1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE

10 NOS.

) 92-3038

11 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

12 Respondent, )

) (Consolidated)

13 )

and )

14 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

15 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

16 WILDLIFE ASSOCIATION, )

)

17 Intervenors. )

) _____________________________________________

19 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, DECEMBER 18, 1992

21 (10:30 A.M. - 4:00 P.M.)

22 LOCATION: HEARING ROOM 5, DESOTO BUILDING

1230 APALACHEE PARKWAY

23 TALLAHASSEE, FLORIDA

24 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

25 REGISTERED PROFESSIONAL REPORTER

1 NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

ROBERT P. SMITH, ESQUIRE

5 GARY PERKO, ESQUIRE

DONNA STINSON, ESQUIRE

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P. O. Box 6526

Tallahassee, Florida 32314

8 (904-222-7500)

9 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

10 and New Hope South, Inc.:

11 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-358-3000)

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 ROBERT BLANK, ESQUIRE

Peeples, Earl & Blank, P.A.

16 Suite 350

215 South Monroe Street

17 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

19 Vegetable Association, Lewis Pope Farms,

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

20 Hundley Farms, Inc.:

21 KENNETH F. HOFFMAN, ESQUIRE

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

22 Suite C

2700 Blair Stone Road

23 Tallahassee, Florida 32301

(904-877-0099)

1 Representing Respondent, South Florida Water

Management District:

R. BENJAMIN REID, ESQUIRE

3 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

4 100 Southeast Second Street

Miami, Florida 33131

5 (305-539-7222)

6 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

8 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorneys

9 Southern District of Florida

Suite 627

10 155 South Miami Avenue

Miami, Florida 33130-1693

11 (305-536-4425)

12 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

14 KEITH HETRICK, ESQUIRE

Assistant General Counsel

15 Department of Environmental Regulation

Twin Towers Office Building

16 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

17 (904-488-9730)

18 Representing Intervenor, Florida Wildlife

Federation:

DAVID G. GUEST, ESQUIRE

20 KEN WRIGHT, ESQUIRE

STEVEN GRIGAS, ESQUIRE

21 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

22 Tallahassee, Florida 32302

(904-681-0031)

1 Representing the United States Department of

Justice:

KEITH A. SAXE, ESQUIRE

3 United States Department of Justice

Environmental & Natural Resources Division

4 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

5 P. O. Box 663

Washington, DC 20044

6 (202-272-4016)

7 * * * * *

8 ALSO PRESENT: RONALD D. JONES

MONICA REIMER

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 171

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 172

* * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:30 A.M.,

3 AT WHICH TIME MR. REID, MS. STINSON, AND MR. GRIGAS WERE

4 ABSENT FROM THE HEARING ROOM.)

5 HEARING OFFICER: Why don't we start out by

6 taking a role call of who is here. For the

7 petitioners, we will begin with you.

8 MR. GREEN: Bill Green, Bob Smith, and Gary Perko

9 are here for the record.

10 HEARING OFFICER: The League?

11 MR. BURGESS: Rick Burgess, Bob Blank, and Bill

12 Hyde.

13 HEARING OFFICER: All right, and for the Fruit

14 and Vegetable?

15 MR. HOFFMAN: Ken Hoffman. That's it.

16 HEARING OFFICER: I guess the District is not

17 present by anybody?

18 MS. PONZOLI: That's correct.

19 HEARING OFFICER: And then for the intervenors,

20 the U.S.?

21 MS. PONZOLI: Suzan Hill Ponzoli, and with me I

22 have Tom Watts Fitzgerald and Keith Saxe.

23 HEARING OFFICER: And for DER?

24 MR. KILLINGER: Lee Killinger and Keith Hetrick.

25 HEARING OFFICER: Okay. And for the

1 environmental group?

2 MR. GUEST: David Guest.

3 HEARING OFFICER: Okay. Anybody I missed? All

4 right. I know that Mr. Reid needs to be here for the

5 economic, so I assume we will just put that off until

6 he gets here.

7 Does anybody have an update as to exactly what

8 his status is?

9 MR. SAXE: The last I heard from him he was

10 expected sometime around 12:30.

11 HEARING OFFICER: All right. Maybe what we can

12 do is address some of these other issues. I don't

13 know if he needs to be here necessarily for some of

14 these others, although there is a motion to return

15 privileged documents that was filed by the District,

16 and we will have to wait until he gets here, but the

17 other ones we can take up, and if he has anything to

18 add we can take that up when he gets here.

19 I think probably the best thing to do is let's

20 proceed and try to resolve some of these other ones

21 and then take a lunch break and come back and try to

22 deal with the economic issues after lunch.

23 Okay. According to my list of again what is

24 currently outstanding we have the U.S. access into the

25 EAA still outstanding. There is a motion to return

1 privileged documents that was filed by the petitioner.

2 I don't know what the status of that is. There was a

3 similar motion filed by the Water Management District

4 just the other day. I don't know what the status of

5 that is.

6 There was a renewed motion to compel regarding

7 the Richardson documents. I believe that was also

8 filed by the District. Is that correct?

9 MR. BURGESS: Yes, it was, Your Honor, but with

10 respect to that motion, to their motion to compel

11 returned documents we haven't even seen their motion

12 to compel the return of documents. I understand they

13 filed one in the last day or two. We haven't filed a

14 response.

15 The same with respect to the Richardson

16 documents. That motion was filed I believe on the

17 11th, and we have until the 23rd. I don't believe

18 either of those are ripe for discussion today.

19 HEARING OFFICER: Okay.

20 MS. PONZOLI: It is my understanding, Mr. Menton,

21 that the documents of Dr. Richardson are being

22 produced to the United States on Monday, and I don't

23 know if there are other outstanding issues in the

24 District's motion, but assuming they are not seeking

25 more documents than the United States sought, that

1 issue, I don't understand, Mr. Burgess, why that

2 remains active. It is not my motion, so I shouldn't

3 speak to it. I just don't want my documents to be

4 jeopardized by somehow this limbo status of the

5 District's motion.

6 MR. BURGESS: Where we are, that would be my

7 first argument, that the documents were being produced

8 pursuant to the United States' subpoena, and to the

9 extent that they are seeking anything in addition if

10 they don't get what they want pursuant to the United

11 States' request and the document production on Monday,

12 then that renewed motion may become ripe, but at the

13 moment it is not, and it is not jeopardizing the

14 production. All of this is going forward.

15 HEARING OFFICER: Well, the only thing I wanted

16 to make sure, if we had everyone here, with the

17 document production coming up, if there was a dispute

18 over some documents that were not going to be

19 produced, perhaps we could just resolve it. Even if

20 the time for filing a written response hasn't expired

21 it just seems to me it would be a better course of

22 action to try to take care of these matters if we have

23 everybody here.

24 (WHEREUPON, MS. STINSON ENTERED THE HEARING

25 ROOM.)

1 I guess we need Mr. Reid, and we will have to get

2 his input when he gets here with respect to that,

3 because as I understood it the District was seeking

4 some documents that are beyond what the United States

5 had sought.

6 The objection as I understood it was more general

7 than those specific documents produced, but just in

8 general terms of definitions and those sorts of

9 things, those kind of things I think can and should be

10 worked out before the document production.

11 MR. BURGESS: Right. The U.S. issued their

12 subpoena to Duke, and Duke produced the documents. In

13 my conversation with counsel and my conversation with

14 my witness it indicates that other than privileged

15 documents which are going to be the subject matter of

16 a privileged list seven days hence, everything that he

17 has and they have is being produced through Duke and

18 then through myself and Bill Green with respect to our

19 expert documents on Monday.

20 So I don't think there is anything left that has

21 not been, but we can handle that either later this

22 afternoon or after production on Monday.

23 HEARING OFFICER: Okay. Just one other pending

24 motion is a motion to consolidate filed by the League,

25 and I guess, you know, if you think about it there are

1 two ways of addressing that.

2 The first would be with respect to the four

3 permitting cases that were filed and whether they

4 should be consolidated into one. I think that is the

5 easy one. I would assume they agree, even though

6 obviously Wildlife has a different position than the

7 agricultural interests, but certainly those four cases

8 should all be heard at one time. I would assume no

9 one has any objection to that. Is that correct?

10 Okay. So at this time I haven't done any

11 consolidating, an order consolidating those four.

12 The more difficult question is whether or not the

13 permitting cases should be consolidated with the SWIM

14 plan case. I don't know that that is ripe to address

15 today. The motion was just filed here today.

16 MR. HYDE: Mr. Menton, I filed that motion, and

17 obviously it is an important issue, and we do not

18 intend to bring it up today. We wanted to get it into

19 the hopper, so we could consider it.

20 HEARING OFFICER: Okay. I think we all knew that

21 was out there lurking in the background, and this is

22 coming to the forefront, so we will have to do that at

23 our next hearing.

24 But that does raise one issue for me, and that is

25 I am not sure what the results were of the counsel

1 meetings that have taken place over the last month on

2 some of these discovery issues and the development of

3 a discovery schedule and exactly where we are in terms

4 of an April 5th hearing.

5 Maybe that is the best way to start today, to

6 kind of get an update as to where those are and then

7 go into some more specific issues.

8 MR. BURGESS: Okay.

9 HEARING OFFICER: Mr. Burgess, do you want to go

10 first?

11 MR. BURGESS: Thank you. Your Honor, we have met

12 periodically since our last hearing before you and

13 have agreed to an extension of the hearing date,

14 assuming we have Your Honor's approval, until

15 September 13, with a discovery cutoff of July 31 now,

16 essentially allowing six weeks of pretrial preparation

17 and further and final briefings between July and

18 September 13th.

19 (WHEREUPON, MR. WRIGHT AND MR. GRIGAS ENTERED THE

20 HEARING ROOM.)

21 The petitioners have proposed and I think

22 unanimously still believe that August 31st is a more

23 appropriate date for discovery cutoff than October 4,

24 a better date for the hearing.

25 It is a question of feasibility and mathematics.

1 Under the respondent's date of July 31st we are being

2 forced to revamp our deposition discovery schedule to

3 provide for four depositions simultaneous,

4 simultaneous depositions, literally every day of the

5 period between now and the end of July.

6 We don't think that that is going to leave

7 sufficient time for deponents that may be identified

8 as discovery progresses nor for sufficient expert

9 deposition followup with respect to some of the

10 experts that are going to, are doing ongoing science

11 and may change opinions and conclusions.

12 We also don't think it allows time in the event

13 of consolidation. We think although respondents have

14 represented the District and DER, they tried to do the

15 witness list with consolidation in mind, I still think

16 that additional witnesses may come to the fore with

17 respect to issues and parties and issues from

18 consolidation with the permit proceedings, so we

19 conservatively estimate maybe another 30 days might be

20 necessary if consolidation occurs.

21 Nevertheless with that background we have all

22 agreed to strive to try and complete discovery by July

23 31 and allow for the hearing to begin on September

24 13th. Also importantly it gives us hopefully,

25 depending upon the weather patterns, minimal wet/dry

1 seasonality that our experts would require, perhaps

2 six months of that, but we will have to wait and see.

3 It does allow us additional time which we said we

4 needed in the Refuge and the Park toconduct our tests.

5 So we are scheduled after the hearing today to

6 meet again and attempt to work out a deposition

7 discovery schedule.

8 We have all come hopefully equipped with dates

9 when various experts are available and are not

10 available. We have been exchanging lists literally on

11 a daily basis over Fax machines on that subject

12 matter, and we are going to strive this afternoon to

13 hammer out a deposition schedule.

14 At the moment assuming you approve we have agreed

15 to extend it to September 13th and discovery until

16 July 31st.

17 HEARING OFFICER: Okay. Everybody is in

18 agreement on that?

19 MS. PONZOLI: Let me finish, since the

20 petitioners have caveated their agreement, I was

21 unaware we would argue to the Court anything more than

22 what the agreement was.

23 The extension of approximately five more months

24 is enormously painful to the United States, and we

25 feel it is a major concession for this much longer.

1 We had proposed a schedule that ended some far briefer

2 amount past the April trial date, but we have agreed

3 to July 31st.

4 However, I believe that that is contingent upon

5 our ability to reach a global deposition plan which we

6 have presently not been successful in doing.

7 While we have gone back and forth, there has been

8 some fairly aborted efforts in going back and forth,

9 and I would want to say we will meet this afternoon.

10 I have every reason to believe we should be able to

11 come up with a global deposition plan, but if we

12 cannot the United States has not agreed to five more

13 months of chaos. We might as well end at the end of

14 February if that is the situation.

15 I think that we have agreed that discovery could

16 go to the end of July, assuming you would allow it,

17 and we would be willing to go to trial in September.

18 We are not willing to agree to continued expansions,

19 and we do not want it to be the first of multiple

20 expansions.

21 HEARING OFFICER: Well, am I hearing you

22 correctly, is what you are saying is that you don't

23 agree to the September date until you know you have a

24 global discovery schedule?

25 MS. PONZOLI: Yes, sir.

1 HEARING OFFICER: So we are not in a position at

2 this point, and we will see if we can come up with it.

4 Let me tell you, if everybody is in agreement,

5 then I will live with what you can agree to. If you

6 are not in agreement then I will listen to what you

7 have to say, and I will make a decision as to when we

8 go to trial.

9 As much as I would like to get this case behind

10 me, and I am sure you would, too, I think it's, if we

11 can reach a consensus on when we can start we can go

12 with that.

13 Do the parties have a better feel at this point

14 as to what we are looking at time wise in terms of how

15 long it will take for the hearing? I don't know if

16 you have discussed that. I guess that would depend on

17 whether or not we bring the permitting cases into

18 this.

19 MS. PONZOLI: I don't think we have, and on

20 behalf of the United States I don't think I have a

21 good enough feel for their experts, how many of them

22 they honestly intend to bring to trial and how many

23 are simply doing some work that will never

24 materialize.

25 HEARING OFFICER: How about, if the permitting

1 cases are consolidated, is the September date

2 feasible?

3 MS. PONZOLI: Yes. I think the respondents

4 believe it is true, that it does not bring, we do not

5 believe we have additional witnesses. Can I speak for

6 DER? I believe the Water Management District has

7 represented they included initial designations of

8 witnesses, the people they would use for the permit

9 challenge. Therefore our list would remain the same.

10 MR. KILLINGER: We attempted to do that with this

11 in mind, and it may be that some of these people will

12 crop up, but at this point I think we have everybody

13 in who might be involved as well.

14 MR. GREEN: We don't know the answer to that,

15 Mr. Menton, because we haven't engaged in any

16 discovery whatever on that proceeding.

17 There may be some different people. They may be

18 the same. If I had to guess, we would pick up a few

19 new deponents. Our client is particularly concerned

20 about the four depositions per day.

21 It was our understanding, two things. Number

22 one, we would work together to try to avoid stressing

23 any particular agency or particular party with regard

24 to four depositions. If all four were Water

25 Management District witnesses at the same time or our

1 clients', then it would be a stressful situation, and

2 it was our understanding they were basically going to

3 work that out.

4 Ms. Ponzoli has changed the position that I

5 understand she had when we talked in meeting with

6 counsel, and that is we have to agree on global

7 deposition schedules for the next I guess seven months

8 before the new hearing date and discovery schedule

9 extension is set, and I am asking mechanically how

10 that is going to be done, because we had assumed we

11 would come in this morning and we had agreement on

12 these things, and now Ms. Ponzoli is reversing that

13 and saying it is all subject to something that hasn't

14 happened yet, this afternoon, and I suppose we will

15 not be back until next year, and that puts us in a

16 precarious position with regard to scheduling

17 endeavors.

18 I guess I would ask Ms. Ponzoli if that is her

19 final position and the other parties, or whether...

20 MS. PONZOLI: I think the first shift of position

21 occurred when the petitioners came in the room and

22 began to argue that they really need more time.

23 HEARING OFFICER: This isn't going to be

24 productive.

25 MS. PONZOLI: I mean, I think we have an

1 agreement, but, I mean, they have to come up with a

2 deposition plan. We can't get in there and all of a

3 sudden it falls out.

4 HEARING OFFICER: I understand the qualifications

5 everybody is putting on. I guess the point I want to

6 make is we are looking at having to address this

7 motion to consolidate in the very near future here,

8 and I think that that issue could very well impact on

9 the hearing date, and I am not sure that the parties

10 have even considered that.

11 I want to make sure that is fully taken into

12 account and addressed in response to the motion to

13 consolidate, and I would like to know and have

14 everybody on the record as to where they stand as to

15 the effect of consolidating or not consolidating, and

16 if you oppose consolidation I would like to get an

17 idea in your response as to when you think this

18 consolidation, the permitting case would be ripe to go

19 to hearing and how it will impact on the SWIM plan

20 case.

21 I think that, you know, as I indicated, if

22 everybody is in agreement, which it sounds like they

23 probably are, I know that in seven months you are not

24 going to be able to get every day nailed down

25 completely, but if we have a general time line as to

1 discovery proceedings, we can work with the new

2 hearing date and deal with the problems as they come

3 up.

4 MR. BURGESS: On behalf of my client we would

5 join in what Mr. Green said. When we spoke about

6 October 4th we were looking solely to the SWIM plan

7 challenge as it is now.

8 We believe there will be additional persons

9 necessary as a result of consolidation, both witnesses

10 that we would name and others from the agencies we

11 would need to depose. We think it is most likely a

12 minimal additional period of time, and we were on the

13 record saying 30 to 90 days additional time.

14 Hopefully the shorter period of time. I think that

15 will be flushed out as the issues become more apparent

16 and the parties and the witnesses become clear in the

17 permit proceeding.

18 But we think an additional amount of time may be

19 necessary.

20 HEARING OFFICER: Well, you know, again I am not

21 prepared to address the consolidation issue today, but

22 I want everyone to have that in mind when addressing

23 the hearing dates, so that we can avoid any surprises

24 where someone comes in later on and says, "Well, we

25 assumed the permitting case was going to be

1 consolidated, and if not we ought to go to hearing in

2 June." That's what I want to avoid having happen.

3 Okay. Where are we on the U.S. access issues?

4 MS. PONZOLI: We are pretty close. It gets

5 closer and closer. We just never quite get there. We

6 have three I believe discrete issues.

7 We have pretty good agreement on the order that

8 we can submit to you, but these are the three areas

9 that there was not agreement on the order. We had a

10 conference call last evening trying to iron it out,

11 and I think that, you know, I hope I don't get

12 contradicted here, there are only three remaining.

13 We have a final site problem that we have to

14 argue to you on the final, 40th, site. We have

15 agreement on 39.

16 I am sorry I didn't bring you a copy, so I stuck

17 mine up here on the board, but that map will be

18 attached to the order with also a description by

19 Township, Range, and Section to the order that you

20 would eventually enter, so it would be complete which

21 pieces of property we were entering within the EAA.

22 There would be no, "I thought you were coming to this

23 one, but you came to this one."

24 We have an issue regarding sediment samples.

25 There is some dispute as to I guess, I think it is a

1 location dispute, not the number of samples dispute,

2 and then finally we have sort of continuing ideas,

3 will there be a restriction on the use of the data.

4 HEARING OFFICER: The protective order issue?

5 MS. PONZOLI: Yes, sir.

6 HEARING OFFICER: I know I have reviewed all the

7 pleadings on that, and I have taken a look at it. I

8 have not finalized an order on that, and I don't know

9 that we need to specifically address it, unless there

10 is anything further.

11 MS. PONZOLI: We have argued it, and it is

12 possible to accommodate the order we have drafted to

13 embrace your order, whatever it is. That is a

14 possibility.

15 We would simply incorporate your order within the

16 order we agreed to, and then it would reference

17 whatever you did or did not do in that order. So if

18 you want we can argue the two issues.

19 The first issue, if I may go to the map, I will

20 just point out to you, as you recall we have sought

21 eight sites in five bands, and we have pretty good

22 distribution, and I must say largely we had good

23 cooperation in reaching these sites. We have the

24 eight sites within the various bands.

25 Our problem has really been here in the first

1 yield belt, closest to the lake, and it is really a

2 similar problem to the Bryant Mill. There as you

3 recall they claimed it was hydrologically isolated.

4 With regard to the lake, a number of locations

5 are I guess in the 298 District, which discharge water

6 into the lake.

7 Mr. Pope, again I accept, I mean, I am told he is

8 in the 298 Drainage District, his water goes into the

9 lake. It is my understanding in addition some seeps

10 south also, but regardless the issue is the same as it

11 was before, is he hydrologically isolated, and does

12 that remove him from the possibility of having to

13 expose his land to entry and inspection by the United

14 States.

15 I have offered to accept another site near there

16 from the Fruit and Vegetable Association. They say

17 they can offer me none, because they are all

18 discharging into the lake.

19 I think that they are in the SWIM challenge, that

20 their water, the lake water does go into the Water

21 Conservation Areas and the Everglades Protection

22 District. I believe it is reasonable to assume and

23 certainly a very difficult proof problem whether their

24 water did seep south into the Everglades, and I think

25 we should be allowed to go onto that property.

1 If for some reason we want to use his data and he

2 wants to exclude it later because he says it is not

3 relevant because the water discharged to the lake, I

4 think that is an issue we can address downstream.

5 That is my 40th site, and I believe we should be

6 granted access.

7 HEARING OFFICER: Is this the same Mr. Pope as

8 one of the petitioners for Fruit and Vegetable?

9 MR. HOFFMAN: Correct.

10 MS. PONZOLI: (Conferring off the record with

11 Mr. Fitzgerald.) It is the same Mr. Pope. I think

12 counsel is pointing out to me if they have no water

13 that they claim is going into the Everglades

14 Protection District, why are they here? I mean, they

15 are here to challenge the SWIM plan. Do they have a

16 standing problem?

17 But in any event, I think the issue is very

18 similar to what we have with the Bryant Mill, and we

19 should be granted access.

20 On the sediment samples, I think the problem that

21 arose in drafting an order that we could both agree to

22 was that the petitioners felt that on page eight of

23 our initial request where we indicated the sediment

24 samples would be collected from secondary canals and

25 field ditches by using certain methodology, they felt

1 that was a limitation as to where we could go to pull

2 sediment samples, and on page seven it is very clear

3 that we are asking to go to treatment ponds located on

4 or adjacent to EAA sugar mills and the lands and

5 canals immediately adjacent to the mills.

6 I think that these sediment samples that we need

7 to pull from those treatment ponds are critical to

8 understanding the relationship between the phosphorus

9 and the mercury. The sediment is the strongest

10 concentration of all of these that we will find. They

11 are highly eutrophied areas, the treatment ponds.

12 You have already granted us access to the sugar

13 mills and to the treatment ponds. We will be pulling

14 water samples, but the sediment samples are more

15 valuable to us, and I think that it is a sort of a

16 cribbed reading to somehow now say we can't have

17 access for sediment. We can go in and get waters from

18 the treatment ponds, but we can't get sediment from

19 the treatment ponds.

20 There has been a high level of anxiety on the

21 part of the petitioners about our entry, and the

22 United States has made multiple efforts to do certain

23 things to alleviate that.

24 It is really largely a one-time entry. We are

25 going in the first time, pulling the water, pulling

1 the sediment and the grab samples. Unless I am

2 mistaken I believe our hexane phase samples are really

3 ongoing over three months.

4 I have revealed my parameters, and I have put my

5 expert on the stand, as you will recall, and I have

6 also put him on the telephone with their experts to

7 explain his testing methodologies, so that they would

8 understand what he was testing and how he was testing

9 for it, and we spent an hour and a half one evening on

10 the phone going back and forth. They explained their

11 methodology. We explained our methodology.

12 I have made numerous efforts to meet their needs,

13 to relieve anxiety. I have agreed to do GPS site

14 markings and put bicycle flags so they will know

15 exactly where we went. I have agreed that if there is

16 any dispute regarding a site that we are pulling a

17 water sediment or anything from when we go on their

18 land we will leave the land immediately and come back

19 to you to resolve it, but we will not press our rights

20 at that point on the land.

21 So I think this is a minimal invasion, certainly

22 far less than what they have asked for. It is

23 reasonable and justified by the information that we

24 will obtain.

25 The final issues I don't need to argue, because

1 you said you would deal with it.

2 So I would ask you to grant me access to Mr.

3 Pope's property and to allow me to pull sediment

4 samples. I think that's really where the dispute

5 lies.

6 HEARING OFFICER: Okay, is it all of the

7 petitioners who are objecting on the sediment samples,

8 or are there different positions amongst the

9 petitioners?

10 MS. PONZOLI: Well, I don't think Mr. Hoffman had

11 a particular objection on the sediment, although I

12 could be wrong. I think it was the two petitioners

13 who have sugar mills.

14 HEARING OFFICER: All right. Let's start with

15 the last site. Mr. Hoffman?

16 MR. HOFFMAN: Yes, sir, Your Honor. As I

17 understand it there were several sites. The dark

18 green is supposed to be the Fruit and Vegetable

19 people, and the names are on these sites, and

20 apparently this is the site. Of course, "this" on the

21 record being nothing, I can't, up here near Pahokee is

22 the best I can for the record.

23 HEARING OFFICER: The furthest north of the

24 green?

25 MR. HOFFMAN: Yes, sir, and in some

1 correspondence I was asked to provide access to a

2 Township and Range which Mr. Pope doesn't own, and I

3 have provided that and haven't had a response to that.

5 Secondly, the only testimony in the case is

6 Mr. Pope's deposition, in which he testified that he

7 grows corn, only sweet corn, and he grows most of it

8 actually by leasing land on the South Bay site,

9 actually from South Bay Corporation. He also owns a

10 couple hundred acres in the northern piece of the

11 green in the 298 Drainage District, and the testimony

12 is there is only one pump that covers that property

13 that is owned by the District, not him, and pumps the

14 water into the lake. So there is no systematic method

15 of water going out.

16 So he does not believe that there is any

17 relevance, and I don't either, to checking what's on

18 his property if it does not result in something that

19 goes through the works of the District that we are

20 trying to have the STAs there. That's what the case

21 is about.

22 HEARING OFFICER: Let me ask you a question. The

23 other dark green square that is in the first belt, is

24 that another 298?

25 MR. HOFFMAN: I don't think so. My clients are

1 anxious. They are damned anxious, because the U.S.

2 Government has been in there before, and they have

3 told me they have done tests underneath the tank and

4 then have gone on and filed prosecution against them.

5 We don't, you know, they don't trust the U.S.

6 Government. "We're from the U.S. Government. We're

7 here to help you." That's the old joke. It is no

8 joke to these people, and that's why I object to it.

9 I don't see any big deal by looking at some of

10 this, but it is irrelevant.

11 I think it's a joke that somebody asked, "Why is

12 he worried if his water doesn't flow south," like it

13 has something to do with standing. These people are

14 going to be taxed millions of dollars to pay for this

15 project, and I think these farmers down there, he

16 could lose the right to farm down there.

17 There are a lot of other things to do with

18 standing other than water flow. I think that's the

19 most silly comment I have ever heard.

20 So I would just like to strongly object to taking

21 data from up here where it is not material or relevant

22 to the case, and I think our clients have good reason

23 to be anxious. That's all I have to say about it.

24 HEARING OFFICER: Ms. Ponzoli, in the first belt

25 are there other 298 sites in there?

1 MS. PONZOLI: I would assume the argument from

2 all petitioners would be the same as to the 298

3 District.

4 I will tell you quite honestly that unless

5 Mr. Green has another site he wants to offer, because

6 I believe the Cooperative does own property in there,

7 U.S. Sugar has been rather cooperative in providing

8 sites that were away from the lake.

9 I think that Mr. Pope if he is here, he should be

10 participating to the same extent that everyone else

11 is. Frankly I need a northern site in order to effect

12 my distribution in the places where I have gone.

13 All of that area around him will be the 298.

14 Under the Marjory Stoneman Douglas Act he only pays

15 for what he contributes to the water.

16 Mr. Hoffman made an interesting comment when he

17 said it was the only systematic method of discharging

18 water, that one pump. I think it is fairly clear it

19 is very difficult to hold water in any location in

20 Florida, and it flows south, so his water is flowing

21 to the extent that one pump is not pumping it into the

22 lake.

23 I think this is the same argument on the Bryant

24 Mill. I mean, I think it is exactly the same

25 argument. They are here. They say they are impacted.

1 We say they are part of the process. We want to look

2 at the phosphorus. We want to look at what is going

3 on. I have done everything the United States can do

4 to relieve their anxiety.

5 HEARING OFFICER: Mr. Hoffman, it seems to me

6 that if Mr. Pope has decided to participate actively

7 in the case, which he has obviously, then he has

8 opened the door to discovery. If there are particular

9 problems as Ms. Ponzoli has indicated, if they can go

10 out underneath the tanks or whatever like he is

11 complaining about, she has indicated she will halt it,

12 and we can come back and deal with it then.

13 I think the request is framed in terms of trying

14 to deal with separate belts and getting a reasonable

15 sampling in each of the belts which was appropriate,

16 and it seems like a reasonable approach to me.

17 So I am going to grant the request. If there are

18 particular problems we will take it up again.

19 All right. Sediment samples.

20 MR. BURGESS: Your Honor, this of course is

21 Ms. Kavanaugh's issue, and she apologizes for not

22 being here today. She was the attorney for the Ray

23 family, and she is at the funeral. She has asked me

24 to address the remaining issues.

25 With respect to the sediment samples and the

1 locations, I don't think that our interpretation is

2 indeed a strained interpretation at all. The language

3 at paragraph seven on page eight clearly says that

4 sediment samples will be collected from secondary

5 canals and field ditches. It says nothing about

6 holding ponds and canals surrounding the mills.

7 The meetings, the many meetings that have taken

8 place between ourselves and the United States on these

9 issues were designed with the experts' intendence to

10 discuss these very issues, where they wanted to go and

11 what they wanted to do, and allow us to go back and

12 discuss where they wanted to go and what they wanted

13 to do on these private lands with our clients.

14 We have every step of the way interacted with our

15 clients with respect to things that we could agree to

16 and things we could not agree to, and it was at 4:30

17 yesterday afternoon for the first time that I was told

18 or that we learned on this side of the table that

19 indeed their language, secondary canals and field

20 ditches, also meant holding ponds surrounding the

21 mills.

22 So I am not prepared as I sit there today to say,

23 although I tried to contact my clients, to say that

24 they would have no objection to incorporating these

25 areas. I think it is something I need to discuss with

1 my clients and perhaps a consultant.

2 There are issues that are raised by them taking

3 sediment samples there.

4 For instance, with respect to the holding ponds

5 it is my understanding those holding ponds are

6 monitored by DER, the groundwater is monitored by DER

7 on a continuous basis, and there is certainly as I

8 know of no state water quality standard for the

9 holding ponds. What they get out of there may not be

10 relevant to the proceedings. I think though what this

11 change in interpretation or what they want to do does

12 do, it points up the need for some protection language

13 in the order.

14 Perhaps if you are going to order that they are

15 allowed to sample sediments in these other areas, then

16 the universal protection that we are advocating, that

17 while they can use the results of these tests for any

18 and all purposes within this proceeding, that for any

19 attempt to use those results or this data or

20 disseminate it outside of the proceeding needs first

21 to be brought back before Your Honor, and I would

22 argue that should you allow them to do that, that data

23 and all the other data needs to be subject to the

24 protection for this very reason.

25 HEARING OFFICER: Well, on all of these discovery

1 issues the thing that I keep trying to come back to to

2 understand is what is the interests that you are

3 seeking me to protect?

4 I have a hard time understanding why if they are

5 going out to the property and taking water samples,

6 going in and taking sediment samples is any more

7 onerous.

8 MR. BURGESS: Well, I don't think that taking

9 sediment samples is any more onerous. I think that's

10 not the issue we are arguing.

11 With respect to, there may be the relevancy

12 argument to make, but it may be more properly made at

13 the time of attempting introduction into evidence in

14 the case, but simply as they said they think these

15 areas are a hot bed of nutrients, my clients don't

16 want to wake up the next morning after they get the

17 lab results and read in the headlines in the Miami

18 Herald about the cesspool situation that exists with

19 respect to nutrients.

20 It is private land. It is private land, Your

21 Honor, and I think that to the extent that they are

22 allowed to take these and use them for all purposes in

23 this proceeding that when we get the data, and we will

24 get the data at the same time, and we assert to them a

25 proprietary or trade secret or other type of interest,

1 the issue simply needs to come back before Your Honor.

2 Their proposed language allows them to use this

3 data for any reason dealing with public health,

4 safety, or welfare. Well, that's just simply too

5 broad for us. We would like Your Honor to be the

6 arbiter of what constitutes public health, safety, and

7 welfare before they are allowed to use it.

8 If Your Honor is going to allow them to take a

9 sample, we think it points up a need for the universal

10 protection.

11 HEARING OFFICER: Okay, so it is just really

12 going back to the same issue we had before?

13 MR. BURGESS: Yes. It has been briefed.

14 HEARING OFFICER: Mr. Green, do you have anything

15 further?

16 MR. GREEN: No.

17 HEARING OFFICER: Mr. Hoffman, do you have

18 anything on this point?

19 MR. HOFFMAN: We would agree with the need for

20 protection for the same reasons I expressed before.

21 HEARING OFFICER: Okay. Ms. Ponzoli?

22 MS. PONZOLI: We have argued sediments, and I

23 understood you to have granted us sediments and

24 granted sediments for sugar mills and the water for

25 quite some time.

1 I guess the only thing I would say on the

2 protective order, Mr. Menton, is that they have never

3 offered good cause and have never offered a protective

4 interest.

5 If this Court wants me to assure it that I am not

6 going to take the lab results and run to the press, I

7 will give them that assurance. That is no problem.

8 They have trusted me for two months with

9 documents that we are going to argue as to whether I

10 should have to return them or not. They have trusted

11 me for two months not to run to the press. I think

12 they know I am not going to do that. I think that is

13 not a very valid argument for good cause or protective

14 interest.

15 HEARING OFFICER: Okay. Well, Mr. Burgess, if

16 there is some additional objection beyond the

17 protective order issues that you have after you talk

18 to your clients, then discuss it with Ms. Ponzoli, and

19 if we need to take it up we can take it up in a

20 telephone hearing, but otherwise it seems to me that

21 issue really is assumed in the protective order issues

22 which I will study further in the next few days.

23 MR. BURGESS: Your Honor, the parties have

24 exchanged draft orders, and these orders contain

25 paragraphs dealing with, it is not an all encompassing

1 protective order, but it deals with the issues

2 providing some protection.

3 Perhaps we should submit those as draft proposed

4 language for your consideration.

5 MS. PONZOLI: Well, we have agreed on certain

6 elements of it. I have no problem with submitting

7 them to you.

8 HEARING OFFICER: Do you want to do that

9 separately, or do you want to do that when you work

10 out...

11 MR. BURGESS: I guess we can reach agreement on

12 all the paragraphs we can and submit any additional

13 language proposed.

14 HEARING OFFICER: Submit any alternatives you

15 might propose and the particular paragraph.

16 MS. PONZOLI: Right.

17 HEARING OFFICER: And that way we will

18 incorporate the protective order into the access

19 issues, which is probably the easiest way.

20 MR. BURGESS: Okay.

21 MS. PONZOLI: We are very close. I think it will

22 be no problem. I think you should be able to enter an

23 order from what we submit to you in the agreement. I

24 don't think we will have to argue anything.

25 HEARING OFFICER: Very good. Okay. That takes

1 care of the access issues. What is the situation with

2 the privileged documents that petitioners have sought

3 return of? Is that still a dispute?

4 MR. BURGESS: Yes, Your Honor, and my partner,

5 Bob Blank, will handle that.

6 (WHEREUPON, MR. REID ENTERED THE HEARING ROOM.)

7 HEARING OFFICER: Mr. Blank, welcome. New face.

9 MR. BLANK: These were documents that were

10 produced pursuant to a production of documents in

11 connection with the deposition of George Wedgworth,

12 President of the Sugar Coop, and was a member of the

13 Sugar Cane League up until May of 1991. These are all

14 documents that we are asserting work product over.

15 HEARING OFFICER: As I understood one of the

16 issues was the question of whether there was an

17 attorney-client relationship at the time they were

18 produced, and that I guess was not clear from what I

19 read. That has been a problem in the return, is that

20 right, Ms. Ponzoli?

21 MS. PONZOLI: The issue is there is no

22 attorney-client relationship when they are turned

23 over. It is clear that Mr. Wedgworth ceased to be

24 represented by the firm of Peeples, Earl and Blank a

25 long time ago.

1 The really critical issue, Mr. Hearing Officer,

2 is Mr. Wedgworth ceased to be represented by Peeples,

3 Earl and Blank sometime prior to that cutoff date when

4 the Cooperative left the League.

5 That relationship severed from all appearances

6 rather dramatically. He withdrew his financial

7 support. It was not a happy parting.

8 But I could not determine that date, because that

9 would be the date in which had Mr. Earl's firm

10 released documents to Mr. Wedgworth there could be no

11 privilege. He was a third party as of that date.

12 The problem that has occurred is that I cannot

13 obtain that date either from the law firm of Peeples,

14 Earl and Blank or from the law firm of Hopping, Boyd,

15 and Green, and so until I have that date I think our

16 legal analysis is up against the wall. They have

17 failed to meet the burden.

18 HEARING OFFICER: Let me make sure I understand.

19 We are talking about there is a document, just talking

20 about one document?

21 MR. BLANK: We are talking initially, Mr. Menton,

22 about seven documents. The seventh document on the

23 list, which was a memorandum dated February 28, 1991,

24 we have determined was disseminated to other parties,

25 and we are not seeking to assert privilege over that

1 document.

2 The other six documents we are asserting

3 privilege.

4 HEARING OFFICER: We are talking about six

5 documents, and the dates, I guess as I understand the

6 dispute there is a question over the dates that these

7 documents were prepared, whether in fact there was an

8 attorney-client privilege that existed, are all six

9 documents, who were they prepared by, and how do they,

10 I mean, I have read the motion, but it has been a

11 while. MR. BLANK: Well, some of those were

12 prepared by counsel, and some of them were prepared by

13 the League itself in consultation with counsel. They

14 were in many cases agendas for litigation, strategy

15 meetings.

16 HEARING OFFICER: Okay. Now wouldn't it be

17 critical then to establish that privilege existed to

18 be able to verify there was in fact an attorney-client

19 relationship, or else there was no privilege?

20 MR. BLANK: Well, we think the argument that the

21 United States is making with regard to the dates upon

22 which the Coop withdrew from or ceased its financial

23 contribution to our firm's fees is irrelevant. The

24 relevant date is when the Coop withdrew from the

25 League.

1 At that point in time clearly there would be no

2 privilege, but up until that time there was a League

3 privilege which we don't think the Coop has the right

4 to waive in the context of the document production.

5 MS. PONZOLI: Excuse me. He has framed the

6 issues the way they believe the issues should be

7 framed. That is a fair representation by Mr. Blank.

8 The United States believes it is just all wrong.

9 Mr. Wedgworth was very clear both in his

10 deposition and in his discussion surrounding the

11 deposition that he ceased to be represented by this

12 law firm at some point in time. The man simply said,

13 "I can't recall the date. You will have to get it,

14 you know, another way. I don't remember what the date

15 was."

16 But he withdrew his financial support. I believe

17 the law fully supports that you cannot force someone

18 to be represented when they have said, "You are not my

19 counsel, I will not pay you, and I will not be

20 represented by you."

21 Therefore, he was not represented by Peeples,

22 Earl and Blank. From that point forward, and they

23 cannot force representation upon him simply because

24 his Cooperative belonged to a trade association called

25 the Florida Sugar Cane League, and sometime downstream

1 withdrew its membership from the Florida Sugar Cane

2 League. They can't force representation upon

3 Mr. Wedgworth, Wedgworth Farms, and the Cooperative.

4 HEARING OFFICER: Well, but as a matter of

5 association of law though if he is still a member of

6 an association and there was a judgment entered

7 against the association wouldn't that have been

8 binding on him unless he had formally withdrawn?

9 For example, if Mr. Blank had sued the

10 association for fees and Mr. Wedgworth was a member of

11 the association and had not formally withdrawn,

12 wouldn't he have been subject to a judgment for any

13 fees that were assessed against the association?

14 MS. PONZOLI: I don't think so, because it seems

15 from their bylaws they had a rather unusual situation,

16 and I have not done discovery into those bylaws. In

17 fact, when I tried to do discovery on this Mr.

18 Wedgworth was sort of pulled out and came back with a

19 lack of memory.

20 MR. GREEN: I object to that characterization.

21 MS. PONZOLI: Well, they were responsible, they

22 were processors who belonged to a certain part of the

23 League, and they paid money, and they were responsible

24 for counsel, and they made the decisions for counsel.

25 It would appear from the minimal discovery that I

1 have had in this area that quite honestly when he

2 withdrew his money he withdrew all participation, and

3 he shortly thereafter at some point downstream just

4 withdrew completely.

5 I think that what we have here, Mr. Hearing

6 Officer, is an ongoing problem regarding the candor of

7 the parties' identities and counsel.

8 If you will recall at the beginning of this whole

9 SWIM challenge process, the issue of the production of

10 federal documents came up, and I said that all of

11 these parties had been represented by Peeples, Earl

12 and Blank, and I had given my million plus documents

13 from all these agencies, and they said, "Some things

14 our people weren't named petitioners," and we sort of

15 went round and round. Mr. Hearing Officer, I have

16 produced all of those documents a second time on the

17 assumption that they were not represented by Peeples,

18 Earl and Blank, because that was sort of a fuzzy

19 representation that seemed to come out here, and now

20 it seems that it comes back, and they are represented

21 by Peeples, Earl and Blank.

22 I believe the standard under the Parkway case is

23 fairness. It is a fairness test.

24 I think they failed that first because they were

25 not candid in the initial discovery about who

1 represented whom and at what time. I think they have

2 failed to be candid now regarding the date of who

3 represented whom and at what time.

4 I believe they should have to come forward with

5 that date, and we can sort it out, and I think if the

6 date somehow shows that they had an argument as to the

7 privilege I would ask you to view the documents in

8 camera before deciding.

9 MR. BLANK: To some extent, Mr. Menton, we may be

10 arguing about things that are not really crucial. We

11 are attempting to find out the actual date that

12 Mr. Wedgworth determined that he wasn't going to pay,

13 contribute to the League in terms of payment of our

14 fees, and I suspect that date is going to be

15 subsequent to all of the documents that we are talking

16 about here.

17 There are a couple of documents that are undated,

18 and we are trying to find out the dates of those

19 documents, also, but again our assertion of privilege

20 goes to the League, and that is the privilege we are

21 seeking to maintain, and it is our position that the

22 dates are actually irrelevant, but as a practical

23 matter when we find out it may turn out to be it

24 doesn't matter which regard to the actual documents.

25 HEARING OFFICER: Well, generally I think my

1 analysis would be to look at the issues in terms of

2 when the actual withdrawal from the League took place,

3 because I think as a matter of association of law,

4 barring some unique aspect of the association bylaws,

5 that would be the controlling date for legal purposes.

7 I do recall, however, what Ms. Ponzoli has

8 pointed out, early on in this case, that we had this

9 discussion regarding the documents that have been

10 produced and who they were produced to.

11 I haven't sat down and tried to chart out the

12 exact dates of what was said when and all that, but I

13 did find that a little bit troublesome in reading her

14 response, that there was the indication at one point

15 that

16 Mr. Wedgworth or some group of parties had claimed

17 they had not had all the documents produced, but now

18 they have a different date in terms of turning to

19 decide when the privilege terminated.

20 I guess that is a little bit troublesome to me.

21 I don't know how that falls out. I haven't sorted

22 that out.

23 Are we talking about different dates here?

24 MR. BLANK: I don't think we are talking about

25 different dates for the purposes of document

1 production. That's a totally different issue. We

2 have maintained all along they do not have to produce

3 anything they have already produced.

4 MS. PONZOLI: I have had to produce them to

5 Mr. Wedgworth's new attorneys. That's the problem. I

6 had to produce them to the new set of attorneys,

7 because, either, well, I don't know. I have had to

8 produce them the second time, and it appears that I

9 produced them to Mr. Wedgworth under the present

10 theory previously, and now I have had to produce them

11 to

12 Mr. Wedgworth and the Cooperative a second time, and I

13 think that is really sort of an unfair situation, and

14 I think it's a problem, and I will tell you that

15 henceforth I don't think I should have to do that two

16 times.

17 MR. GREEN: I guess we are getting pulled into

18 this discussion. I think Ms. Ponzoli originally

19 objected to producing federal documents to our

20 request, saying that she had produced them to the

21 League. Is that fair?

22 And I said, "Well, that's all interesting, but we

23 are not representing the League. We don't have the

24 documents. It is a different case. I don't know what

25 documents were produced. I don't know who decided

1 what documents were relevant."

2 In fact, the case there was a federal lawsuit,

3 not the SWIM plan challenge.

4 We haven't been through the documents and picked

5 out the things we think are relevant to the case in

6 any event, and I think Your Honor correctly did not

7 bar production of the government's documents in light

8 of that circumstance.

9 As a factual matter I suspect the productions

10 that Ms. Ponzoli is talking about that were made to

11 the League probably occurred after Mr. Wedgworth

12 ceased to be represented by the Peeples, Earl law

13 firm. I don't know the answer to that question.

14 HEARING OFFICER: I don't, either.

15 MR. GREEN: I really don't know. It's a

16 different proceeding.

17 MS. PONZOLI: Oh, I would be so happy if it were

18 a different proceeding, Mr. Hearing Officer. If we

19 could just separate that federal lawsuit and all of

20 that discovery and all of that, that would be the

21 happiest position that has occurred in this

22 proceeding, but we know it is not.

23 HEARING OFFICER: Okay. I don't know that it is

24 productive to continue on in this discussion any

25 further.

1 Mr. Blank, as I understand what you are saying

2 you are trying to get information, and it may be that

3 all these issues are...

4 MR. BLANK: We'll meet with counsel and see once

5 we do find out the dates if it is still a problem, and

6 we can bring it back to you. We would like to

7 resolved prior to the continuation of Mr. Wedgworth's

8 deposition.

9 HEARING OFFICER: Which is scheduled...

10 MS. PONZOLI: I believe Mr. Wedgworth will

11 probably be done in mid-January, so we may need a

12 telephone conference.

13 HEARING OFFICER: No problem. Let me, I wasn't

14 sure if you were saying a minute ago when you were

15 asking me to review these in camera whether there is a

16 question if they qualify as privileged documents

17 anyway. Are we just talking about dates, or is there

18 some dispute over...

19 MS. PONZOLI: I think there could be questions on

20 some of that as to whether they are privileged or not,

21 and so, you know, the date issue has obviously been

22 critical in my analysis, and since I have been

23 unsuccessful in obtaining an answer to it, that is, I

24 would like the date first, and then I will ask you to

25 review them.

1 If I would get the date rapidly, then I would

2 make my analysis based on that at that time and then

3 seek you to review them in camera. Obviously I have

4 not, and obviously they have not.

5 They have never asserted or explained their

6 privilege vis a vis the documents. I might ask them

7 to do that.

8 MR. BLANK: Up until now we never really knew it

9 was an issue. We will be happy to do that.

10 HEARING OFFICER: Okay. Well, see if you can

11 pull the dates together. It may moot the whole thing.

12 If it doesn't, let's have a conference call.

13 MR. BLANK: Okay.

14 MS. PONZOLI: Okay.

15 HEARING OFFICER: Welcome, Mr. Reid.

16 MR. REID: Thank you. I'm sorry.

17 HEARING OFFICER: No problem.

18 MR. REID: They canceled it and then miraculously

19 found another airplane.

20 HEARING OFFICER: We have discussed a couple of

21 issues that you are involved in, one of which is the

22 motion for return of privileged documents that have

23 been filed by the District. There is some discussion

24 that that is not right. Others have not seen that.

25 MR. REID: I hope we can work it out. After what

1 you have said today perhaps we can.

2 And we had a motion to compel the Richardson

3 documents, and then what we are going to do on that is

4 wait for the production order from the United States

5 which is coming soon, and see where we stand.

6 HEARING OFFICER: Okay. So we will put that off.

7 Okay. I guess the only remaining issue is the

8 economic issue, is that right?

9 All right. What do we want to do on that? Do we

10 want to take that up now, or do we want to take a

11 lunch break and come back, or what?

12 MR. FITZGERALD: Mr. Hearing Officer, there is a

13 matter of the United States' motion to compel

14 discovery that has not been addressed but which, if

15 fully briefed, I believe that is a very discrete and

16 rather short one.

17 (WHEREUPON, MR. REID AND MR. GUEST LEFT THE

18 HEARING ROOM.)

19 MR. BURGESS: Failure, I am not sure what we call

20 this in the administrative arena, but it alleviated a

21 lot of this discussion, but I would be happy to

22 discuss these matters for the first time if counsel

23 want to present it.

24 (WHEREUPON, MR. GUEST ENTERED THE HEARING ROOM.)

25 HEARING OFFICER: All right. Which one is this

1 again?

2 MR. FITZGERALD: This is the United States'

3 motion to compel discovery from the Sugar Cane League,

4 U.S. Sugar Corporation, and New Hope South, based on

5 their raising 10 or 12 global objections to the

6 request for production originally filed by the United

7 States and the United States' interrogatories.

8 We asked in the motion to compel for more

9 complete answers to the interrogatories and also

10 object vehemently to the League's attempt to

11 characterize one of our interrogatories as being in

12 effect some 120 interrogatories instead of one, which

13 naturally has some effect on the calculation of the

14 available interrogatories to everyone.

15 That is probably the most discrete and easiest

16 way to address that, I imagine.

17 The League inserted its sixth objection to

18 Interrogatory No. 2, that it was not one count but

19 120.

20 What we asked was that the League provide to us

21 the basis for their dispute with certain positions in

22 the SWIM plan as laid out in paragraph 82 of their

23 first amended petition.

24 In the first amended petition, Mr. Hearing

25 Officer, they subcategorized that by giving

1 subparagraphs (a) through subparagraph (d)(k).

2 (WHEREUPON, MS. REIMER LEFT THE HEARING ROOM.)

3 It is over 100 odd, I suspect probably near 120,

4 and rather than go through the same ridiculous

5 exercise of demanding the basis for each of those

6 claims and an identification of the basis for their

7 dispute, we asked, and there was substantiation in the

8 interrogatory, "Tell us the basis for your claim in

9 paragraph 82 that the SWIM plan is useless and nothing

10 but drivel," and they have made no effort to provide

11 any answer whatsoever but said, "It is 120

12 interrogatories, so we will not answer."

13 Paragraph 82 of the first amended petition, now

14 paragraph 69 of the seconded amended petition, set

15 forth 40 questions of law and ultimate facts by the

16 League, and presumably they raise the same issue

17 there.

18 We pointed out in our initial filing and

19 indirectly on response that if in fact that assertion

20 stands, that there would be no effective way for the

21 United States to try and determine what truly are the

22 issues here. Our view from the outset of this case is

23 that there are ridiculous numbers of designated

24 witnesses and a ridiculous number of material facts

25 supposedly in contention and conclusions in

1 contention.

2 (WHEREUPON, MS. REIMER ENTERED THE HEARING ROOM.)

3 The discovery process should be designed to

4 winnow that down to where we can give you a wild guess

5 as to what the final hearing will look like in terms

6 of time and witnesses.

7 The interrogatories were the mechanism to reach

8 that. It has become clear, although hazily so, in

9 even the limited number of depositions conducted thus

10 far that many of the people are unnecessary for

11 witnesses in the case, and some who might otherwise be

12 necessary and more than likely easily even amongst

13 this group be handled through prefiled testimony and

14 stipulations in the stip or prehearing stipulation, or

15 we will drop out of the case, but we have no true

16 ability to focus unless we begin to give answers and

17 also receive the documents we requested in our notice

18 for production.

19 The essential argument raised by the League and

20 other parties who have joined into this is that we

21 are, the United States is aligned as a

22 respondent/intervenor and is not entitled to an

23 independent, effectively an independent access or

24 mechanism for receiving documents it feels are

25 appropriate to review.

1 We were looking for documents that would reflect

2 a scientific and factual basis for the assertions in

3 their various iterations of the facts, and the claim

4 that that should not be permitted because of our

5 limited status is one we have addressed.

6 (WHEREUPON, MR. REID ENTERED THE HEARING ROOM.)

7 You clearly in our view in the October 30th

8 hearing rejected that, and we feel the same objection

9 raised in that regard has to be summarily disposed of.

11 They also raise general objections, including

12 privileged communications. Now that we have reached

13 some kind of agreement we would assume as a result of

14 that agreement that we will receive the privileged

15 list for all of the documents otherwise identified.

16 We can't challenge it, because we don't know. We

17 can't figure out which means anything. Once we see

18 that list I may need to address it further.

19 The League objected because of the way we defined

20 petitioners, and essentially their concern there and

21 one we think is invalid because of the way they

22 defined the employees of the United States is that

23 they ought not to be required to provide documents

24 that would be otherwise responsive that are in the

25 care, custody, or control of employees of their

1 various entities or of the trade associations.

2 Yet in their claim against the United States for

3 production of documents they give the identical

4 undertaking by saying the federal government was the

5 employer and meant as the employer we had to cough up

6 the documents. We essentially did that. As Ms.

7 Ponzoli points out, we have done it more than once.

8 We have a recurrent demand here.

9 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

10 It would be unreasonable to say the documents

11 held by the entities or corporations would not have to

12 be produced if they were otherwise responsive when

13 they are corporate entities with standing to pursue

14 this matter, unless the United States or another

15 respondent or respondent/intervenor filed an

16 individual request with every one of those employees.

17 That is a task that far exceeds anything any

18 party should have to assume, such as this, when in

19 fact those are fully within the control and custody of

20 the corporate or public entities or trade

21 organizations, that a certain standing on behalf of

22 all of those exists. We don't accept their argument

23 in that regard is appropriate.

24 That is exclusive of the issue of expert

25 documents, which we have addressed separately and is

1 the subject of ongoing discussions.

2 We believe that you should enter an order

3 requiring more full and appropriate responses to the

4 demand for production and interrogatories and address

5 as well the issue of the number of interrogatories.

6 We understand fully the normal rule in Florida

7 and the federal court that one would count subparts of

8 an interrogatory to mean as a countable interrogatory,

9 but because of the fashion in which the League chose

10 to couch their petition that would be unreasonable in

11 light of this case, and if you would otherwise be

12 troubled by adopting a contrary position we would

13 request as we did in our pleading that you grant us

14 additional interrogatories to the extent that we can

15 pose one as to each one of those subparagraphs of the

16 material or erroneous facts which underlie their

17 petition.

18 HEARING OFFICER: Okay.

19 MR. BURGESS: Your Honor, as I attempted to point

20 out at the beginning I think this is problematic,

21 because there was no attempt to discuss this before

22 they filed a motion to compel.

23 MR. FITZGERALD: That's not correct. I am sorry.

24 The individual in our office who was handling this in

25 fact discussed it with representatives of Mr. Burgess'

1 law firm, and...

2 MR. BURGESS: I would like to know who, because

3 my staff has informed me, and there is no attestation

4 that any of these discussions took place, and I think

5 some of these almost trivial discovery disputes should

6 not be taking up the time before there is an attempt

7 between counsel to resolve them.

8 HEARING OFFICER: Well, let me make a couple of

9 points. I think a lot of the global objections we

10 have talked about before. Everybody puts in a global

11 objection, you know, kind of a CYA type thing, but the

12 issue of the number of interrogatories, there is no

13 doubt that they are entitled to get a specific answer

14 as to the basis for each of these specific allegations

15 in the petitions, and I think everybody ought to work

16 under that assumption.

17 MR. BURGESS: We do not disagree with that. The

18 fact is the subject matter of the number of

19 interrogatories each side was going to have was a

20 lengthy subject discussed when we negotiated discovery

21 and the scheduling order, and I think certainly from

22 our side when we negotiated that number with the

23 understanding of what Florida case law was concerning

24 subparts of interrogatories that if they are willing

25 to expand by 120 the number of interrogatories they

1 have available to them, well, then it should not just

2 be available to them but should be across the board.

3 They knew and had the original petition when we

4 sat down and negotiated the discovery order what

5 paragraphs were contained and what interrogatories

6 they might want to relate, and we certainly were aware

7 of the case law regarding subparts.

8 So if it's a situation where they want to amend

9 the order to allow them to have more interrogatories

10 and more discovery, then that ought to apply across

11 the board.

12 Their definition of substantiate, which is a

13 three-part definition in their section, necessitates

14 us to answer three different questions with respect to

15 40 material facts, so ergo 120 interrogatories that

16 they asked in one question. That's not fair.

17 HEARING OFFICER: Well, I think it is fair to get

18 an idea as to what the basis for the allegations are

19 and to try to narrow what issues there are in dispute.

21 It may be as you begin to sit here and look at

22 the case you don't need or you are not going to

23 continue to assert a number of the issues in the

24 petition, and that's exactly what discovery is

25 supposed to try to narrow down.

1 So I think it is critical that they have the

2 opportunity to understand which issues actually will

3 be at issue in this case and what the basis for those

4 allegations are, and I think that's fundamental.

5 Now in terms of the numbers, if either party

6 finds they need additional numbers of interrogatories,

7 then I will sit down and look at them. I don't think

8 you ought to be wasting your interrogatories on

9 trivial or irrelevant issues and just being

10 burdensome, but I don't find a request to substantiate

11 the basis of the crucial allegations to be burdensome.

13 So, you know, I think those need to be answered.

14 If you find you need more, bring it to me. If

15 you can show me that they are reasonable, I will give

16 them to you.

17 But I don't think we need to get into global

18 objection issues. Those are the kinds of things you

19 should be able to work out. I mean, I think everybody

20 understands that those are put in basically to protect

21 themselves in case you have an employee that has

22 documents you didn't know about and then it comes out

23 later, but most of the time those documents have

24 already been produced by somebody else, anyway.

25 The global objection issues I think we don't need

1 to waste time on.

2 Okay. Are there any other specific matters that

3 you think need to be addressed in connection with

4 this?

5 MR. FITZGERALD: Mr. Hearing Officer, if I hear

6 you correctly then you are ordering that they respond

7 whether they want to count them as 120 or whether they

8 want to count them as one as we did, and that they

9 will provide as well on the second portion of ours the

10 documents that are responsive if they are held by

11 employees, agents, etcetera, as defined by the

12 petitioners?

13 MR. BURGESS: No.

14 MR. BURGESS: Have we not addressed that?

15 MR. BURGESS: We have not addressed that. I have

16 addressed it by way of a global objection, and we

17 haven't gotten a ruling on it.

18 MR. FITZGERALD: I hear global objection, they

19 don't cut it here. That's what I heard last month.

20 HEARING OFFICER: Well, I guess what I am saying

21 is that the documents that fall within the categories

22 that are appropriate, I mean, they ought to be

23 produced, and I guess the global objection, if I am

24 understanding it, the definition of including all

25 employees, you are not objecting to producing the

1 documents...

2 MR. BURGESS: Not on behalf of the employees.

3 HEARING OFFICER: You don't know how many

4 employees you have or where they are or whatever?

5 MR. BURGESS: I am not objecting to producing

6 documents in the possession of employees, but their

7 definition of petitioners, Your Honor, is two parts.

8 We don't have a problem with the first part, but we

9 have a problem with the second part.

10 They say petitioner refers to the specific

11 individual, entity, business association, trade group

12 joined of record in DOAH Case Nos. which this request

13 for production is propounded to. That's all of us on

14 this side of the case. Those are the parties for

15 purposes of entry and access that have available land.

16 (WHEREUPON, MR. KILLINGER LEFT THE HEARING ROOM.)

17 In that we don't have a problem. But then they

18 go on to say, "Petitioners shall include the

19 constituent entities," whatever that is,

20 "...employees, officers, Directors, shareholders,

21 partners, or representatives of all of those entities,

22 plus persons acting on or purporting to act on behalf

23 of all of those employees, and in addition its

24 attorneys, whether appearing of record in this matter

25 or not, unless privileged."

1 Now we declined to provide documents pursuant to

2 their definition of petitioners. What we have

3 produced are the documents of the entities of record

4 in this case and the employees of the entities of

5 record in this case.

6 I think that they are surreptitiously perhaps

7 trying to get at what was clearly, more clearly

8 enunciated last night in a response which we received,

9 a reply to our response in opposition, which for the

10 first time talks about seeking documents from members

11 or people who work for member organizations.

12 The League, talking about a trade association, is

13 a trade association, nonprofit trade association. The

14 League has 60 to 70 some odd members.

15 The membership list changes periodically. They

16 have asked for documents going back five years for the

17 League, and we have provided them with respect to the

18 named parties.

19 If they are trying indirectly to force me to

20 produce on behalf of the members of the League for 60

21 or 70 years, if I don't possess those documents, if

22 they are out of my custody, protection, or control, I

23 can't produce them.

24 They have the opportunity to take if they want,

25 to attempt to get those directly from parties that may

1 have them. If they are indirectly trying to put that

2 responsibility on me, I don't think they can do it. I

3 have some case law I can cite to the Court.

4 HEARING OFFICER: Mr. Fitzgerald, did you have

5 any response?

6 MR. FITZGERALD: Yes, sir. In discussing this

7 with Mr. Ponzoli, the inconsistency argument generates

8 with respect to what we just heard about Mr. Wedgworth

9 and his documents, but I will leave that aside for the

10 moment, because we can address it after the other

11 events occur related to those.

12 It seems to me that what you are hearing is a

13 further version of a shell game that emerged at the

14 outset of the case.

15 You heard about who represented who and when and

16 the implication of that for discovery, and now if I

17 understand counsel we should go out and drop subpoenas

18 or requests on each of the members of the Florida

19 Sugar Cane League, despite the fact that the League

20 purports to represent their interests in this case,

21 and it is not even an issue of counsel saying it is a

22 matter of them not having responsive documents or that

23 they can't query the members or they can't acquire

24 them, but it is, "We won't." That doesn't seem to be

25 an adequate response.

1 HEARING OFFICER: Okay. This is a problem in

2 dealing with global objections. We talk about

3 discovery disputes in the abstract, and I am not sure

4 what we are talking about or even if there is a

5 dispute.

6 I think what has to be done when dealing with an

7 association or a government entity is I think you have

8 to make a reasonable solicitation to make sure you

9 have all of the documents that are responsive to the

10 discovery request, and I think that is expected of all

11 parties. I would hope that that is the way that

12 everybody has been operating.

13 MR. FITZGERALD: There is one thing that sort of

14 makes this a little bit misleading, Mr. Hearing

15 Officer. We have a definition in a preliminary

16 section, as all parties have done in the various

17 requests for documents and interrogatories, but then

18 you read that into the specific request that comes

19 thereafter, what you are looking at, so we are not

20 asking for a global solicitation of all members of

21 these organizations. It is, "Do you have these

22 specific categories?"

23 So when you read the two you are looking at a

24 much narrower field.

25 So I think you are absolutely correct it is not

1 unreasonable to get some kind of review, and then if

2 there is arguably some legal barrier to them or

3 revokable barrier, maybe it is something that is

4 privileged, whatever, they come back with that, and

5 then we can talk about it.

6 Saying, "We don't like the definition, so we are

7 not going to give you anything," we can't even start

8 with that.

9 HEARING OFFICER: Well, you can start with it,

10 and I would hope you are producing documents that are

11 in your custody and control, and I guess the bottom

12 line is I would expect that there would be

13 communication between the League and its attorneys

14 essentially saying, "We are producing all of the

15 documents for any other matters that are responsive to

16 the discovery requests," and then just let us know,

17 and we will take them up if we need to, whether or not

18 they are within the scope.

19 All right? Does that resolve those issues for

20 now?

21 Again it is hard to deal with discovery in the

22 abstract when we are talking about global objections.

23 We don't know if there are any documents that are in

24 fact not being produced.

25 MR. BURGESS: Well, that's because they were

1 aimed at our objections and not the specific

2 categories.

3 HEARING OFFICER: All right. Does that leave us

4 now just with the economic issues?

5 MR. BURGESS: I think that's it.

6 MR. FITZGERALD: I believe so.

7 HEARING OFFICER: Let's take a break before we

8 start. Do we want to do that before lunch, or do we

9 want to take a lunch break?

10 MS. PONZOLI: Let's do lunch.

11 HEARING OFFICER: Do you want to take a lunch

12 break? Okay. We'll come back about, we'll come back

13 at 1:15.

14 (WHEREUPON, THE HEARING WAS RECESSED FROM 11:50

15 A.M. TO 1:22 P.M., AT WHICH TIME MR. KILLINGER WAS PRESENT

16 IN THE HEARING ROOM, AND MR. BURGESS AND MR. HOFFMAN WERE

17 ABSENT FROM THE HEARING ROOM.)

18 HEARING OFFICER: Okay. Before we get into this

19 economic issue let me see if I can make a couple of

20 observations to at least focus the discussion a little

21 bit on where we will go today.

22 It is pretty clear this economic issue is a

23 pivotal issue in the case, in looking at the position

24 of all the parties.

25 I have read what everybody has filed so far, but

1 I am not sure I am prepared today to resolve all of

2 the issues that have been raised.

3 Clearly some of the issues, like Mr. Hyde's

4 jurisdictional issue and the Constitutional issue, is

5 clearly beyond my jurisdiction.

6 In addition some of the other issues are, I think

7 I need more time to reflect on and try to put these

8 into focus.

9 I am not sure we even need to get into some of

10 them, and I think that's why I wanted to make a couple

11 of observations at the outset.

12 It seems to be that the best way to really come

13 at this issue is to put it in the context of the whole

14 proceeding, and from that perspective one of the

15 things that occurred to me in reading the pleadings of

16 the various parties that filed was that there really

17 was not a whole lot of discussion of the Hazen and

18 Sawyer report and how that came into play, and I would

19 like to kind of bring us to that issue at the outset

20 to kind of use it as a springboard to try to get into

21 some of the other issues.

22 (WHEREUPON, MR. BURGESS ENTERED THE HEARING

23 ROOM.)

24 I am not clear exactly what the status of the

25 Hazen and Sawyer report is or how it comes into play

1 in this proceeding, but it seems to me in trying to

2 view the statute and the role of this hearing, this

3 120.57 proceeding, within the statutory frame that had

4 the Hazen and Sawyer report been adopted and been made

5 part of the SWIM plan at the time that the final SWIM

6 plan was adopted, I don't think there is any doubt in

7 my mind that I would have, that I would be willing to

8 go forward and take a look at the issues that are

9 raised in the context of the Hazen and Sawyer report,

10 irrespective of whether or not that was required for

11 the Water Management District to look at and what the

12 statutory requirements were.

13 If that's the way the Water Management District

14 decided to go about adopting a plan, I think it is

15 clearly within the context of what my jurisdiction

16 would be in the context of this case.

17 But from what I understand and in reviewing the

18 documents, that's not what happened.

19 There is a reference in the SWIM plan to the

20 future adoption of an economic impact analysis, and I

21 take it that is what the Hazen and Sawyer report

22 ultimately became.

23 There is a, as I look at that reference it would

24 appear there was an intention that the economic

25 analysis was going to be incorporated as part of the

1 SWIM plan. That raises some question in my mind as to

2 how that fits in within the confines of Chapter 120,

3 Florida Statutes, and specifically I guess the

4 provisions of 120.57(1)(b)(3), which at least as I

5 have always understood it once the case has been

6 transferred from an agency over to the Division of

7 Administrative Hearings to handle, then the ability of

8 the agency to take further action with respect to that

9 particular matter is restricted to the confines of the

10 litigation itself.

11 So I don't really know what the intent of the

12 Florida Water Management District was with its

13 reference in the SWIM plan to that provision.

14 I have not at this time seen any motion to amend

15 the SWIM plan or a motion to remand for the Water

16 Management District to go back and incorporate the

17 Hazen and Sawyer report.

18 I have seen references in some of the pleadings

19 to the "optimal plan", and I don't know exactly what

20 that is or how that comes into play, and again I have

21 some questions as to how that fits in within the

22 context of the APA and this 120.57 proceeding.

23 So I think those issues struck me right at the

24 start, that I wasn't quite clear how the Hazen and

25 Sawyer report has been disposed of and where it is and

1 what the intent of the Water Management District is

2 with respect to the Hazen and Sawyer report, and I

3 think that particular issue will give us a starting

4 point to get into some of the other matters.

5 So, having said that, I will give each of you an

6 opportunity to comment, and I do have some particular

7 questions that came to mind with respect to the

8 arguments that the various parties have made on, for

9 example, Mr. Green's argument regarding the moderating

10 provisions of the water quality standards.

11 I would like to put those on hold for a minute if

12 I can and see if we can focus on that issue, because I

13 think the resolution of that issue may well moot some

14 of the other matters or at least clarify in my mind

15 how we have to go about addressing some of those other

16 matters. All right, who wants to go first?

17 MR. GUEST: I think one can look at page 151 of

18 the SWIM plan.

19 HEARING OFFICER: I don't have it with me.

20 MR. SAXE: Here's a copy.

21 MR. GUEST: Can I borrow yours?

22 MR. REID: This is clean.

23 MR. GUEST: On page 151, the upper right-hand

24 corner, it says that the cost allocations for

25 individual revenue sources will be determined after

1 the economic impact assessment is conducted, and what

2 that discloses is what the intent of the District was

3 as to the role of the economic impact statement, that

4 is to say it was relevant not to the plan itself but

5 to the question of allocating the cost of various

6 possible revenue sources. And so it is that's the

7 reason why the District went forward with the SWIM

8 plan without having done an assessment, because the

9 SWIM plan can be done without having to have the exact

10 cost assessment of where the various revenues are

11 going to come from.

12 So that's why it is not material at all to this

13 proceeding.

14 HEARING OFFICER: But isn't there a reference in

15 there, and I don't have the page number, isn't there a

16 reference in here where there is going to be an

17 economic impact statement, and it will be incorporated

18 in the SWIM plan? If that's true, then where is the

19 point of entry for those who want to challenge the

20 economic impact assessment?

21 MR. GUEST: Well, presumably at the point where

22 the allocations are made and the foundations for the

23 decision on how the allocations are made will be in

24 part that report, and there is a formula in the

25 statute, and in Section (5), for how the stormwater

1 utility fee works, and all of this kind of works into

2 that.

3 So there is definitely a point of entry, but it

4 is much later than now.

5 HEARING OFFICER: Okay. So you are willing to

6 concede then, and again I understand you can't speak

7 for the District, you don't represent them, obviously,

8 and I would be interested to hear what they have to

9 say, but strictly from the matter as to whether or not

10 any of those, whether there was an intent on the part

11 of the District to address the regional economic

12 impact of implementation of the SWIM plan was not

13 considered? In other words, the Water Management

14 District did not consider any of those issues and felt

15 it did not have to within the statutory structure?

16 MR. GUEST: I would go farther. There was

17 testimony before the Board about impacts, true, but

18 our point is that the statute is clear that the

19 District lacked the power to say that the

20 socioeconomic consequences of implementing the SWIM

21 plan are so high that they would rather let the

22 Everglades eutrophy.

23 I don't think that was within the construction

24 that they had. It was never considered material.

25 MR. SAXE: Mr. Hearing Officer, in the SWIM plan,

1 in the forward of the SWIM plan is a, the text of the

2 motion that was approved when the Governing Board

3 approved the SWIM plan, and I think it is directly

4 responsive to the question you are asking. It is

5 before the Table of Contents, the third physical page.

6 It says:

7 "The following motion was voted upon at the

8 March 12th, 1992, South Florida Water Management

9 District Governing Board meeting:

10 "Approved the Everglades SWIM plan

11 incorporating final revisions in response to DER

12 consistency review. Consistent with the

13 commitment to Everglades restoration set forth in

14 the SWIM plan, the Governing Board reinforces the

15 commitment to completing the economic impact

16 assessment, to minimize economic impact to the

17 area by considering alternatives, and to amend

18 the SWIM plan if this becomes necessary. It is

19 the Governing Board's intent to strike a balance

20 between a viable Everglades and sustainable

21 agriculture within the EAA."

22 Etcetera. I think there are two separate

23 questions. You indicated a view that had an economic

24 impact statement been incorporated in the document

25 that is at issue in this proceeding, it might have

1 been relevant, notwithstanding a voluntary status of

2 such an inclusion or mandatory status of such an

3 inclusion, but since that did not take place and since

4 I understand it is the respondent's and intervenors'

5 positions that it was not necessary for such a

6 document to be prepared prior to the SWIM plan

7 promulgation or for such matters to be considered

8 prior to the SWIM plan promulgation, I think we do

9 have two separate questions, one of which we can

10 address today, and that is the legal status, the

11 requisite status of economic impact assessment in SWIM

12 planning and in the interim permit.

13 The issue that you are raising about what's the

14 nature of this proceeding given the somewhat organic

15 nature of the SWIM planning process and the fact that

16 ongoing administrative work takes place, the fact that

17 it is possible there might be amendments to the plan

18 down the road, it seems to me that is a separate

19 question and one that if we are to address it I would

20 suspect would need to be penalized and briefed

21 separately from the work that has been done thus far

22 on the scope of economic issues in this proceeding.

23 MR. REID: And I will just say that I agree with

24 that, just so it is clear on the record and clear to

25 you. We don't think it is required, and we believe

1 the issue is a legality that we are discussing here

2 today.

3 HEARING OFFICER: Okay. Well, let me ask you. I

4 guess from what I understand then that the, I know

5 that the Hazen and Sawyer report came up before the

6 Board at some point. What happened to it I am not

7 clear on. Whether it was formally adopted, whether

8 there has been at least an intent by the Board to put

9 it into the SWIM plan or whatever somehow, I guess I

10 am not clear on that.

11 MR. REID: None of that has happened.

12 HEARING OFFICER: What happened when it came

13 before the Board? What was the nature of that?

14 MR. REID: I don't know.

15 HEARING OFFICER: Okay.

16 MR. REID: I am sure somebody here does.

17 MR. GREEN: I think it would be fair to say the

18 Board was upset.

19 MR. SAXE: I don't know if that's fair to say.

20 MR. REID: I thought you meant what actions did

21 it take.

22 MR. SAXE: Certain Board members perhaps. My

23 understanding of the status of that project is that it

24 is an ongoing one, and that there has been no formal

25 action on the work product which has been referred to,

1 the Hazen and Sawyer economic statement that was

2 presented to the Board, and no action was taken on it.

4 (WHEREUPON, MR. HOFFMAN ENTERED THE HEARING

5 ROOM.)

6 The Board gave indications to staff that it

7 contemplated certain continuing activity with that

8 process, but there was no formal adoption, and so far

9 as I know there was no formal vote on the status of

10 the economic impact assessment.

11 HEARING OFFICER: Okay. Well, then I would

12 assume there is no problem with a finding of fact that

13 I would do in a recommended order to the effect that

14 although there is a reference to the preparation of an

15 economic impact assessment in the SWIM plan, the Board

16 decided or concluded that it was not necessary, and

17 the economic impact implementation of the plan has not

18 been considered, period, and simply make a finding of

19 fact to that effect. Is that...

20 MR. SAXE: Well, in essence I think that is

21 correct. The only thing that would be perhaps in

22 opposite would be the reference to the Governing

23 Board's intent or contemplation about the requirements

24 to include or not to include.

25 I think it can certainly be said that the

1 District, counsel for the District can speak for the

2 District's position concerning the requirement or lack

3 thereof for the inclusion of economic impact

4 assessment in the SWIM plan.

5 Certainly the United States would have no problem

6 with such a finding of fact.

7 MR. REID: Well, you then, the fact is we did not

8 in a formal sense, so, but I guess our view is that

9 you don't need to get to that factual finding because

10 of the pre-existing legal issues, that is not

11 required. That's the issue...

12 HEARING OFFICER: Okay, and the legal issue, I

13 mean, that comes back to what is my role in a 120.57

14 proceeding, because that really is a legal question,

15 and essentially I am a fact finder, not a circuit

16 court.

17 MR. REID: But, for instance, in our motions to

18 dismiss that we have argued or motions to strike, it

19 would be analogous to that kind of discussion.

20 HEARING OFFICER: I understand, and again we

21 postponed that, because I was not sure exactly where

22 that was or how this would all come into play, but

23 that does crystalize the issues to some degree.

24 MR. REID: Yeah, and I really don't think you

25 need to, you know, our view is you don't need to worry

1 about where it is as it proceeds in the process. The

2 process will take care of itself with regard to that.

3 The issue is whether there is any basis for

4 whatever we are here on, and it is a little vague,

5 because when we get into the argument we have some

6 memoranda filed that actually are asking you to take

7 very specific, asking for relief specifically, you

8 know, to remand it and so forth without any pleadings

9 seeking that.

10 But whatever it is we are here to do today, I

11 think it is a legal issue that can be resolved by

12 virtue of reviewing all the statutes that are

13 appropriate.

14 MR. SAXE: Also just the illumination of our

15 respective positions on the threshold question of the

16 relevancy of economic impact assessment in the SWIM

17 planning process and the interim permitting process

18 may very well shed light on the specific question you

19 are asking about, this relationship between this

20 proceeding and the SWIM process.

21 HEARING OFFICER: I am not sure I follow you.

22 MR. REID: Well, listen to the arguments, and a

23 lot of this will be clear, I think.

24 HEARING OFFICER: Mr. Hyde, Mr. Green, do you

25 have any comments on those two points?

1 MR. GREEN: Yes, Your Honor. The first point

2 with regard to where the Hazen and Sawyer report is I

3 think we have covered in earlier filings, and

4 basically we think it was after-the-fact

5 consideration. It did not go into the establishment

6 of any of the numbers or pollution control

7 requirements being challenged here, and that is why

8 this plan is invalid. It was after the fact. We

9 think that is legally impermissible and grounds for

10 remand. We will argue that point when you are ready.

11 HEARING OFFICER: Okay. Well, I guess the

12 question that I have is that they are conceding it

13 wasn't done, and so we have, with that concession,

14 aren't we essentially at a point where it's a legal

15 issue?

16 And even if I agree with your analysis of the

17 legal matter is that within the scope of anything that

18 I can do?

19 MR. GREEN: I should hope so, Your Honor. We

20 agreed that the primary function of an administrative

21 Hearing Officer in cases like this is to make findings

22 of fact and also conclusions of law and policy and

23 recommendations to the decision makers, and we believe

24 it is a very important issue, as we indicated, because

25 we were talking about nine and a half to 12 more

1 months of litigation at a cost that I think exceeds

2 millions of dollars for all parties involved in a plan

3 that is inherently flawed, legally invalid, and we

4 know it now, and I can explain why it is that way, or

5 we will go ahead and just litigate, and I guess the

6 respondents will attempt to defend numbers that they

7 now admit were not developed taking into account the

8 moderating positions, socioeconomic provisions, or

9 Florida water quality standards. They just didn't do

10 it.

11 We asked them to do it. The reason they didn't

12 do it is back to the coercive settlement agreement,

13 and I would like to just mention something here, the

14 definition of force majeure in the settlement

15 agreement on page 28 of the agreement, which is

16 Appendix I believe 16 to our larger appendix.

17 I quote, "Force majeure shall not include

18 increased cost of activities covered by this

19 agreement, whether or not anticipated at the time such

20 activities were initiated."

21 The settlement agreement requires the agencies

22 that are subservient to it to defend the settlement

23 agreement and develop a SWIM plan that reflects this

24 settlement agreement. That is exactly what was done.

25 There is no surprise to hear Mr. Guest espouse

1 the blank check theory on the part of the Legislature,

2 because that is the only theory on which this plan

3 could be sustained, is to say the Florida Legislature

4 gave unbridled discretion to his agency, which is

5 absurd, and we will get into that.

6 If you are ready, I will just go through my whole

7 tirade.

8 HEARING OFFICER: All right.

9 MR. HYDE: Let me just, before we go into that,

10 just a few preliminary comments. I think your

11 reference to Section 120.57(1)(b)(3) is directly on

12 point, and I think that does crystalize the issue. We

13 requested in our original memorandum on this issue

14 that this matter be remanded to the Governing Board of

15 the Water Management District for it to take agency

16 action.

17 I think it is important that that be done,

18 because not only is the plan legally invalid, but it

19 has to be done, because otherwise this entire

20 proceeding is a meaningless exercise. Are we supposed

21 to go through an additional seven to eight months of

22 testimony and then a 10- to 12-week hearing at the

23 cost of millions of dollars only to have the Governing

24 Board of the Water Management District finally receive

25 its environmental impact assessment and discover at

1 that time it will cost five, 10, 15 thousand people

2 their jobs and say, "That's too much; we can't do it"?

3 It just has to be done now and has to be put in

4 context.

5 It is ridiculous to suggest this can be cured at

6 a later date.

7 HEARING OFFICER: Well, I guess the conundrum I

8 find myself in is you are potentially asking me to

9 adopt your legal theory of the case versus their legal

10 theory of what the statutes and the rules require, and

11 even assuming that I do that and I remand it, that is

12 a legal question, and if the Board disagrees they will

13 send it back to me again.

14 MR. HYDE: That is certainly a primarily legal

15 question, but we think it is one that is very

16 appropriate for you to make at this time, and I dare

17 say that the Governing Board would have to very

18 seriously consider whether it would disagree with your

19 recommendation on that one. I would be surprised if

20 it did so.

21 The Governing Board I would like to presume would

22 act in concert with what the law says, and my

23 experience with agencies and the Water Management

24 District in particular is that they give great

25 deference to the recommendations of Hearing Officers,

1 and it must be done, because otherwise we will really

2 be engaged in a fruitless endeavor.

3 MR. GUEST: May I just add one point? What I

4 think, I think the noise I am hearing from over here

5 sounds like a motion for summary disposition, although

6 it is not framed that way. I think that is the only

7 procedural alternative they are going to have, and to

8 do that they have to waive a hearing.

9 MR. HYDE: No.

10 MR. GREEN: No.

11 MR. GUEST: I think that as long as I have ever

12 seen that rule interpreted it was always interpreted

13 you only get a motion for summary disposition if you

14 waive your hearing, and I have had it myself applied

15 that way.

16 MR. HOFFMAN: I filed a memo on economics but

17 didn't get involved in this, but I just finished

18 researching whether you can get a summary recommended

19 order, and as an officer of the Court I would like to

20 tell you what I have learned.

21 There is no rule, but there is a rule of yours,

22 DOAH, saying when there is not an issue of fact on a

23 major point that the Hearing Officer can send it back

24 for a 120.57(2) proceeding. It doesn't say if you

25 have to do a recommendation or not do a

1 recommendation.

2 Many Hearing Officers out here have entered

3 recommended summary recommended orders. I could bring

4 a stack of them for you if that would help you in your

5 deliberations, and some of them have gone so far,

6 Ms. Tremor entered a directed verdict after hearing a

7 CON case part of the way through, based on a motion

8 for summary recommended order.

9 So it is not correct to think that you don't have

10 authority. You do all the time when you move to

11 strike, make legal decisions, so you do have the

12 authority more than being a finder of fact. You do

13 have the authority to enter a recommended order if

14 there is no issue of fact, which is what is happening,

15 that it would go back. There are lots of flexibility

16 in this.

17 HEARING OFFICER: Well, I think the question is

18 though is there any disputed issues of fact. At least

19 with respect to what the Water Management District did

20 and what it considered it doesn't seem like there is a

21 dispute on that.

22 MR. HYDE: I think you are right. There isn't a

23 disputed issue of fact, but what are the legal

24 consequences of that undisputed fact? We suggest to

25 you the consequence of that disputed fact is a SWIM

1 plan that is spatially invalid, and you need to remand

2 it back to the Governing Board of the Water Management

3 District for it to cure that fundamental defect and to

4 effect a new agency action which does duly consider

5 all of the legal requirements of the SWIM Act.

6 HEARING OFFICER: What you really need is a legal

7 interpretation as to whether or not they are required

8 to do it? Isn't that something the DCA should be

9 doing rather than the DOAH Hearing Officer?

10 MR. GUEST: That's right. That's why the role of

11 the DOAH Hearing Officer is to make findings of fact,

12 and that's why there is a summary disposition rule

13 that says if there isn't a fact in controversy then

14 you can dispose of the case.

15 My own experience looking at the Trustees of the

16 Internal Improvement Trust Fund vs. Florida Land

17 Surveyors, we filed a motion for summary disposition,

18 but it wasn't granted for the sole reason that we

19 didn't stipulate that we had no facts to contest, so

20 we had the trial and ultimately won the case on the

21 facts, but mainly we would have won the summary

22 disposition rule. It is not the role of the Hearing

23 Officer to be the circuit judge. The role of the

24 Hearing Officer is to make findings of fact, and if

25 there are disputed facts, and there obviously are

1 here, then your role is to find out what the facts are

2 and make recommendations and conclusions of law.

3 There isn't a partial summary judgment rule,

4 because that's not the role of the Hearing Officer.

5 HEARING OFFICER: Well, I think the problem we

6 have, and I am trying to find the most feasible way of

7 dealing with it, is that there are these economic

8 issues over which there is no dispute as to what the

9 Water Management District did. There is a legal

10 dispute as to whether they were required to do more.

11 Irrespective of what decision I may make on that

12 I think that is really kind of irrelevant, what my

13 role is. That is a decision that has to be made

14 somewhere else.

15 MR. GREEN: I would respectfully disagree with

16 that. I think that this plan, the Marjory Stoneman

17 Douglas Act and the SWIM Act set up several review

18 requirements that are testable in this hearing. The

19 application for consistency with state water policy,

20 which picks up the monitoring provisions, is something

21 that Your Honor will have to rule on. You will have

22 to determine whether the water quality standards were

23 properly applied in your opinion. You will have to

24 render an opinion on that and your final

25 recommendations on that.

1 If the agency disagrees, that is fine, but to get

2 to the DCA or anywhere else we have to start the

3 process somewhere.

4 We think this is a unique case, and we are

5 talking about the difference between a summary ruling

6 now that may save a year's worth of litigation to test

7 this issue now, as opposed to going forward in a

8 haphazard way.

9 The parties admit that the standards in the

10 settlement agreement and the SWIM plan did not take

11 into account economic considerations. This is a dead

12 duck we are haggling over, and there has to be a fair

13 way to send this thing on up and stop it now.

14 If the federal government disagrees with your

15 conclusions of law and they want to take this back to

16 Judge Hoeveler, fine. I have a feeling that Judge

17 Hoeveler will be fair if he understood the settlement

18 agreement was illegal under Florida law. We would be

19 happy to argue that point to him.

20 But get us started. This is our day in court.

21 This is our time to protect the public and our

22 clients' interests.

23 The blank check theory that we are hearing about

24 basically says the Florida Legislature did away with

25 any consideration of public interest, that it doesn't

1 matter if this plan is contrary to the public

2 interest.

3 The District's own consultants have said that

4 thousands of people might be put out of work and

5 hundreds of millions of dollars of revenues lost. We

6 don't want that. We are here today, and if we need to

7 brief motions for summary relief or whatever, Your

8 Honor, we would want to help in any way we can, but

9 please don't make us go forward with this massive

10 hearing with a plan that is invalid.

11 MR. HYDE: One brief point.

12 MR. REID: They are saying the same thing.

13 MR. HYDE: It is a very quick point. I think the

14 view that you are merely a trier of fact and make

15 findings of fact is an unduly constrictive one. I

16 think if you look at the provisions of Section

17 120.57(1), you see that you have duties as a Hearing

18 Officer to make findings of fact and also to render

19 proposed conclusions of law.

20 Those conclusions of law are entitled to

21 substantial deference, particularly if they are

22 conclusions of law that are mixed fact and law, which

23 is invariably the case anyway, and they will be

24 received here.

25 We will be dealing with a lot of mixed

1 conclusions of fact and law, and those mixed

2 conclusions will have to be predicated on your

3 findings of fact, and I think that it behooves us for

4 you to make that dispositive ruling, because this is I

5 believe a dispositive issue.

6 MR. REID: The problems that you have by even

7 entertaining what we have, what we really have here is

8 something that started as a discovery dispute that has

9 never been called anything close to a summary

10 disposition of the entire case, a summary judgment, if

11 you will, and today we have heard so far impassioned

12 arguments basically to throw us all out of court or

13 out of this proceeding by suggesting to you all of the

14 jobs that are going to be lost and so forth.

15 You need to keep in mind that as, and I think

16 this was the point earlier, it will get amplified as

17 we argue when we get to the merits of the question,

18 there are opportunities to deal with all of this down

19 the road where they are appropriately dealt with at

20 the point of condemnation, at the point of taxing,

21 when taxing is done, at the point of individual

22 permits for landowners when they apply for those. All

23 of these issues get resolved at the appropriate time.

24 They are trying to bring them all back, and,

25 quickly, counsel said to you water policy which takes

1 in moderating provisions. Well, we disagree violently

2 with that, and I think when we go through the argument

3 you will understand why we disagree with that, because

4 that is just not an accurate statement of the law.

5 But the point is they are basically asking you to

6 presuppose this legal requirement is there even to the

7 point of deciding the issue the way they are asking

8 you to decide it.

9 There is no motion for summary judgment pending,

10 and the questions that Mr. Guest raises about what are

11 the consequences of that is a whole different kind of

12 issue.

13 I think that you can rule that this evidence, if

14 you want to look at it as an evidentiary ruling, this

15 evidence is just irrelevant to this proceeding.

16 HEARING OFFICER: Well, it seems there are really

17 two separate areas within which this comes into play,

18 and the first has to do with I guess Mr. Hyde's

19 Constitutionality argument that essentially the

20 failure to consider socioeconomic impacts in

21 connection with adopting the SWIM plan is in itself

22 Constitutionally invalid, and that issue I think is

23 clearly beyond the realm of my jurisdiction.

24 MR. HYDE: I don't think it is the way it has

25 been framed. Clearly you do not have the power to

1 rule a statute or a rule unconstitutional. What I am

2 suggesting to you in that section of our memorandum is

3 that you as the Hearing Officer in construing the

4 statute need to take pains to avoid an interpretation

5 that would render it unconstitutional, and I would

6 suggest to you that should you adopt the respondent's

7 blank check or expenses be damned approach, you would

8 be construing the statute in an impermissible and

9 unconstitutional fashion.

10 I am not asking you to declare this

11 unconstitutional. I am asking you to avoid an

12 interpretation that would render it unconstitutional.

13 MR. REID: And let me just ask this question.

14 What if ultimately none of Mr. Hyde's clients have

15 their land condemned and none of Mr. Hyde's plants are

16 taxed? Clearly that issue of whether this is

17 confiscatory and so forth can't be decided until the

18 ultimate resolution of the cleanup program, when there

19 is, I mean, the Constitutionality argument presupposes

20 there has been some taking or there has been some

21 cost. That hasn't happened. That's why the statute,

22 and here I am getting into the argument on the merits,

23 if you look at it those issues come up at the

24 appropriate time, and they will be raised by people

25 who are injured if they are injured, and they won't be

1 raised by people that aren't.

2 He is asking you now to presuppose his clients

3 are going to have to pay something or have some land

4 condemned or whatever.

5 HEARING OFFICER: But doesn't this go back to the

6 point that Mr. Oertel made at one of our earlier

7 hearings, that by its very nature the SWIM plan has

8 some...

9 MR. REID: No, you see, that's a different

10 argument. He was talking about perhaps questions of

11 water quality criteria. Here we are talking about

12 specific things that the Legislature gave the District

13 the power to do, the condemnation of land and paying

14 for it through taxes or setting up special utility

15 districts and so forth, which will be done in separate

16 proceedings, and no matter what we do here today they

17 can decide, I suppose hypothetically they can decide

18 to use all state-owned lands for STAs if they wanted

19 to. They could decide to levy a tax on the population

20 down in south Florida and not tax any of the farmers.

21 There are all of these possible ways that could

22 happen, and we don't know what will happen until it is

23 actually done.

24 There is nothing in the SWIM process that commits

25 one option or the other when it comes to how will it

1 be funded and how will land be obtained.

2 I understand the argument he made. I didn't

3 agree with it, but I understood it. It is a different

4 argument than here, because it is conceivable, I won't

5 say conceivable, because I can't say, it is certainly

6 possible that some people will not have land condemned

7 and some will, and it is conceivable that some people

8 might have to pay a little bit or pay a lot.

9 The act talks about that, you know, in terms of

10 proportionality and so forth and takes that into

11 account and provides for some proportionality, but

12 those are all, those Constitutional arguments don't

13 come up until somebody starts doing something to

14 somebody, and really this whole idea of economic

15 analysis and all of these moderating provisions, those

16 are clearly site-specific type concerns. That's

17 talking about when somebody is being a particular

18 standard, a particular standard or a particular course

19 of action is proposed.

20 For instance, when an individual farmer applies

21 for a permit, at that point then something like that

22 may be relevant, but under the SWIM plan it doesn't

23 come up at all.

24 HEARING OFFICER: But Mr. Green argues that the

25 SWIM plan essentially establishes new phosphorus

1 levels, for example, and establishes numeric water

2 quality standards but doesn't follow the general

3 procedures by which the water quality standards are

4 established. If that's the case, and I don't know

5 what your position is...

6 MR. REID: I don't think it does. You are

7 talking the ERC?

8 HEARING OFFICER: Right.

9 MR. REID: I don't think you are violating that.

10 MR. SAXE: Mr. Hearing Officer, I have a

11 question. The petitioners' petitions contain

12 extensive allegations, purportedly placing in issue

13 numerous material facts concerning injury, causation,

14 and remedy. We have witness lists in this case that

15 are 100 strong where by far the great majority if not

16 almost all of the witnesses run to those fact

17 intensive issues about whether or not there are

18 injuries in the Everglades, whether or not there are

19 violations of water quality standards, the causation

20 of those violations, whether or not the restoration

21 program as a question of technology is efficacious,

22 etcetera, etcetera.

23 Unless the petitioners in clamoring for a

24 threshold determination of this particular one of many

25 legal defects raised in an allegation in their

1 petitions as dispositive, unless they are ready to

2 stipulate the rest of the factual controversies are

3 not going to be joined in issue again, should you rule

4 in their favor and should the matter be remanded to

5 the Board and should the Board do an economic impact

6 statement and should the matter come back before this

7 forum, I don't see why this proceeding does not

8 continue on on the course it has been set on to

9 adjudicate these fact intensive disputes.

10 MR. GREEN: Your Honor, that is exactly the

11 position apparently the federal government took with

12 litigation to coerce the state into settling. "Let's

13 cause World War III, wear you out, and then you are

14 going to have to live with it."

15 What we are talking about here is reversible

16 error. This is reversible error on its face. If this

17 were a final decision, and, you know, your instincts

18 say, "This is a de novo hearing," so maybe they can

19 come in and hear it if they change this plan before

20 the hammer falls, and if you find it is consistent

21 with the state water quality policy, but they can't do

22 that. They have already said they haven't done that.

23 The limit didn't do it. The Hazen and Sawyer report

24 was completed after the fact.

25 We are not talking about stormwater utility

1 assessments. We are talking about where the rubber

2 hits the road. This plan draws maps in the EAA where

3 people's crops are going to be taken out and converted

4 into treatment areas.

5 There was no consideration of the cost benefits

6 or no consideration of the socioeconomic effects.

7 MR. REID: Only after condemnation.

8 MR. GREEN: It doesn't matter if it is after

9 condemnation. We are talking about today. This plan

10 sets in concrete the permit has to be consistent with

11 the plan under the statute. This drives everything.

12 HEARING OFFICER: We are getting a little

13 disjointed, and it is my fault, because I started the

14 process, the ball rolling, but it is useful for me to

15 try to put all of this into perspective.

16 And I guess what I was trying to do with my

17 question to Mr. Hyde a minute ago was to see if there

18 aren't really two distinct issues involved here, the

19 first being the Constitutionality of the statute, if

20 it is interpreted to mean there does not have to be

21 socioeconomic impact analysis in connection with the

22 adoption of the plan, and then the second being

23 whether or not the water quality references contained

24 in the plan necessarily include moderating provisions

25 and so forth.

1 And that's, I was trying to separate those two

2 out as two distinct issues.

3 MR. HYDE: Regarding the Constitutional argument,

4 I think Mr. Reid somewhat misconceived the essence of

5 that Constitutional argument.

6 It is not dependent upon the District or some

7 other entity taking some sort of condemnation action

8 or confiscatory action.

9 The essence of this Constitutional argument is

10 really that such an interpretation would violate the

11 separation of powers doctrine in the Florida

12 Constitution. That is what the reference to Askew vs.

13 Cross Key Waterways is clearly making.

14 I would suggest that an interpretation of the

15 statute that would give to the District the unbridled

16 discretion to impose a blank check on this would be

17 volative of the separation of the powers doctrine, and

18 I will clarify that.

19 HEARING OFFICER: In terms of unlawful

20 delegation?

21 MR. HYDE: Yes, unlawful delegation and no

22 standards. I mean, actually I think Askew vs. Cross

23 Key Waterways is a wonderful example. At least in

24 that case the Legislature in creating an Area of

25 Critical State Concern tried to put some standards

1 into place in the Florida Keys.

2 The Florida Supreme Court found those standards

3 to be inadequate.

4 What we have here is an agency saying to you

5 today, "We don't have to have any standards at all,"

6 and that is what they are doing, no standards. It is

7 a blank check, Your Honor.

8 HEARING OFFICER: Well, let me ask you if the

9 position that Mr. Green has advanced regarding the

10 water quality standards and the moderating provisions

11 were to be adopted, and I am not saying that is what I

12 am thinking, if that were to be adopted would it

13 obviate the argument you are making regarding

14 Constitutionality?

15 MR. HYDE: It could well go to that point. I

16 would caution you, though, that the argument is not

17 based simply on Mr. Green's moderating provisions

18 argument. We believe that the SWIM Act itself

19 requires this kind of determination be made, and that

20 would exist independently of the moderating

21 provisions.

22 I think his argument on moderating provisions

23 really drives the point home.

24 HEARING OFFICER: Well, let's put aside his

25 argument on moderating provisions for a second and get

1 back to your interpretation of the SWIM Act and the

2 Marjory Stoneman Douglas Act.

3 I guess from what, reading your memo, what you

4 are saying is that the fundability and the economic

5 feasibility issues that have to be addressed bring

6 into play the original socioeconomic...

7 MR. HYDE: That's correct.

8 HEARING OFFICER: Is that a function of the

9 funding process that is set up in the plan itself?

10 That's where I wasn't clear.

11 MR. HYDE: It is actually envisioned by the SWIM

12 Act, in its requirements for what need to be in a SWIM

13 plan, and what we are asking you to do here today is

14 to tell the District, "Do the SWIM plan correctly,"

15 and to do it correctly they have to take care of the

16 one glaring omission, which is the failure to consider

17 the economic ramifications of the plan.

18 HEARING OFFICER: Well, again I guess putting

19 aside the moderating provisions aspect, I am not sure

20 if you are saying that because of the way the plan is

21 currently drafted in terms of the funding mechanisms

22 provided for in there that the regional socioeconomic

23 impacts should have been considered as part of that

24 funding procedure, are you talking in a more generic

25 sense that the statute necessarily itself requires

100

1 regional socioeconomic impact assessment?

2 MR. HYDE: It requires an analysis of the

3 economic impact of the plan, the exact parameters to

4 be determined, but it requires that assessment.

5 There is no doubt about that. We can quibble

6 about how far that goes. We think it is, the

7 requirement would be a pretty broad one. One can

8 argue to the contrary.

9 There is no dispute in my mind or no serious

10 issues that such an assessment need be made, and you

11 have today before you a stipulation that says an

12 assessment was not made.

13 HEARING OFFICER: I understand that, but I guess

14 what I am saying is looking at the statute in the way

15 the SWIM Act and the Marjory Stoneman Douglas Act are

16 written, there are references to fundability and

17 economic feasibility, but it does not include the same

18 sort of language that is required for an economic

19 impact assessment in connection with the rule.

20 MR. HYDE: That's correct.

21 HEARING OFFICER: So there is clearly a

22 difference between what is required under those two

23 statutes and what is required under, what is

24 specifically required by the SWIM Act and the Marjory

25 Stoneman Douglas Act.

101

1 MR. HYDE: It did not incorporate by reference

2 the Section 120.54 provisions regarding the economic

3 impact assessment. That is true.

4 However, I think that inherent in the

5 determination of fundability, which is clearly a

6 requirement, is the determination as to the economic

7 impact of the plan, because otherwise how could the

8 feasibility review make any sense? If it can't be

9 done, if it is too expensive to implement, why make

10 the determination in the first place?

11 MR. REID: Because the Legislature decided to do

12 it. Fundability means does the District have the

13 ability to raise and spend the money. That's what

14 fundability means. They keep saying in their papers,

15 and counsel just said, "Inherent in this is

16 socioeconomic analysis." That's just not the case.

17 Fundability is a simple concept, a simple case.

18 MR. HYDE: And the District itself said it is not

19 fundable.

20 MR. REID: And it talks about the trust fund,

21 whether any money is in the trust fund, and we get the

22 fundability as we go down the pathway, and as we deal

23 with the way the Legislature told us we could go about

24 funding it.

25 That is the determination. It is not, you see,

102

1 the whole problem with this argument is that they are

2 grasping here and there, anywhere in the last 20 years

3 there has been the reference to economic or social or

4 in any water statute they are saying, "Ah ha. That

5 proves it has to be done here." That is not the case.

6 To say because there is a reference to

7 fundability that creates, and they say inherent in

8 fundability is the requirement of all of the

9 socioeconomic analysis, and it just doesn't say that.

10 HEARING OFFICER: Well, I agree with you there,

11 but, and that is the way I think I viewed the statute,

12 too.

13 I think there is a distinction in looking at the

14 SWIM Act and the Marjory Stoneman Douglas Act that

15 there is not a requirement for an economic impact

16 assessment such as is required in 120.54.

17 I think there is an obvious distinction there,

18 and that is one that has to be recognized.

19 On the other hand there is a requirement of

20 fundability, and there is a requirement, and I don't

21 have the specific statutory language, I think it is

22 economic feasibility...

23 MR. SAXE: Where is that? That's not...

24 MR. GUEST: Whether the estimates of the cost are

25 reasonable estimates.

103

1 MR. REID: He doesn't have to do with affecting

2 anybody.

3 MR. GUEST: Well, the cost of that, correct.

4 MR. GREEN: I apologize for interrupting. I just

5 want to point out the state water policy review

6 remains intact and well in the Marjory Stoneman

7 Douglas Act water quality requirements...

8 HEARING OFFICER: I understand, but we are

9 putting that aside for a moment and taking them one at

10 a time and trying to resolve this. I do want to get

11 to your issue, and it is an important one.

12 MR. GREEN: There is one other point. 373.453

13 requires recommendations and schedules for bringing

14 sources into compliance with standards when not

15 contrary to public interests. That means something.

16 I do think it is implemented through policy.

17 MR. SAXE: We could address these points. Could

18 we perhaps create some structure to this argument

19 which might help us get out of here today?

20 HEARING OFFICER: All right. I guess the

21 petitioners essentially have raised the issues, so I

22 will let them go first and make their positions, and

23 then give you an opportunity.

24 MR. GREEN: Your Honor, we again reiterate we

25 believe the plan is spatially invalid and should be

104

1 summarily remanded with conclusions of law and find

2 that it is defective for failing to consider

3 socioeconomic impacts and the cost-benefit

4 considerations, as it was required to do under the

5 state water policy, the Marjory Stoneman Douglas Act,

6 Chapter 403, Florida Statutes.

7 We filed a lot of paper. I will try to hit the

8 high points to put it in context.

9 The areas that this plan would protect, the Water

10 Conservation Areas, as we have shown with our filing

11 are not natural in any sense of the word. For over

12 100 years they have been exposed to substantial

13 drainage, disruptions, and changes. That is clearly

14 contained in the report of this Congress, and in fact

15 the project of 1948, with the finding that was

16 implemented in 1962, to some extent was designed to

17 improve that situation, as well as to allow

18 development of the lower east coast and the Everglades

19 Agricultural Area.

20 What we don't have is Conservation Areas that are

21 the true, natural Everglades. I am not saying that

22 they should not be protected. I am not saying that

23 water quality criteria should not be properly applied.

25 That's not what I am saying at all, as a lot of

105

1 others have intimated that.

2 What I am saying is the settlement agreement

3 would take criteria that were adopted in '79 that were

4 presumptively okay for Florida and apply them bank to

5 bank, top to bottom, all through the Conservation

6 Areas in the park. It is unprecedented, without at

7 the same time using implementing regulations that were

8 adopted when the very Commission that adopted those

9 criteria created them, because they recognized it.

10 They said, "Hey, folks, this might not be

11 reasonably attainable in a given case. We have got to

12 create a mechanism for moderating the blind

13 application of these criteria in the future," and they

14 did it through specific water quality regulations and

15 the intent section.

16 That is pretty much unprecedented. They said in

17 their intent section, "Hey, folks, we would not have

18 adopted these criteria if these moderating provisions

19 were not intact."

20 Approximately 17 years after these Water

21 Conservation Areas were totally impounded and had big

22 pumps to move the stormwater all over the place. They

23 were for water control, water conservation, protect

24 the fish and wildlife population, conservation,

25 etcetera.

106

1 Then we have Chapter 402, Florida Statutes, that

2 came along in 1967 that specifically recognized the

3 beneficial uses of agriculture, fish and wildlife

4 considerations, and water supplies, things like that.

5 Our Legislature and Congress in the Clean Water

6 Act tried to devise a standard that balances competing

7 views and looked at real life ramifications of water

8 quality criteria. We have to do that, because

9 otherwise you read only one book that is designed for

10 the whole state maybe, and it might be great for the

11 St. Johns River, but when you go look at the Water

12 Conservation Areas where the whole water level is

13 changed it might not make sense.

14 These provisions were put in under Chapter 403,

15 but what happened after that? The state got very

16 interested in stormwater control. Stormwater is a

17 problem particularly around cities, harbors,

18 industrial areas.

19 In 1987 the SWIM Act was adopted. It required

20 the District to develop plans, to bring sources into

21 compliance, not contrary to the public interest, and

22 something very interesting happened in 1988. The

23 state water policy adopted a definition of state water

24 quality standards, the one that we have been talking

25 about, that says standards include criteria, whether

107

1 the numerical or narrative antidegradation provisions

2 applies to new sources, and moderating provisions, and

3 all three of those categories are for the water

4 quality standards.

5 Now in 1989 the Florida Legislature directed DER

6 in both Chapters 403 and 373 to institute stormwater

7 control studies to look at the cost benefits and added

8 a state water policy review requirement for all SWIM

9 plans.

10 DER is required to review them for consistency

11 with that policy. That's the policy that defines

12 water quality standards to be criteria,

13 antidegradation provisions, and moderating provisions.

15 What are moderating provisions? I think you have

16 probably read our paper. What they really do is allow

17 you to make adjustments in water bodies, so long as

18 the designated use of the water body is preserved, to

19 allow mixing zones, to allow individual criteria to be

20 set for the water body if the original criteria don't

21 make sense, and to allow variations. That is

22 contained in the state water quality policy that was

23 adopted in 1989.

24 The real question is whether the Marjory Stoneman

25 Douglas Act legislation repealed all of that. The

108

1 blank check theory seems to say, "Yeah, well, they

2 repealed all of that, because they didn't repeat every

3 word," but I will list for you three places in the

4 Marjory Stoneman Douglas Act where they specifically

5 retained water quality review provisions in the

6 existing law, Sections 373.459(2), (3), (4) and (7).

7 Now why did the Legislature say that? They

8 didn't have to put that in just for our amusement.

9 They put it in because they wanted these plans to make

10 sense, to be reasonable.

11 Now we don't believe you have to go through

12 debates among Legislators and lobbyists to define

13 legislative intent. It is very clear.

14 But if we look at the materials that respondent/

15 intervenors have provided and the staff report we came

16 to the opposite conclusion.

17 In fact they cite discussions that occurred in

18 March, 1991, where certain lobbyists said, "Hey, this

19 is a blank check on the utility, and we are really

20 worried about it." We cited a discussion five weeks

21 later when the bill was put together by the sponsor of

22 the bill which said, "Well, we have addressed that.

23 This will have to go through the SWIM process."

24 Well, what is it in the SWIM process that

25 considers economics if it isn't the state water

109

1 policy?

2 You can't find it. They must have put that in

3 for a reason. We find that is in the Florida law.

4 Now let us back up a minute and say, "You know,

5 this is a strange situation. What's the basic

6 problem?"

7 Well, we get back to the settlement agreement

8 that was adopted in 1991 which did require the state

9 to give a blank check. Who signed that agreement?

10 The agency that adopted the SWIM plan without a

11 socioeconomic impact statement, the agency that is

12 required to review that plan for state water policy,

13 which includes socioeconomic impact considerations,

14 and the federal government. They signed it. And they

15 also agreed to defend it.

16 It is not real surprising that in the fall of

17 1991 after the settlement agreement came out and while

18 the SWIM plan was still being presented to the public

19 in draft form, when I appeared on behalf of the

20 Cooperative and others and through letters in the

21 record and said, "Why aren't you considering

22 moderating provisions, why aren't you considering

23 attainability, where is all of this," we never got a

24 response.

25 In discovery to date we have not found any

110

1 written evidence that the moderating provisions were

2 ever considered, and except for the Hazen and Sawyer

3 report, which was after the fact, the socioeconomic

4 considerations were ever considered, but we do have a

5 Hazen and Sawyer report, whether part of the record or

6 not, and which Dr. Luke said he thought was

7 conservatively low, which showed thousands of jobs

8 would be lost.

9 Well, I think you are going to hear in a minute,

10 "Well, that's too bad, because the Legislature decided

11 that's what they want to have done."

12 The Legislature did no such thing. They said

13 they wanted water quality standards to be applied.

14 They didn't say they wanted water quality criteria,

15 ignore mixing zones. They said water quality

16 standards.

17 That hasn't been done. What is the practical

18 example of how this might help us if this plan were to

19 go back and they really looked at the impact?

20 Dr. Maffei at the last hearing talked about the

21 Loxahatchee, which as you recall is sort of an oval

22 shaped area, 30 some odd miles long and 15 miles wide,

23 give or take, and he said the cattails were around the

24 perimeter for half a mile or a mile, I don't remember

25 the exact distance, some limited distance around the

111

1 perimeter. He also said that was the area that he was

2 concerned about, and the rest of it did not have that

3 problem.

4 The SWIM plan would require the construction of a

5 stormwater treatment area of thousands of acres to

6 treat water going into the Loxahatchee. The cost for

7 that one, I don't know the exact amount, but I would

8 say 100 million dollars, 50 million, whatever it is.

9 But not once have these regulators been allowed

10 to consider the grant of a mixing zone or the special

11 criteria for the perimeter, which I think the record

12 reflects has also been disrupted because of the borrow

13 canal that have had to be dug out and built. It

14 hasn't been talked about.

15 It ought to be talked about. The citizens of

16 Florida ought to demand it. If it isn't required to

17 be talked about by Your Honor, I don't know when it

18 will be talked about.

19 But we are told, "Well, when the stormwater

20 utility comes along, whenever that is, a year or two

21 from now." That's a different issue. That's how you

22 divide up the cost of fixing compliance with water

23 quality standards. Once they are properly applied,

24 then you decide exactly how to pay for it with the

25 stormwater funding mechanism.

112

1 We say this is a threshold issue, because if you

2 got to the stormwater utility stage a year or two from

3 now and after we have gone through all of this

4 litigation and have found, "Gee, that Stormwater

5 Treatment Area doesn't make any sense," and in fact

6 the farmers have already reduced their phosphorus by

7 25 per cent voluntarily, and these cattails are not

8 expanding, so why are we doing that? What's the

9 option?

10 The option I guess is to go all the way back and

11 try to amend this plan and take five more years of

12 litigation.

13 We would urge you, Your Honor, not to allow that

14 to happen. We know it is a unique case. I haven't

15 seen one like it before.

16 But if you restrict your role to essentially

17 finding facts and you don't deal with the legal

18 issues, that's what will happen, and this will just

19 keep going along.

20 We think it is a very narrow question. Did the

21 Marjory Stoneman Douglas Act repeal the state water

22 policy review requirements, which incorporated the

23 moderating provisions? If it did, were they

24 considered? In order to fully consider you have to

25 look at the socioeconomic impact and the cost-benefit.

113

1 You have heard factually that that did not occur.

2 We respectfully request that you remand this

3 proceeding, and we would be happy to file any motions

4 necessary to protect that right.

5 MR. HYDE: I will not be redundant with Mr.

6 Green's argument. I would note that we adopt them in

7 their entirety.

8 I would just like to emphasize two points. One

9 is to give you another flavor of how the moderating

10 provisions work in this situation.

11 The state water quality standards for dissolved

12 oxygen essentially require that in predominantly fresh

13 water the dissolved oxygen concentration never goes

14 below five milligrams per liter, and that daily

15 fluctuations above that level would likewise be

16 maintained.

17 I think the undisputed evidence in this case

18 certainly from the mouths of some of the respondent's

19 own witnesses establish quite clearly that the

20 dissolved oxygen standard is routinely violated

21 throughout the Water Conservation Areas, even the

22 areas that they concede are not nutrient enriched, not

23 influenced by the presence of phosphorus.

24 We pose to them the rather logical question, "How

25 can you determine a violation when natural conditions

114

1 violate the standard," and that to my mind is an

2 obvious and clear instance in which a site-specific

3 alternative criteria or some other mechanism should be

4 implemented to determine just what the standards

5 should be for dissolved oxygen in the Water

6 Conservation Areas. They haven't done that.

7 I think they are going to be hard pressed to

8 prove a violation that phosphorus enrichment which

9 causes the violation, that the conditions violated the

10 standards.

11 It is a very good example of how the moderating

12 provisions should be utilized in this area.

13 Again though I urge you to consider the practical

14 consequence of a ruling in this regard. Do we really

15 think that we should go through a hearing of this

16 nature with all the attendant costs, take months,

17 several months to resolve it, only to have an economic

18 impact analysis or some sort of study come down from

19 the Governing Board of the Water Management District

20 which suggests, for example, that 20,000 jobs are

21 going to be lost?

22 Do we really think the Governing Board of the

23 Water Management District, that the Secretary of DER,

24 that the Governor of this state is going to tolerate,

25 can they politically tolerate the implementation of

115

1 such a plan costing 20,000 jobs? Of course not. That

2 is ridiculous to suggest.

3 I know Mr. Guest and some of his clients might

4 think otherwise, but that is just illogical under any

5 set of circumstances.

6 I think it is important, and I think it is

7 practical and just and appropriate for this kind of

8 determination to be made in the first instance.

9 Because otherwise I suggest to you we are

10 engaging in a frivolous exercise, that we need to make

11 that determination up front.

12 So that's how you implement the state water

13 quality standards, and that's how you implement the

14 provisions of the SWIM Act and the Marjory Stoneman

15 Douglas Act. Otherwise the plan is just not complete,

16 and we don't know what we will need, and we might be

17 engaging in an utterly fruitless endeavor on something

18 that will never be implemented. That's all.

19 MR. HOFFMAN: Just one comment for the

20 petitioner, Fruit and Vegetable Association. As I

21 said, I don't want to get involved in who is right or

22 wrong, because we don't have the resources to research

23 all of this, but I think from what has been argued my

24 clients would recommend to the Hearing Officer that if

25 the petitioners who have briefed this issue so well

116

1 were correct, are correct, that it would be a waste of

2 a lot of resources to move forward on certain issues.

3 Now I think that part of the problem really is,

4 maybe Mr. Hyde touched on this, you don't have the

5 proper vehicle before you. We have processes that

6 have enlarged and become something more, become a

7 request for you to remand or issue an order that was

8 more than just the exercise on what's right or wrong

9 on the economics.

10 Under the rules, I think under 16 or 22-I, there

11 is a paragraph that says "Motion," and anything can be

12 brought up to you as a motion.

13 Number two, there is no provision for summary

14 disposition unless it is a case in which you have

15 final order authority, so it wouldn't be a final

16 disposition. It would be a recommended order, it

17 would be, of course, actually that, or an order back

18 to the agency for a final order on this issue.

19 Many of the cases that have had recommended

20 summary orders have had partials. This is one way to

21 get the case back, to have the issue decided, and

22 perhaps the rest of the case go forward. At least

23 that issue could be appealed.

24 My own side might not like my suggestion here,

25 but I think it is incorrect to suggest to you just

117

1 because you find that someone, a case should be

2 dismissed because of some issue that they cannot come

3 back after that is decided and litigate the rest of

4 these. I only practiced law for 22 years, but that

5 has never been a law in any jurisdiction that I have

6 practiced in, including the District of Columbia, of

7 which I am a member of the Bar.

8 If you want to make a decision to dispose of the

9 case, and that is reversed, the whole case is back on

10 the hopper.

11 So my only thought is to follow the law all

12 parties seem to have is to dispose of something that

13 if there is no issue of fact and this issue of law may

14 be dispositive, then it can be handled, and it needs

15 to start review. The longest journey starts with the

16 first step. It should not wait until the end of the

17 whole case.

18 We have an unfortunate situation where the First

19 District Court of Appeal has ruled almost nothing can

20 be taken up in interrogatories. Even though the

21 statute was changed to allow interrogatory appeals of

22 Hearing Officers' orders, they cite Charter of

23 Jacksonville, Inc., and summarily denied such relief,

24 but if the order is from the agency, after being sent

25 back, then it would be brought to the review process,

118

1 and we would have a proper scenario.

2 As former Chief Justice Smith sits here, he might

3 be able to tell us better about it, but I have seen it

4 happen recently. That is our recommendation for the

5 Fruit and Vegetable Association.

6 HEARING OFFICER: Before I give you a chance over

7 here, you are climbing out of your chairs, I can tell

8 you are anxious, as I understand what I am hearing

9 from petitioners, you are asking me to remand the case

10 to the Water Management District, to consider, to

11 incorporate the regional socioeconomic impacts as part

12 of the planning process? You want me to send the

13 whole case back, although Mr. Hoffman talked about a

14 partial remand? I don't know if that is possible or

15 not. Is that essentially what you are looking for?

16 MR. GREEN: Yes, it is.

17 HEARING OFFICER: I guess the one issue, of

18 course, is the statutory requirement to expedite this

19 process.

20 MR. HYDE: I think that as a practical matter you

21 would have to remand the whole matter back, because

22 the whole plan really has to be evaluated in light of

23 all of the provisions of the SWIM Act and the

24 moderating provisions for the water quality standards

25 which they admit have not been done.

119

1 Until they do that, they have an invalid plan,

2 and you would be using, I think it would be very

3 difficult and untenable to conduct hearings on the

4 remainder because what would you conduct the hearing

5 on?

6 You have to make a determination as to whether

7 state water quality standards are being violated.

8 This remand is going to have to deal with those state

9 water quality standards.

10 You are going to be looking at whether these 50

11 parts per billion phosphorus standards are

12 appropriate. Well, you can't know whether they are

13 appropriate until you have considered the water

14 quality standards that come into play, including the

15 moderating provisions.

16 HEARING OFFICER: But in your petitions you have

17 also challenged a number of factual assumptions that

18 go into the beginning, the fundamental conclusions.

19 MR. HYDE: That's true. There are basic things

20 that we are going after, whether the STA proposals for

21 stormwater treatment proposals should be implemented,

22 whether these phosphorus limitations for the Park and

23 Refuge, are appropriate, whether there are actually

24 water quality violations occurring in Water

25 Conservation Areas, and if so whether phosphorus

120

1 enriched from the EAA is causing those violations, and

2 I would suggest to you that none of those fundamental

3 issues can be completely and properly resolved until

4 such time as you have properly reviewed the plan in

5 light of the provisions of the state water policies

6 and state water quality standards and the moderating

7 provisions.

8 HEARING OFFICER: Well, even assuming your

9 argument is correct overall that the moderating

10 provisions have to be taken into account, the

11 allegations contained in the petition seem to

12 challenge some of the more fundamental issues that

13 don't necessarily implicate some of those aspects, and

14 I guess I am saying is wouldn't there be a way to

15 separate out those and proceed with those aspects of

16 it?

17 MR. HYDE: Theoretically that may well be the

18 case. As a practical matter I question whether anyone

19 would really want to do it, because the crucial issue

20 is money. Let's put it bluntly. It is money.

21 Can we, should we implement this extraordinarily

22 expensive stormwater treatment area concept? Should

23 we, could we implement a program that will cost tens

24 of thousands of people their jobs?

25 And I think the issues I have articulated to you

121

1 in the last few minutes are all dependent upon a

2 remand and a consideration of the socioeconomic

3 concerns, and, yes, theoretically you could conduct

4 some hearing I guess on the remaining contentions, but

5 you would be missing the important contentions, and I

6 question whether a partial hearing would really be of

7 that much value.

8 HEARING OFFICER: Okay. And I am going to give

9 you a shot in a second, but I wanted while these

10 issues were fresh in my mind, I guess the reason why I

11 brought that up is because in reviewing the plans and

12 going through the hearings that we have been having it

13 is very clear that this is an extraordinarily complex

14 case, and that there are an incredible number of

15 issues and an incredible number of disagreements, and

16 in view of the statutory mandate to expedite this

17 process and in view of trying to avoid having this

18 case get bounced around from court to court, from

19 agency to here to there, and to try to get some

20 forward progress in the whole, overall scheme of

21 things I wonder if there wouldn't be some benefit in

22 trying to approach it from that perspective,

23 recognizing that there is a great deal of cost

24 involved, but also with the view that it may help

25 facilitate the overall scheme of things by eliminating

122

1 those issues that really are not disputed and trying

2 to focus on what is?

3 MR. HYDE: I think that's a very interesting

4 proposal. I really cannot completely answer it,

5 because I really need to go back and review our

6 petition to ascertain just what portions could be

7 handled under such a scenario, but I would like to

8 harken back to your observation that the statute

9 requires that the proceedings be expedited.

10 I would suggest to you that that has to be

11 looked at in a very realistic sense, and I think what

12 the Legislature intended there is for a full and

13 complete plan to be expedited.

14 I don't think we can have a full and complete

15 plan until such time as socioeconomic concerns are

16 addressed, and at that time then we will have the plan

17 that we need and will be able to challenge it, and I

18 think that is the way you should look at whether

19 something has been expedited.

20 As a practical matter should we have a partial

21 hearing which doesn't address these crucial issues and

22 have a delay to address the socioeconomic concerns,

23 which are going to have to be finally addressed and

24 litigated presumably, it will all delay the

25 implementation.

123

1 HEARING OFFICER: I agree with you to focus on

2 expediting for the sake of expediting in the long run

3 could prolong things, and that's exactly what I am

4 trying to avoid.

5 I guess what I am saying is when I look at that

6 statutory mandate to expedite the proceeding I take

7 that to mean that the Legislature is saying this is a

8 critical problem, so let's see if we can get a

9 resolution of this as quickly as possible, and with

10 that in mind what I am saying is that I want to

11 approach it in a way that facilitates a solution to

12 the overall matters that are before me and more

13 generally before the Water Management District, and

14 within that context that is why I am suggesting that

15 maybe if we can separate out those issues that there

16 are not disputed facts about that, there are really

17 legal issues that probably need to be resolved once

18 and for all by a District Court or whatever, let those

19 go, and then those issues that are specifically, those

20 factual issues that are very legitimately disputed,

21 perhaps we can get those resolved once and for all

22 that will in the long run facilitate whatever decision

23 is made by the DCA ultimately.

24 MR. GREEN: Mr. Menton, we would certainly

25 attempt if you decide that way, I know you need to

124

1 hear more argument, but if you did we would certainly

2 look back at our petition and see if that could be

3 done.

4 There is a mitigating circumstance that I would

5 remind you of with regard to the expedited hearing.

6 The best management practices, the 25 per cent

7 reduction requirement deadline of 1996, has been met

8 according to the District four years early or five

9 years early, whatever. In the year 1991 the farmers'

10 voluntary measures at the farms had already reduced

11 phosphorus going into the area by 25 per cent.

12 The Legislature didn't know that. We didn't know

13 that. It seems to me that ought to be a mitigating

14 circumstance. I just bring it to your attention.

15 HEARING OFFICER: Mr. Guest?

16 MR. GUEST: Thank you. I have some texts of the

17 statute here, because this is a statutory construction

18 problem, and we might as well see what the statute

19 says. You have Subsection (7) of the parallel

20 provisions of the SWIM Act. The real question here is

21 whether or not the Douglas Act really did anything,

22 whether the Marjory Stoneman Douglas Act really did

23 something to protect the Everglades.

24 You have to go back and look at the big picture.

25 What happened was that the 1987, originally when the

125

1 SWIM Act was passed, in 1987 the Legislature came to

2 the conclusion that the DER's system of water

3 pollution control, throughout the State of Florida

4 there were surface waters that were profoundly

5 polluted and were in very serious trouble, and that

6 something had to be done to mitigate that, something

7 had to be done to fix it, and this is what was done to

8 fix it.

9 What the District, each District is supposed to

10 do is prioritize the water bodies based on the need

11 for protection. That's what the statute says, and

12 then to list those as priorities, and then to describe

13 them, and then to look at what's causing the problem,

14 the pollution.

15 It is supposed to list what sources of pollution

16 there were that are causing the problem and then to

17 establish schedules, recommendations and schedules for

18 bringing all sources of pollution into compliance with

19 state standards, but it has a proviso. The proviso is

20 when that is not contrary to the public interest.

21 What our friends in the sugar industry asserted

22 is that provision means socioeconomic balancing, so

23 you would say just as the argument proposed here, it

24 goes, "Well, it really isn't worth it to save this

25 fetid swamp and cost all of these people their jobs."

126

1 Social policy balancing is founded in this provision.

2 What the Douglas Act did was it is a special act

3 that modifies the SWIM Act and calls for a particular

4 SWIM plan with particular features for the Everglades

5 and for the Everglades only.

6 You can see what its purpose is, and you can see

7 how it has to be construed, and that is what this is.

8 It is a construction problem by the statement of how

9 it can be construed to enhance and strengthen the

10 provision of the act.

11 And so what it did was basically changed or

12 augmented the SWIM Act in three different ways. One

13 way was to provide the structural foundation for an

14 external treatment system to deal with the problem of

15 sources of pollution that are screwing up the

16 Everglades.

17 The second thing that it did was established that

18 the DER or that is the District has to get a pollution

19 discharge permit from DER, and in Section (6) it

20 specified the exact variance, the only variance that

21 the District was to get, and that was a variance that

22 allows an interim concentration level until they can

23 meet state standards.

24 And the fact that it was the only variance was

25 confirmed explicitly in Subsection (7)(b), which says

127

1 except to the extent authorized in Subsection (6), the

2 interim permit provision, all currently applicable

3 state water quality standards apply.

4 Now the sugar industry would like that phrase to

5 say that in addition to the variance, the one and only

6 variance given by the Legislature, that every other

7 moderating provision and variance under the sun was

8 incorporated by reference, and it wasn't. It wasn't,

9 because that balancing process of bringing the

10 pollution sources into compliance was changed, and the

11 way it was changed was by substituting an external

12 treatment system rather than this public policy

13 balancing scheme over here, and so what the

14 Legislature's judgment was was the policy judgment.

15 It is ultimately an economic question, but it is a

16 different kind of economic question framed by the

17 Legislature.

18 It says it is a policy somebody has to decide.

19 And when the DER grants variances in mixing zones,

20 downward reclassifications to legalize the pollution,

21 or

22 site-specific criteria, what that does is it imposes

23 the cost of the pollution on the water body, and this,

24 the Douglas Act, represents a different policy

25 judgment, and that is that it says in the act that the

128

1 Everglades are a priceless and irreplaceable treasure,

2 and that the cost of the pollution is not going to be

3 borne by the Everglades any more. It is going to be

4 borne by the people who imposed the pollution on the

5 Everglades.

6 We are going to clean it up before it gets there,

7 and it says the people who are causing the pollution

8 get a benefit from this scheme, the treatment system,

9 to the same extent that they cause a pollution

10 problem. It is right there in the statutes.

11 What they did was when they got to the question

12 of state water quality standards compliance, they took

13 this provision out of the statute.

14 The social policy balancing provision was

15 knowingly and deliberately deleted, and in arguing

16 socioeconomics, the sugar industry wants you to over-

17 ride that Legislative decision and put it back in.

18 I submit you don't have any power to do that.

19 HEARING OFFICER: Okay.

20 MR. SAXE: Mr. Hearing Officer, it is the

21 respondent's and intervenors' position that the

22 Marjory Stoneman Douglas Everglades Protection Act

23 expresses the Legislature's unanimous determination

24 that the Everglades' water quality must be restored

25 and protected, notwithstanding the substantial costs.

129

1 We don't say the moderating provisions were

2 repealed, but that the predicate element emphasized by

3 the Coop, cost justification, has been legislatively

4 determined.

5 In the United States' view as stated by counsel

6 for the conservation intervenors the issue today is

7 whether it is necessary or proper to revisit this

8 legislative judgment in this SWIM proceeding or in the

9 ensuing interim permit proceeding.

10 Petitioners describe our position as a money is

11 no object position, and they suggest we ignore how

12 much the implementation of the plan will cost and

13 whether there are funding sources able to pay that

14 cost.

15 This is a straw man. We make no such argument.

16 The SWIM Act in plain terms at Section 455(2)(a)

17 directs the DER to determine whether the plan

18 contains, quote, "reasonable estimates of the actual

19 costs," unquote, of the plan activities and moreover

20 whether the plan activities can be funded.

21 But costs and fundability as were discussed

22 earlier and I think recognized are basically

23 accounting questions.

24 Petitioners have much more in mind when they talk

25 about economic impact and cost benefit analyses, and

130

1 it is those matters we contend are far beyond the

2 scope of these proceedings.

3 First of all economic impact statements, I think

4 as was also recognized earlier, are not required for

5 the Everglades SWIM plan or the interim permit. They

6 are creatures of statute which expressly requires them

7 for rules, but there is no statute, including the SWIM

8 Act and the Everglades Protection Act, that makes any

9 reference to economic impact statements for permits or

10 SWIM plans.

11 The League's argument that inherent in

12 determining fundability is the necessity to look at

13 cost justification, economic impacts, and cost-benefit

14 analysis is plainly wrong. The fundability deals with

15 how the regulatory action may be paid for from

16 existing and potential sources, not what the

17 consequences of undertaking the regulatory action will

18 be.

19 The economic impact analysis deals with direct

20 and indirect economic consequences of the regulatory

21 program.

22 Similarly cost-benefit analysis is an enormative

23 judgment about whether the Everglades should be

24 cleaned up in light of the economic impact.

25 We would submit that the League's argument in

131

1 particular seems to create from whole cloth an EIS

2 requirement where none exists.

3 The Coop's description of a labyrinth of

4 conflicting statutes and regulations which is asserts

5 provides for moderation of water quality protection in

6 certain circumstances is similarly misplaced.

7 The Coop makes no specific proposal that a

8 particular set of moderating provisions should be

9 incorporated in the plan or in the permit. Instead

10 the Coop appears to argue that economic impact

11 assessments and cost-benefit determinations must be

12 included in this process because they are generally

13 relevant in determining the applicability of

14 moderating provisions otherwise.

15 The United States disagrees with petitioners that

16 the requirements of these moderating provisions could

17 be satisfied in this case. I have to emphasize though

18 that if the Hearing Officer rejects this legal

19 argument, my understanding is that it is the position

20 of respondent and intervenors that we would still show

21 that the moderating provisions by their own terms

22 don't apply in the Everglades.

23 However, it is our position here primarily that

24 the Hearing Officer need not reach these questions,

25 because the Legislature has already balanced the costs

132

1 and benefits and determined that the benefits of

2 restoring and protecting the Everglades justify the

3 substantial costs.

4 All that is left for the regulators to do is to

5 determine how to do it, how best to do it, and how to

6 pay for it.

7 To the extent the petitioners through application

8 of the moderating provisions would revisit this would

9 go far in the Everglades Protection Act.

10 Rather than tripping through the labyrinth of

11 these things it is the Legislature's last and best

12 plan addressing this SWIM plan, the Everglades SWIM

13 plan and the interim permit that is likely at issue in

14 the ensuing proceedings.

15 The act is dispositive of the petitioners'

16 argument.

17 As described in our brief, the act in its

18 history, particularly the act's own final analysis and

19 economic impact statement clearly evinces the

20 Legislature's conviction that the nutrient enriched

21 agricultural runoff is causing a serious problem in

22 the Everglades and that substantial lands, estimated

23 at up to 100,000 acres, and substantial sums,

24 estimated at more than 400 million dollars, may be

25 needed to solve the problem.

133

1 Subsection (1)(a) of the act expresses the

2 Legislature's findings that the Everglades is, quote,

3 "unique in the world and one of Florida's great

4 treasures", unquote.

5 And in Subsection (4)(a), the Legislature

6 declares it is necessary for the public health and

7 welfare that the Everglades' water and water related

8 resources be conserved and protected.

9 The Coop's historical narrative is in fact the

10 evolution of consciousness that environmental values

11 are not to be distinguished from public health and

12 welfare, including economic values.

13 Accordingly in Subsections (3)(a)(1) and (7)(a)

14 in the act the Legislature directed the District to

15 bring facilities into compliance with applicable water

16 quality standards and specifically omitted the

17 qualifier emphasized by the Coop, when not contrary to

18 the public interest.

19 Further, Subsection (7)(a) of the act expressly

20 provides that it shall be construed in all respects to

21 enhance and strengthen the provisions of the SWIM Act

22 as applied to the Everglades Protection Area.

23 Subsection (7)(a) goes on to clarify that no existing

24 or future violation of any applicable statute, rule,

25 or permit requirement is authorized under the act or

134

1 the Everglades SWIM plan. Thus the Legislature

2 specifically eschewed deviation from standards in the

3 Everglades Protection Area in the long term.

4 When petitioners talk about moderating provisions

5 they are talking about giving private interests a

6 license to continue to pollute the public resources.

7 This was clearly not contemplated by the Legislature

8 and was specifically rejected.

9 The Legislature did, however, make express

10 provision for temporary moderation during the time

11 that pollution controls are constructed and

12 implemented, providing in Subsections (6) and (7)(b)

13 for interim concentration levels and discharge limits.

15 Further, the Legislature specifically addressed

16 limitations on financial liability in the act.

17 The Legislature in the Everglades Protection Act

18 intentionally refrained from imposing numerical limits

19 on cleanup costs.

20 However, in addition to the SWIM Act, the general

21 provision that the plan activities be fundable, the

22 Legislature provided specific and somewhat elaborate

23 limitations upon the imposition of costs of cleanup on

24 petitioners.

25 Under Subsection (5), impositions of fees and

135

1 assessments must be proportional to and not exceed

2 minimum landowners' contributions to the need for

3 stormwater management.

4 Petitioners would effectively render all of these

5 specific provisions of the act superfluous by using

6 general water quality provisions to moderate again the

7 act's mandate and to limit petitioners' potential

8 financial liability.

9 This violates the principle that a later enacted

10 specific statutory provision supersedes earlier

11 enacted generic ones with respect to the subject

12 matter specifically addressed in that statute.

13 Petitioners raise the specter of unconstitutional

14 confiscation of property, but this is also baseless.

15 There are only three regulatory mechanisms described

16 in the SWIM plan that might be challenged as

17 confiscatory, the taking of land for Stormwater

18 Treatment Areas, the imposition of fees or assessments

19 to pay for the STAs, and the imposition of best

20 management practices.

21 First, no land has been taken from petitioners.

22 If and when it is, it must be done through eminent

23 domain proceedings, where petitioners' interests will

24 be provided for.

25 Second, no fees or assessments have been imposed

136

1 on petitioners. If and when they are, and nothing in

2 the SWIM plan or the interim permit requires that any

3 specific level or indeed any level of fee or

4 assessment be levied against petitioners, but if and

5 when they are the Everglades Protection Act

6 specifically limits them.

7 Finally, the best management practices imposed by

8 the EAA rule, which are management, petitioners have

9 declined to challenge.

10 You will also note there are several practical

11 considerations militating against petitioners'

12 position. These proceedings already have substantial

13 witness lists pertaining to the issues of injury,

14 causation, and remedy. It is an understatement to say

15 that injecting economic impacts into these proceedings

16 will substantially complicate and lengthen them.

17 The Hazen and Sawyer economic impact statement

18 alone is nearly half as big as the relevant portions

19 of the SWIM plan.

20 Further, at this juncture because no funding

21 decisions have been made, economic impacts are largely

22 hypothetical and speculative.

23 Neither the SWIM plan nor the interim permit

24 requires petitioners be charged any particular fees,

25 and that matter has to await administrative

137

1 determination before it can be adjudicated.

2 The issues that have come up about the

3 relationship between this threshold legal question and

4 the great body of the remaining controversies, the

5 material facts placed in issue by the petitions, is a

6 vexing one. Petitioners have been clamoring for

7 years for a factual determination on injury,

8 causation, and remedy, but now they are backing down.

9 They cite considerations of saving litigation costs,

10 but they have been prompt in bringing in the ancillary

11 things under FOIA, Freedom of Information Act, public

12 records, and Sunshine.

13 Every day these suits drag on as another day of

14 duress for the government agencies and free pollution

15 for the petitioners.

16 It is our view that the petitioners have a

17 financial self-interest in delay. They say now the

18 real issue is money, but they were apparently willing

19 to raise a plethora of issues in their petition

20 entailing the need for as they by their own account

21 described it today multi-million dollar litigation

22 that has absolutely nothing to do with the cost

23 justification issue.

24 I would suggest that to the extent the Hearing

25 Officer feels it necessary to deal with the economic

138

1 question as a threshold matter for the balance of

2 these proceedings that severability should be

3 seriously considered and that the parties should be

4 afforded an opportunity to brief that, because at this

5 point to remand these proceedings on such a basis only

6 to inevitably have them return some weeks or months

7 hence to reinitiate the process would be a much

8 greater squandering of resources than a limited

9 disposition of this particular question.

10 HEARING OFFICER: Mr. Reid, do you have anything?

11 MR. REID: I think Mr. Killinger will speak.

12 MR. KILLINGER: What you are being provided with

13 is an argument that the plan is invalid because it

14 does not incorporate moderating provisions and that

15 implementation of those moderating provisions requires

16 some sort of socioeconomic analysis.

17 Socioeconomic analysis is essentially an economic

18 impact statement. Now an economic impact statement is

19 required for rules and is required for statutes, but

20 it is not required for the plan. It is not in the

21 statutes, and the statutes specifically state this is

22 not a rule.

23 Now the Douglas Act did have an economic impact

24 statement, and I will talk about that in a minute, but

25 I don't think an EIS is required, and if it is not

139

1 required the fact that the District has chosen to do

2 one and will in fact assess it to guide its progress

3 in this process I think is a separate question

4 entirely. It is a damned if you do, damned if you

5 don't argument.

6 If they hadn't done it under the federal law, now

7 that they have started to do one it is waved in front

8 of the Hearing Officer as if it is controlling on what

9 the Water Management District Governing Board is

10 eventually going to decide when they look at the final

11 product.

12 The argument that the Department has to make a

13 determination that the plan is consistent with state

14 water policy is being made, and then they try to

15 bootstrap the socioeconomic analysis to deal with

16 that. But if you look at the provision in the statute

17 that talks about that review the Department's

18 determination about whether it is consistent water

19 policy is not a veto of the SWIM plan.

20 They make recommendations, and the Governing

21 Board can either incorporate that or not. If the

22 Governing Board does not incorporate it, I believe the

23 statute says it is reviewable by the Florida Land and

24 Water Adjudicatory Commission, which is not what is

25 going on here in these proceedings and is not

140

1 reviewable here.

2 Furthermore, the Department's determination about

3 whether or not it is consistent with the state water

4 quality policy is not reviewable as a rule or an

5 order, specifically in Section 373.456.

6 I agree with Mr. Guest's analysis of the removal

7 of when not contrary to the public interest aspects

8 from the Marjory Stoneman Douglas Act, and it came

9 along after the SWIM Act. It has profound

10 implications.

11 The statute that we are dealing with here

12 expressly mandates the cleanup and restoration of the

13 Everglades and incorporates in a mandatory way

14 moderating provisions by the torturous way I think is

15 contrary to the intent of the statute.

16 The legislative intent is set forth to provide

17 restoration and protection of the resource. The

18 legislative intent is a finding to provide funding

19 mechanisms to contribute to implementation of

20 strategies of the SWIM plan.

21 Again the statute says the SWIM plan is not a

22 rule. The statute doesn't include and eliminates the

23 public interests assessment, and that is consistent

24 with the statutory language that it is not a rule.

25 All regulations of statutes are subject to a

141

1 certain economic analysis which I think is the

2 Constitutional issue raised here, but I don't think we

3 are in the right place or at the right time to deal

4 with that.

5 The plan here is not self-executing, as has

6 already been stated, and I will not belabor it again.

7 Nobody has been imposed with any costs yet. It does

8 not impose any limitation in and of itself. It has to

9 be done through other proceedings, and no land has

10 been condemned.

11 Even if the land is condemned, they will be paid

12 for it. That is not a balancing test.

13 The act provides detailed and very comprehensive

14 schemes and directions for how to do this, and part of

15 that, a large part of that is how you assess the

16 costs. It specifically declares the public necessity

17 of acquiring lands for STAs and specifically states

18 that you can use public funds to do it, and they will

19 make public funds available.

20 It also specifically authorized stormwater

21 management systems, including stormwater utilities,

22 and it authorizes the assessment of fees pursuant to

23 that. That is a question of accounting, a matter of

24 whether or not the District can fund the plan.

25 It also has two other provisions in it. It says

142

1 you can use any other funding mechanisms legally

2 available, and another provision in the act describes

3 other funds can be set up to fund the programs that

4 are used for the programs they want to put through

5 under the plan.

6 But it is not a blank check, I don't think. It

7 is a mischaracterization, because the act goes on to

8 specifically address what is going to happen with all

9 this money and who has to put it up.

10 The District is specifically precluded from

11 collecting funds in excess of the amounts necessary to

12 do the job, and it specifically is required to

13 apportion by the relative contribution of the people

14 contributing to the problem the costs to those

15 polluters, and the District is also I think in

16 Subsection (5)(g), they are required to suspend,

17 terminate, or modify any projects and the funding for

18 those projects if they are not working.

19 I think that is interesting, because that is

20 definitely a test that is conducted after the project

21 is started, not before the fact.

22 Finally in Section (5)(h) the statute says the

23 Legislature determines that any property owner who

24 contributes to the need for the stormwater management

25 systems is deemed to benefit from the systems and

143

1 programs, and such benefits are deemed to be directly

2 proportional to the relative contribution of the

3 property owner to this.

4 In that section the Legislature has stated that

5 those who are contributing to this, to the problem,

6 will have to help pay for it, and the relative

7 contribution is, the relative contribution to the

8 problem and the funds is exactly what they benefit out

9 of it. They have done the economic balancing test and

10 put it in the statute. It is very detailed and very

11 specific.

12 The bill analysis that I believe we filed as

13 Attachment A to our initial joint brief discusses

14 numbers. It says the cost estimates range up in

15 excess of 400 million dollars. It also discusses

16 economic impacts, and it acknowledges limitations on

17 the funding and the apportionment and discusses the

18 potential costs.

19 It specifically mentions that no numerical cap is

20 provided, but then goes on to say that limits are

21 present otherwise from the funding mechanisms that are

22 provided with the limitations in the act, and I think

23 if they want to argue that an economic analysis is

24 required, they need to do it again when they are

25 imposed with the funding programs that are proposed by

144

1 the District, when they are assessed with a stormwater

2 utility fee, or when land is condemned.

3 But again I think if you land is condemned you

4 are going to get your money out of it, so it is not a

5 public interest test.

6 The BMPs have an option, but that is over with.

7 It is not being challenged here. But that

8 determination I think has to be made at that point

9 about whether or not the specific imposition of

10 whatever they are trying to impose will be

11 confiscatory, and again I don't think we are at that

12 point.

13 I think that they are trying to manufacture an

14 economic impact statement requirement that is just not

15 present in the statute. I think it is interesting, I

16 think Mr. Green used the word the moderating

17 provisions are adjustments to the water quality

18 standards. I think that is exactly what the act is

19 trying to counteract, an adjustment of the water

20 quality in the Everglades Protection Act.

21 Essentially from what they want to use, for

22 instance the Loxahatchee Natural Wildlife Refuge as a

23 mixing zone, to get themselves off the hook

24 economically, it is contrary to what the statute says

25 is going to be their contribution to the problem.

145

1 HEARING OFFICER: Okay. Mr. Reid?

2 MR. REID: You know, sometimes I have this

3 fantasy that I am a Legislator, because it seems I

4 spend a lot of time telling somebody what the

5 Legislature meant, and you probably spend a lot of

6 time trying to figure out what they meant, and it

7 would be a lot easier if the two of us were

8 Legislators and would know what we meant. This is a

9 perfect example.

10 Let us start with the premise that the

11 petitioners are making, that the SWIM plan needs to

12 have an economic analysis before it is any good.

13 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

14 We have something called that. In modern times

15 they are called economic impact statements or an

16 economic impact analysis.

17 The Legislature sure knows how to use them, the

18 national and the state Legislators. We know that from

19 looking at their rules that they sure require them,

20 and they know how to say that.

21 So in this case it is obviously, this started,

22 remember, as a discovery dispute. Somebody over here

23 asked them for their financial records, and they

24 didn't want to give them to us, and so they said,

25 "Well, that's not relevant, even though we have raised

146

1 this issue," and then suddenly somebody else over

2 there said, "Wait a minute. We are interested in

3 macro economic analysis, not micro economic analysis,"

4 and you have entered an order.

5 So I think they thought it was a pretty good idea

6 to say, "Well, let's attack this because of all of the

7 job losses." And now I've got to say after all those

8 things Mr. Hyde said I know how Bill Clinton must have

9 felt when he was being accused during the campaign of

10 being part of the spotted owl crowd, you know, the

11 environment at the cost of everything else.

12 But they realized it was a pretty good position

13 for them to try to take, and not only were they going

14 to try to win this proceeding, if you will, by saying

15 they lost too many jobs, it wasn't practical, and all

16 of that, but now they have come up with a legal

17 argument to throw us out entirely, that the Marjory

18 Stoneman Douglas Act and the SWIM, Everglades SWIM

19 requires something about economics, when clearly it

20 does not require an economic impact statement. You

21 have said that today, and it is in the statute.

22 So they have invented something new called a

23 socioeconomic study. I don't know what that is.

24 I know they have gone through 30 years or however

25 many years of regulatory history, and as I said

147

1 earlier they have pulled out any time public interest

2 was mentioned and any time economics or political or

3 such things were listed, you know, with a string of

4 seven or eight words, and they have kind of tried to

5 stitch all of these together and say, "This is what a

6 socioeconomic study is, and you should have done one."

7 So, you know, a logical thing is to look at the

8 statute, and we don't find an economic impact study,

9 so what do we find?

10 Well, the first way we can kind of imply this

11 because of the way it is written in all of these other

12 statutes is to say it is not contrary to public

13 interest, and as you saw graphically a minute ago that

14 was left out.

15 I've got to say this as an aside. I thought it

16 was one of the most creative ways of quoting a

17 statute, to put in brackets "not contrary to public

18 interests" in the Douglas Act where it doesn't appear,

19 and they leave out the part down at the bottom that

20 talks about what the Douglas Act does, and then they

21 put in a footnote and cite it to the SWIM Act, and we

22 were pretty generous I thought to say that they

23 revealed that it wasn't in the Douglas Act. I don't

24 think they revealed that. They cited something else.

25 So the point is that is not there, so that is

148

1 kind of the first thing you can look for to try to

2 find a basis for this created requirement or this new

3 implement that we are calling a socioeconomic study.

4 So that's not there.

5 So then their second argument is, "Well, any time

6 there is a consistency argument or an opinion of

7 consistency with state water quality policy," so then

8 they say, "Gee, that's a pretty good place to hang our

9 hats," and everybody knows that when you say state

10 water quality policy what you really mean to

11 incorporate are state water quality standards, and

12 everybody knows that when you say state water quality

13 standards what you really mean to incorporate are

14 moderating provisions, notwithstanding the fact the

15 definition wasn't created until two years after the

16 Douglas Act, but everybody knows that means that, and

17 then they finally say, "And everybody knows when you

18 get into the moderating provisions that obviously

19 means that you've got to do a socioeconomic study."

20 Well, I don't think any of that means that, but

21 that is the argument.

22 And then they have another argument, and this is

23 really more by the League as well, fundability is in

24 there, and we have talked about that today, and

25 fundability doesn't mean socioeconomic impact.

149

1 I really ought to be saying by the way macro, or

2 socio macro economic impact, I don't know where you

3 put the macro, because they don't want us to know the

4 impact it is having on it individually, because that

5 is secret, but they want to try to argue there is some

6 macro economic impact.

7 So what we are really left with is a grasping, an

8 attempt to take a statute that starts without any

9 requirement of an economic study, since everybody

10 knows what an economic impact study is, and clearly it

11 is not there, so you have to come up with something

12 new, so macro socioeconomic study, and we create it

13 because of all the assorted words in the statute. It

14 is not there. It is not there at all.

15 I think what, you know, we started out really

16 with an evidentiary issue, and now it has suddenly

17 grown into a motion for summary judgment. I think

18 what ought to happen here is you ought to rule as a

19 matter of law there is the issue of economic impact,

20 the way they have described it, not relevant to these

21 proceedings, and we ought to go ahead and complete the

22 proceedings based on that ruling.

23 HEARING OFFICER: Why don't we take about a

24 five-minute break?

25 (WHEREUPON, THE HEARING WAS RECESSED FROM 3:10

150

1 P.M. TO 3:23 P.M.)

2 HEARING OFFICER: Mr. Green?

3 MR. GREEN: Mr. Menton, several of the points

4 that were made by respondent and intervenors discussed

5 the Marjory Stoneman Douglas Act and the public

6 interest provisions.

7 I don't want to spend a lot of time on it, but I

8 think it cooks down to saying because this phrase here

9 wasn't repeated verbatim here, that this statute

10 repealed it, that provision, and I would suggest to

11 you that that is the same as saying the second

12 sentence repeals the first sentence where it says in

13 the Marjory Stoneman Douglas Act that nothing in this

14 section shall be construed to limit, detract, or

15 compromise the SWIM Act, Sections 373.451 through

16 .4595, and 373.453 is a public interest test that we

17 are talking about. .456 is the state water policy

18 provision, and as we read this sentence it says as

19 provided in these sections, it includes it.

20 So, number one, we disagree with the argument,

21 the case cited by the respondents, which actually

22 supports our position instead of theirs, which is

23 Manderis vs. Goodyear Tire, where it says, if you read

24 two statutes together to preserve their obvious

25 intent, that repeal by implication is not favored. It

151

1 is not ordinarily the case.

2 The second thing I would like to bring to your

3 attention here is that these provisions of the 1990,

4 1989 act also contain another portion of this act when

5 it talks about the SWIM plan...

6 HEARING OFFICER: The 1989 act?

7 MR. GREEN: I am sorry, the 1991 act again refers

8 to these sections when it specifically talks about the

9 SWIM plan in 373.4597(3).

10 "The District shall adopt the Everglades surface

11 water improvement plan pursuant to the provisions of

12 Section 373.451-373.456. In addition to the criteria

13 contained in Section 373.453, which is the public

14 interest test, shall include the following...," and

15 then it goes on to talk about schedules and so forth.

16 That's the first point. The second point, the

17 Legislature used the word "standards" here, water

18 quality standards. It doesn't say water quality

19 criteria. I think Mr. Killinger misrecalled what I

20 said.

21 Water quality criteria are something else.

22 Did the Legislature know what it meant? Normally

23 cases say if there is a technical meaning to be given

24 a word and the Legislature and the statute reflected

25 it, it should be, if it is in there they are aware of

152

1 it. Why do we think they knew what they meant when

2 they said standards? Well, we think they knew what

3 they meant because 373.403(11) defines state water

4 quality standards as water quality standards adopted

5 pursuant to Chapter 403.

6 So the very act, Part (4) of Chapter 373, in

7 which this is found, defines the term as that adopted

8 under 403.

9 Well, what was adopted under 403? Among other

10 things, 17-3.02(200), Definitions, which define the

11 term to include moderating provisions, 17-600, which

12 defines it to include moderating provisions, and I

13 apologize we only have one copy here, but in 1988,

14 three years before the Legislature did this, they

15 adopted that same definition of water quality

16 standards as part of the state water policy, and I

17 will hand Your Honor the Florida Administrative Weekly

18 Notes of August, '88, which makes that change.

19 So not only did the Legislature know what it was

20 doing when it preserved specifically the state water

21 policy review, the public interest review, but it knew

22 what it was doing when it used the term state water

23 quality standards, because that term was already

24 defined in the state water policy.

25 Now the Marjory Stoneman Douglas Act did not

153

1 require the state to condemn one acre of land for any

2 STA. It authorized it, said it could be done, but it

3 didn't require it.

4 It did not require the Water Management District

5 to set phosphorus discharge limits for discharges into

6 the Conservation Areas of the Park that failed to

7 consider moderating provisions. In fact we don't

8 think that is what they intended at all.

9 I have looked through the Marjory Stoneman

10 Douglas Act on many occasions, and I am unable to find

11 all of this intent to set a legislative policy that

12 basically says that the costs are irrelevant, and all

13 we want is benefits, as suggested by Mr. Guest. It

14 just isn't in there.

15 Now there are kind of two choices, I think. One

16 is to assume that the Legislature meant what it said,

17 which was to carry these provisions along which allow

18 for the reasonable application of water quality

19 standards.

20 The other is to adopt the argument of respondent

21 and intervenors to say they didn't care, they didn't

22 care how many millions, how many thousands of jobs,

23 that was beside the point, and they wrote a blank

24 check.

25 Well, on several occasions the respondent has

154

1 pointed to the staff report on May 31, 1991, as being

2 real important.

3 Yes, it did say that estimates had been made of

4 costs, and they have a range, because those were made.

5 In fact, they were bantered about by everyone, but it

6 did go on to say no numerical cap is provided, because

7 the bill ties projects identified in the plan to the

8 SWIM plan basically and interim permits.

9 Now you just can't get around the fact, I mean

10 the term globally, we can't get around the fact that

11 the state Legislature authorized Stormwater Treatment

12 Areas and utilities where necessary to comply with

13 state water quality requirements established by rule

14 or permit.

15 Again I am quoting from the last sentence of

16 Section 373.4592(4)(a), "established by rule or

17 permit." What water quality requirements are

18 established by rule or permit now? They are those

19 that contain the moderating provisions, the water

20 quality criteria, that allow mixing zones,

21 site-specific criteria, and variances. None of that

22 was done.

23 Now we realize that again the remand of the case

24 is extraordinary, and we ask what are the options if

25 you agree with our argument?

155

1 Maybe a temporary remand for four months on this

2 issue. The other alternative is to let it go forward.

4 We believe it is clear, and I think the other

5 parties might even concede, the socioeconomic issues

6 are relevant to this case if it goes forward now.

7 We would try to put on that case, but if the

8 moderating provisions don't apply, what is the context

9 in which Your Honor can judge whether this plan makes

10 sense under Florida law? How can alternatives be

11 compared?

12 Respondent and intervenors are saying there are

13 no guidelines. There is no cost or guidelines. It is

14 all irrelevant. It doesn't matter. You can have 15

15 different versions of the SWIM plan before you, and it

16 wouldn't matter if one of them cost 10 times less.

17 We say that is exactly contrary to what the water

18 quality standard setting body intended in the first

19 place, and that is you look at cost, you look at

20 reality when applying the criteria in a given case,

21 which is site specific. As Mr. Reid pointed out, that

22 has not been done here.

23 I suspect, we believe that Section (7) makes it

24 very clear the state water policy is still intact, the

25 definition of water quality standards is intact, and

156

1 the public interest test is intact today and must be

2 applied to this case.

3 We don't know how else to do it accept by

4 applying these moderating provisions and looking for

5 cost effective alternatives and ways to minimize the

6 socioeconomic impact.

7 Otherwise at the end of this process the final

8 order coming out of this proceeding would have to find

9 any plan that came up here okay. If the water quality

10 problems that are alleged are true, basically any plan

11 that has been forced on the State of Florida through

12 this settlement agreement would be approvable. That

13 is the position they are ultimately trying to sustain,

14 that the blank check settlement agreement was adopted

15 by the Florida Legislature, regardless of the cost.

16 Your Honor, we don't believe that. This isn't a

17 free ride to pollute. We reject that

18 characterization.

19 A lot of motives have been impugned with regard

20 to our clients. I think the record shows they have

21 already voluntarily claimed that to the extent they

22 could.

23 We are asking that you deal with this issue in a

24 straight-up way and remand this case back or parts of

25 it so that we can move forward, and it would be more

157

1 expeditious in the long run.

2 HEARING OFFICER: Let me ask you a question. If

3 as you say the application of the standards would be

4 site specific, how do you deal with that in the

5 context of a planning document? Isn't it, isn't the

6 planning document supposed to be more general? You

7 know, I don't quite see how you can apply this site-

8 specific aspect of it.

9 MR. GREEN: Good question. What we would suggest

10 and what didn't happen during the settlement

11 negotiations is that we go out to, the parties go out

12 and determine what areas are not meeting the criteria,

13 if they are not meeting the criteria, and, number one,

14 ask, "Well, can we grant a mixing zone, let's say, in

15 the northern portion of the Water Conservation Area 2

16 to allow cattails to be in this particular area

17 without significantly impairing the designated use of

18 the water body?"

19 If they can, then that ought to be done. That's

20 automatic. That's the way mixing zones have been

21 applied historically. That's the test in the rules.

22 If the answer is, "Well, we can only cover part

23 of it," if you give 2,000 more acres of mixing zone it

24 could significantly impair the designated use, then

25 you trigger the next question, "Well, are site-

158

1 specific alternative criteria appropriate for that, or

2 are they not?"

3 You ask yourself, "Have best management practices

4 been imposed?" "Yes, they have."

5 "Have point source discharges been controlled to

6 EPA technology limits?" "There are none."

7 And then third, "Is it cost effective?" That's

8 the test. "Is it cost beneficial to require further

9 phosphorus reduction?" That's what that rule would

10 require.

11 If it is and if you could show that spending "X"

12 million dollars over here had a reasonable

13 relationship, that's the way the rule reads, between

14 the benefits that would be accrued to that 2,000 acres

15 out of I must remind you maybe a million acres of

16 Everglades, 750,000 acres, this little bitty area,

17 then that step should be taken.

18 That step was never looked at when developing the

19 Stormwater Treatment Area. That's the second test.

20 The third test would be, "Well, what if it is

21 cost beneficial, but it would put 20,000 people out of

22 work, close down all the towns around Lake Ochechobee,

23 cause major, widespread socioeconomic impact?" Then

24 that would be grounds for examining criteria

25 themselves, perhaps adjusting them, or granting a

159

1 variance, and that is in the federal and the state

2 scheme. That is the analysis that should be gone

3 through one by one down every Conservation Area.

4 It might not be that time consuming. As far as

5 we can tell it has never even been considered.

6 MR. SMITH: There is one more. Suppose the

7 Hearing Officer decided, "It's my job since I am

8 called to provide, since the agency head is

9 unavailable, and there are disputed issues of fact, to

10 critique agency interpretations and decisions on

11 policy available to the agency under the statute," and

12 I think that's a pretty direct quote from McDonald, we

13 are here because there are disputed issues of fact,

14 and you are here to find facts, to dispute, to

15 critique on the basis of relevant facts agency policy

16 choices.

17 Suppose the Hearing Officer said, "Am I to

18 compose a SWIM plan along these lines?" That's a

19 pretty big job, a prodigious undertaking for a Hearing

20 Officer.

21 Wouldn't the conservative thing be if a

22 substantial case of mammoth economic impact is made

23 for the Hearing Officer to say, "I recommend to the

24 agency as policy to the extent that you can escape the

25 coercion of the federal captors," and I leave that to

160

1 you and Judge Hoeveler, but I recommend as a matter of

2 policy given the economic impact that was shown before

3 me and which you failed and refused to consider

4 because the settlement agreement said you couldn't,

5 but as a matter of common sense with so much riding

6 upon the effectiveness of 35,000 acres of Stormwater

7 Treatment Areas which you have written down, the cost

8 of which ranges from 90 to more than 470 million

9 dollars, wouldn't it be sound, reasonable policy for

10 an agency sensitive to the dignity and burden of its

11 own responsibilities to stage in STAs in lands that it

12 already owned before putting other people out of

13 business in the Water Conservation Areas which are not

14 subject to this Class 3 protection that applies to the

15 Everglades National Park or the Loxahatchee? Wouldn't

16 that make sense as sound policy?

17 And so in a very sense without trying to reinvent

18 the whole wheel the Hearing Officer would say, "I am

19 here to listen to the relevant facts, broadly

20 concealed, unless I am forbidden by the Marjory

21 Stoneman Douglas Act to hear what these people say

22 that act doesn't compel you to hear, and critique the

23 agency's policy choices and interpretations just as a

24 matter of common sense," just as a matter of common

25 sense?

161

1 So you've got two questions. Is the evidence

2 relevant, and does it tie to something that is

3 genuinely within the Hearing Officer's

4 responsibilities?

5 Oh, yes, this is classic APA stuff.

6 Then the question is, "What should you do about

7 it?" That's where you've got, this is what I thought

8 Mr. Hyde and Mr. Green were arguing first, one of the

9 factors of what you should do about it, and that is

10 what these people were talking about.

11 If it is a matter of law that it must be, then

12 the Hearing Officer would very likely make a

13 preliminary decision now that, "That's the way I read

14 the law, and these must be considered, so let's remand

15 it for four months while we go forward on the others."

16 If it is not a matter of law compulsory, it is

17 just a matter of common sense, which is within the

18 Hearing Officer's ultimate responsibility, to critique

19 agency policy and interpretation of law, and then you

20 might say, "We will just keep the whole thing together

21 like we started off today, with it all together, and

22 receive the relevant evidence, and I will do my job at

23 the end." But is it relevant? You bet. Is it within

24 your responsibility? You bet. Thank you, sir.

25 HEARING OFFICER: Mr. Hyde?

162

1 MR. HYDE: I do have some, brief.

2 HEARING OFFICER: Let me just ask, there is one

3 question to follow up with Mr. Green.

4 Going back to the issues that I had discussed

5 with Mr. Hyde before, why aren't we involved in the

6 case where certainly this is a critical issue, but it

7 is not the only issue that has been framed by the

8 pleadings that have been filed today, and certainly

9 there are disputed issues of fact on those other

10 issues, the resolution of which may be beneficial in

11 the overall scheme of things?

12 Essentially that's my point. Is there any

13 benefit to be derived from resolving those issues

14 within this forum now if there is a way to do it as he

15 points out? There are a couple of different ways of

16 interpreting it, but would you view there being any

17 benefit to perhaps trying to resolve the other issues

18 if we can separate out this one group?

19 MR. GREEN: Your Honor, there may well be, and

20 actually we haven't focused on that, but certain

21 things come to mind as you ask that question.

22 Contrary to a representation made earlier, of

23 course, we raised in our initial petition the issue of

24 whether the water quality standards were properly

25 applied, and that is sort of the moderating provision

163

1 issue, but in terms of causality, are there in

2 violations in certain areas, that may be something

3 that could go forward, violations of criteria, and we

4 would have to talk about it, but there may very well

5 be a way to avoid missing some steps in time. We

6 would have to look at it.

7 MR. HYDE: As a followup, a particular

8 observation, I think I suggested a few hearings ago

9 maybe this case needs to be bifurcated into a more

10 logical sequence, and the one I suggested was to make

11 that, have the first portion of the hearing focus on

12 the existence and cause of the water quality

13 violations, and then at a later date we could go into

14 the phosphorus limitations being proposed, and the

15 final phase then to the Stormwater Treatment Areas,

16 are they the appropriate mechanism to deal with the

17 problems?

18 On the merits of this argument that we are here

19 on today I will try to be very brief in my reply.

20 I love reading phrases and statutes like when not

21 contrary to the public interest, because they are so

22 common, and I think they are common because the

23 Legislature does indeed intend to have a very broad

24 impact, and it is for lack of a better term a catch-

25 all statutory phrase, but what is the public interest

164

1 here? Is the public interest limited solely to

2 environmental concerns and costs? I doubt very much

3 so.

4 Is it in the public interest for 18 to 20

5 thousand people to lose their jobs because of the

6 implementation of the SWIM plan? I don't think that

7 is in the public interest or in the contemplation of

8 the SWIM Act, and I do think Mr. Green is absolutely

9 correct. It is still in effect. That provision has

10 not been written out of the law or supplanted by the

11 Marjory Stoneman Douglas Act.

12 The act, the Marjory Stoneman Douglas Act is

13 merely an addition to, a supplement to, but it does

14 not supplant the 1989 SWIM Act.

15 I wanted to readdress one issue that I think you

16 focused on earlier and the other parties did, too, and

17 that is the issue of fundability.

18 I believe I stated earlier that inherent in the

19 fundability determination is an assessment of

20 socioeconomic impact.

21 Perhaps saying socioeconomic is a bit foreign,

22 but certainly economic impacts are very crucial. What

23 are we talking about here in terms of fundability? We

24 are talking about the funding of the plan itself.

25 What does the funding of the plan entail? It

165

1 entails the purchase of some 35,000, more or less,

2 acres of farmland and a construction of the very

3 expensive Stormwater Treatment Areas.

4 We have seen estimates up to 400 to 500 million

5 dollars. How is that all going to be paid for? It

6 will be paid for by the bonds. Who is going to issue

7 the bonds? The underwriters issue the bonds. Who is

8 going to buy those bonds? Financial institutions and

9 interested investors.

10 Well, I can assure you based on my limited

11 knowledge of the bond market that underwriters don't

12 issue bonds, and people don't buy bonds unless they

13 have assurance that the bonds will be paid back or

14 that the interest will be paid on them, and if you go

15 into, if you adopt a SWIM plan that effectively

16 destroys the goose that lays the golden egg, which the

17 SWIM plan could very well do by destroying the agri-

18 business in the EAA, then you are dealing with a

19 fundability issue, and it becomes crucial to examine

20 whether or what the economic consequences of the plan

21 are in terms of their impacts on the industry.

22 If the industry that is going to be apparently

23 taxed for this can't afford it, then the plan can't be

24 implemented, and fundability is a very important

25 issue, as they have acknowledged, and we have to take

166

1 it to its logical consequences.

2 I would like to harken a bit to a provision in

3 the SWIM Act, 373.456(2), which requires the DER to

4 review to ensure consistency with the state water

5 policy, and Mr. Green has several times taken you

6 through the litany of what that means.

7 We have heard it described as a labyrinth, but it

8 was a labyrinth created by the Legislature. They

9 called the shots here. That's what they say we have

10 to do.

11 And the state water quality standards are a part

12 of it.

13 But I think even independent of the moderating

14 provisions under the general issue of fundability

15 you've got to address the economic ramifications,

16 because if the industry can't support it, it can't be

17 implemented. It is that simple.

18 It is my understanding that within the last

19 several weeks the Governing Board of the District was

20 advised, for lack of a better term, they could not

21 afford to implement it, or words to that effect.

22 That's the way it has been related to me. It caused

23 quite a bit of uproar.

24 So fundability is important, and if you look at

25 fundability you have to look at the economic

167

1 ramifications, which is what we suggest has to be done

2 here in the first instance.

3 We have heard little mention today of the so-

4 called optimal plan which you briefly mentioned

5 earlier. We have this thing sort of floating around

6 out there. This may be a new SWIM plan. It may

7 entirely supplant the plan we are hearing about.

8 It makes one wonder whether we are engaging in a

9 fruitless effort at all. What is the relationship of

10 the optimal plan to the SWIM plan? Is it just a

11 process of wear down the petitioners so that they

12 exhaust their resources through the repeated adoption

13 of new plans?

14 We have heard mention of the ancillary suits that

15 some of the respondents suggest are drawing this

16 process out. Well, those suits that Mr. Saxe referred

17 to are the Public Information and Freedom of

18 Information cases, which I might note we won, and we

19 just got recently a ruling from the First District

20 Court of Appeal which held that we are entitled to

21 attorneys' fees and costs before the Court and on

22 appeal.

23 So these were very important issues, and the

24 Court said that these were meritorious cases.

25 But I think when you get down and look at all of

168

1 these things that we have talked about, talking about

2 a SWIM plan and whether it is a site-specific plan or

3 whatever, you have to recognize we are not dealing

4 with a normal plan. Your question about site-specific

5 matters was actually a very good one, because we have

6 to deal with site-specific concerns in this instance,

7 because the SWIM plan deals with them.

8 It is not a regular SWIM document. It is a

9 regulatory document. It imposes specific standards we

10 have to address, and those specific standards it

11 proposes to impose upon us and the remedies to

12 accomplish those are going to be very costly, and the

13 cost of those plans brings the plans into direct play

14 with the economic ramifications and its impact on the

15 industry and the impact on the people that work in the

16 EAA, and unless and until those impacts are fully and

17 completely analyzed and resolved or at least some

18 agency action is taken by the District to accomplish

19 that, then we have what is inherently an incomplete

20 plan, and we are not going to have a complete one

21 until it is done.

22 If you want to have an expedited plan, that is

23 the first step in order to accomplish it. Thank you.

24 HEARING OFFICER: Okay.

25 MR. REID: I just would like to say one thing,

169

1 just an observation.

2 When we had our argument a month or two ago about

3 the relevance of the settlement agreement, the ruling

4 that I recall was that the Court, the Hearing Officer

5 determined that the issues of coercion and so forth

6 regarding settlement would not be part of this case,

7 and issues about the sites and so forth would be.

8 I just want to point out how many times today

9 have we heard in support of the arguments that have

10 been made that there was coercion and that this is all

11 because of the coercion of the federal government?

12 I think you ruled all of that was out of the

13 case, and I assume you will disregard all of those

14 arguments. I thought at the time that it wasn't going

15 to go away so easily.

16 MR. HYDE: That's not my recollection.

17 MR. REID: I thought that was exactly what you

18 ruled.

19 HEARING OFFICER: Well, let's not go back into

20 that. That had to do with discovery matters. I am

21 not interested in retrying the federal case.

22 MR. GUEST: Just one short comment, which is that

23 we contend that the Legislature by removing the public

24 interest test in the Douglas Act, when you have to

25 comply with the water quality standards, that they

170

1 intended to get rid of the Chicken Little argument one

2 always hears when you apply regulations to industries,

3 and what we have heard this afternoon is that those

4 arguments are critical to their presentation. I

5 submit the Legislature threw it out for that reason.

6 HEARING OFFICER: Okay.

7 MR. SAXE: Again I would just add one coda

8 amplifying those two arguments, and that is that this

9 is in our view essentially a political problem that

10 has been politically determined by the Florida

11 Legislature, and notwithstanding of a very vigorous

12 and involved lobbying effort by all interested parties

13 in that process, the Legislature clearly and

14 emphatically determined it is in the public interest

15 to restore the Everglades' water quality.

16 When Mr. Hyde earlier queried whether the state

17 parties, whether the Governing Board should make the

18 determination to do what it is setting out to do in

19 light of the economic impacts, which by the way we

20 vigorously and emphatically disagree on, I think

21 Mr. Hyde was essentially pointing to the frustration

22 that underlies the vitriol that is directed at the

23 lawsuit filed in federal court and the ensuing

24 settlement agreement which is being filed, too, one,

25 the legislative process they sought to win, and having

171

1 it gone so unanimously and emphatically against them

2 the petitioners at this juncture are seeking to reopen

3 those legislative questions and problems in any forum

4 they possibly can, and this is today's forum.

5 MR. KILLINGER: May I add a word?

6 HEARING OFFICER: All right. I am sorry.

7 MR. KILLINGER: I think the argument that is

8 being advanced by the petitioners here would have the

9 tail wagging the dog.

10 I think it is a labyrinth of analysis and

11 justification to get back into an EIS. I think the

12 ruling that an EIS is required would constitute an

13 act. It is not there. There is no rule, and it is

14 not required.

15 HEARING OFFICER: Well, I don't think that they

16 are asking you to say that there should have been an

17 EIS. They are asking you for a determination that

18 they should be entitled to present evidence regarding

19 moderating provisions.

20 MR. KILLINGER: I think they have argued an

21 economic impact analysis is required in this case.

22 HEARING OFFICER: I think Mr. Hyde's argument in

23 respect to the Constitutionality may have some aspects

24 of that, but I think in a later issue, specifically

25 with moderating provisions, I don't view the argument

172

1 as necessarily going to that extent as requiring an

2 EIS. I don't think that is what they are saying.

3 They just want to have an opportunity, they are

4 saying those moderating provisions should have been

5 applied all along, and they should be allowed to

6 present evidence regarding the application of those

7 provisions within the context of this proceeding.

8 MR. KILLINGER: Well, let's take this back to

9 where it started, which is about the discovery

10 dispute. They didn't want to give up their detailed

11 economic information, because they said they weren't

12 going to put it on, because it wasn't relevant. They

13 were going to use macro information.

14 I have heard for about the last 10 minutes,

15 "Well, are we going to be able to do this, because it

16 is putting people out of business, and it is going to

17 put 18 to 20 thousand people out of the job market,

18 and can basically the District sustain the heat for

19 doing that?"

20 It seems to me that is not a macro economic

21 impact. That is a specific economic impact on a

22 specific petitioner.

23 I think if we are going to get into that kind of

24 analysis and hear testimony or whatever you want to

25 call it that 18 to 20 thousand people are going to

173

1 lose their jobs, I think we need to analyze whether or

2 not, revisit whether or not we get the detailed

3 economic information sought.

4 HEARING OFFICER: Well, that issue, I mean, the

5 ruling I made on that, I specifically left it open to

6 be revisited if we have to get to it.

7 I think the first thing we do is to resolve the

8 fundamental question today as to whether or not any of

9 that is going to come in within the context of the

10 proceeding, and if I decide that that's the way I

11 think it should go, we can revisit those issues if we

12 need to.

13 But I think that is going beyond where we need to

14 get today.

15 MR. HYDE: It is our ernest suggestion and we

16 hope that you will remand either in whole or in part

17 this proceeding to the District to effect the agency

18 action necessary in the first place.

19 As you have correctly noted earlier, there is no

20 agency determination on economic impact, because none

21 was done. I think the District's Governing Board has

22 to do it.

23 HEARING OFFICER: Okay.

24 MR. HYDE: Thank you.

25 HEARING OFFICER: I am going to need some time to

174

1 digest these issues and think about it.

2 I think the nature of the argument today has

3 brought up some additional matters, and I will give

4 all parties an opportunity to submit a supplement.

5 They have no requirement to do so, but if you feel it

6 necessary to submit a supplement why not make it due

7 after the holidays?

8 MR. HYDE: Do you have a date in mind?

9 HEARING OFFICER: Any suggestions? The first

10 week in January?

11 MR. GUEST: End of the first week in January?

12 MR. FITZGERALD: January 8.

13 HEARING OFFICER: All right, submit a supplement

14 then, and I will look at the issues. I don't know

15 when our next hearing is set. Does anybody know that?

16 MR. FITZGERALD: It is the 22nd or 29th.

17 MR. REID: I have the 29th.

18 HEARING OFFICER: Okay, we will just have to see

19 where we are then and supplement, and I will mull this

20 over a little bit.

21 MR. SAXE: We have had three rounds of briefing

22 and joint briefing on this roughly defined scope of

23 issues.

24 In the past you have generally given us some

25 parameters for the subsequent round of briefings.

175

1 In one recent iteration you indicated you were

2 particularly concerned with the role of the economic

3 impact statement in the subsequent proceedings.

4 It would be helpful at this time to have some

5 sense of what particular issues you see as best

6 benefitting from additional briefing, because this has

7 been wide ranging.

8 HEARING OFFICER: It is very wide ranging. The

9 issues have been briefed pretty well already, I think,

10 a lot of them, so I don't even know that you need to

11 supplement it. I am giving you that option to do so.

12 I think that some of the new issues that have

13 come up today, although it was mentioned in Mr. Hyde's

14 brief that we talked about a little more specifically,

15 the question of remand, but the one that I think I

16 raised, the question of severability, whether or not

17 it is possible to sever out those economic issues and

18 maybe proceed with other aspects of the case while

19 those are reviewed by an appellate court or whatever,

20 I think the remaining issues regarding the moderating

21 provisions and all those have been briefed already,

22 and if you want to supplement what you have already

23 done feel free to do so. Those have been pretty well

24 briefed.

25 MR. SAXE: My concern is perhaps it would be best

176

1 to limit this fourth round of briefings to new issues

2 that have arisen, because otherwise every round of

3 briefs that get filed obviously creates a new issue

4 that necessitates a responsive brief, and we would be

5 going on ad infinitum on this particular question.

6 HEARING OFFICER: Well, we are not going to go on

7 ad infinitum. I just felt that given the way the

8 discussion went today everybody should have an

9 opportunity to have one more crack at it.

10 I am not going to tell you what you need to

11 address or limit you. I don't think you need to go

12 back through the arguments you have already made. If

13 you do that you are going to run the risk of me

14 skimming over your arguments rather than paying

15 attention.

16 If there are specific points you want to

17 highlight, then make them quick and to the point, and

18 it will be more effective. That is typical of any

19 legal writing. I don't know that I can give you

20 any more guidelines than that.

21 MR. SAXE: Thank you.

22 MR. REID: I will just raise a question, if the

23 parties are interested in stipulating that there won't

24 be any more briefs. You know, you sort of feel like

25 if they do it we have to do it, and they feel the same

177

1 thing.

2 MR. HYDE: I really feel these issues that we

3 have deserve further attention. I am not willing to

4 stipulate that. We may ultimately decide it is not

5 necessary, but I am uncomfortable with that.

6 MR. REID: Why don't we agree to talk?

7 HEARING OFFICER: He wants to limit it to just

8 those issues?

9 MR. SAXE: Exactly?

10 HEARING OFFICER: Those are the ones that are

11 new, and those are the ones that really haven't been

12 addressed.

13 You know, I don't know that there is any sense in

14 going back over all of the other stuff, unless you

15 really...

16 MR. REID: I'll call Mr. Hyde in a week.

17 MR. GREEN: One request for the benefit of

18 Mr. Killinger, which I don't think was representing

19 the Department earlier on, I think earlier in

20 discovery on the earlier financial information, I

21 could be wrong, I think it was Tim Smith. I think if

22 we go back and review the information we are talking

23 about it is exactly the kind of macro information that

24 doesn't require individual financial information. I

25 believe that is consistent with the ruling. I would

178

1 hate to see us be...

2 MR. SAXE: We disagree...

3 MR. GREEN: I understand that, but you lost that

4 issue fair and square.

5 MR. SAXE: I don't believe the question of the

6 moderating provisions was at issue at the time.

7 HEARING OFFICER: I think, Mr. Green, what I was

8 saying earlier is that if we end up adopting your

9 theory on moderating provisions, then they have an

10 opportunity to come back and revisit it. I am not

11 saying they would necessarily win on that issue, but

12 we would have to take a look at it and put it in

13 perspective.

14 MR. GREEN: Thank you.

15 (WHEREUPON, THE HEARING WAS CONCLUDED AT 4:00

16 P.M.)

179

1 CERTIFICATE OF REPORTER _______________________

3 STATE OF FLORIDA )

4 COUNTY OF LEON )

6 I, SUE HABERSHAW JOHNSON, Certified Court

7 Reporter, Registered Professional Reporter, and Notary

8 Public in and for the State of Florida at Large:

9 DO HEREBY CERTIFY that the foregoing hearing was

10 taken before me at the time and place therein designated;

11 that my shorthand notes were thereafter reduced to

12 typewriting under my supervision; and the foregoing pages,

13 numbered page 1 through page 171, are a true and correct

14 record of the aforesaid proceedings.

15 I FURTHER CERTIFY that I am not a relative,

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

17 relative or employee of such attorney or counsel.

18 WITNESS MY HAND AND OFFICIAL SEAL THIS 20TH DAY

19 OF DECEMBER, A.D., 1992, IN THE CITY OF TALLAHASSEE, COUNTY

20 OF LEON, STATE OF FLORIDA.

___________________________________

23 SUE HABERSHAW JOHNSON