutory
8 language to allow for this regional concept to take place?
9 A I don't recall that any of the changes we were
10 trying to make to the SWIM legislation dealt specifically
11 with that concept of watershed management. A lot of our
12 proposed changes to SWIM dealt with the administration of
13 the program by the Department, the relationship between the
14 Department and the water management districts in approval
15 of the SWIM plans and the governing board's involvement in
16 this and so forth. I don't recall whether there was any
17 language in there that dealt with their ability to do
18 region-wide watershed planning.
19 Q Let's switch gears for a moment. Are you familiar
20 with the Interim Permit A issue that is being challenged in
21 this SWIM Plan case?
22 A No, just in general.
23 Q Have you ever looked at the Interim Permit A
24 application?
25 A No.
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1 Q Have you ever looked at the interim permit?
2 A No.
3 MR. HETRICK: Does he intend to offer any
4 testimony at all with respect to the permitting aspect
5 of Interim A?
6 MR. HYDE: No.
7 MR. HETRICK: Or any of the permits that may be at
8 issue in this case?
9 MR. HYDE: Not at all. His testimony, as we
10 stated it, is bearing upon the construction and
11 interpretation of the Department's rules and the
12 historical background of those rules.
13 BY MR. HETRICK:
14 Q I believe you mentioned early on in the deposition
15 when we were running through, and I can pull out your
16 description of anticipated testimony, but one of the
17 aspects that you mentioned you might offer testimony on had
18 to do with permitting, construction of permitting statutes
19 and rules.
20 A Yes.
21 Q I have just a group of questions here about
22 permitting that I would like to ask you.
23 You were division director -- at one point in time
24 prior to becoming division director of Water Quality, you
25 were division director of Permitting for DER, is that
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1 correct?
2 A That is correct. I was director of the Division
3 of Environmental Permitting, and then through the
4 reorganization became director of the Division of Water
5 Management.
6 Q So you are familiar with DER water quality
7 permitting procedures?
8 A Yes, I am.
9 Q Are you familiar with the permitting of
10 agricultural structures?
11 A In general.
12 Q Are you familiar with the -- and I am going to ask
13 you a question about a few specific structures, but are you
14 familiar with the permitting of agricultural water
15 discharges in the upper St. Johns River and Lake Apopka?
16 A In general.
17 Q Do you know what period of time that occurred in,
18 that your involvement was, concerning the permitting of
19 agricultural water discharges in those areas?
20 A The analysis of those discharges and their impacts
21 on the Lake Apopka chain extended over a number of years,
22 leading up to, if I recall, and I was peripherally
23 involved, an agreement that the water management districts
24 would take the lead on permitting of those structures. I
25 don't -- and that was in the mid- to late 1980s -- well,
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1 probably up to 1990 or so, '89 or '90.
2 Q Was a permit issued in those cases by the water
3 management district or by DER?
4 A I believe it was.
5 Q By which one?
6 A I believe by the district. I don't recall if
7 there were any Department permits issued in that case or
8 those cases.
9 Q The types of discharges that were at issue in the
10 upper St. Johns River and Lake Apopka, did they involve
11 longstanding agricultural discharges, including pumped
12 discharges?
13 A Yes. Let me go back to something I didn't
14 realize, or maybe it wasn't this way, that your question,
15 your earlier question was inclusive of the Apopka situation
16 as well as St. Johns. The only thing that would change is
17 that the efforts to permit discharges into St. Johns began
18 early in the Department's history, and I believe there were
19 Department permits issued for that. There may have been
20 some Apopka permits as well. I just recall the recent --
21 in the most recent past I recall there were some water
22 management district permits issued for the Apopka
23 discharges.
24 Q I am just trying to understand, were water
25 management district permits also issued for the St. Johns
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1 discharges?
2 A I don't know of any. There may have been
3 discharge permits.
4 Q Right.
5 A I assume that is what we are talking about.
6 Q That is exactly right.
7 A Not dredge and fill. There may have been, I don't
8 recall.
9 Q What about Department permits to the St. Johns?
10 A I believe there were.
11 Q Were there any Department permits issued to
12 Apopka?
13 A I don't recall any discharge permits. There were
14 some dredge and fill permits for some improvements that
15 were made, and there could have been some Department
16 permits in the earlier years. The most recent ones that I
17 recall were issued I believe by agreement by the water
18 district -- by the agreement between the Department and the
19 district.
20 Q What were the sources -- I will deal with both
21 situations, but if we need to deal with them separately, we
22 can. I am not trying to confuse you.
23 A All right.
24 Q What were the sources of the discharges in the St.
25 Johns River and Lake Apopka?
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1 MR. HYDE: Why don't we do them separately? The
2 questions and answers get confusing when you start
3 dealing with multiple components to a question.
4 BY MR. HETRICK:
5 Q What were the sources of discharge in the St.
6 Johns River?
7 A The ones that I am familiar with and the ones that
8 I recall were some cattle operations, and I believe some
9 farming operations, as well, that were resulting in
10 stormwater discharges, I believe some pumped and probably
11 some gravity flow discharges as well.
12 In the case of Apopka, I believe all of the
13 discharges that were being discussed were from farming
14 operations. I don't recall if there were any cattle
15 operations at that time. I think there had historically
16 been some, but I don't recall if there were any remaining
17 at that point in time.
18 Q Were any of the discharges operated by
19 governmental units at all, do you recall?
20 A I don't believe so.
21 Q What was the nature of the -- well, was there an
22 alleged unlawful discharge by the Department as to these
23 discharges, both in St. Johns and Apopka? And you can take
24 them one at a time.
25 MR. HYDE: Objection; calls for a legal
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1 conclusion.
2 BY MR. HETRICK:
3 Q Well, were there discharges that the Department
4 viewed as violations of water quality standards in each
5 instance?
6 A As I recall, the Department alleged that
7 violations in the upper St. Johns basin should be
8 considered sources of pollution and, as such, have a
9 permit. I don't recall if actual violations were alleged.
10 I think the thrust of that effort was to bring those
11 operations under permit and require monitoring of their
12 operations to then assess their impact more fully. I think
13 that is sort of the gist of the effort for St. Johns.
14 For Apopka, I don't recall if there had been, I
15 believe there had been previously issued permits, but the
16 Department, perhaps Department permits -- I am not real
17 clear on that, but there was concern by the Department that
18 discharges were still causing water quality problems and
19 perhaps some upgrading of the quality of the discharge
20 might be necessary, and that, as I mentioned earlier, led
21 to discussions between the Department and the district
22 about which agency would ultimately negotiate those permits
23 for the dischargers, and I believe the water management
24 district did that.
25 Q For Apopka?
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1 A For Apopka. As I said, there may have been, and I
2 believe there were, some earlier Department permits, but in
3 the recent past I believe the water management district
4 negotiated those permits.
5 Q But the Department permits existed for the St.
6 Johns, then it wasn't the district trying to permit?
7 A As I said, the district may have issued some
8 permits. I was familiar with the Department's permitting
9 actions in the upper St. Johns.
10 Q In the upper St. Johns, under what authority did
11 the Department seek to place the upper basin St. Johns
12 discharges under permits, do you recall?
13 A I don't recall.
14 Q How about for the water management district for
15 Apopka? Under what authority did they assume to permit
16 discharges?
17 A The authority is -- I believe it was under their
18 general authority under Chapter 373 for requiring permits
19 for management and storage of surface waters. I don't
20 believe there was any delegation of DER authority for the
21 purpose of issuing those permits, although I am not real
22 sure on that.
23 MR. HETRICK: Could you read back the last answer?
24 (Whereupon, the court reporter read the requested
25 portion of the record.)
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1 BY MR. HETRICK:
2 Q So the water management districts were exerting
3 authority under 373 and with respect to Apopka?
4 A That is my recollection. Again, I don't know a
5 lot of the specifics of that, but I believe that is
6 correct.
7 MR. HETRICK: This will be marked as Exhibit 13.
8 (Whereupon, Exhibit No. 13 was marked for
9 identification.)
10 BY MR. HETRICK:
11 Q I guess on this document -- would you please
12 review this document?
13 MR. HYDE: Let me ask for clarification. The
14 bottom of the first page of the letter, it is not
15 clear.
16 MR. HETRICK: I am going to get you a better copy.
17 BY MR. HETRICK:
18 Q Do you recognize this document?
19 A Yes, I do.
20 Q I am just interested in what was going on with
21 this memorandum?
22 A Is that a question? Which memo?
23 Q This January 9 -- well, first of all, should
24 this -- the second page of this document, it says, "Dear
25 Mr. Wodraska," should this have been attached to this first
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1 document?
2 A I don't know.
3 Q Do you know if the "Randy" that is appearing on
4 the first page is a reference to you?
5 A I assume that it was.
6 Q Have you seen this memo at all?
7 A Well, you keep referring to the memo.
8 Q I am sorry, the 4/19 --
9 A The transmittal?
10 Q The transmittal.
11 A Yes, I recall this.
12 Q Okay.
13 A To save a little time, I recall the letter. I
14 don't recall if the two were attached when I received it.
15 I think the transmittal slip refers to, "Attached are some
16 applicable correspondence and statute," so -- and I don't
17 know, I don't have a listing of what those were, but
18 obviously some things aren't there because I don't think
19 there is any statutory language attached.
20 Q I am primarily interested in the attached letter,
21 January 9, 1990. You have reviewed that, have you not?
22 A Yes, I have.
23 Q What was going on in this memo?
24 A This letter?
25 Q This letter.
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1 A Well, as I read it, it was a letter to the
2 Executive Director of the South Florida Water Management
3 District from the Secretary discussing the verified
4 complaint which is referred to in the introduction to the
5 letter, filed pursuant to Chapter 403.412, Florida
6 Statutes, and it outlines some requirements the Department
7 was to impose for gaining permits in south Florida. It
8 refers to separate correspondence, which apparently was
9 attached to this letter, to the Corps of Engineers stating
10 that the Corps would have to obtain Department permits. It
11 concludes that because the District also owns or operates
12 structures, the district was going to -- South Florida
13 Water Management District was going to have to apply for
14 permits.
15 It discusses the stormwater legislation that I
16 referred to previously, where we discussed a watershed
17 approach to stormwater management, and then it directed the
18 district to do certain things, starting with supplying a
19 timetable, indicating how they intended -- how the district
20 intends to comply with these requirements.
21 Q If you go to the third paragraph, it begins, "At
22 the Department's request, the 1989 Legislature enacted the
23 Stormwater Act." Basically, and correct me if I am wrong,
24 but this is a confirmation of the codification of the
25 watershed approach that we talked about in Exhibit 12, I
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1 guess?
2 A That is correct, where we previously thought we
3 had general authority, but had proposed legislation that
4 provided specific authority for that, those actions, those
5 types of actions.
6 Q On the second page, the paragraph goes on, from
7 that letter, the January 9, 1990 letter, beginning on the
8 second line with the sentence, "In other words," and if you
9 could just review those next two sentences, it appears to
10 be a summarization by the Secretary of that watershed
11 approach. Would you agree with that?
12 A Yes.
13 Q Would you agree with those statements made by the
14 Secretary at that time?
15 A I believe that I did.
16 Q Going back to the first page, the end of the
17 second paragraph, the last sentence, I just refer you to
18 that sentence for reference, but did you agree that at the
19 time that the district structures -- when I say "you," I
20 mean the Department -- should be -- and you were working
21 with the Department at this time, were you not?
22 A That is correct.
23 Q Was it the Department's position at the time that
24 the district structures should receive permits?
25 A Yes.
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1 Q Did you have any personal opinion one way or the
2 other in that regard?
3 A No, I can't say that I did.
4 Q Did you have any professional opinion or
5 differences with the Department's position in that regard?
6 A I don't recall that I did.
7 MR. HETRICK: We will mark this as Exhibit 14.
8 (Whereupon, Exhibit No. 14 was marked for
9 identification.)
10 BY MR. HETRICK:
11 Q If you would just take a moment to look this
12 document over. Can you identify this document?
13 A Do I recognize it?
14 Q Yes.
15 A Yes, I do.
16 Q Could you explain this document and the purpose of
17 this document?
18 A I think I can. There was -- in essence, there
19 seemed to be a perception, perhaps inside the agency,
20 perhaps outside, and probably both, that in some situations
21 the Department would not even consider a permit for
22 discharge, and the Secretary wanted to make it clear that
23 the Department has no strict -- no, does not have a strict,
24 no discharge policy, but that decisions regarding discharge
25 and permits for discharge must be based upon the facts of
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1 the matter and whether or not the proposed discharge would
2 cause or contribute to any water quality standards.
3 The memorandum recognizes factors such as sample
4 collection and analysis, modeling techniques and daily and
5 seasonal variability and so forth.
6 Q Do you agree with those factors listed on the
7 second page as variables?
8 A I agree those are technical considerations that
9 may come into play.
10 Q Do you agree that they should be taken into
11 account to effectuate this policy?
12 A In general. They may not apply in some
13 situations, but they are reasonable factors that normally
14 should be considered whether they are appropriate in a
15 particular situation or not.
16 Q How would you evaluate whether they were
17 appropriate in a particular situation? What would you take
18 into consideration? If you could give me an example, that
19 would help.
20 A Some modeling techniques are only accurate to a
21 few percentage points, and making a decision solely based
22 on the output of a model may not be prudent, realizing the
23 variability of the results or the reliability of the data
24 that went into the development of that model.
25 I think what the Secretary is saying here is, be
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1 reasonable. If you have a lot of factors to consider, you
2 should consider those and not rely on any one particular
3 set of facts or circumstances.
4 Q Well, do you understand, is this policy as
5 articulated by the Department, then, the current policy of
6 the Department?
7 A I don't know.
8 Q Was it the policy of the Department up to the time
9 of your departure?
10 A Yes, I believe it was. I don't recall that this
11 memorandum was rescinded.
12 Q Have you ever had any circumstances since your
13 departure from the Department where you have had to
14 encounter what might be the -- well, the effects of this
15 policy, or where this policy might come into play, either
16 did or didn't, in any project you have worked on in
17 conjunction with the Department?
18 MR. HYDE: I object to the form of the question.
19 I think there are about three or four questions in
20 there.
21 BY MR. HETRICK:
22 Q Have you ever run into any situations since your
23 departure with the Department that would have involved
24 application of this policy as articulated by Secretary
25 Twachtmann back then?
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1 A Yes.
2 Q What situation was that?
3 A The one that comes to mind that I mentioned
4 yesterday was the City of Boca Raton application for
5 discharge to the Atlantic Ocean, where we had discussions
6 with the Department about the information that had been
7 submitted in support of that application. As I mentioned
8 yesterday, I believe, initially the Department intended to
9 deny the permit, and through those discussions and
10 presentation of additional information, that disagreement
11 was resolved, and I believe a permit has been issued,
12 although I cannot say that for certain.
13 Q Did you see any evidence in your experience with
14 that particular project where the Department considered
15 this particular policy in the resolution of that issue?
16 A No, I can't say that it came up.
17 Q I have one last question on this policy. How does
18 this policy -- can you explain to me how this policy might
19 interface with the OFW rule in terms of whether a
20 particular body of water -- and I can get into Loxahatchee,
21 but in general, hypothetically, in terms of how the
22 grandfathering a particular body of water might be at
23 issue, or does it?
24 A I am not sure that it does. Maybe I could conjure
25 up a hypothetical where it might, but I think the policy is
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1 really independent of the classification of the water body
2 or the circumstances that, as I read the memorandum, it
3 basically says y'all be careful and do good work and use
4 the best information you have.
5 Q Well, on sub 2, it says, "The proposed discharge
6 would have no significant adverse cumulative impact." Is
7 that an additional standard that is superimposed on Class
8 III water quality criteria?
9 A I don't look at these additional standards that
10 need to be imposed. I think those would have to be in the
11 rules. I think the Secretary would like them considered in
12 light of the standard applicable to any given situation,
13 whether it is an OFW or straight Class III or any other
14 classification.
15 Q So there are no particular operative meanings
16 given to this particular terminology which talks about no
17 significant adverse cumulative impact? That is more or
18 less of a guideline or guiding of, use-your-best-judgment
19 type policy?
20 A That is the way I took the memorandum, and if you
21 notice in the lead-in to those three sections, it says that
22 permits for discharge may be issued, not that they should
23 be issued if these things were met. I looked at these as
24 considerations that should be taken into account by the
25 Department in analyzing the situations, but these
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1 considerations would have to be under the terms of the
2 rules in effect.
3 MR. HETRICK: This will be Exhibit 15.
4 (Whereupon, Exhibit No. 15 was marked for
5 identification.)
6 MR. HETRICK: I am going to also simultaneously
7 hand out what I will mark as Exhibit 16.
8 (Whereupon, Exhibit No. 16 was marked for
9 identification.)
10 BY MR. HETRICK:
11 Q We can kind of talk about these together.
12 I would like you to take a look at Exhibit 15
13 first. There appears to be, on page 1, a memo from
14 Roxane. Who is this memo to and who is it from?
15 A You are speaking of the transmittal slip?
16 Q Yes. This is from you?
17 A It is from me to Roxane Dow, Bart Bibler and Dan
18 Thompson, with copies to Mark Latch and Scott Benyon.
19 Q Mark who?
20 A Latch.
21 Q Who is Mr. Benyon?
22 A Mr. Benyon was the Executive Assistant Secretary
23 of the Southeast Florida District DER office in West Palm
24 Beach.
25 Q This letter on the first page, handwritten from
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1 you to Roxane, Bart and Dan Thompson, can you explain this
2 memo to me?
3 A The purpose of the transmittal sheet was to
4 circulate a copy of a draft letter I received from Tom
5 MacVicar of the South Florida Water Management District to
6 those individuals that I just identified and ask them to
7 please review the letter and give me their thoughts on it.
8 Q What did you mean in the first statement,
9 "Although completion of the Everglades SWIM Plan may change
10 my philosophy regarding the permits somewhat, they,"
11 parens, "(or a master permit,)" end parens, "should still
12 provide a," quote, "`backstop,'" unquote, "for the SWIM
13 Plan"?
14 A My recollection is that statement refers to the
15 fact that really two processes were going on at the same
16 time. We were trying to bring the district structures
17 under permit and require whatever actions we deemed
18 appropriate through those permits, and while we felt that
19 process was related to the SWIM planning effort, the fact
20 that we were going to bring those structures under permits
21 could proceed independent of the outcome of the SWIM
22 planning element.
23 Q What did you have in mind, if anything, in your
24 statement in the first sentence, how could completion of
25 the Everglades SWIM Plan, how could that have changed your
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1 philosophy regarding the permit somewhat?
2 A Well, I think it -- the types of permits and the
3 requirements in those permits that we might, we, the
4 Department, might issue, could, to a certain extent, be
5 dictated by the approach taken in the SWIM Plan. The SWIM
6 Plan, as an example the SWIM Plan could have been more of a
7 guidance document and less a regulatory document, depending
8 on the position of the district and the governing board, so
9 the enforcement capabilities or, a better term, I guess,
10 the expectations of the Department with respect to the
11 success of the SWIM Plan might change the philosophy or the
12 requirements that the Department would have taken in the
13 permitting process.
14 I refer to those permits as a backstop in the
15 sense that some things -- we wanted some things to get
16 accomplished, either in the permitting process or the SWIM
17 planning process, hopefully through both.
18 Q Did you view the SWIM Plan up to the point of your
19 departure in your experience in the development of that
20 planning process in the Everglades as primarily a guidance
21 document? Is that how you envisioned it, envisioned the
22 permits to be issued for the regulatory mechanism?
23 A No. I think I viewed the SWIM document as it was
24 being developed at least as a combination of both, a
25 guidance document and a document that would provide a
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1 regulatory framework for accomplishing the goals and
2 objectives of the SWIM Act.
3 Q Maybe we are just speaking a different language.
4 I just want to clarify. You say regulatory framework. Do
5 you mean setting out what needs to be done in order to
6 implement the requirements contained within the planning
7 document?
8 A What needs to be done and how it was going to be
9 accomplished and by whom. That is the regulatory framework
10 that we were looking for.
11 Q Sure. If we skip over to the letter to yourself,
12 which is two pages into it, addressed to you, the second
13 paragraph, the second line, what was the South Florida
14 Water Management District's issue expressed in that
15 statement? What was your understanding of that?
16 A Could you be more specific? I am not sure where,
17 specifically.
18 Q It begins, "Neither our rules, nor those of the
19 Department."
20 A The second sentence?
21 Q Yes.
22 A The question is --
23 Q What was your understanding of what the South
24 Florida Water Management District's issue was as expressed
25 in that sentence?
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1 A I think it is pretty self-explanatory, that there
2 was a general feeling that, as it says, our rules and the
3 district's rules were not developed to deal with some of
4 the major regional stormwater permitting issues that were
5 being identified.
6 Q Did you agree or disagree with that statement at
7 the time?
8 A I think for the most part I agreed with it.
9 Q Did you anticipate rule changes to accommodate
10 their concerns?
11 A I am not sure if I felt that rule changes were
12 going to be necessary, at least on the part of the
13 Department.
14 Q Do you know if, in fact, the Department ever
15 undertook rule changes to accommodate that concern in your
16 experience with the Department and the Department's rules
17 even since your departure?
18 A Certainly not prior to my departure. Since this
19 was getting close to D-Day, but I don't -- I am not
20 familiar with any specific changes that were made since
21 that time to address this, the specific issue.
22 Q If you look at Exhibit 16, that is really, in
23 effect, a codification of that letter with attachments, and
24 by a codification of that letter, I mean codification of
25 the draft letter we have been looking at in Exhibit 15.
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1 Did you review or have any discussions with Mr.
2 MacVicar between September 17, 1990, and October 8th
3 concerning this matter, do you recall?
4 A Yes, I believe I did.
5 Q Did he send you a copy of, I guess, this, or did
6 you review a copy of this draft letter which has "Draft"
7 marked on it in Exhibit 15 before actually receiving a
8 final copy of this, which is dated October 8th in Exhibit
9 16?
10 A Yes, I believe I did.
11 Q What was the purpose that he was undertaking to
12 have you review a draft of a document prior to expressing,
13 formalizing his concerns with you? What process went on
14 there?
15 A I don't recall that there was any, that he
16 expressed any particular purpose, other than to provide us
17 informally with a draft of a letter he intended to send us
18 and ask if we had any comments on it. There was not any
19 formal process in place. This was merely, I guess, a
20 courtesy copy of a draft to see what our comments might be.
21 Q Let's just look at Exhibit 16, and where it talks
22 about in that same sentence we have been looking at,
23 "Neither our rules, nor those of the Department, were
24 developed to handle the after the fact permitting," what is
25 meant by the term, "after the fact permitting"? Would you
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1 describe that to me as it is used in this context?
2 A Well, I can give you my impression. I don't know
3 if it is Mr. MacVicar's or not.
4 Q I would like your impression.
5 A As I understood his discussion of this issue, he
6 was referring to major regional stormwater systems that had
7 been built and were in place and operating for some period
8 of time, even though they may not have required permits
9 when they were initially built and placed into operation
10 and they have never received any permits.
11 Q Was it thought necessary by the Department -- what
12 structures are we talking about? Can you be more
13 specific?
14 A Well, that statement I don't think speaks to any
15 specific structure. The letter speaks to certain
16 structures that are identified in the subject.
17 Q That letter speaks to S-5A, S-6, S-7, S-8, S-150.
18 A Yes.
19 Q In your experience back then, did the same concern
20 exist over the S-12 structures or the S-333 structures, do
21 you recall?
22 A I don't recall discussing those, at least,
23 specifically. I think we discussed the general issue that
24 he is discussing here. I don't recall those discussions
25 being specific to those discharges.
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1 Q Was it the Department's -- did the Department
2 ultimately arrive at the view that it was necessary to
3 place these structures under a permit?
4 A Which structures?
5 Q Well, the S-5A, S-6, S-7, S-8, S-150, by issuing a
6 permit to the South Florida Water Management District.
7 A I believe in previous correspondence we discussed
8 the Department had informed the district that they needed
9 to apply for permits for their structures and, in fact,
10 this letter refers to an application for permit for those
11 structures.
12 Q What was the thinking by the Department that went
13 into that decision to require these structures be permitted
14 through the South Florida Water Management District?
15 A It is a pretty general question and somewhat --
16 pretty difficult to answer. I think the Department had
17 begun, had begun implementing a permitting process for
18 structures such as these. The development of the SWIM Plan
19 and the issues being discussed in the Everglades brought
20 these particular structures to light. I couldn't say I
21 could point to any particular one event or series of
22 events.
23 Q Do you recall what requirements that the South
24 Florida Water Management District was required to meet in
25 order to receive a permit for these structures?
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1 A I think those were outlined in the earlier letter
2 from the Secretary that we discussed. The framework of the
3 permits was to be built around the SWIM Plan, and some
4 schedules and a regulatory approach, I don't recall exactly
5 how that was stated, but I believe that letter probably
6 explained it best to the water management district.
7 Q Which letter was that, for our purposes here?
8 A I don't know the attachment numbers, but it was
9 the January 1990 letter to John Wodraska from the
10 Secretary.
11 Q Let me see that.
12 Would a permit applicant and the South Florida
13 Water Management District, in this instance, have to
14 demonstrate the water quality standards be met in order to
15 receive a permit?
16 A That is the whole purpose of the permitting
17 process, is to either ensure compliance with standards or
18 to bring facilities into compliance and protect the
19 maintenance of those standards.
20 Q Would the fact that the structures themselves
21 existed prior to permit application would have no bearing
22 in and of itself as to whether or not they would need to
23 meet water quality standards, is that correct?
24 A I believe I understand your question, and let me
25 answer it in such a way to be sure that I do.
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1 The fact that the structures existed without a
2 Department permit previously, even though one wasn't
3 required, would not preclude the Department from requiring
4 those structures to later apply for a permit if the
5 Department felt that it was appropriate for them to do so.
6 Does that answer your question?
7 Q Yes, that answers it. Thank you.
8 MR. HETRICK: Let's take a brief recess.
9 (Brief recess.)
10 MR. HETRICK: This will be Exhibit 17.
11 (Whereupon, Exhibit No. 17 was marked for
12 identification.)
13 BY MR. HETRICK:
14 Q Would you take a moment and go ahead and review
15 this?
16 A Okay.
17 Q Are you familiar with this letter?
18 A Yes, I am.
19 Q Could you tell me what was going on in this
20 letter?
21 A This was a letter from me to Tom MacVicar of the
22 South Florida Water Management District in response to the
23 October 8th letter, I believe it was, that Mr. MacVicar had
24 sent me. It dealt with the applications for a permit for
25 the Everglades structures, S-5A, S-6, S-7, S-8 and S-150.
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1 Q In the second paragraph, four lines down, three-
2 quarters of the way over, the sentence begins, "However,
3 Department Rule 17-4 is capable of handling such
4 permitting," and you can finish out the rest of that
5 sentence.
6 A Okay.
7 Q What was your thinking -- how did you view that
8 the Department was capable of handling such permitting?
9 A Well, as I stated I think a few minutes ago, that
10 I agreed that the Department's rules were really not
11 specific for the handling of after-the-fact permitting of
12 these major regional stormwater systems, but the
13 Department, we felt the Department had and in fact had
14 exercised the authority to require permits under their
15 general permitting criteria contained in Rule 17-4 and
16 other related rules.
17 Q Have you changed your opinion since then in regard
18 to that?
19 A No, I don't think so.
20 Q One last thing. Page 2, what is the second
21 paragraph which is the last paragraph, the second line,
22 "151 tonne reduction of total phosphorus," that last
23 paragraph and specifically that first sentence, which is
24 most of that paragraph, can you explain what was going on
25 in that sentence?
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1 A I believe as we discussed earlier, the district
2 had identified a 151-ton reduction in total phosphorus as
3 one of the goals of the SWIM planning process, and they
4 were developing the strategy to acquire the land and
5 implement the other actions needed to -- that would result
6 in that phosphorus reduction, and as it says, we are
7 looking forward to receiving the schedule for this work to
8 occur.
9 Q And that reduction would take place as a result of
10 the water being filtered through those structures prior to
11 entering the receiving body of water and coming out of
12 those structures?
13 A Well, I think there were -- there was a process
14 identified for implementing various strategies that would
15 result in that level of reduction. That is what we were
16 looking for, was a schedule for that to occur and the
17 process that they were developing.
18 Q This letter is dated October 23, 1990. Did you,
19 at that time, in your professional capacity with the
20 Department, had the Department made a preliminary
21 determination at that time that that was the appropriate
22 reduction to take place?
23 A I don't remember exactly where we were officially
24 in the SWIM process. We had been presented with that
25 information and had asked the district for further
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1 information on the reasonableness, the scheduling and so
2 forth for the implementation of that reduction. The
3 ultimate requirements and schedules would have been
4 included in the final or at least the intent was to include
5 a final district position and Department position in the
6 finally adopted SWIM Plan, as I recall.
7 Q Well, was the process and the determination of the
8 total phosphorus amounts that needed to be produced far
9 enough along to that the Department or that the 151-ton
10 reduction was in the ballpark of what the Department was,
11 and the district were looking at at that point?
12 A As I said, I think we had focused on that number,
13 and that had been presented to us by the water management
14 district. At this point in time, I don't think anything
15 was finalized in the sense it was cast in stone, but I
16 think we had focused in on those reduction levels at least
17 as the first major step in the SWIM planning process.
18 Q If you would just refer back to Exhibit 16, the
19 second line begins, "Our governing board approved the final
20 draft of the SWIM Plan for the Everglades on September 13,
21 1990."
22 Do you recall whether, after October 8, 1990,
23 between that and the time your tenure with the Department
24 ended, that any response was given to the 151-ton reduction
25 proposed by the district after the October 23 letter you
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1 have here?
2 MR. HYDE: After the October 23 letter?
3 BY MR. HETRICK:
4 Q That is a poor question. My question, I was
5 formulating it as I was going along. That is the problem.
6 It says in this letter that the, in Exhibit 16,
7 the governing board adopted a final draft of the SWIM Plan
8 for the Everglades on September 13, 1990. Did you ever see
9 that final draft, or your staff?
10 A Yes.
11 Q Did that draft, do you recall, contain the 151-ton
12 reduction proposal in it?
13 A I believe it did.
14 Q To the best of your recollection?
15 A To the best of my recollection, it did.
16 Q And from -- when did you leave the Department?
17 A October 30, I think.
18 Q Do you recall reviewing any consistency
19 determination of the final draft of the SWIM Plan as
20 submitted by the district to you?
21 MR. HYDE: Consistency determinations by whom?
22 BY MR. HETRICK:
23 Q By the Department, between September 13 and
24 October 13th.
25 A I recall that there were discussions going on
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1 back and forth between me and my staff and the Secretary
2 and others involved. I don't recall specific documents or
3 drafts or write-ups that may have come through my office.
4 I know the review was in progress at that point in time.
5 Q Do you recall whether or not any final
6 determination had been made as to consistency of the
7 district's final draft as submitted to the Department? And
8 their draft is dated September 13, 1990.
9 A I don't recall that that final determination was
10 made before I left.
11 MR. HETRICK: Could you read back the last part of
12 that answer?
13 (Whereupon, the court reporter read the requested
14 portion of the record.)
15 BY MR. HETRICK:
16 Q Do you recall whether this 151-ton reduction, that
17 the Department had made any determination of consistency
18 with regard to that figure during your tenure?
19 A I just -- I don't recall if the final
20 determination regarding that number had been made.
21 MR. HETRICK: This will be Exhibit 18.
22 (Whereupon, Exhibit No. 18 was marked for
23 identification.)
24 BY MR. HETRICK:
25 Q Can you identify this document? Are you familiar
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1 with it?
2 A Yes, I can identify it and I am familiar with it.
3 Q Can you tell me what was going on in this letter,
4 this memo?
5 A We had been dealing within our division, the
6 Division of Water Management, with the issue of after-the-
7 fact permits, and had developed an earlier policy
8 pertaining to that after the reorganization had occurred
9 on July 1, 1988. Howard Rhodes, director of Water
10 Facilities, and myself as director of the Division of Water
11 Management issued a slightly revised policy which this
12 memorandum reflects, and I am not sure if this is the whole
13 memorandum or not, but it may well be.
14 Q Okay.
15 A Dealing with after-the-fact permits.
16 Q I don't have any other pages we have been able to
17 find that were attached to that. Is there anything here
18 that strikes you as being left out of this interpretation?
19 A The memo is -- the memorandum is vaguely familiar
20 to me, and I find it a little bit interesting that there
21 are no initials at the bottom or no CC's listed, and there
22 may be a second page missing, but I can't say for sure. It
23 would have been unusual for us to issue this kind of
24 memorandum without copies to, for example, the Office of
25 General Counsel and perhaps even the Secretary, but he may
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1 not have done it in this case. I don't recall.
2 Q Does this memo as of the date it is written
3 reflect the Department's view on after-the-fact permit
4 applications?
5 A Well, it reflects the view of Mr. Rhodes and
6 myself for our divisions, and you will notice it is
7 addressed to the water program administrators. There were
8 other groups within the Department at that time to whom
9 this memorandum was not addressed and obviously would not
10 apply to them.
11 Q This memo refers to revisions to Chapter 17-4 that
12 were made, is that correct?
13 A Yes.
14 Q If you look back on Exhibit 17 --
15 A Which one is that? I don't have them numbered.
16 Q October 23, 1990.
17 A Okay.
18 Q -- were the policies concerning after-the-fact
19 permitting as reflected in Rule 17-4, as you understood
20 them and with these modifications, consistent with your
21 view in the October 23, 1990, memorandum, which is Exhibit
22 17, that the Department is capable of handling such
23 permitting under that rule?
24 A Let me -- there may be some confusion in terms
25 here, at least as I understand them.
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1 In the October 23, 1990, letter to the water
2 management district, when we were discussing handling
3 after-the-fact permitting from existing major regional
4 stormwater systems, we were referring to systems that would
5 not have required a permit when they were built and when
6 operation of those facilities began. The memorandum that
7 we signed, that Mr. Rhodes and myself signed in October
8 1988, primarily I believe was drafted to deal with projects
9 which may have been built or modified without a permit even
10 though a permit would have or should have been required. I
11 think that is correct, but --
12 Q Would the same policies apply in either
13 circumstance or not? Are both circumstances the policies
14 consistent in?
15 A Give me a second because I don't recall thinking
16 about that issue in the drafting of this memorandum. Give
17 me just a moment.
18 Q Sure.
19 A I believe so.
20 Q One or two more questions on this.
21 Under point 1 on Exhibit 18, it says, the last
22 sentence in point 1, "The fact that the project has been
23 built is not of itself a basis for permit denial," and "of
24 itself" is underlined.
25 Do you recall what the basis was for emphasizing
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1 that or underlining that?
2 A I think the basic issue is if someone had built a
3 facility or conducted some activities that should have been
4 permitted by the Department and then that person later
5 filed for an application, basically what this section is
6 saying is the Department has to deal with that application
7 in light of the statutes and rules in the Chapter 120
8 process. If the application was for a permittable
9 activity, and a permit should be issued later, in the
10 memorandum it says that doesn't mean the Department
11 wouldn't necessarily decide to take enforcement action, but
12 the application had to be processed in light of the
13 applicable rules and statutes, and the fact that the
14 project had been built was not in and of itself a reason or
15 basis for permit denial.
16 Q Does the fact that a project has been built create
17 any presumption in favor of permitting?
18 A I don't think so. I think that, as the memo
19 states, the facility or the project would have to be judged
20 in light of the applicable standards. That doesn't mean
21 that it might ultimately be permitted or modified and then
22 permitted or required to be removed or ceased or whatever
23 the decision might be.
24 Q Are you aware of any enforcement actions against
25 facilities built before permits were sought?
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1 A Yes.
2 Q Which ones come to mind?
3 A Hundreds.
4 Q Hundreds?
5 A And hundreds and hundreds.
6 Q Did this policy resolve those issues?
7 A I don't think so. I think this policy was
8 designed to give some guidance to our district staff. The
9 issue didn't go away. Hopefully, this provided some
10 guidance to those staff members involved in dealing with
11 that issue.
12 Q I just have a couple of questions left on WQBEL,
13 and I would like just a few summary questions and then we
14 are done.
15 Are you familiar with the term "WQBEL"?
16 A Yes, I am.
17 Q Let me be more specific, water quality-based
18 effluent limitations?
19 A Yes, I am.
20 Q Could you explain that term to me? What is it?
21 A As I mentioned in my earlier testimony, I worked
22 in the wasteload allocation process.
23 Q Right.
24 A Certainly after moving out of that process for the
25 Department, rules were developed dealing with the WQBEL
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1 process, we can use that term, and basically what it refers
2 to is the Department may impose technology-based treatment
3 requirements on a discharger, or where necessary, water
4 quality-based effluent limits on a discharger, which is
5 what a WQBEL is, to protect water quality standards as a
6 result of that discharge.
7 A WQBEL is an analysis of the quality of the water
8 that must be discharged to result in meeting the
9 Department's standards.
10 Q Under what circumstances does the Department
11 employ a water quality-based effluent limitation as opposed
12 to merely, or as opposed to applying a TBEL?
13 A In a general sense, when the Department determines
14 a technology-based effluent limit, or a TBEL, would not be
15 sufficient to protect water quality standards.
16 Q Does the Department go through a process where it
17 looks at the situation in the context of determining
18 appropriate effluent limitations by trying to employ a TBEL
19 analysis prior to going to a water quality-based effluent
20 limitation?
21 A If I understood your question correctly, I think
22 that the answer is the Department would first look to a
23 technology-based effluent limit to see if that limit or
24 those limits would be sufficient to protect water quality
25 standards, and if not, then the Department could move on to
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1 the WQBEL process, water quality-based effluent limits. If
2 the TBEL was felt to provide sufficient protection, then
3 the process would stop there and those limits would be
4 imposed through the permitting process.
5 Q Would you consider the water quality-based
6 effluent limitations to be a more stringent approach than
7 than a TBEL to --
8 A I would expect the water quality-based effluent
9 limitation to result in more stringent discharge
10 limitations than the TBEL process would have resulted in.
11 Q You are familiar with the interim concentration
12 levels proposed for phosphorus in the Everglades Park area
13 as being 50 parts per billion now, or are you not?
14 A Just in a general sense.
15 Q In a general sense?
16 A I have heard the number, yes.
17 Q Can you tell me whether or not your understanding
18 of that limitation is a technology-based effluent
19 limitation or water quality-based effluent limitation?
20 MR. HYDE: Let me correct something. I think you
21 said -- you refer to the 50 parts per billion as being
22 discharge limitation for the Park. It is actually
23 discharge limitation for the STAs.
24 MR. HETRICK: That is correct.
25 MR. HYDE: The Park has different water quality
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1 parameters under the settlement agreement.
2 BY MR. HETRICK:
3 Q That is fine.
4 A I don't know if I have an opinion whether I would
5 consider that a technology-based or water quality-based
6 effluent limitation. That has been described as interim
7 limits, and I don't know if in my mind if I would equate it
8 to either one.
9 Q In your experience with the development of the
10 SWIM plans and the various drafts in the SWIM planning
11 process during your tenure with the Department, were the
12 concentration levels that were being proposed by the
13 district, various numbers, and being looked at or submitted
14 to the Department, was the idea to have a concentration
15 limit that was technology-based or water quality-based?
16 A I would say neither. In my mind, I think the
17 limits that were being discussed in my involvement with the
18 SWIM Plan were those that were felt to provide improvements
19 to the existing situation and be reasonable and attainable
20 in a relatively short period of time, a matter of years,
21 but there seemed to be a recognition that that might not
22 be, that those might not be the final limits that would be
23 imposed, or there may be additional limitations placed, but
24 it was big first step, so to speak, and I wouldn't equate
25 those to necessarily either technology- or water quality-
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1 based limits.
2 Q Do technology-based effluent limitations typically
3 employ best management practices or incorporate best
4 management practice in determining the effluent limitation?
5 A Yes, they do.
6 Q Do water quality-based effluent limitations?
7 A They may.
8 Q Were best management practices also being
9 considered and discussed along the way in the district's
10 determination of effluent limitations being proposed?
11 A I am not sure I would say the district was
12 determining effluent limitations, but the district did
13 consider best management practices in developing the SWIM
14 Plan. Does that answer your question?
15 Q Do you have any opinion that you might express in
16 this case as to whether or not the 50 parts per billion
17 proposed interim concentration level for the STAs is
18 reasonable or achievable?
19 A No.
20 Q Do you intend to testify as to that regard?
21 A No.
22 Q Do you have any opinions, during your tenure with
23 the Department, based upon evidence submitted to you, if
24 indeed there was evidence submitted to you, do you have any
25 reason to believe in your professional experience that
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1 phosphorus was increasing over time in the EPA or any
2 portion of the EPA?
3 MR. HYDE: Phosphorus what?
4 MR. HETRICK: Nutrients, phosphorus acting as a
5 nutrient.
6 MR. HYDE: Like what, concentrations, loading?
7 MR. HETRICK: Phosphorus concentration levels.
8 THE WITNESS: I recall discussions dealing with
9 whether phosphorus was increasing or had stabilized at
10 some concentration levels. I don't have an opinion one
11 way or the other, I simply recall those discussions.
12 BY MR. HETRICK:
13 Q What was the result of those or what was the basic
14 conclusion -- who participated in those discussions?
15 A Primarily discussions between water management
16 district staff and Department staff.
17 Q And by Department staff, the same folks that you
18 have been referring to throughout the course of this
19 deposition?
20 A Primarily.
21 Q And was there any consensus there at any point in
22 time that phosphorus concentration levels were increasing
23 over time in the Everglades Protection Area?
24 A I am not sure that there was. I think everyone
25 agreed that continued monitoring was appropriate and was to
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1 be included in the SWIM planning approach.
2 Q Are you familiar at all with the water quality
3 monitoring stations in the Refuge versus the Park, the
4 Everglades National Park?
5 A Not really, just in a general sense. There was
6 some, and that monitoring was going to continue.
7 Q And the purpose of those stations in a general
8 sense?
9 A In a general sense, to document the quality that
10 exists and changes that might be occurring over time.
11 Q Are you aware of two different time periods that
12 were involved, one for Loxahatchee and the other for the
13 Refuge -- I mean Loxahatchee and the other one for
14 Everglades National Park?
15 MR. HYDE: The time periods?
16 THE WITNESS: I don't understand the question.
17 BY MR. HETRICK:
18 Q Do you intend to offer any opinions or testimony
19 as to the propriety of utilizing stormwater treatment areas
20 as proposed in the adopted SWIM Plan to treat phosphorus?
21 A No.
22 Q Going back to water quality-based effluent
23 limitations, I believe that they are mentioned in 17-611,
24 parens (51) of the rule, and I will show you that rule if
25 we need to, but do you intend to offer or interpret that
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1 rule with regard to this case or offer an opinion of the
2 applicability of that particular provision at all to this
3 case?
4 A Not with respect to applicability to this case.
5 If asked about that rule, I may offer interpretations of
6 the language, but not specifically to its applicability or
7 analyzing particular discharges.
8 Q Would you offer any different interpretations to
9 this rule other than what you have identified here in terms
10 of what the rule means?
11 A Not just as I have described it here, just in
12 general my interpretation of the rule as it exists.
13 Q How about the same for TBELs?
14 A The same answer.
15 Q Going back to mixing zones, do you have any
16 opinion as to whether the Department has an obligation to
17 initiate a mixing zone for any type of discharge that it
18 may be evaluating?
19 MR. HYDE: What do you mean by an obligation, a
20 legal obligation?
21 MR. HETRICK: No.
22 BY MR. HETRICK:
23 Q Well, let's see if I can rephrase the question.
24 In your working knowledge of the Department's
25 rules and regulations and your experience with those rules,
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1 regulations and the law, do you have any opinion as to
2 whether the Department in any particular situation must
3 undertake to initiate a mixing zone where a permittee, a
4 proposed discharge by a proposed permittee has not
5 submitted a request for a mixing zone?
6 A If I understand the question, I don't think the
7 Department is obligated to initiate that process.
8 Q Does the permittee have an obligation, in your
9 working knowledge of the Department's rules and regulations
10 and laws, to request a mixing zone in every instance for a
11 discharge?
12 A No.
13 Q I think you mentioned it, and correct me if I am
14 wrong, yesterday you said you might offer an opinion that
15 mixing zones under certain circumstances should be
16 considered by the Department in some portion of the
17 Everglades Park area. Is that correct or incorrect?
18 A I think what I said or stated is that I may offer
19 opinions on whether consideration of a mixing zone might be
20 appropriate if requested, say, by an applicant; not whether
21 a particular mixing zone would be appropriate for a
22 particular discharge, but given a given set of
23 circumstances in my opinion, I might express an opinion
24 about whether consideration of a mixing zone would be
25 appropriate, just based on the general requirements of the
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1 rule, not the specifics of any particular situation.
2 MR. HYDE: I presume by your question, do you
3 intend it to apply to the Everglades Protection Area
4 and not merely to the Park? I think the question as
5 phrased was to the Park.
6 BY MR. HETRICK:
7 Q That is correct, Everglades Park area. Have you
8 formulated any opinion at this point that mixing zones
9 should be considered for any portion of the Everglades Park
10 area by either any -- well, by the South Florida Water
11 Management District?
12 MR. HYDE: Again, I think you may have the
13 Everglades Protection Area and Everglades Park area --
14 BY MR. HETRICK:
15 Q I am sorry, it is Everglades Protection Area.
16 A I don't have an opinion at this point.
17 Q Do you anticipate formulating an opinion that may
18 lead you to that conclusion?
19 MR. HYDE: Let me clarify that question. Did you
20 intend it to mean the district should consider asking
21 for mixing zones or the district should consider
22 granting a mixing zone?
23 MR. HETRICK: Whether the district should consider
24 asking for a mixing zone.
25 THE WITNESS: My expected testimony would be to
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1 offer an opinion on whether consideration of a mixing
2 zone might be appropriate.
3 BY MR. HETRICK:
4 Q By the district?
5 A Well, by the district, or consideration by the
6 Department if it chose to do so, but given a set of
7 circumstances and given the requirements of the rule, I
8 might offer testimony or opinions on whether consideration
9 of a mixing zone under a given set of circumstances might
10 be appropriate.
11 Q Have you been presented with any given set of
12 circumstances at this point that would lead you to that
13 conclusion, that the water management district should have
14 considered mixing zones?
15 A At this point, I think my discussions have been
16 limited to the general facts of the matter as I have just
17 described them, and I have not reviewed any specific data
18 or discharge situations that might support that request.
19 MR. HETRICK: Do you anticipate him offering an
20 opinion given a set of circumstances?
21 MR. HYDE: At this point, we don't anticipate that
22 to be part of his anticipated testimony. If we should
23 determine to do so we will promptly notify the
24 Department.
25 MR. HETRICK: So we can ask him about the basis
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1 for his interpretation?
2 MR. HYDE: Yes.
3 MR. HETRICK: Would the same go for a SSAC?
4 MR. HYDE: Yes.
5 MR. HETRICK: Or a variance?
6 MR. HYDE: Yes. I think that you have already
7 covered the ways in which we might approach those two
8 issues, and I think we could theoretically propose
9 certain situations like you have done as to whether a
10 SSAC might be appropriate in generic situations, but as
11 to whether a SSAC would be appropriate for discharges
12 to the Loxahatchee Refuge, we are not anticipating at
13 this time Mr. Armstrong testifying in that regard.
14 MR. HETRICK: So his testimony would be by analogy
15 only?
16 MR. HYDE: At this point, I don't know if I would
17 characterize it by analogy only, but I think it is
18 fairly close.
19 MR. HETRICK: Can you think of any analogous
20 situations to -- for any kind of permit discharge that
21 might come to mind that would be similar to -- or that
22 would lead you to the conclusion that a mixing zone
23 should be considered by the South Florida Water
24 Management District?
25 MR. HYDE: Let me see if I can clarify my previous
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1 statement. It might address your concern. I think
2 such questions might be directed to how one might
3 obtain a SSAC, for example, due to natural background
4 conditions.
5 MR. HETRICK: I think we have explored that.
6 MR. HYDE: Or how one might obtain a SSAC due to
7 unalterable man-induced conditions. That is a scenario
8 there. As to a specific factual circumstance, I don't
9 think I would pose a question along those lines, so I
10 don't know that we want to go and explore the bevy of
11 potentially analogous situations where SSACs might be
12 appropriate. I could dream up literally hundreds of
13 possible scenarios where a SSAC might be appropriate
14 due to natural or manmade or man-induced unalterable
15 conditions.
16 MR. HETRICK: Let's take 30 seconds off the
17 record.
18 (Discussion off the record.)
19 MR. HETRICK: Let's go back on the record.
20 I am going to offer this as the last exhibit. I
21 think you have already talked about this. Exhibit 19.
22 (Whereupon, Exhibit No. 19 was marked for
23 identification.)
24 BY MR. HETRICK:
25 Q Do you recognize this document at all?
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1 A No.
2 Q Have you ever seen it?
3 A Maybe. I just don't recognize it.
4 Q Do you have any idea what this document might be
5 about, just by looking at it?
6 A It is entitled, Permitting.
7 Q Does it look -- on your review generally, is it a
8 Departmental document or what?
9 A I can't tell. It shows that, a date stamp as
10 being received by the DER South Florida District. I don't
11 see any indication on it as to whether it was drafted by
12 someone in the Department or where it came from.
13 Q I think you have already answered this question,
14 but on page 2, which is actually page 3 of the document, up
15 at the top there is a statement, "Again, the applicant must
16 apply for it," and this is in reference to mixing zones.
17 Do you agree with that statement?
18 A As I have said, I believe before the applicant may
19 apply for it but in practice the Department has initiated
20 the process, in a practical sense, the Department has, but
21 the statement says the applicant must apply for it, and it
22 is not automatically issued, it must be specifically issued
23 by the Department. I think that is correct.
24 Q What do you mean, and practically the Department
25 has already initiated the process?
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1 A I said in a practical sense I believe, as I
2 testified yesterday, in a lot of cases the Department may
3 initiate the process. In a sense the Department may be
4 doing some technical evaluations, it has been my experience
5 the Department may have done some technical analysis to
6 determine if a mixing zone might be appropriate given a
7 certain situation and then discuss those results with the
8 applicant. That is what happened on a day-to-day basis
9 frequently in my tenure with the Department.
10 Q So that might occur even before an applicant makes
11 an application for it, in specific situations?
12 A It has.
13 MR. HYDE: For a mixing zone?
14 MR. HETRICK: Yes.
15 THE WITNESS: The analysis may have -- of a mixing
16 zone and whether it is appropriate, may have occurred
17 even though an applicant may not have applied for a
18 permit.
19 BY MR. HETRICK:
20 Q Why would the Department undertake such an
21 analysis when the permitted proposed activity hasn't been
22 requested?
23 A The Department was often in a position of
24 performing wasteload allocation studies or WQBEL studies in
25 the more recent past to determine if an existing discharge
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1 may need to be upgraded or if a new discharge could be a
2 applied for or if an application for an operating permit
3 should be acted upon favorably when it is received, so the
4 Department might initiate a study of that discharger or
5 group of dischargers, even though a particular application
6 for a permit to discharge may not be pending before the
7 agency.
8 Q What would the circumstances have to be for the
9 Department to undertake that analysis?
10 A I think I just described it. The Department may
11 be anticipating an application for renewal of a permit or
12 anticipating an application for a new permit or addressing
13 a perceived water quality problem or something like that.
14 Q Okay. Am I correct that you will not be offering
15 any testimony as to the propriety or the appropriateness of
16 science which may or may not support the alleged fact that
17 water quality runoff from the EAA is causing or has caused
18 algal, vegetation, algal communities and the ecosystem in
19 general, all general parts of the Everglades Protection
20 Area?
21 A That is correct.
22 Q And the Refuge, including the Refuge?
23 A That is correct.
24 Q Will you be testifying as to any specific water
25 quality violation occurring within the Park and the Refuge?
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1 A No, I will not.
2 Q Is there any other specific opinion that you may
3 have formulated at this point about violations occurring in
4 the Everglades which concern -- that you may not have
5 expressed during this deposition that would specifically
6 apply in the Everglades that would concern the narrative
7 nutrient standard?
8 MR. HYDE: Keith, I think you have asked and
9 answered that question several times.
10 MR. HETRICK: I am just running through the list
11 here.
12 BY MR. HETRICK:
13 Q Are there any standards we talked about, we have
14 gone through them one by one --
15 A I think I have answered these questions several
16 times, and the answer is no.
17 MR. HETRICK: I don't think I have any more
18 questions.
19 MR. HYDE: Steve?
20 MR. BARTELL: For the purposes of the record, my
21 name is Steven Bartell. I am with the Department of
22 Justice. I am here today on behalf of the federal
23 government.
24 EXAMINATION
25 BY MR. BARTELL:
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1 Q Mr. Armstrong, are you familiar with the SWIM Act?
2 A In general.
3 Q Are you familiar with the Marjory Stoneman Douglas
4 Act?
5 A No.
6 Q Do you intend to testify or give any opinions
7 regarding either of those two Acts?
8 A Not that I am anticipating at this point.
9 MR. HYDE: I don't anticipating asking him those
10 questions -- for compliance or consistency with those
11 Acts?
12 MR. BARTELL: Yes.
13 MR. HYDE: No. I will not ask him any such
14 questions.
15 BY MR. BARTELL:
16 Q If you could just clarify a few of the answers
17 that Mr. Hetrick has raised and you have answered in the
18 last two days, just to confirm you have not seen the
19 adopted version of the Everglades SWIM Plan, is that
20 correct?
21 A That is correct.
22 Q In your opinion, are the discharges of phosphorus
23 concentrations from the Everglades Agricultural Area
24 causing, among other things, a monoculture of cattails in
25 the EPA?
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1 MR. HYDE: Asked and answered several times. I
2 think we have already stated several times Mr.
3 Armstrong is not going to be testifying in that regard,
4 and I think he has also stated that he hasn't looked at
5 any data in that regard for the basis of giving an
6 opinion in that regard.
7 MR. BARTELL: I want to clarify if he has an
8 opinion.
9 THE WITNESS: The answer is, I do not have an
10 opinion regarding that issue.
11 BY MR. BARTELL:
12 Q Are you familiar with the dairy rule?
13 A Vaguely.
14 Q Were you involved in the promulgation of the dairy
15 rule?
16 A No. I may have been generally involved. I sat on
17 the early review committee for the Department, but it was
18 not my responsibility when I was with the agency.
19 Q What areas did it apply to generally?
20 A The areas around Lake Okeechobee.
21 Q Would that include the southern rim as well?
22 A I believe just the northern portion. I am really
23 not sure.
24 Q Do you intend to give any opinions or testimony
25 regarding the dairy rule?
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1 A No, I don't.
2 Q Are you familiar with the Lake Okeechobee SWIM
3 Plan?
4 A Again, just in a very general sense.
5 Q And were you involved in the promulgation of that
6 plan?
7 A Somewhat.
8 Q Can you tell me what areas the Lake Okeechobee
9 SWIM Plan apply to geographically?
10 A In a general sense, the areas north of the
11 Everglades SWIM planning area that we have been discussing
12 and immediately adjacent to Lake Okeechobee.
13 Q Do you intend to give any opinions or testimony
14 regarding the Lake Okeechobee SWIM Plan?
15 A I do not.
16 Q Are you familiar with the federal lawsuit filed
17 against the State of Florida in 1988?
18 A In general.
19 Q Are you aware of the settlement agreement reached
20 between the State of Florida and the federal government?
21 A I am aware that an agreement was reached.
22 Q Have you seen the settlement agreement?
23 A I believe I had, I may have seen portions of it or
24 descriptions of it. I have not seen the settlement
25 agreement.
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1 Q Were you involved in any way with the development
2 or negotiations leading up to the federal settlement?
3 A In the very early stages, prior to my leaving the
4 agency, I had occasion to discuss the suit with the
5 Secretary when I was in the agency. I was not involved in
6 developing or negotiating the settlement agreement or
7 approval of it or in any other fashion.
8 Q Just going back to the dairy rule for a moment,
9 were you involved in interpreting water quality standards
10 in relation to the application of the dairy rule?
11 A I don't recall situations where I was asked to
12 interpret standards as they related to the dairy rule.
13 Nothing comes to mind at this point.
14 Q Do you have an opinion as to whether or not
15 phosphorus loading upstream of the area -- let me strike
16 that, and let me rephrase the question.
17 Assuming there is phosphorus loading upstream
18 coming into an area downstream, if that phosphorus loading
19 stops, are you aware or do you have an opinion as to
20 whether the downstream area can revert back to its natural
21 state?
22 A No, I don't have an opinion on that.
23 Q Are you aware of any studies along those lines
24 either in the past or that are currently ongoing?
25 A I don't recall any.
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1 MR. BARTELL: That is all of the questions I have.
2 MR. HETRICK: I have one more question.
3 FURTHER EXAMINATION
4 BY MR. HETRICK:
5 Q You have testified the past two days about a
6 variety of rules, Mr. Hyde said you have gone through, we
7 have gone through numerous rules. Are there any rules that
8 we or that I have not gone through or discussed with you
9 that you anticipate testifying on?
10 A I can't think of any at this point that I would
11 anticipate testifying on that we have not already covered
12 in the last two days.
13 MR. HYDE: I think we have fairly comprehensively
14 dealt with them.
15 MR. HETRICK: I take it, then, that should there
16 be some --
17 MR. HYDE: There are no other rules.
18 THE WITNESS: It occurred to me yesterday in
19 talking about the Department's study that we are
20 involved in that we are also looking at Chapter
21 17-301.
22 MR. HETRICK: That is correct.
23 THE WITNESS: But -- I don't believe I mentioned
24 that yesterday, but I also don't think it would have
25 anything to do with my testimony in this case.
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1 MR. HETRICK: That is all.
2 MR. HYDE: I have just a few follow-up questions.
3 EXAMINATION
4 BY MR. HYDE:
5 Q Mr. Armstrong, when you were testifying yesterday
6 as to mixing -- as to whether there could be mixing zones
7 for nutrients, biological integrity or nuisance species,
8 did you intend to or were you saying that mixing zones for
9 those particular water quality criteria were precluded by
10 the Department's rules and regulations?
11 A No.
12 Q Is there a relationship between the narrative
13 nutrient standard and the designated use of a water body?
14 A Yes, I believe there is.
15 Q How do those two relate to each other?
16 A Well, I think there has to be a relationship
17 between all of the Department's water quality standards,
18 designated use of the waters within the state. With
19 respect to nutrients, no numerical criteria were
20 established in the rule, but through the narrative
21 standard and its application, the Department is charged
22 with protecting the designated uses of the water body that
23 are appropriate for that particular water body.
24 Q So is it fair to say that the narrative nutrient
25 rule is construed in light of the designated use of a water
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1 body?
2 A I think that is correct, and, in fact, as I said,
3 I think that is true for all of the standards. As I
4 understand the process, they are all designed to protect
5 the designated uses, so really that is the ultimate test of
6 any of the standards, including the narrative nutrient
7 standard.
8 Q So the designated use of those water bodies known
9 as the Everglades Protection Area is Class III, so they are
10 construed in light of that particular designated use in the
11 Everglades SWIM Plan, is that correct?
12 A That is correct, or should be.
13 Q In your experience, do dissolved oxygen
14 concentrations in wetland systems commonly fall below the
15 standards set forth in the Department's dissolved oxygen
16 rule?
17 A Yes.
18 Q Do you have an opinion as to whether it would be
19 appropriate in such instances for there to be consideration
20 of the development of an alternative or site-specific
21 criterion for those wetlands where the dissolved oxygen
22 concentrations evidence that lower quality?
23 A I think in situations where it is shown that those
24 values that might fall below the normal standard for those
25 water bodies is a naturally occurring condition or meets
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1 the other tests of the rule, man-induced conditions that
2 cannot be controlled or abated, it may be appropriate to
3 consider the development of an alternate standard for those
4 wetlands, for -- an alternate standard for dissolved oxygen
5 for those wetlands.
6 Q Regarding the imbalance test set forth in the
7 narrative nutrient rule, is there a geographical component
8 to that test?
9 A I believe there is.
10 Q Is there also a temporal or durational factor to
11 that test as well?
12 A I believe there could be. I don't think the rule
13 is specific, but I think the Department would have to
14 consider the nature of the imbalance or the change of the
15 populations. If it is very transitory then it might not
16 necessarily constitute an imbalance. I think there could
17 be a temporal consideration as well.
18 MR. HETRICK: What rule was that a reference to?
19 MR. HYDE: The narrative nutrient.
20 BY MR. HYDE:
21 Q Referring to Exhibit 4 which discussed the Key
22 West sewage treatment plant outfall that was listed as of
23 1985, did you regard that outfall as being grandfathered
24 under an OFW rule?
25 A I don't believe we did, and, in fact, I think in
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1 that particular document we referred to the need, to the
2 fact that the facility had been operating without a permit
3 but efforts were underway to bring that facility under the
4 permitting process.
5 Q Is it another way of saying that the outfall
6 required a permit as of the date of designation of that
7 OFW?
8 A I believe it was our opinion that it did.
9 Q Is that why the Department exempted the area of
10 the outfall from the OFW rule, in part at least?
11 A In part, I think that was, that was part of the
12 reason.
13 Q Can you envision any other situation where that
14 outfall would be deemed in compliance with the OFW rule
15 other than being grandfathered under the rule?
16 A I am not sure if I follow your question.
17 Q Let me be sure -- if I can restate it, given the
18 fact that the outfall from the Key West sewage treatment
19 plant was not grandfathered under the rule, can you
20 envision any other circumstances that might make it
21 otherwise permittable under the OFW standard, other than,
22 of course, exempting that discharge from the OFW?
23 A It would have to meet the test of the OFW rule
24 relating to a new discharge. I don't have any other
25 situation in mind.
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1 Q I would like to call your attention to Exhibit 3,
2 which is the January 29, 1990, memo from you to Dale
3 Twachtmann. I believe you stated yesterday that although
4 that document had been signed or initialed by you, that it
5 had actually been prepared by Bart Bibler?
6 A I believe that is correct.
7 Q Why did you sign that document if you did not
8 prepare it?
9 A I signed many documents that I did not prepare.
10 I had to rely on staff to provide this information to me
11 and prepare these types of documents.
12 Q Did you assume the statements contained in the
13 Bart Bibler prepared memorandum to be correct?
14 A Yes, I did.
15 Q Just to be clear, you did not conduct any
16 independent analysis of these factual statements to
17 determine whether they were, in fact, correct or otherwise
18 accurate?
19 A I did not.
20 Q I would like to call your attention to, I guess,
21 the bottom of the second page of that memorandum where they
22 discuss or where it discusses best management practices,
23 and, on the next page, an aquifer storage and recovery
24 system.
25 Would the application of a mixing zone be yet
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1 another mechanism for further reducing the costs of this
2 alleged or this proposed cleanup?
3 A It could be.
4 MR. HETRICK: Can you tell me where you are?
5 MR. HYDE: The bottom of page 2, discussion under
6 Issue 4 concerning best management practices and going
7 over onto the next page, page 3, concerning the
8 discussion of aquifer storage and recovery systems.
9 BY MR. HYDE:
10 Q Would the development of site-specific alternative
11 criteria be yet another way to further reduce the costs of
12 implementing such a cleanup plan?
13 A That also could be.
14 Q And would the same be true for variances as well?
15 A Yes.
16 Q Yesterday and today, Mr. Hetrick asked you a
17 series of questions, whether essentially you disagreed with
18 various memos or statements contained in various memos. By
19 stating that, by answering that you did not disagree, did
20 you intend to mean that you, in fact, agreed with each and
21 every one of those statements as well?
22 A Not necessarily. I may not have had an opinion
23 one way or the another. As I said, I had to rely on staff
24 to provide information to me and I had to trust my staff to
25 do the best job they could. That didn't necessarily mean
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1 that in the future some of those statements or issues may
2 be proven to be incorrect. By the nature of the work we
3 were doing, we had to rely on others for information.
4 Q My next and final question deals with mixing
5 zones. Does the Department, in reviewing a permit
6 application, often tell an applicant that a permit cannot
7 be approved unless a mixing zone is established, and
8 therefore suggest that the applicant, in fact, apply for a
9 mixing zone?
10 A Yes.
11 MR. HYDE: That is all.
12 MR. HETRICK: I just have one question.
13 FURTHER EXAMINATION
14 BY MR. HETRICK:
15 Q I hate to keep going back to this, but on the
16 January 29th, 1990, memo, were statements made at all by
17 your staff on some of these memos be signed by you, if --
18 just arbitrarily, if you had disagreed with any aspect,
19 would you have let this memo go out of the office?
20 A No. I think, as I said yesterday, I didn't -- to
21 my knowledge, I didn't disagree with anything that was said
22 in here, but I may not have had an opinion. I may have
23 accepted the statement as fact at that point in time, and I
24 may ultimately learn that there were statements in here
25 that I can't agree with now, but at the time I had no
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1 reason to disagree, but I may not have --
2 Q I understand the continual flow of policy and how
3 policy can change over a period of time, but --
4 MR. HYDE: Facts can change, too.
5 BY MR. HETRICK:
6 Q And facts can change, too, but on the date a
7 memorandum is written, when it has your signature on it,
8 for whatever purpose of that memo is that has gone to the
9 Secretary, that is your stamp of approval on that
10 memorandum as being your division's position on that, is it
11 not?
12 A That is correct.
13 Q And under Mr. Hyde's example on page 2, Issue No.
14 4, that last paragraph, he asked you whether mixing zones
15 might be appropriate under that scenario, has any
16 determination been made in regards to that?
17 A Not to my knowledge.
18 Q Could they be determined to be inappropriate?
19 A Yes, they may.
20 Q One last one. One of the things he mentioned was,
21 you were discussing the narrative nutrient rule must be
22 construed in light of designated use.
23 A That is correct.
24 Q Can you just tell me what you meant by "in
25 light"?
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1 A Well, the narrative nutrient standard, like any
2 other standard, has to be considered as a means of
3 protecting the applicable designated use for that water
4 body. The designated uses are established for the water
5 bodies, and then the standards that are necessary to
6 protect those designated uses are developed, so really the
7 ultimate test of the application of those standards is the
8 designated use to which that water body has been or within
9 which that water body has been placed.
10 Q The only other thing under the narrative nutrient
11 rule dealing with the way Mr. Hyde asked you, a geographic
12 consideration was a component in the evaluation of the
13 narrative nutrient rule --
14 A That is correct.
15 Q -- for areal extent, was that part of the
16 terminology?
17 MR. HYDE: That would be another way of stating
18 it.
19 BY MR. HETRICK:
20 Q I believe we have kind of explored this. The
21 particular size of a geographic area may vary from water
22 body to water body, right?
23 A That is correct.
24 Q Even in similar size water bodies?
25 A That is correct.
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1 Q May have different water problems?
2 A That is correct.
3 MR. HETRICK: I don't have any further
4 questions.
5 MR. BARTELL: Nothing further.
6 MR. HYDE: No further questions.
7 (Whereupon, the deposition was concluded, and
8 reading and signing by the witness was not waived.)
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1 NOTARY'S CERTIFICATE
2 STATE OF FLORIDA )
3 COUNTY OF LEON )
4 I, JERRY L. ROTRUCK, CM, hereby certify that the
5 witness in the foregoing transcript was first duly sworn,
6 having identified himself to me.
7
8 IN WITNESS WHEREOF, I have set my hand and affixed
9
10 my seal this _____ day of _________________________, 1993;
11
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18 __________________________
JERRY L. ROTRUCK, CM
19 Court Reporter and Notary Public
State of Florida at Large
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1 TRANSCRIPT CERTIFICATE
2 STATE OF FLORIDA )
3 COUNTY OF LEON )
4 I, JERRY L. ROTRUCK, CM, hereby certify that the
5 foregoing transcript was taken down as stated in the
6 caption, and the questions and answers thereto were reduced
7 to typewriting under my direction;
8 That the foregoing pages 188 through 373 represent
9 a true, correct, and complete transcript of the evidence
10 given upon said hearing;
11 And I further certify that I am not of kin or
12 counsel to the parties in the case; am not in the regular
13 employ of counsel for any of said parties; nor am I in
14 anywise interested in the result of said case.
15 Dated this ____ day of ________________, 1993.
16
17
18 __________________________
JERRY L. ROTRUCK, CM
19 Court Reporter and Notary Public
State of Florida at Large
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1 AS TO SIGNATURE ONLY
OF THE COURT REPORTER
2
IN WITNESS WHEREOF, I have set my hand and affixed
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my seal this _____ day of _________________________, 1993;
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said instrument was acknowledged before me by JERRY L.
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ROTRUCK, Certificate of Merit, who is personally known to
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me.
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8 Notary Public
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A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722
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1 C O R R E C T I O N S
2 Corrections to the deposition of RANDALL L. ARMSTRONG,
taken in the case of Sugar Cane Growers Cooperative of
3 Florida, Inc., et al., vs. South Florida Water Management
District and Miccosukee Tribe of Indians of Florida, et
4 al., Intervenors, Case No. 92-3038, 92-3039, 92-3040, taken
on February 12, 1993.
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Page-Line Correction
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____________ ____________________________________
18 Date Signature
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AS TO SIGNATURE ONLY
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IN WITNESS WHEREOF, I have set my hand and affixed
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my seal this _____ day of _________________________, 1993;
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said instrument was acknowledged before me by _____________
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who is personally known to me, or identified himself to me.
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________________________________
25 Notary Public
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722