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SAIA (VOL II), JOHN

10/1/2008

Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN RE: KATRINA CANAL BREACHES CIVIL ACTION


CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
PERTAINS TO: MRGO AND ROBINSON
(No. 06-2268)

(V O L U M E 2)

Rule 30(b)(6) deposition of THE


UNITED STATES OF AMERICA, BY AND THROUGH THE
UNITED STATES ARMY CORPS OF ENGINEERS'
DESIGNEE JOHN SAIA, given at the U.S. Army
Corps of Engineers New Orleans District
offices, 7400 Leake Avenue, New Orleans,
Louisiana 70118-3651, on Wednesday, October 1,
2008.

Johns Pendleton Court Reporters 800 562-1285


SAIA (VOL II), JOHN
10/1/2008
Page 2 Page 4
1 APPEARANCES:
2 1 STIPULATION
3 REPRESENTING THE PLAINTIFFS:
BRUNO & BRUNO
2
4 (BY: JOSEPH M. BRUNO, ESQUIRE)
(BY: FLORIAN BUCHLER, ESQUIRE)
3 It is stipulated and agreed by and between
5 855 Baronne Street 4 counsel for the parties hereto
New Orleans, Louisiana 70113
6 504-525-1335 5 that the deposition of the aforementioned
- AND-
7 THE GILBERT FIRM, LLC
6 witness is hereby being taken under the
8
(BY: ELISA T. GILBERT, ESQ.
BRENDAN R. O'BRIEN, ESQ.)
7 Federal Rules of Civil Procedure, for all
9
325 E. 57th Street
New York, New York 10022
8 purposes, in accordance with law;
212-286-8503 9 That the formality of reading and signing
10 - AND-
ELWOOD C. STEVENS, JR., APLC 10 is specifically not waived;
11 (BY: ELWOOD C. STEVENS, JR., ESQ.)
1205 Victor II Boulevard
11 That the formalities of certification and
12 Morgan City, Louisiana 70380
- AND-
12 filing are specifically waived;
13 O'DONNELL & ASSOCIATES, PC
(BY: PIERCE O'DONNELL, ESQUIRE)
13 That all objections, save those as to the
14 550 South Hope Street, Suite 1000 14 form of the question and the responsiveness of
Los Angeles, California 90071
15 15 the answer, are hereby reserved until such
16 REPRESENTING THE UNITED STATES OF AMERICA:
UNITED STATES DEPARTMENT OF JUSTICE,
16 time as this deposition, or any part thereof,
17 TORTS BRANCH, CIVIL DIVISION
(BY: ROBIN SMITH, ESQ.
17 may be used or sought to be used in evidence.
18 CONOR KELLS, ESQ. 18
JEFF EHRLICH, ESQ.)
19 P.O. Box 888 19 * * * *
Benjamin Franklin Station
20 Washington, D.C. 20044 20
202-616-4289
21 21 ROGER D. JOHNS, RDR, CRR Certified Court
22
REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS.
22 Reporter, for the State of Louisiana,
23 CORPS OF ENGINEERS, OFFICE OF COUNSEL
(BY: DAVID DYER, ESQUIRE)
23 officiated in administering the oath to the
24 7400 Leake Avenue 24 witness.
New Orleans, Louisiana 70118-3651
25 504-862-2843 25
Page 3 Page 5
1 1 INDEX
APPEARANCES CONTINUED: 2 PAGE
2 3 Exhibit 7................................... 7
3 4 ER-1105-2................................... 7
REPRESENTING WASHINGTON GROUP INTERNATIONAL: 5 507......................................... 7
4 STONE PIGMAN WALTHER WITTMANN, L.L.C. 6 AFW-180000001624............................ 8
(BY: WILLIAM D. TREEBY, ESQUIRE) 7 AFW-180000001592............................ 9
5 546 Carondelet Street 8 8.......................................... 94
New Orleans, Louisiana 70130 9 NOP-0022282 through 2290.................. 115
6 504-581-3200 10 Exhibit 10................................ 140
7 11 Saia Exhibit 11........................... 142
8 APPEARING ALSO PRESENT: 12 12........................................ 146
9 DARCY DECKER, ESQ. 13 1556...................................... 148
10 RYAN MALONE, ESQ.,
14 Bates stamp 1556 to 1630.................. 149
11 TIANA CHRISTOPHER, ESQ.
12 GREGORY MILLER
15 Exhibit 9................................. 154
13 16 NOP-01900000108 and 109................... 154
14 17 NOP-019000000852 through 865.............. 177
15 18 Exhibit 13................................ 178
16 19
17 20
18 EXAMINATION BY MS. GILBERT:................. 6
19 VIDEO BY DEPO-VUE 21 EXAMINATION BY MR. O'DONNELL:............. 119
20 GILLEY DELORIMIER EXAMINATION BY MS. GILBERT:............... 154
21 22
22 REPORTED BY: SECTION MARKED PER COUNSEL'S
23 ROGER D. JOHNS, CCR, RMR, RDR 23 INSTRUCTION................................ 24
24 CERTIFIED COURT REPORTER 24
25 STATE OF LOUISIANA 25

2 (Pages 2 to 5)
Johns Pendleton Court Reporters 800 562-1285
SAIA (VOL II), JOHN
10/1/2008
Page 6 Page 8
1 VIDEO OPERATOR: 1 Q. Regulation page what?
2 Returning to the record, it is 2 A. It's Appendix B.
3 October the 1st, 2008. The time is 3 MR. KELLS:
4 9:15 A.M. 4 Refer to it by the Bates number
5 JOHN SAIA, 5 at the right-hand corner. That'll
6 after having been duly sworn previously by the 6 probably be easier.
7 before-mentioned court reporter, did continue 7 THE WITNESS:
8 to testify as follows: 8 Oh, the Bates number. I'm
9 EXAMINATION BY MS. GILBERT: 9 sorry. Okay. The Bates number would
10 Q. Good morning, Mr. Saia. 10 be where it starts.
11 A. Good morning. 11 EXAMINATION BY MS. GILBERT:
12 Q. Am I saying it correctly now? Sort 12 Q. Okay.
13 of? 13 A. It is AFW-180, five zeroes, 1624.
14 A. Yes. That's correct. 14 Q. Right. And what --
15 Q. Close enough for -- 15 A. On page B-2, under paragraph 1500.3,
16 A. Whatever. 16 indicates that each -- each agency is to
17 Q. You'll just answer to anything 17 establish for formal procedures, and basically
18 today. 18 that was done for the Corps of Engineers, was
19 You realize that you're still 19 done by the Corps of Engineers as part of
20 under oath from yesterday's deposition; is 20 ER-507.
21 that correct? 21 Q. Okay. So this is the regulation
22 A. Yes. 22 that gives the agency the authority to create
23 Q. Okay. And you realize also that -- 23 its own procedures?
24 And you are still here pursuant to the 30 24 A. Correct. And these are the
25 (b)(6) deposition notice that we went over 25 procedures in 507. Now, 507 kind of discusses
Page 7 Page 9
1 yesterday. 1 the District Engineer in particular, has -- is
2 A. Yes. 2 the person.
3 Q. Okay. We had a pending question on 3 Q. What page are you referring to now?
4 the record when we broke yesterday, and the 4 A. Well, there will be a number of
5 pending question on the record was for you -- 5 places I can refer. Page 3 of -- and this is
6 I was asking you if you could point out in the 6 AFW-180, five zeros, 1592.
7 exhibit that was identified as 7, marked as 7 Q. And what are you referring to there?
8 Exhibit 7, it was the ER-1105-2. No, I'm 8 A. Well, what I am saying here is that
9 sorry. Hang on. Dash 507. Where in the 9 there are a number of statements in this ER
10 document the regulation that gives the 10 that discusses the flexibility of the District
11 District Engineer a final authority to 11 Engineer and that the District Engineer is the
12 determine what is significant to include or 12 primary entity that brings the environmental
13 omit from an EIS. Did you locate that? 13 statements together, makes assessments of
14 A. Okay. There are a number of 14 overall situation relative to environmental
15 comments or statements in ER-1105-2-507 15 statements and makes a determination as to
16 relative to the District Engineer. There was 16 what is needed to be put in and to what
17 also a regulation, was based on rules and 17 extent. And I can go through some examples of
18 regulations in -- let's see -- that were 18 this.
19 attached with that that indicated that -- I 19 In paragraph B-2, it gives the
20 think it's page B-2. Do you have that? 20 District Engineer, if the District Engineer,
21 Q. One second. Here it is. Can you 21 or Division Engineer in this particular case,
22 get that, sir? Right now? Thank you. 22 is in doubt as to whether or not a statement
23 You're referring to regulation 23 should be prepared, they have the discretion
24 B-2? Or page 2? No. What page are you on? 24 to go to a higher authority in Washington. So
25 A. This here (indicating). 25 that's just one indication.
3 (Pages 6 to 9)
Johns Pendleton Court Reporters 800 562-1285
SAIA (VOL II), JOHN
10/1/2008
Page 10 Page 12
1 Q. Can you read that into the record, 1 Division Engineer is in doubt as to whether a
2 please, the section you're referring to? 2 statement should be prepared, further guidance
3 A. I am referring to paragraph B, 3 must be requested."
4 sub-paragraph 2 on page 3, "Preparation of 4 What I am saying to you is this is
5 environmental statements". At the bottom of 5 one of the number of statements that the
6 the paragraph B-2, "If the District Engineer 6 overall document indicates that the District
7 or Division Engineer is in doubt as to whether 7 Engineer has the discretion to make
8 or not a statement should be prepared, further 8 determinations on environmental assessments
9 guidance must be requested in accordance with 9 and environmental statements.
10 4-D." 10 Q. Is it --
11 Q. Doesn't that document, doesn't that 11 A. This is just one indicator of that.
12 refer to whether or not assessing the impact 12 Q. Is there any statement in this
13 of a minor action, an environmental statement 13 regulation that says that the District
14 should be required to be prepared? 14 Engineer has the final authority to determine
15 A. 4 -- 15 what is significant and to include in an
16 Q. In paragraph B-2, "should the 16 Environmental Impact Statement?
17 District Engineer determine in assessing the 17 A. As I go through this, we'll see.
18 impact of a minor action that an environmental 18 Q. Okay.
19 statement is not required, a minor action is 19 A. I mean, continue.
20 defined as one in which" and then it says "The 20 Q. In the paragraph you just pointed
21 District or Division -- If the District or 21 to, "These determinations are reversible
22 Division Engineer is in doubt as to whether or 22 should controversy or other later events
23 not --" 23 require an environmental statement to be
24 A. Where are you reading? 24 written." Doesn't that suggest to you that
25 Q. I am reading right after the 25 the District Engineer's decision is not the
Page 11 Page 13
1 sentence -- I am reading the sentence that 1 final authority?
2 follows the sentence that you referred to. 2 A. The District Engineer has the
3 A. "These determinations are reversible 3 ability to take input from Headquarters, take
4 should controversy or other later --" 4 input from the Division, and make a
5 Q. Right. And that -- Do you see that 5 determination of what needs to go in an
6 section? 6 environmental statement since he's the entity
7 A. Could you point it out here? 7 that's responsible for preparing that.
8 Q. All right. You've read the section 8 Q. But his decision is not the final
9 -- The beginning of the paragraph says -- Am 9 authority on what "significant" is, because it
10 I correct that the beginning of the paragraph 10 is a reversible decision?
11 is dealing with -- 11 A. It is a reversible decision. The
12 A. Yes. "Should the District Engineer 12 District Engineer can reverse the decision --
13 determine assessing impact of minor --" 13 Q. Anyone --
14 Q. "Actions --" 14 A. -- of what he puts it in.
15 A. "-- is not required, this 15 Q. But the District Engineer --
16 determination to effect will be placed in the 16 A. What he puts it in, with input from
17 project file." 17 the Chief of Engineers, the Division Engineer
18 Q. Okay. 18 and others.
19 A. It continues. Where you referred to 19 Q. So the District Engineer is not the
20 the paragraph right -- the sentence preceding 20 final -- I am asking specifically about the
21 the one that you quoted, says "A minor action 21 final authority to -- I understand that the
22 is defined as one which, following the 22 District Engineer has a role in determining
23 completion of an EA, it is determined not to 23 what is included in an Environmental Impact
24 have a significant impact on the quality of 24 Statement. The question I am asking you,
25 the human environment. If the District or 25 though, sir, is where in this regulation, if
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Johns Pendleton Court Reporters 800 562-1285
SAIA (VOL II), JOHN
10/1/2008
Page 14 Page 16
1 you found one, and if you didn't find a 1 We're not off the record. To go
2 specific guideline or regulation that says 2 off the record, you have to have the
3 that the District Engineer has the final 3 agreement of all Counsel.
4 authority to determine what is significant and 4 MR. SMITH:
5 not significant such that he can remove 5 We're not off the record.
6 something or tell another agency that what 6 MS. GILBERT:
7 they deem is significant is not relevant to 7 Okay. We're not off the record?
8 include in the -- then -- then that's fine. 8 Then please stop.
9 If there is one, though, point it to me, 9 MR. SMITH:
10 please. 10 I object on the same grounds.
11 MR. TREEBY: 11 MS. GILBERT:
12 I object to the form of the 12 Fine. Can you read back the
13 question -- I object to the form of 13 question?
14 the question. It's argumentative, 14 MR. TREEBY:
15 it's vague, it's unintelligible, and I 15 You might want to ask an
16 object. 16 intelligible question.
17 MR. O'BRIEN: 17 THE WITNESS:
18 You have no standing here. 18 I want a break.
19 You're here as a courtesy. 19 MS. GILBERT:
20 MR. TREEBY: 20 Now the witness is off the
21 That's not true. You don't know 21 record.
22 what you're talking about, Mr. 22 THE WITNESS:
23 O'Brien. This deposition was noticed 23 I want a break.
24 in the MRGO proceeding. My client is 24 MR. TREEBY:
25 a Defendant in the MRGO proceeding. I 25 That was a Congressional speech.
Page 15 Page 17
1 am here with every right to be here. 1 VIDEO OPERATOR:
2 MS. GILBERT: 2 Off the record, it's --
3 All right. Enough. Enough. 3 MR. SMITH:
4 MR. TREEBY: 4 You want to go off the record?
5 Well, I am responding to him. 5 MS. GILBERT:
6 MS. GILBERT: 6 Yes, he wants a speech.
7 Just enough. Enough, please. 7 VIDEO OPERATOR:
8 You have put your objection on the 8 Off the record at 9:25.
9 record. We don't have to have the 9 (Whereupon a discussion was held
10 conversation going on. Just as you 10 off the record.)
11 had your objection yesterday, I am 11 VIDEO OPERATOR:
12 telling you now I don't want this all 12 We're back on the record.
13 over the record. 13 MS. GILBERT:
14 MR. TREEBY: 14 Can we have the last question
15 You going to tell him "enough" 15 read?
16 when he tells me I don't have the 16 MR. SMITH:
17 right to be here? 17 We need an order from the Court.
18 MS. GILBERT: 18 (Requested question read back.)
19 Enough both of you. Off the 19 EXAMINATION BY MS. GILBERT:
20 record. Enough, both of you. 20 Q. Do you understand that question?
21 MR. TREEBY: 21 MR. SMITH:
22 We're not off the record. 22 And were the objections noted?
23 MS. GILBERT: 23 MS. GILBERT:
24 Stop it. Yes, we are. 24 They're noted.
25 MR. TREEBY: 25 THE WITNESS:
5 (Pages 14 to 17)
Johns Pendleton Court Reporters 800 562-1285
SAIA (VOL II), JOHN
10/1/2008
Page 18 Page 20
1 The overall ER indicates that the 1 types of -- types of actions that the District
2 District Engineer has the 2 Engineer is responsible for undertaking as
3 responsibility to prepare the 3 part of this ER.
4 document, ultimately signs the 4 Q. Okay. We'll do that. And I
5 document, it's forwarded. Now, the 5 appreciate that. But my question -- Have you
6 way things operate are that the 6 found a specific regulation that says that he
7 District Engineer takes into 7 has the final authority, or is it throughout
8 consideration, in doing that, all of 8 this document a reversible finding or a
9 the input from agencies, all the input 9 rebuttable decision?
10 from the Division, the Headquarters 10 MR. TREEBY:
11 that may have reviewed this, the whole 11 Object to the form.
12 body of people that are involved in 12 MS. GILBERT:
13 looking at the EIS. Now, the District 13 Fair enough.
14 Engineer does have a staff that 14 THE WITNESS:
15 provides him with recommendations on 15 As I indicated, I will go through
16 actions, particularly environmental 16 and discuss certain items in here to
17 actions, and they respond to the 17 explain what the District Engineer's
18 comments; they, in working with the 18 authority is. Now, I'll at this point
19 District Engineer, they rebut certain 19 give a few examples.
20 comments that they may receive from 20 EXAMINATION BY MS. GILBERT:
21 Headquarters or the Division that may 21 Q. Okay. But just --
22 be inconsistent with their information 22 MR. SMITH:
23 that they have available; they may 23 He's trying to answer your --
24 accept comments and then they 24 MS. GILBERT:
25 recommend to the District Engineer to, 25 Excuse me. I understand he's
Page 19 Page 21
1 you know, modify -- that the EIS needs 1 trying to elaborate.
2 to be modified, and the District 2 MR. SMITH:
3 Engineer will take their 3 He's trying to answer your
4 recommendations and make that decision 4 question. If you don't want to let
5 and forward the document. 5 him answer the question, then we'll
6 As you go through here, you will 6 make that in the record.
7 see over and over again in this 7 MS. GILBERT:
8 document what the District Engineer's 8 No, the question that I am asking
9 responsible -- the District Engineer 9 is --
10 is responsible for the EIS. And we 10 MR. SMITH:
11 can go through those subsequent 11 You're --
12 paragraphs pointing out some of 12 MS. GILBERT:
13 those. 13 Wait.
14 In overall, the document presents 14 MR. SMITH:
15 a view that the District Engineer is 15 He understands your question.
16 the primary person in the preparation 16 You said it twice. This is his way of
17 of the environmental document and 17 attempting to answer your question.
18 submitting it to higher authority. 18 If you're not satisfied with his
19 EXAMINATION BY MS. GILBERT: 19 answer, that's one thing. If you
20 Q. But within the document you have 20 don't want his answer, that's another
21 found nothing that says that he is the final 21 thing.
22 authority on determining significance or 22 MS. GILBERT:
23 insignificance of an action or an impact? 23 Okay, Robin. I'm entitled to a
24 A. Well, let me go through a number of 24 "yes" or "no" and then he's more than
25 them and you can see what it says about those 25 happy --
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SAIA (VOL II), JOHN
10/1/2008
Page 22 Page 24
1 MR. SMITH: 1 He's entitled to answer.
2 No, you're not entitled to a 2 EXAMINATION BY MS. GILBERT:
3 "yes" or "no". 3 Q. Mr. Saia, I'm going to rephrase the
4 MS. GILBERT: 4 question.
5 The question is -- It's a "yes" 5 Within this document, is there
6 or "no" question. Is there a portion 6 anywhere that you found that says the District
7 of this regulation or document that 7 Engineer is the final authority on determining
8 says that he is a final authority. 8 significant?
9 MR. SMITH: 9 MR. SMITH:
10 Objection. That's been asked at 10 Objection. Asked and answered.
11 least three times. 11 MS. GILBERT:
12 MS. GILBERT: 12 Not answered. Mark it and we'll
13 I know, and I haven't received an 13 move on.
14 answer yet. 14 MR. SMITH:
15 MR. SMITH: 15 Not answered because Counsel will
16 You have received an answer. 16 not let the witness finish his answer.
17 MS. GILBERT: 17 MS. GILBERT:
18 Counselor, I have not. 18 He can elaborate now on what he
19 MR. SMITH: 19 wants to talk about, but that question
20 It's not the answer that you want. 20 has not been answered.
21 MS. GILBERT: 21 MR. TREEBY:
22 No, I'm happy to get what he 22 Objection. It has been
23 wants to elaborate on, but I want to 23 answered.
24 get a "yes" or "no" answer. 24 MS. GILBERT:
25 MR. SMITH: 25 Parroting him.
Page 23 Page 25
1 Then listen to -- Then listen to 1 THE WITNESS:
2 the -- Then let him answer the 2 What I am indicating is that the
3 question. 3 overall document indicates that the
4 MS. GILBERT: 4 District Engineer does have the
5 Counselor, I asked a "yes" or 5 authority granted by this to be
6 "no" question. 6 responsible for making determinations
7 MR. SMITH: 7 on "significant" as in preparation of
8 Let him answer the question -- 8 the document. And in many cases here
9 MS. GILBERT: 9 it says the District Engineer has this
10 He can elaborate. 10 authority, that authority, so forth.
11 MR. SMITH: 11 In paragraph 3 in this document, it
12 -- in his own words. 12 says, page 3 --
13 MS. GILBERT: 13 EXAMINATION BY MS. GILBERT:
14 Counselor, -- 14 Q. What page are you on? 3?
15 MR. TREEBY: 15 A. "Prior to forwarding environmental
16 You're not entitled to a "yes" or 16 statements will be carefully reviewed by
17 "no" answer to any question unless 17 District and Division Engineers to ensure that
18 the Judge orders it. 18 the statement fully complies with requirements
19 MS. GILBERT: 19 of the regulation and references."
20 I am entitled to an "yes" or "no" 20 Q. Now, can I ask you a question about
21 question -- answer to a question. 21 that sentence?
22 MR. SMITH: 22 MR. SMITH:
23 You are not entitled to tell him 23 No, let him finish. Let him
24 how to answer the question. You're 24 finish. He's still trying to answer
25 entitled to propound the question. 25 the prior question.
7 (Pages 22 to 25)
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10/1/2008
Page 26 Page 28
1 THE WITNESS: 1 Another statement relative to
2 Operational maintenance, page 5, 2 survey reports, which are feasibility studies,
3 paragraph F-2, talks about other 3 paragraph -- paragraph 5, page 21. In the
4 actions that in operation and 4 middle of the paragraph. "It will include
5 maintenance need to be considered, 5 appropriate discussions --" This is talking
6 indicates "These actions will have 6 about the draft EIS. "It will include
7 been included in general terms under 7 appropriate discussions of project
8 the overall project statement; 8 alternatives and tentative selection of the
9 however, separate environmental 9 plan that the District Engineer considers to
10 statements will still be required for 10 provide the best balanced solution which he
11 those actions that are determined by 11 may ultimately recommend."
12 the District Engineer to significantly 12 Q. Are those all of the references that
13 affect the quality of the 13 you can point to that suggest --
14 environment." 14 A. Yeah. I don't see -- I am reading
15 EXAMINATION BY MS. GILBERT: 15 this. I don't see where it indicates that any
16 Q. And where are you? I'm sorry. 16 other authority has, in this document, further
17 A. This is at the bottom -- 17 oversight. There's oversight of the District
18 Q. I'm sorry. 18 Engineer. But rejection of the document, it
19 A. -- of page 5. 19 doesn't say it in this particular document. I
20 Q. 2. 20 don't see it unless you can point that out to
21 A. "Revising or supplementing 21 me.
22 statements", page -- page 8. Paragraph 7. 22 Q. Is it the Corps' position that the
23 "Whenever necessary, an appropriate revision 23 District Engineer's determination of what is
24 or supplement to a final environmental 24 significant is unreviewable by any other
25 statement on file with CEQ shall be prepared 25 agency?
Page 27 Page 29
1 by the District Engineer." That gives the 1 A. No.
2 responsibility for the preparation to the 2 Q. Okay.
3 District Engineer. 3 A. The District Engineer's report, the
4 Page 16, "Public review". "When 4 draft report is circulated for review to many,
5 significant environmental impacts --" This is 5 many agencies, to stakeholder groups, NGOs, to
6 the bottom where it says "Public review". 6 -- to not only Federal, but state agencies,
7 16-E. This is relative to public meetings. 7 local agencies, and individuals. And he
8 "When significant environmental impacts on 8 receives all of those comments and responds to
9 public concerns have become apparent, 9 them, and staff work within the Corps of
10 subsequent to the last public meeting 10 Engineers to respond to those comments. And
11 reporting officer will determine -- reporting 11 they are attached to the document as an
12 officers will determine whether a public 12 appendix in the final EIS. And some of those
13 meeting should be held prior to or during 13 -- some changes are made to the EIS as -- as
14 coordination of the statement." The reporting 14 deemed necessary and others are not.
15 officer is the District Engineer who is 15 Q. And who does it get submitted to
16 responsible for the preparation of the 16 ultimately in the Corps' opinion?
17 environmental statement. 17 A. The final and the draft are reviewed
18 Okay. Page 20, paragraph 16. 18 -- can be reviewed by the Division office,
19 "Environmental statements will be prepared by 19 the Headquarters office, and ultimately the
20 the officer", and it defines the officer as 20 statement is filed with CEQ.
21 normally the District Engineer, "initially 21 Q. And has the CEQ or any of these
22 preparing the recommendations report." The 22 other agencies ever rejected the opinion of
23 initiating officer is recognized as the 23 the District Engineer and said that a finding
24 responsible Federal official within the means 24 of no significance is actually incorrect or
25 of section whatever of NEPA. 25 that something that is significant was not
8 (Pages 26 to 29)
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SAIA (VOL II), JOHN
10/1/2008
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1 included in the report? 1 Q. When the District Engineer receives
2 A. The agencies can make comments at 2 the comments after he submits his -- the Draft
3 that point, because it's sent out for 3 Environmental Impact Statement to these
4 Washington level review and they can make 4 agencies and reviewing authorities, what is
5 comments relative to the adequacy. 5 his -- what is the scope of his responsibility
6 Q. So the District Engineer's decision 6 with regard to what to do with those
7 is not the final decision on what is adequate 7 comments?
8 to include in an Environmental Impact 8 A. Give me that again.
9 Statement? 9 Q. When he receives -- When the
10 MR. SMITH: 10 District Engineer receives the comments after
11 Objection. 11 review from the reviewing agencies, what is
12 THE WITNESS: 12 the scope of his obligation with regard to
13 The comments -- 13 reviewing those comments?
14 MR. SMITH: 14 A. Okay. When the District Engineer
15 Asked and answered. Go on. 15 receives comments from agencies, he's
16 THE WITNESS: 16 responsible for looking at them and making a
17 The -- Well, you know, there are 17 determination of what -- if the EIS needs to
18 comments that can be provided by the 18 be changed and make appropriate changes if he
19 agencies. Now, does the District 19 deems it as appropriate.
20 Engineer or the Corps of Engineers 20 Q. Does he have an obligation to
21 need to change based on that? The 21 answer?
22 Corps of Engineers' responsibility is 22 A. Yes, he does.
23 to look at the overall comments. 23 Q. And in the Final Environmental
24 There are pluses and minuses, you 24 Impact Statement does he have an obligation to
25 know. Some want an item added, some 25 discuss in detail the comments that he has
Page 31 Page 33
1 want an item deleted, whatever. But 1 deemed are unadopted that he -- Withdrawn.
2 the agencies can -- can comment 2 Let me rephrase the question so that -- I need
3 relative to the adequacy. 3 to see the question.
4 EXAMINATION BY MS. GILBERT: 4 Okay. The question, I am going to
5 Q. And does anyone beyond the agencies 5 rephrase the question, Mr. Saia.
6 have the ability to advise the District 6 In the final impact statement,
7 Engineer that the Environmental Impact 7 does the District Engineer have an obligation
8 Statement that they have submitted is 8 and a duty to discuss and comment in detail
9 inadequate? 9 his analysis of the reviewing agencies'
10 A. Agencies do do that. EPA has a 10 comments?
11 ranking that they use. They, you know, -- I 11 MR. SMITH:
12 can't recall the terms that they use, but they 12 Objection. Vague. This is all
13 have a ranking of acceptable, not acceptable 13 comments of every agency? Is that --
14 from their perspective. 14 EXAMINATION BY MS. GILBERT:
15 Q. And when that gets submitted further 15 Q. The commenting agencies. The
16 up the line of the decision-making chain, does 16 agencies that have commented on -- that he
17 anyone else have the ability to send the EIS 17 submitted the reports to and they have made
18 back to the District Engineer after he has 18 comments, does he have an obligation to
19 reviewed the comments and say "This is an 19 discuss and analyze in detail his rationale
20 inadequate Environmental Impact Statement. Go 20 for adopting or rejecting their comments.
21 back and do it again"? 21 MR. SMITH:
22 A. The Headquarters has comments, they 22 Also object as to vagueness in
23 can send them back to the District Engineer 23 detail.
24 for the evaluation of the District Engineer 24 THE WITNESS:
25 and it would be reviewed again. 25 Give me a couple of minutes --
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1 EXAMINATION BY MS. GILBERT: 1 paragraph -- to page 19, paragraph 15-A. "A
2 Q. Sure. 2 statement of findings will accompany the Final
3 A. -- and I'll find the paragraph that 3 Environmental Impact Statement. A statement
4 relates. 4 of findings for regulatory --" That's not
5 Q. Can I direct your attention, Mr. 5 relevant. Then at paragraph A, "On continuing
6 Saia, to the paragraph? Would you like me to? 6 construction and operation and maintenance
7 A. Okay. 7 projects, the statement of finding will
8 Q. On page 11, paragraph 4 -- G-4. 8 accompany the final environmental statement
9 A. Yeah, they're -- This is one. And 9 after agency and public review comments on the
10 there are a number of other places in here 10 draft has been considered and the final
11 discusses the coordination. Yeah. This says 11 statement then is forwarded to the Division
12 "Comments received in response to the draft 12 Engineer. The statement of findings will be
13 statement are to be included in the final 13 signed," blah, blah, blah.
14 environmental statement", as I had indicated. 14 Does that suggest that the --
15 It says "See appendix C, paragraph 4-K-4," 15 A. Let me read it again, please.
16 "Comments can be summarized by topic with 16 Q. Go ahead.
17 appropriate responses. All comments received 17 A. Okay. I would like to have time to
18 must be given consideration --" 18 look at this a little bit more thoroughly. I
19 Q. "Full consideration". 19 want to refer -- Do we have available
20 A. "Full consideration". 20 1105-2-509? It's an old ER obviously.
21 Q. "And analysis"? 21 Q. I don't have it physically here.
22 A. "And analysis". 22 Does the Corps have it?
23 Q. "And irreconcilable or opposing 23 A. I do.
24 views must be included in the final 24 MR. SMITH:
25 environmental statement and fully addressed"? 25 We can look.
Page 35 Page 37
1 A. Yes. 1 THE WITNESS:
2 Q. Okay. 2 Somewhere in the archives. If we
3 A. It's included as an appendix to the 3 do have it, I would like to spend a
4 environmental statement as I had indicated. 4 few minutes going over that.
5 Q. Does that suggest that the District 5 EXAMINATION BY MS. GILBERT:
6 Engineer has the ability or the discretion to 6 Q. Okay. Maybe we'll come back to that
7 omit comments and analysis of the discretion 7 then and I will have the -- I'll remember to
8 -- of the reviewing agencies? 8 come back to it so we can continue at this
9 A. No. 9 time.
10 Q. Just give me one second. Mr. Saia, 10 But at this moment, without going
11 to the extent that the Corps determines that 11 and reviewing additional documentation, you're
12 some impacts are not significant, does the 12 not able to answer that question, the pending
13 Corps have an obligation to include a 13 question; correct?
14 statement of finding regarding its 14 A. I want to be able to look at that
15 determination of "significant"? 15 regulation which relates to a statement of
16 A. To write a statement of findings? 16 findings that clarifies my response.
17 Q. Yes. 17 Q. I understand that. Just so that we
18 A. Or what are you -- 18 can move on to the next question, at this
19 Q. To include a statement of findings 19 time, --
20 of significance in the Environmental Impact 20 A. Yes.
21 Statement. 21 Q. -- without reviewing and referring
22 A. Okay. There is a discussion of 22 to other documentation, you personally can't
23 statement of finding in here. Let me see if I 23 that question at this time?
24 can find it here. 24 A. I'd prefer not to. Yes.
25 Q. I'll direct your attention to 25 Q. I'm going to direct your attention,
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1 if you would, back to the Final Environmental 1 EXAMINATION BY MS. GILBERT:
2 Impact Statement. I don't remember what 2 Q. Do you see that portion of the
3 exhibit number it was. 4ish. Do you have the 3 letter?
4 document? Do you have the document, sir? 4 A. We have the micro version.
5 A. Yes, I do. 5 MS. GILBERT:
6 Q. Okay. 6 Oh, my God. What did you guys
7 A. What were you referring to? 7 do? You guys mini-scripted the -- Can
8 Q. I would like to refer you to the 8 you give him the bigger version?
9 "Comment", the "Review and comment" section 9 MR. SMITH:
10 of the Final Environmental Impact Statement, 10 Yes.
11 specifically to page 11 of section 9. The 11 MS. GILBERT:
12 EPA's letter to the Corps regarding the Draft 12 Can we go off the record a
13 Environmental Impact Statement that was 13 second?
14 submitted for comment. 14 (Whereupon a discussion was held
15 A. Uh-huh (affirmatively). 15 off the record.)
16 Q. In response to the Draft 16 MS. GILBERT:
17 Environmental Impact Statement, the EPA 17 Back on.
18 commented that the draft statement should 18 MR. SMITH:
19 discuss associated long-term project-induced 19 This is the original. I don't
20 impacts resulting from the construction of the 20 know why. You have a copy. If you're
21 Mississippi River Gulf Outlet system in more 21 more comfortable with what you've got.
22 detail. While construction of the project has 22 THE WITNESS:
23 resulted in serious primary environmental 23 Refer to the paragraph.
24 impacts, e.g., loss of approximately 23,000 24 EXAMINATION BY MS. GILBERT:
25 acres of marsh, severe secondary impacts have 25 Q. Back on the record. I'm sorry.
Page 39 Page 41
1 also occurred. For example, construction of 1 It's paragraph -- It's section 9.
2 the MRGO has resulted in a modified water 2 A. I know where that is. I have the
3 regime in the Lake Borgne Pontchartrain system 3 letter.
4 thereby disrupting extremely productive 4 Q. Okay. We're looking at "The draft
5 biological community. Specifically, channel 5 statement should discuss associated long-term
6 construction and dredge material placement 6 --"
7 have altered the hydrology and water chemistry 7 A. Which paragraph number?
8 of adjacent estuarine and wetland areas. At 8 Q. The EPA on July 26.
9 present the MRGO provides an open water 9 MR. SMITH:
10 channel for ingress and egress of tidal 10 It's 11-12.
11 water. Saltwater intrusion and associated 11 THE WITNESS:
12 increases in the salinity level have been 12 Oh, on 11-12.
13 well-documented and are in part responsible 13 MR. KELLS:
14 for wetland and estuary deterioration in the 14 9-12.
15 project area." Do you see that section? 15 MR. SMITH:
16 MR. SMITH: 16 9-12.
17 What page is that? I'm sorry. 17 THE WITNESS:
18 MS. GILBERT: 18 9-12. Okay. So it's the next
19 11. 9? 19 page. Okay.
20 MR. KELLS: 20 Oh, here it is.
21 9-11. 21 MR. SMITH:
22 MS. GILBERT: 22 The second paragraph on the first
23 Oh, it's section 9, page 11. 23 column. Would you be more comfortable
24 THE WITNESS: 24 with this, John? This is bigger and
25 Okay. 25 it's easier to read.
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1 THE WITNESS: 1 regulation we just read, to fully comply -- to
2 No, this is fine. 2 fully analyze and respond to that comment
3 Okay. Paragraph 2. "The 3 based on what we have just went through on
4 composite statement addresses --" 4 that regulation?
5 EXAMINATION BY MS. GILBERT: 5 A. Yes.
6 Q. It's the second -- It's paragraph 3, 6 Q. Okay. Are you aware that the Corps'
7 the second part of paragraph 3 on page 2 of 7 response to that comment was that construction
8 the letter. At 9-12. 8 of the MRGO resulted in certain recognized
9 A. Paragraph 3 talks about sediment 9 socioeconomic and environmental changes?
10 data? 10 MR. SMITH:
11 Q. It's the second paragraph of part -- 11 Counsel, why don't you just read
12 you know, it's a two -- 12 -- show him where you're reading if
13 A. 3. 13 you're reading something from the
14 Q. Right. It's the lower, the second 14 document.
15 paragraph. 15 MS. GILBERT:
16 A. The draft statement. 16 Yes.
17 Q. Right. Do you see that section? 17 MR. KELLS:
18 A. Right here. 18 9-3, John.
19 Q. The second paragraph? Yes. 19 MS. GILBERT:
20 A. The second paragraph, "The draft 20 9-3.
21 statement --" 21 THE WITNESS:
22 Q. Right. Right. Right. 22 It's in the comment -- response
23 A. "-- should discuss the issue of 23 to comments.
24 long-term project-induced --" 24 MR. KELLS:
25 Q. Right. 25 The top of the page.
Page 43 Page 45
1 A. "-- impacts resulting from the 1 EXAMINATION BY MS. GILBERT:
2 construction of --" Okay. 2 Q. The Corps' response was that there
3 Q. Does that suggest that the EPA 3 were certain recognized socioeconomic and
4 considered it significant to include 4 environmental changes?
5 references to the loss of marsh, of 2,300 5 A. Uh-huh (affirmatively).
6 acres of marsh -- 6 Q. What were the recognized
7 A. 23 -- 7 environmental changes that the Corps is
8 Q. -- as a serious primary environment 8 referring to?
9 -- 23,000. 9 A. I would have to go back and
10 A. Thousand. 10 thoroughly review to tell you that at that
11 Q. Sorry. Acres of marsh as a serious 11 time, what they did at that time.
12 primary environmental impact of the project as 12 Q. But this is the direct response and
13 well as references to saltwater intrusion and 13 analysis of the comment made by the EPA;
14 salinity level's further impact on the 14 correct?
15 wetlands? 15 A. That would be construction of MRGO
16 MR. SMITH: 16 resulted in certain recognized socioeconomic
17 Objection. Calls for 17 and environmental changes. A broad statement
18 speculation. 18 as to what -- response to what EPA included in
19 EXAMINATION BY MS. GILBERT: 19 their comment.
20 Q. Is that what it says? 20 Q. But there is no analysis of what the
21 A. It says what you read. 21 EPA's comment is or what that recognized
22 Q. Okay. So the -- 22 environmental change is in response to the
23 A. It's their comment. 23 comment?
24 Q. And the Corps' response -- And the 24 A. Further, it says here "This
25 Corps was obligated, pursuant to the 25 environmental statement --" The purpose of
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1 the environmental statement was the 1 MR. SMITH:
2 operations, not the construction. And that 2 I object to the --
3 was the response. Yes, it is recognized that 3 MR. TREEBY:
4 there were issues relative to the 4 I object to the form of the
5 construction. And it says the construction of 5 question.
6 the MRGO versus the operation. The intent was 6 MR. SMITH:
7 to have an EIS prepared for operations. 7 I object to the form of the
8 Q. Okay. But does it also acknowledge 8 question. It's vague.
9 that the secondary impacts of the construction 9 EXAMINATION BY MS. GILBERT:
10 are still underway and continue? 10 Q. Okay. I'll rephrase the question
11 A. It does indicate secondary impacts 11 then.
12 are underway. 12 Would you believe that, based on
13 Q. Did it describe and analyze what the 13 the Corps' obligation to fully analyze and
14 secondary impacts are in its response to that 14 discuss the comments from the reviewing
15 comment? 15 agencies, that there should have been a full
16 A. I would imagine that was discussed 16 analysis of the primary and secondary impacts
17 in the report. 17 that the EPA raised as significant in its
18 Q. Why would you imagine that, and 18 comments?
19 where would it be found if not in response to 19 MR. SMITH:
20 the comment? 20 Objection.
21 A. I would need time to look at the 21 MR. TREEBY:
22 overall report again to see where they 22 Object to the form of the
23 discussed secondary impacts. 23 question.
24 Q. So it would be required that the 24 MR. SMITH:
25 Corps respond and include an analysis of the 25 Vague as to whether the comments
Page 47 Page 49
1 secondary impacts that are still underway; 1 pertain to construction or operation
2 correct? 2 and maintenance.
3 A. I am not sure of that. I will go 3 MR. TREEBY:
4 back, refer back to the regulation. That does 4 Object on other grounds to the
5 address secondary impacts. I'll have to find 5 form.
6 the section. 6 THE WITNESS:
7 Q. But if the Environmental Protection 7 What I believe is that the
8 Agency has raised a comment that it believes 8 District Engineer responded to the
9 is significant, just going with your -- with 9 comment and it's included in this
10 the regulation, the environment -- the 10 document.
11 reviewing agency has commented that it 11 EXAMINATION BY MS. GILBERT:
12 perceives that it's significant that the Draft 12 Q. It's included somewhere in the Final
13 Environmental Impact Statement does not 13 Environmental Impact Statement? Or is this
14 contain an analysis of the primary and 14 its response?
15 secondary impacts that are underway with 15 A. This is the response. There may be
16 regard to saltwater intrusion and associated 16 other things like -- that were put in,
17 salinity levels that are in part responsible 17 modified. I would have to compare -- go back
18 for wetland and estuary deterioration, altered 18 and compare, you know, the two documents, the
19 hydrology and water chemistry, and the loss of 19 draft and the final. But this -- this is the
20 approximately 23,000 acres of marsh, and the 20 appropriate response as determined at that
21 response to the comment is that recognized 21 time by the District Engineer and his staff.
22 environmental changes and secondary impacts 22 And again, I might say, this is an operations
23 are still underway, why would you believe that 23 project. It is not the construction project.
24 there was more of an analysis than that in the 24 Q. Can I refer you back to page 17 of
25 report? 25 the Exhibit 7 I guess it was. What was it we
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1 called it? 7. 1 addresses operation and maintenance.
2 A. The ER-507? 2 EXAMINATION BY MS. GILBERT:
3 Q. Yes. 3 Q. Okay.
4 A. Okay. 4 A. Now, --
5 Q. Do you want to look at page 17, 5 Q. What was it?
6 please, of the document? According to the 6 A. -- to me --
7 ER-1105-2-507, paragraph 13-B -- 1-B, 7 MR. SMITH:
8 "Authorized project", would the -- wouldn't 8 Just -- I would just like to make
9 the Corps have been responsible to have -- 9 an objection to this whole line of
10 hang on -- for projects that were recommended, 10 questioning. This is all designed to
11 authorized or under construction prior to the 11 get a legal opinion from this witness
12 National Environmental Policy Act of 1969. 12 as to what the Corps was or was not
13 The opportunity to study and evaluate a full 13 legally required to include in an
14 range of alternatives may have been more 14 EIS. This witness is not a lawyer.
15 limited; however, to the extent feasible, 15 He's a man who, as part of his job,
16 alternative solutions and opportunities for 16 prepared EISs, and you're going
17 environmental enhancement, preservation, 17 through the ER line by line and asking
18 restoration, and mitigation will be 18 him to say what had to be included in
19 investigated prior to preparation of a 19 this EIR and what -- EIS or what did
20 statement. Regardless of the level at which 20 not have to be in this EIS.
21 formal coordination is to take place, 21 MS. GILBERT:
22 reporting officers will carefully examine and 22 Okay. Are you done with your
23 evaluate in coordination with appropriate 23 objection?
24 Federal, state, and local agencies and the 24 MR. STEVENS:
25 public the environmental impact of all 25 Just let it be continuing.
Page 51 Page 53
1 reasonable alternatives prior to preparing a 1 MS. GILBERT:
2 recommendation for an environmental 2 You can maintain your continuing
3 statement." So therefore, the fact that the 3 objection. And I will also point out
4 MRGO construction was done prior to the 4 that he's not just a man who once
5 enactment of NEPA does not mean that the Corps 5 worked with the Corps. He's the
6 was not obligated to discuss the primary and 6 Corps' designated 30 (b)(6) witness on
7 secondary impacts of the operation and 7 the EIS, the procedures for complying
8 maintenance of the MRGO as it related to the 8 with NEPA with regard to the
9 environmental impact? 9 Environmental Protect- -- National
10 MR. TREEBY: 10 Environmental Policy Act with regard
11 Objection to the form of the 11 to the MRGO specifically. There's
12 question. 12 only one document. To the extent that
13 MR. SMITH: 13 the regulations and the Corps'
14 Objection to the form. 14 policies comply, this is what the
15 MS. GILBERT: 15 witness is here to talk about. If he
16 I'm sorry, operation and 16 can't answer the question, that's not
17 maintenance. I withdraw -- I correct 17 because he's just a man who has, you
18 that. 18 know, personal knowledge and he's here
19 MR. TREEBY: 19 to tell us nicely what he has to say.
20 Object to the corrected question. 20 I understand your objection. It can
21 MR. SMITH: 21 stay continuing on the record. And I
22 I also object. 22 disagree with your objection.
23 THE WITNESS: 23 MR. SMITH:
24 On the same page -- On the page 24 Are you done?
25 -- the same page, paragraph C 25 MS. GILBERT:
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1 Yes, now I am. 1 Q. Is it your understanding that the
2 MR. SMITH: 2 Corps is obligated to do so?
3 We can bring a lawyer in if you 3 A. Are you referring to paragraph B?
4 want to go through the legal 4 Q. Yes.
5 ramifications of all the legal 5 A. I'm concerned here, because we have
6 documents. 6 been talking about operation and maintenance,
7 MS. GILBERT: 7 and operation and maintenance is not paragraph
8 We're actually going to probably 8 B. It's paragraph C.
9 bring to it a Judge at some point and 9 Q. Understood. The construction
10 the Judge will decide. 10 projects are discussed in paragraph B. And we
11 MR. SMITH: 11 will discuss also how the paragraph C
12 That's exactly my point. 12 addresses operation and maintenance. But for
13 MS. GILBERT: 13 projects that are under construction prior to
14 Eventually. But we'll use the 14 NEPA, does paragraph B require that the Corps
15 Corps' position -- 15 discuss the primary and secondary
16 MR. SMITH: 16 environmental impacts of the continued
17 This is a legal question that 17 operation and maintenance of a project that
18 will be decided by the Court, not by 18 was constructed prior to NEPA?
19 this witness. 19 A. What I -- What I see here is that on
20 MS. GILBERT: 20 projects that were recommended, authorized, or
21 We want to know what the Corps' 21 under construction, that there's some action
22 position on these subjects are, that's 22 going on relative to it. Then you -- you
23 what the 30 (b)(6) is here for, and 23 would pursue an EIS.
24 that's what we're asking. 24 Q. They were authorized --
25 THE WITNESS: 25 A. They haven't been constructed yet.
Page 55 Page 57
1 Can we step out? 1 Q. Recommended, authorized, or under
2 MR. SMITH: 2 construction prior to 1969.
3 Sure. Off the record. 3 A. I don't see it says in here that you
4 MS. GILBERT: 4 do an EIS on a completed action. I am not
5 Off the record. 5 clear on that.
6 VIDEO OPERATOR: 6 Q. Okay. Does that section require
7 Off the record, it's 10:19. 7 that the Corps evaluate -- shall evaluate
8 (Recess.) 8 alternative solutions and opportunities for
9 VIDEO OPERATOR: 9 environmental enhancement, preservation,
10 Returning to the record, it's 10 restoration, and mitigation prior to
11 10:35. 11 preparation of a statement?
12 EXAMINATION BY MS. GILBERT: 12 A. Okay. It says "However, to the
13 Q. Mr. Saia, I believe that we left the 13 extent feasible, alternative solutions and
14 last -- before the break we were discussing 14 opportunities for environmental enhancement,
15 the obligation under the regs for the Corps to 15 preservation, and restoration and mitigation
16 discuss the environmental impact of operation 16 will be investigated prior to preparation of
17 and maintenance for projects that were 17 the statement."
18 authorized prior to NEPA, but the Corps was 18 Q. Okay.
19 still obligated to discuss the primary and 19 A. So --
20 secondary environmental impacts in an EIS. 20 Q. So --
21 MR. SMITH: 21 A. -- that's what it says.
22 Is there a question? 22 Q. Okay. So the Corps would be
23 MR. KELLS: 23 obligated to, to the extent feasible, discuss
24 Is there a question? 24 alternative solutions and opportunities for
25 EXAMINATION BY MS. GILBERT: 25 environmental enhancement, preservation and
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1 restoration and mitigation in their 1 do have another paragraph that discusses
2 statement. 2 operation and maintenance.
3 MR. SMITH: 3 Q. So you do not believe that it
4 Objection. 4 applies. Is that your answer?
5 THE WITNESS: 5 A. I don't believe it applies.
6 For that -- 6 Q. Okay. So let's discuss the second
7 MR. SMITH: 7 paragraph, C, operation and maintenance. Does
8 Assumes -- 8 the Corps -- Is the Corps obligated to
9 THE WITNESS: 9 consider all significant effects on the
10 Sorry. For -- It doesn't say 10 environment and comply with all legal
11 that for operation and maintenance. 11 requirements in preparing an EIS that deals
12 When referring to operation and 12 with the operation and maintenance of the
13 maintenance, there's another paragraph 13 MRGO?
14 that addresses operation and 14 A. That's what it says here. It says
15 maintenance. This addresses another 15 "In development of plans for operation,
16 category. 16 maintenance and management activities,
17 EXAMINATION BY MS. GILBERT: 17 consider all significant effects on the
18 Q. So it's your understanding that the 18 environment and comply with all legal
19 Corps would not have an obligation with regard 19 requirements."
20 to the MRGO to discuss the -- to investigate 20 Q. Does it also say that "The Corps is
21 the alternative solutions and opportunities 21 obligated to include alternative uses,
22 for environmental enhancement, preservation, 22 available resources when the proposed O&M
23 restoration, and mitigation prior to 23 activity will change the quality of the
24 presenting an EIS, because that only relates 24 environment, modify the beneficial uses of the
25 to the construction phase of a project? 25 environment, or serve some purposes to the
Page 59 Page 61
1 A. What I am saying is the operation 1 disadvantage of other environmental goals"?
2 and maintenance procedures apply here. This 2 A. Assume you read it properly.
3 ER is explicit in categorizing the different 3 Q. Okay.
4 types of actions and has also regulatory in 4 A. It says "Such considerations
5 here and it gives different guidance or 5 different from those for a project in planning
6 procedures on those. I am saying that if 6 status and discussion should be addressed.
7 we're talking about the operation and 7 Only the environmental effects of operation of
8 maintenance, then we got to look to the 8 the project, and ongoing O&M programs include
9 procedures for operation and maintenance. 9 alternative uses of available resources when
10 Q. Okay, Mr. Saia. 10 the proposed O&M activity will change the
11 A. So if they have that same statement 11 quality of the environment, modify the
12 in here, then it applies. 12 beneficial uses of the environment, or serve
13 Q. So, Mr. Saia, is it your testimony 13 some purpose to the disadvantage of other
14 then that the section of this regulation 14 environmental goals."
15 regarding authorized projects that were 15 Q. So in the Environmental Impact
16 recommended and authorized or under 16 Statement, the Final Environmental Impact
17 construction prior to enaction of the 17 Statement for operation and maintenance that
18 Environmental Policy Act of 1969 does not 18 was prepared in 1976, the Corps was obligated
19 apply to the Final Environmental Impact 19 to include alternative uses of available
20 Statement that was prepared by the Corps in 20 resources when the proposed O&M activity will
21 1976 because that impact statement relates to 21 change the quality of the environment, modify
22 operation and maintenance, and this paragraph 22 the beneficial uses of the environment, or
23 regarding authorized projects does not apply 23 serve some purposes to the disadvantage of
24 to operation and maintenance? 24 other environmental goals; correct?
25 A. I don't see it applying because we 25 A. It says what it says.
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1 Q. And that would apply to the 1976 1 wetlands area and the need for their
2 MRGO Final Environmental Impact Statement for 2 preservation. The Corps, in discussing
3 operation and maintenance; correct? 3 wetlands, states, quote, 'As environmentally
4 A. This ER was in effect in 15 April of 4 vital areas, they constitute a productive and
5 '74. The environmental impact final was 5 valuable public resource, the unnecessary
6 March, 1976. 6 alteration or destruction of which should be
7 Q. So it would apply? 7 discouraged as contrary to the public
8 A. Assume it would apply. 8 interest'." And it continues, "Therefore, in
9 Q. Okay. In that, referring your 9 order to minimize the existing adverse and
10 attention back to the MRGO, the Final 10 future long-term secondary impacts of the
11 Environmental Impact Statement, the 1976, the 11 MRGO, we recommend that mitigation measures --
12 EPA's comments sent to the Corps -- 12 mitigative measures that could reduce salinity
13 A. The letter? 13 levels in the Lake Borgne Pontchartrain system
14 Q. Yes. 14 be incorporated into the operation and
15 A. Okay. 15 maintenance of the MRGO project. For example,
16 Q. Turning your attention to page 3, 16 such measures could include the completion of
17 the second paragraph from the bottom, above 17 the Seabrook lock in the Inner Harbor
18 paragraph number 4, the last paragraph in 18 Navigational Canal system, control releases of
19 section 3. On page 9 -- section 9, page 12. 19 fresh water from the Mississippi River and
20 The Corps -- The EPA notes -- 20 saltwater intrusion barriers. Without
21 A. Section 9, page 12. 21 controlled measures, saltwater intrusion and
22 Q. Correct. 22 water quality degradation will continue to be
23 A. Okay. 23 a major problem in the project area." Do you
24 Q. You there? The EPA notes in its 24 see that?
25 comments, after review of the Draft 25 A. Uh-huh (affirmatively).
Page 63 Page 65
1 Environmental Impact Statement -- 1 Q. And pursuant to the regulation that
2 A. Wait. Wait. Wait. 2 we have just gone over on paragraph 13-C --
3 MR. SMITH: 3 1-C of page 17 of the reg, those would --
4 Which paragraph are we beginning 4 would those not be alternative uses of
5 with? What's the beginning of the 5 available resources when the proposed O&M
6 paragraph? 6 activity will change the quality of the
7 MS. GILBERT: 7 environment, modify the beneficial uses of the
8 It's the paragraph that says 8 environment, or serve some purpose to the
9 "Therefore," but we're at the point 9 disadvantage of the other environmental
10 in the paragraph where -- 10 goals?
11 THE WITNESS: 11 MR. SMITH:
12 The second to the last -- 12 Object to the form of the
13 MS. GILBERT: 13 question.
14 "In order to minimize --" 14 THE WITNESS:
15 THE WITNESS: 15 Again, there's a distinction
16 Before -- The last paragraph -- 16 between the operation and
17 sub-paragraph of 3? 17 construction. The things that are
18 MS. GILBERT: 18 being talked about in the comment that
19 That's not where we're at. 19 you read from the EPA's letter relate
20 EXAMINATION BY MS. GILBERT: 20 to the construction of the project and
21 Q. I'm sorry. Hold on one second. 21 things that should be done in
22 The paragraph above that. "The 22 relationship to that. Not the
23 Army Corps of Engineers, in regulations 23 operations. That's the way --
24 published on July 22nd, 1974, has also 24 EXAMINATION BY MS. GILBERT:
25 recognized the unique qualities of the 25 Q. You understand that?
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1 A. That's the way I understand it. 1 it was presented -- the Draft Environmental
2 Q. So, in your opinion, the Corps had 2 Impact Statement was adequate as it was
3 no obligation pursuant to this section of the 3 presented to -- as it was presented for
4 regulation to address that portion of the 4 review?
5 EPA's comment? 5 A. Again, --
6 A. What I am saying is the -- this 6 MR. SMITH:
7 particular comment is not applicable to 7 Objection. It calls for
8 operation and maintenance. It's applicable to 8 speculation.
9 the constructive project. The things that may 9 MS. GILBERT:
10 have happened as a result of the constructive 10 No, it's in the EPA. It's in the
11 project, not the operation and maintenance. 11 Final Environmental Impact Statement
12 Q. So it's your position that the Corps 12 what their conclusion was.
13 would not be obligated to respond to these 13 EXAMINATION BY MS. GILBERT:
14 comments pursuant to this section of the 14 Q. Okay. I'll rephrase the question.
15 regulation because this is an O&M project? 15 Did the EPA conclude that the
16 A. That's correct. 16 Draft Environmental Impact Statement that was
17 Q. Would the Corps have a obligation to 17 submitted for review was adequate?
18 fully analyze and address their rationale for 18 MR. SMITH:
19 not addressing this comment in the Final 19 Objection. Calls for
20 Environmental Impact Statement? 20 speculation.
21 A. They -- They had a comment. They 21 THE WITNESS:
22 responded to the comments of EPA in the 22 What they said was, on page 13,
23 earlier part of this section, which they were 23 Roman numeral IX-13, the third-to-last
24 required to do. So they did respond as far as 24 paragraph of their letter, "These
25 I could see. 25 comments classify your Draft
Page 67 Page 69
1 Q. And -- 1 Environmental Impact Statement as
2 A. Page 3. 2 ER-2."
3 Q. As far as you -- 3 EXAMINATION BY MS. GILBERT:
4 A. Okay. 4 Q. And as you sit here today, you don't
5 Q. And in your opinion, the Corps' 5 know what "ER-2" means?
6 response was a full analysis of the -- get the 6 A. It -- They provided as part of their
7 phrase here -- in your opinion, it was an 7 comments an explanation of their ratings and
8 adequate response? 8 they have three ratings.
9 A. Yes. I -- I don't have -- You know, 9 Q. And what is ER-2?
10 I can't go back and see what all the 10 A. ER-2? EPA has -- "This is relative
11 discussion was at that time relative to 11 to the environmental impact of the action.
12 responding to comments. So I wasn't there at 12 Environmental reservations, EPA has
13 the time. Other than that, it appears to be 13 reservations concerning the environmental
14 an appropriate response. 14 effects of certain aspects of the proposed
15 Q. So you have no documentation 15 action."
16 regarding this fight that could enlighten us 16 Q. Okay. Continue.
17 as to how they reached the conclusion that it 17 A. "EPA believes that further study of
18 was not appropriate to address these measures 18 suggested alternatives or modifications is
19 in the Final Environmental Impact Statement? 19 required and has asked the originating Federal
20 A. I can only state what I see in the 20 agency to reassess these aspects." The other
21 regulation that relates to this comment. You 21 part is, it's a category 2. "Adequacy of the
22 have an operation and maintenance document. 22 impact statement". "EPA believes the draft
23 This is not a construction document. 23 impact statement does not contain sufficient
24 Q. Did the EPA conclude that the Final 24 information to assess fully the environmental
25 Environmental Impact Statement was adequate as 25 impact of the proposed project or action.
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1 However, from the information submitted, the 1 change in the plan or the development or
2 Agency is able to make preliminary 2 method of operation of the proposed action, a
3 determinations that -- determinations of the 3 revised Environmental Impact Statement, draft
4 impact on the environment. EPA has requested 4 and final, must be prepared and filed with the
5 that the originator provide the information 5 CEQ." Is that correct?
6 that was not included in the draft statement." 6 MR. SMITH:
7 Q. And does the EPA qualify that 7 Object to the form of the
8 category 2 as an insufficient -- as 8 question.
9 insufficient information? 9 THE WITNESS:
10 A. They indicate it as insufficient 10 You're reading from the ER?
11 information. They have three categories under 11 EXAMINATION BY MS. GILBERT:
12 both. And the last category is 12 Q. Yes, I am.
13 "Environmentally unsatisfactory" for an EU 13 A. Did you read it correctly?
14 rating in category 3, an inadequate 14 Q. Yes, I did.
15 classification. These, as I understand, were 15 A. Okay.
16 their definitions, whether it be for the Corps 16 Q. I believe I read it correctly. It
17 or any other agency. 17 is in English.
18 Q. Do you believe that the Corps 18 Does that not require that the --
19 reassessed the aspects of the suggested 19 impose the duty on the Corps to evaluate the
20 alternatives and modifications that the EPA 20 -- re-evaluate and supplement the
21 had requested further review on? 21 Environmental Impact Statement where it is
22 A. The response was put in the final 22 determined that the impact statement failed to
23 EIS, so it has been responded to. 23 disclose environmental impacts of proposed
24 Q. Okay. 24 action?
25 A. This is before response. You know, 25 MR. SMITH:
Page 71 Page 73
1 I don't know what the ultimate response was. 1 Object to the form of the
2 Q. Isn't this a Final Environmental 2 question. It's vague.
3 Impact Statement? 3 EXAMINATION BY MS. GILBERT:
4 A. Yes, it is. This is the final 4 Q. You can answer.
5 response. Correct. 5 A. Give me the comment again. Your
6 Q. So that is the final response; 6 comment again.
7 correct? 7 Q. I'm just going to read it back.
8 A. Yes, final response from the 8 MS. GILBERT:
9 District Engineer, correct. 9 Or you can read it back.
10 Q. Was that it was not appropriate for 10 (Requested question read back.)
11 it to evaluate and develop that information? 11 THE WITNESS:
12 A. Whatever it said in page 3. 12 What this paragraph discusses is
13 Q. Okay. Now, you had pointed out in 13 do you need to do a supplement if you
14 the regulations to us that the Corps District 14 take another action. Do you need to
15 Engineer was charged with the responsibility 15 supplement. They were doing an EIS
16 of revising or supplementing statements in 16 here. If you relating it to 1974,
17 paragraph 7 on page 8 of Exhibit 7. And in 17 this is an EIS. Now, somewhere
18 paragraph 7-A, under "Revising or 18 subsequent to this time, after changes
19 supplementing statements", the regulations 19 in operation and maintenance, do you
20 require that "If the Final Environmental 20 need to supplement this EIS or prepare
21 Impact Statement previously filed clearly 21 an environmental assessment to make a
22 fails to comply with the requirements of NEPA, 22 determination of whether you should
23 e.g., failed to discuss alternatives or failed 23 supplement or not. I mean, that's a
24 to disclose the environmental impacts of the 24 continuous process that's done.
25 proposed action, or if there has been a major 25 Yeah.
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1 EXAMINATION BY MS. GILBERT: 1 A. I -- I don't see how this applies in
2 Q. With regard to revising, though, 2 the time frame that you're talking about. We
3 this also is not just supplementing; it's 3 have a draft and you respond in the final. In
4 revising environmental impact statements when 4 between the draft and the final you respond.
5 it's brought to the attention that 5 That's what they did here.
6 environmental impacts have been omitted. And 6 Q. Okay. So the response that they
7 it says in this regulation that a revised 7 gave that it was not necessary for them to
8 environmental statement must be prepared. 8 further analyze the EPA's comments was
9 MR. SMITH: 9 appropriate?
10 To the extent that there's a 10 MR. SMITH:
11 question pending, I object to its 11 Objection. Asked and answered.
12 form. 12 You can ask the next question. That
13 EXAMINATION BY MS. GILBERT: 13 very question.
14 Q. If you read on further in paragraph 14 EXAMINATION BY MS. GILBERT:
15 B, it says "Whenever the Final Environmental 15 Q. Okay. Correct?
16 Impact Statement on file becomes deficient 16 A. Said that the --
17 because certain environmental effects of the 17 MR. SMITH:
18 project were not discussed or the design 18 Why don't we just move on. Let's
19 features of the project's purposes were 19 just move on here. Can we move on?
20 modified significantly subsequent to the 20 EXAMINATION BY MS. GILBERT:
21 filing of the original impact statement, an 21 Q. Can you just answer the question and
22 appropriate supplement to the final 22 we'll move on?
23 environmental statement shall be prepared." 23 MR. SMITH:
24 That deals with supplementation. The first 24 Can we move on? We went through
25 paragraph deals with revisions also. So when 25 this all for eight hours yesterday.
Page 75 Page 77
1 the EPA advised the Corps that it perceived 1 We went through the same thing.
2 that environmental impacts of the operation 2 MS. GILBERT:
3 and maintenance of the MRGO required -- were 3 We did not go through this same
4 omitted from the draft EIS, an insufficient 4 thing eight hours yesterday. We did
5 analysis was necessary, does this regulation 5 not even address this portion of the
6 require that the Corps provide that? 6 EIS yesterday.
7 A. You -- 7 MR. SMITH:
8 MR. SMITH: 8 Okay. I'm sorry. I meant this
9 I'm going to object. This is 9 form of questioning went on for eight
10 argumentative. 10 hours yesterday.
11 EXAMINATION BY MS. GILBERT: 11 MS. GILBERT:
12 Q. Okay. 12 Okay. Well, --
13 MR. SMITH: 13 MR. SMITH:
14 This applies by its terms to EISs 14 On other topics. And if --
15 previously filed. 15 MS. GILBERT:
16 MS. GILBERT: 16 That's right.
17 Not necessarily. But you -- 17 MR. SMITH:
18 MR. SMITH: 18 -- we're going to continue with
19 By its terms it does. 19 this for eight hours today, I'm going
20 MS. GILBERT: 20 to go to the Judge. Because reading
21 I note your objection. 21 the witness something and then asking
22 MR. SMITH: 22 him if it says what it says --
23 It says "previously filed". 23 MS. GILBERT:
24 EXAMINATION BY MS. GILBERT: 24 Robin, --
25 Q. "Revising when necessary --" 25 MR. SMITH:
20 (Pages 74 to 77)
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1 -- is a waste of everybody's 1 do you have a specific paragraph?
2 time. 2 Q. "The Department of Commerce also
3 MS. GILBERT: 3 commented to the Corps that it failed to
4 Okay. You can take your 4 address marsh deterioration resulting from
5 position, and if you want to go to the 5 saltwater intrusion as a significant impact on
6 Judge, you're perfectly at liberty to 6 its -- of the operation and maintenance of the
7 do that. 7 MRGO in this draft."
8 MR. SMITH: 8 A. Could you refer to a paragraph
9 I will. 9 number or --
10 MS. GILBERT: 10 Q. It's the page 2.
11 You're an attorney. Go right 11 A. Page 2.
12 ahead. 12 Q. Under 2.03.
13 MR. SMITH: 13 A. 2.03.
14 And I will take -- I will take 14 Q. Commenting on pages Roman numeral
15 advantage of that. 15 II-22, paragraph 1 of the Corps' DEIS.
16 MS. GILBERT: 16 A. Uh-huh (affirmatively). Yes.
17 I'm sure -- I'm sure that 17 Q. "The Department of Commerce also
18 Wilkinson will be very happy to hear 18 felt that the Corps failed to address the
19 this. 19 deterioration of marsh from saltwater
20 MR. SMITH: 20 intrusion as a significant impact."
21 He won't be happy to hear it. 21 MR. SMITH:
22 MS. GILBERT: 22 Objection. Calls for
23 I'm sure. 23 speculation.
24 EXAMINATION BY MS. GILBERT: 24 EXAMINATION BY MS. GILBERT:
25 Q. Are you aware of any further actions 25 Q. Is that their comment?
Page 79 Page 81
1 the Corps took with regard to the EPA's 1 MR. SMITH:
2 recommendations concerning further study of 2 Object to the form of the
3 the suggested alternatives and modifications? 3 question.
4 A. No, I am not. It's what respond- -- 4 THE WITNESS:
5 what was responded to in the draft. 5 Well, the process that is -- What
6 Q. Is the only information you know 6 it states here in this paragraph,
7 about the actions taken? 7 you're referring to page Roman numeral
8 A. That's what we're addressing here -- 8 II-22 paragraph 1. It's another
9 Q. Okay. 9 process that should be included in
10 A. -- between the draft and the final. 10 this section is marsh deterioration
11 Q. I direct your attention to the 11 resulting from saltwater intrusion.
12 United States Department of Commerce, 12 EXAMINATION BY MS. GILBERT:
13 Assistant Secretary for Science and 13 Q. Are you aware of whether the Corps
14 Technologies' -- 14 took any action with regard to that comment?
15 A. Page? 15 A. Let me look in the responses. I
16 Q. -- comment on the 1974 EIS. 16 assume you have looked there already. Which
17 On page 9-14, the Department of 17 page is it?
18 Commerce indicated in its response to the 1974 18 MR. SMITH:
19 DEIS on July 3rd, 1975 that the Draft 19 Roman numeral IX-4.
20 Environmental Impact Statement failed to 20 THE WITNESS:
21 identify land loss process of marsh 21 Why don't we take a break for a
22 deterioration resulting from saltwater 22 couple of minutes?
23 intrusion. Is it true that -- Are you at that 23 EXAMINATION BY MS. GILBERT:
24 point? 24 Q. Actually, I have a pending
25 A. I have the letter. Page 9-14. But 25 question. And I am going to actually add
21 (Pages 78 to 81)
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1 another question, Mr. Saia. Have you found a 1 the salinity.
2 response to that comment in your review? 2 Q. And its effect on the wetlands as
3 A. No. And that's why I want to take a 3 the comments have --
4 break. I want to go through it thoroughly. 4 A. As a result of the construction --
5 Q. Okay. Go ahead and try and find 5 MR. SMITH:
6 it. 6 Let her finish her question.
7 A. Okay. Let's take a break and I'll 7 THE WITNESS:
8 be back. 8 Oh, sorry.
9 MS. GILBERT: 9 EXAMINATION BY MS. GILBERT:
10 We'll take a break. 10 Q. Because just between -- I just want
11 VIDEO OPERATOR: 11 --
12 Off the record at 10:47. 12 MR. SMITH:
13 (Recess.) 13 Just ask the question. He needs
14 VIDEO OPERATOR: 14 to let you finish your question. And
15 Returning to the record, it's 15 so I am just telling him to wait.
16 11:39. 16 THE WITNESS:
17 EXAMINATION BY MS. GILBERT: 17 Okay.
18 Q. Mr. Saia, we have taken -- We're 18 EXAMINATION BY MS. GILBERT:
19 back on the record. We have taken a break now 19 Q. Is it the Corps' position that
20 for an opportunity to review the Final 20 regardless of whatever agency may have raised
21 Environmental Impact Statement to determine if 21 the subject in their responses to the review,
22 the Corps ever responded to the comment made 22 or their -- Let me rephrase that.
23 by the Department of Commerce. Did you find 23 Is it the Corps' position that
24 -- 24 regardless of which agency's comment addressed
25 A. The Department of Commerce's -- 25 the question of salinity in the wetlands, the
Page 83 Page 85
1 Q. The specific comment that I 1 Corps did not interpret it had an obligation
2 highlighted to you, was it ever responded to 2 to analyze that environmental impact in the
3 in the Final Environmental Impact Statement? 3 context of this Final Environmental Impact
4 A. I believe it was. 4 Statement?
5 Q. And where is it? 5 A. I believe that in this, EIS salinity
6 A. This is -- We had a long discussion 6 was discussed to the extent it needed to be
7 of it earlier relative to questions relative 7 for the operation and maintenance of the
8 to the construction versus operation and 8 project.
9 maintenance. And a similar question was asked 9 Q. Okay. So to the extent that this
10 by EPA and they responded that this is not -- 10 Final Environmental Impact Statement does not
11 basically not impacts of the operation and 11 analyze the effect of salinity on the wetlands
12 maintenance. That was a constructive 12 and saltwater intrusion's effect on the
13 project. The comment of Commerce on salinity, 13 wetlands, it's the Corps' position that the
14 whatever that you indicated, also was relative 14 Corps did not have to present that information
15 to the construction of the original project. 15 or analyze that information in the context of
16 I refer you to -- also to that regulation. 16 this Final Environmental Impact Statement?
17 Q. Actually, that answer is sufficient 17 A. For operation and maintenance.
18 with regard to the question that was pending. 18 Q. Are you aware of any other
19 A. Okay. Fine. 19 environmental statement in which the Corps did
20 Q. Is it the Corps' position that the 20 raise these issues and analyze salinity in the
21 Corps was not obligated to discuss salinity 21 wetlands for Congress' review?
22 and the effects on the wetlands in the Final 22 MR. SMITH:
23 Environmental Impact Statement? 23 I am going to object again. The
24 A. I believe salinity was discussed in 24 phrase "for Congress' review", which
25 this EIS. I can point out things relative to 25 is contrary to his testimony yesterday.
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1 MS. GILBERT: 1 salinity, the environmental impacts of
2 Okay. 2 salinity on the wetlands in the vicinity of
3 MR. SMITH: 3 the MRGO that was submitted to the CEQ?
4 This is not for Congress' review. 4 A. I can't recall.
5 EXAMINATION BY MS. GILBERT: 5 Q. Is there any place that you can look
6 Q. For submission to the CEQ? 6 to find another document subsequent to the
7 A. For submission to the CEQ. Correct. 7 filing of this particular Final Environmental
8 MR. SMITH: 8 Impact Statement in which the Corps analyzed
9 Which is part of the Executive 9 the effects of salinity on the wetlands for
10 branch, not the Legislative branch. 10 the purposes -- salinity on the wetlands in
11 THE WITNESS: 11 the vicinity of the MRGO for the purposes of
12 You know, there are a number of 12 submission to the CEQ?
13 EISs that address salinity. I mean, 13 A. I'd have to go back and look and see
14 you know, that's not a -- 14 if there was one that was prepared. I don't
15 EXAMINATION BY MS. GILBERT: 15 know of any --
16 Q. Are you aware specifically of any 16 Q. Okay.
17 other analysis that the Corps engaged in in 17 A. -- relative to MRGO. I know of LCA,
18 which it analyzed the effects of salinity on 18 as I indicated.
19 the wetlands for the purposes -- just not 19 Q. LCA is what?
20 reporting -- for the purposes of submission of 20 A. Louisiana Coastal Area. So that's a
21 an Environmental Impact Statement to the CEQ? 21 possibility to look at.
22 A. Salinity is discussed in EISs. Now, 22 Q. Would that have been submitted to
23 -- 23 the CEQ, that report?
24 Q. My question for you, sir, is not 24 A. It should have.
25 whether it's discussed. 25 Q. Now, I am going to ask the same
Page 87 Page 89
1 MR. SMITH: 1 question with regard to land loss processes of
2 Wait. Let him answer. 2 marsh deterioration in the vicinity of the
3 MS. GILBERT: 3 MRGO.
4 Okay. 4 A. Okay.
5 THE WITNESS: 5 Q. To the extent that any of the
6 Salinity is discussed. I would 6 reviewing agencies commented to the CEQ -- to
7 have to go through various EISs and 7 the Corps that it believed that the Corps
8 refresh my memory of all the EISs as 8 needed to augment its Environmental Impact
9 to the extent of discussion of 9 Statement to analyze the effect of land loss
10 salinity. In some cases, projects are 10 and marsh deterioration, is it the Corps'
11 for the purpose of responding to 11 position that those environmental impacts were
12 salinity issues. There are projects 12 not necessary to be presented in this Final
13 like that, and you will talk about 13 Environmental Impact Statement on operation
14 alternatives, et cetera, et cetera, 14 and maintenance?
15 specifically relative to salinity. 15 A. I need you to read back the whole
16 There are a number of projects that 16 thing so I can understand what you're trying
17 are related specifically, have a 17 to say.
18 purpose for salinity. 18 (Requested question read back.)
19 EXAMINATION BY MS. GILBERT: 19 THE WITNESS:
20 Q. Are you talking about projects other 20 I don't know. Do you have
21 than the MRGO? 21 something to refer to here? You know,
22 A. Yes. 22 I am --
23 Q. Okay. Then let me rephrase the 23 EXAMINATION BY MS. GILBERT:
24 question. Are you aware of any other document 24 Q. What I am trying to do is not have
25 in which the Corps analyzed the effects of 25 to go through every one of the sentences in
23 (Pages 86 to 89)
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1 every one of the comments and then have you 1 As I indicated to the previous
2 just take a half an hour to go, or ten minutes 2 question, Louisiana Coastal Area, LCA
3 or however long it takes to go look at the 3 document went to Congress.
4 Final Environmental Impact Statement to see if 4 EXAMINATION BY MS. GILBERT:
5 there was an exact response within the 5 Q. Okay.
6 contents of the document. We have already 6 A. Not Congress. The document, the
7 discussed the fact that you believe that marsh 7 feasibility report went to Congress.
8 deterioration and saltwater -- land loss 8 Q. And is that the only document that
9 processes and marsh deterioration were a 9 you know of that would have potentially
10 result of construction; correct? 10 addressed land loss processes in the vicinity
11 A. That's what was indicated in the 11 of the MRGO?
12 EIS. 12 A. It addressed coastal Louisiana
13 Q. Okay. 13 throughout the whole coast land loss. That's
14 A. The final one. 14 the only one that -- yes, that I am aware of
15 Q. So my question to you is, to the 15 or could recall.
16 extent that any of the reviewing agencies 16 Q. Do you recall when the Louisiana
17 commented on the Draft Environmental Impact 17 coastal document that you're referring to was
18 Statement that they believed that the Corps 18 drafted?
19 should have added an analysis of that 19 A. The District Engineer's report was
20 environmental impact, -- 20 like November, 2004. The Chief of Engineer's
21 A. Yes. 21 report I believe was February, 2005.
22 Q. -- is it the Corps' position that 22 Q. So between the 1976 and that
23 that was unnecessary to present to the CEQ in 23 document, there is no other document that you
24 the context of this Final Environmental Impact 24 know of?
25 Statement? 25 A. You know, that I know of.
Page 91 Page 93
1 A. It states that in the comment 1 Q. Okay. That's fine.
2 response to EPA. That it's construction 2 A. And I would qualify that, that was
3 versus operation. That we're looking at the 3 submitted to CEQ. I don't know of any others,
4 environmental impacts of not what was 4 either. But you know, you have indicated CEQ.
5 constructed, but what's being done with 5 Q. Okay.
6 operation and maintenance in the context of 6 MS. GILBERT:
7 operation and maintenance, that anything 7 Can we just leave a blank? We're
8 related to that would apply. 8 going to request the production of
9 Q. Okay. And to the extent that any 9 that document just to be added as an
10 other reviewing agencies had the same comment 10 exhibit at this time. Not to -- Do
11 or a similar comment with regard to that, your 11 you have a copy of that?
12 answer would be the same? Is that correct? 12 MR. SMITH:
13 A. Yes. 13 You have got a copy of that.
14 Q. Okay. And are you aware of any 14 MS. GILBERT:
15 other document which the Corps submitted for 15 Yes, just do you have that in
16 other Environmental Impact Statement or 16 there? .
17 documents submitted to Congress, to the CEQ in 17 MR. SMITH:
18 which the Corps analyzed land loss process of 18 I said you have a copy of that.
19 marsh deterioration subsequent to this 19 MS. GILBERT:
20 document? In the MRGO vicinity. I'm sorry. 20 I know, but we don't have a
21 A. As I indicated -- 21 physical copy to put as an exhibit.
22 MR. SMITH: 22 MR. SMITH:
23 I object to the form of the 23 Oh, here.
24 question. It's vague. Go on. 24 MS. GILBERT:
25 THE WITNESS: 25 Yes. And we don't need to ask --
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1 MR. SMITH: 1 identify it by Bates numbers.
2 That's fine. We have it. 2 MS. GILBERT:
3 MS. GILBERT: 3 We'd leave a blank for that.
4 You don't need to review it. 4 MR. SMITH:
5 MR. SMITH: 5 I know the Court Reporter would
6 Yes, sure. 6 like to have more exhibits.
7 MS. GILBERT: 7 EXAMINATION BY MS. GILBERT:
8 Just to have that be the next 8 Q. Now, would it be true then, Mr.
9 marked document. And that'll be I 9 Saia, that to the extent that any agency had a
10 believe -- What are we up to? 10 comment about the Draft Environmental Impact
11 MR. SMITH: 11 Statement for operation and maintenance that
12 The last one you have given us is 12 related to the environmental impacts of storm
13 7. 13 surge caused by the MRGO, that it would be the
14 MS. GILBERT: 14 Corps' position that an analysis of storm
15 Yes. So it's probably 8. Let's 15 surge would not be necessary to include in the
16 see what it is. 16 1976 Draft Environmental Impact Statement?
17 MR. SMITH: 17 A. If it wasn't related to the
18 Which one do you want, the 18 operation and maintenance. This is an EIS for
19 District Engineer's report or the 19 operation and maintenance.
20 Chief's report? 20 Q. Okay. And as sit here today, are
21 MS. GILBERT: 21 you aware of any other analysis or study for
22 Both. We'll put them as -- Which 22 an Environmental Impact Statement that the
23 one got submitted to -- Which was the 23 Corps prepared relating to storm surge in the
24 final document that got submitted to 24 vicinity of the MRGO that was submitted to the
25 whatever agency? 25 CEQ subsequent to the 1976 document having
Page 95 Page 97
1 THE WITNESS: 1 been submitted?
2 The whole thing got submitted. 2 A. Am not aware.
3 There's an EIS portion of it and then 3 MR. SMITH:
4 there's the main report. So the whole 4 Whenever's a good time to take a
5 thing goes up. It has appendices. 5 lunch break, just let us know.
6 It's about that high (indicating). 6 MS. GILBERT:
7 EXAMINATION BY MS. GILBERT: 7 I'm going to defer to you guys.
8 Q. Great. Just put -- 8 MR. SMITH:
9 MR. SMITH: 9 He's ready. So whenever is a
10 Do we need to include it then as 10 good time for you. I don't want to
11 an exhibit? 11 break your line of questioning.
12 MR. STEVENS: 12 EXAMINATION BY MS. GILBERT:
13 We just want to identify it. 13 Q. Okay. By 1976, did the Corps have
14 MR. SMITH: 14 any knowledge of the potential hazards of
15 Everybody's got -- Everybody's 15 storm surge in the vicinity of the MRGO?
16 got the document. I mean, There's no 16 MR. SMITH:
17 argument about what the document is. 17 Yes, you know, we have witnesses
18 MR. STEVENS: 18 that are going to address that topic.
19 For purposes of the record, just 19 That's one of the topics that's been
20 identify it by Bates number so we know 20 designated, storm surge.
21 what the document is. 21 MS. GILBERT:
22 MS. GILBERT: 22 For --
23 Yes, so we'll have that. 23 MR. SMITH:
24 MR. SMITH: 24 For this 30 (b)(6), and he's not
25 Why don't we just agree to 25 the designated witness on that topic.
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1 MS. GILBERT: 1 that is accomplished as -- as a maintenance.
2 That's fine. I'll withdraw the 2 Q. Are you --
3 question. 3 A. And it's stated in here. I can
4 We can break now, because we're 4 refer to the paragraph.
5 going to move on to another -- 5 Q. Does the Corps have any role in the
6 MR. SMITH: 6 actual operation of the ship channel as a ship
7 Can we just clean one thing up 7 channel?
8 from yesterday? I think he would like 8 A. They're involved with the various
9 to recant, maybe I should say revise 9 communities that are involved in shipping.
10 his testimony. You asked him about 10 They have monthly meetings with them to
11 operation and maintenance yesterday 11 discuss the operation and maintenance aspects
12 and he said -- 12 of the project and what needs to be done. The
13 MS. GILBERT: 13 Coast Guard has a responsibility in terms of,
14 Oh, right. I promised to do 14 you know, hazards, that type of thing. The
15 this. 15 Corps' responsibility relates to the --
16 MR. SMITH: 16 maintaining the Ship Channel to be functional.
17 -- maybe he had those confused 17 Q. So would the Corps work with the
18 and he wanted to see if he could 18 Coast Guard to address the aspects of the
19 confirm his views. 19 operation of the Ship Channel that deal with
20 MS. GILBERT: 20 --
21 Robin, I did agree that I would 21 A. Hazards, yes.
22 go over it. 22 Q. Hazards including wave wash from the
23 EXAMINATION BY MS. GILBERT: 23 ships?
24 Q. Can you describe the Corps' 24 A. That would be involved with the
25 understanding of the process of operation of 25 Coast Guard, I believe.
Page 99 Page 101
1 the MRGO? 1 Q. That would be a joint
2 A. Okay. The operation would entail 2 responsibility?
3 the physical operation of equipment, et 3 A. I believe.
4 cetera. There's in essence no equipment to 4 Q. Okay. Thank you. Does that clarify
5 operate. You don't have gates and so forth. 5 your previous testimony?
6 The maintenance is the dredging of the 6 A. Yeah. Relative to the maintenance
7 channel. 7 part.
8 Q. Would the operation of the MRGO 8 Q. All right. Very good.
9 include the traversing, the allowing of the 9 MS. GILBERT:
10 traversing of ships, navigable ships? 10 So we'll break for lunch. What
11 A. For this particular project, I said 11 do you want, an hour?
12 the maintenance is the dredging. There are no 12 MR. SMITH:
13 equipment to operate. I have discussed that 13 Yes. Let's come back in an hour.
14 with others in Operations. And really there's 14 MS. GILBERT:
15 no distinction made in the budget between 15 Back in an hour? Okay.
16 operation and maintenance. It is one category 16 MR. STEVENS:
17 of funding you receive to expend on the 17 Back at 1:00.
18 project, and it's operation and maintenance 18 VIDEO OPERATOR:
19 appropriation. Operation and maintenance 19 Off the record at 12:01.
20 general. 20 (Recess.)
21 Q. So from the Corps' perspective, 21 VIDEO OPERATOR:
22 operation and maintenance of the MRGO only has 22 Returning to the record, it's
23 to do with the maintenance of the MRGO? 23 12:42.
24 A. From what I could see in the -- I 24 MS. GILBERT:
25 believe in the EIS it refers to the dredging 25 Just for the record, let the
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1 record reflect that Mr. Miller has 1 another regulation and that was modified for
2 joined the deposition. Mr. Miller is 2 the, you know, response to comments or
3 designated for specific other topics 3 whatever, and that's when they had the 1988
4 in the 30 (b)(6) notice. 4 one. So this one's dated '81. The new one's
5 Is he going to stay for the -- 5 dated '88.
6 Will Mr. Miller be staying for entire 6 Q. Okay. And between the one that we
7 remainder of Mr. Saia's deposition? 7 were reviewing earlier that applied to the
8 MR. SMITH: 8 1976 Final Environmental Impact Statement, do
9 I don't know. He may stay for a 9 all of these regulations address the procedure
10 while, he may leave. 10 for supplementing information reports?
11 THE WITNESS: 11 Supplemental information reports?
12 There was one thing that I wanted 12 A. No. I didn't see anything in the
13 to add a statement on. I think it was 13 ER-1105 series. And it's not -- To my
14 relative to our last question about 14 knowledge, it's not included in the ER 200-2
15 operation and maintenance of MRGO. 15 dated 4 March, '88.
16 EXAMINATION BY MS. GILBERT: 16 Q. And --
17 Q. I don't remember. Which one was 17 A. But it is included in this one
18 that? 18 (indicating).
19 A. Well, we were discussing -- 19 Q. Okay. And with regard to the
20 Remember, I asked you to discuss the 20 function of a Supplemental Information Report,
21 maintenance versus operation. 21 was there any other document that pre-dates a
22 Q. Okay. 22 document called a supplemental environmental
23 A. And I wanted to clarify something. 23 -- Supplemental Information Report that would
24 That my discussions with the Chief of 24 have the effect of supplementing an
25 Operations indicated that essentially there is 25 Environmental Impact Statement?
Page 103 Page 105
1 no operations aspect. It's the maintenance 1 A. Are you asking is there any other
2 aspect. And that's what's discussed in the 2 document, such a regulation?
3 '74 EIS, maintenance. 3 Q. Is there a predecessor document to a
4 Q. So it's only maintenance activities 4 Supplemental Information Report that was
5 are discussed in the EIS? 5 regulated -- that was governed by the earlier
6 A. Yes, and in essence -- 6 regulations?
7 Q. In the FI -- the FEIS 1976? 7 A. I don't know.
8 A. The project -- The O&M project is in 8 Q. What is the Corps' understanding of
9 essence all maintenance. Okay? 9 a Supplemental Information Report?
10 Q. Okay. During the break we briefly 10 A. You supplement it when there's
11 discussed some of the other documents that we 11 significant changes in an EIS. The EIS, let's
12 were going to review. Have you had an 12 say you need to supplement it if there's an
13 opportunity to locate the 1985 SIR? 13 addition to the project or something. Or
14 A. I don't have that in front of me. 14 something that was -- was critical that was
15 Q. Okay. 15 not considered. Then you might have a
16 A. I do have the regulation that 16 supplement and that has to be determined.
17 relates to the supplemental information 17 Q. And when you say that something was
18 reports. 18 critical that was not considered, would that
19 Q. From what time frame? 19 include environmental impacts that had
20 A. This one was 1981 time frame. So 20 originally been omitted from the Environmental
21 between the regulation ER-1105-2-, I think it 21 Impact Statement?
22 was 508. 22 A. If something is determined to be
23 Q. That was Exhibit 7? 23 significant or a change in conditions or
24 A. And -- And the current regulation, 24 something that is considered left out, then
25 which is ER-200-2-2, I believe, there was 25 you would need to do a supplement. And that
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1 would have to be -- the determination would 1 12 of that ER is the discussion paragraph D.
2 have been to be made of that, whether it was a 2 I'll read it. "Whenever it is clearly
3 significant issue. 3 understood that an EIS supplement is not
4 Q. Okay. And that process of 4 necessary, but there's only necessary to
5 supplementing the Environmental Impact 5 provide supplemental information to a point of
6 Statement existed, as far as you know, going 6 concern discussed in the final EIS and such
7 back as early as the 1976 Final Environmental 7 point of concern is considered in making a
8 Impact Statement? 8 decision on a proposed action, a Supplemental
9 A. I do believe it did discuss that, 9 Information Report will be prepared and filed
10 yes. 10 with EPA." Now, it continues on from there,
11 Q. Okay. I believe we sort of touched 11 but that's basically the definition.
12 on it earlier. 12 Q. So it is the Corps' understanding
13 A. Right. 13 that a Supplemental Information Report is only
14 Q. It's in regulation 1105-2-507. 14 necessary if an EIS supplement is not
15 A. Correct. 15 necessary? There's new information, but you
16 Q. Dealing with revising and 16 don't have to do a full Environmental Impact
17 supplementing statements. So this mechanism 17 Statement about it?
18 for updating environmental impact statements 18 A. Correct. It says here "Whenever it
19 has existed from the time that the 1976 19 is clearly understood that an EIS supplement
20 Environmental Impact Statement was submitted 20 is not necessary, --"
21 to the CEQ and finalized to today? Is that 21 Q. Okay.
22 correct? 22 A. "-- but there is only necessary to
23 A. As far as I know. 23 provide supplemental information to a point of
24 MR. SMITH: 24 concern."
25 Is this a question with respect 25 Q. Okay.
Page 107 Page 109
1 to the Supplemental Information 1 A. And then that would fulfill the SIR.
2 Report? 2 Q. Okay. So that is different than
3 EXAMINATION BY MS. GILBERT: 3 from the regulation that was in effect in 1974
4 Q. The process of supplementing the 4 where the regulation speaks to a supplemental
5 information in the Final Environmental Impact 5 information -- supplementing an Environmental
6 Statement has existed since the beginning of 6 Impact Statement.
7 -- 7 A. In the '74 one, they had a
8 A. Well, let me clarify that. Because 8 supplemental.
9 if you're putting it in that context, there 9 Q. But it's a supplemental environment
10 were changes between 1976 and 1988. And this 10 impact statement?
11 other ER, which was date -- I indicated dated 11 A. Statement, correct.
12 '81, had a different type of supplement, 12 Q. So is the difference that a
13 which was the Supplemental Information 13 Supplemental Environmental Impact Statement is
14 Report. That was not in the earlier document 14 a more comprehensive analysis in environmental
15 and it's not in the most current, most recent 15 impact than a Supplemental Information
16 ER. ER, the one I mentioned, 200-2-2, dated 16 Report?
17 1988. 17 A. That's what I would conclude.
18 Q. So in substance what is the 18 Q. Okay. Are you familiar with EAs and
19 difference between the Supplemental 19 FONSIs?
20 Information Report and other documents that 20 A. Yes, and that's covered under the
21 would be used to supplement an Environmental 21 new ER. ER 200-2-2, more so.
22 Impact Statement? 22 Q. Okay. What is an EA, for the
23 A. Well, the Supplemental Information 23 record?
24 Report definition is covered in ER-11 -- I 24 A. Hold on. Okay. I am referring now
25 mean ER 200-2-2, dated 2 March, '81. On page 25 to ER-200-2-2, dated 4 March, 1988, page 2,
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1 paragraph 7. It addresses actions normally 1 may be warranted, but that the proposed
2 requiring environmental assessments, but not 2 activity would simply affect the quality of
3 necessarily an EIS. Regulatory actions, 3 human environment, he will prepare an
4 authorized projects and projects under 4 environment statement."
5 construction, continuing authorities, it lists 5 Q. Okay.
6 a whole bunch of them. Then in paragraph 10, 6 A. So it's a -- It's a kind of a way of
7 page 5, it discusses environmental 7 determining whether there is an issue that
8 assessments, the purpose. "The purpose is the 8 needs to be addressed as part of an
9 EA is a brief document which provides 9 environmental statement. There is
10 sufficient information to the District 10 significance. So it kind of is addressed. In
11 Commander on potential environmental effects 11 the more recent document, I see that it's more
12 of the proposed action and, if appropriate, 12 definitive. The environmental assessment was
13 its alternatives for determining whether to 13 addressed way back when. But it's not
14 prepare an EIS or a FONSI. The District 14 required that you do an environmental
15 Commander is responsible for making this 15 assessment. You know, the document is an
16 determination and for keeping the public 16 environmental assessment prior to doing an
17 informed of the availability of the EA and 17 EIS. You could reach the conclusion, proceed
18 FONSI." 18 with an EIS.
19 Q. We have discussed -- We have defined 19 Q. Right away?
20 FONSI on the record as the Finding of No 20 A. Yes.
21 Significant Impact. Is that correct? 21 Q. Okay. But if you were presented
22 A. Correct. 22 with an environmental issue, an environmental
23 Q. Okay. And would an EA be prepared 23 assessment has to be prepared to reach a
24 prior to a conclusion about whether an EIS 24 finding of no significant impact of that
25 needed to be prepared? 25 issue?
Page 111 Page 113
1 A. Sometimes, yes, that you would do an 1 A. Yes.
2 EA and then make a determination if you would 2 Q. Okay. Are you aware of any SIRs
3 need to do an EIS. 3 that were prepared with regard to the MRGO
4 Q. Do you know when in the history of 4 operation and -- the SIRs that were prepared
5 environmental impact reporting the mechanism 5 to supplement the 1976 Final Environmental
6 of creating an EA was introduced? 6 Impact Statement for the operation and
7 A. Well, it -- I'd have to go back and 7 maintenance of MRGO?
8 look at that ER, the '88, or '81 version. But 8 A. You showed me one earlier at a
9 the '74 version says environmental assessment, 9 break.
10 but I really don't see where it discusses in 10 Q. And prior to my having shown you
11 detail. For instance, it says on page -- look 11 that document, had you ever seen that
12 at ER-1105-2-507. It says on page 5, under 12 document?
13 paragraph F-1, "Pursuant to the requirements 13 A. I don't believe so.
14 of NEPA, District Engineers are to make an 14 Q. Okay.
15 environmental assessment of all projects in an 15 A. Because I hadn't -- You know, I just
16 operation and maintenance status." It says, 16 saw the front page of it. I didn't look at
17 you know -- I am just pointing, it says 17 it.
18 environmental assessment. Now, I did not see 18 Q. Are you aware of any analysis of
19 where it's covered -- Then "Regulatory 19 over-depth dredging that was done with regard
20 permits", page 6, it also says "If, after an 20 to the MRGO, the operation and maintenance of
21 environmental assessment, the District --" 21 the MRGO?
22 This is on page 6, but it's related to 22 A. I know there have been discussions
23 regulatory permits, paragraph G-3, "If, after 23 of that issue.
24 an environmental assessment, the District 24 Q. Do you know -- Go ahead, I'm sorry.
25 Engineer believes the granting of the permit 25 A. I know there have been discussions
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1 of that issue. I was not involved in that 1 This is going to be next. While
2 process, but I know that there were 2 he wasn't --
3 discussions of it. 3 MR. SMITH:
4 Q. Do you know what the timing of the 4 Occupied.
5 over-depth dredging was? 5 MS. GILBERT:
6 A. As to the years that we were talking 6 -- occupied, I was going to give
7 about? No. Unless you can -- 7 it to him. But that moment has come
8 Q. Okay. 8 and gone.
9 MR. SMITH: 9 (Whereupon a discussion was held
10 We have got a witness that's 10 off the record.)
11 going to address -- 11 VIDEO OPERATOR:
12 MS. GILBERT: 12 Returning to the record, it's
13 The dredging issues in 13 2:16.
14 particular? 14 EXAMINATION BY MS. GILBERT:
15 MR. SMITH: 15 Q. Okay. Mr. Saia, --
16 Yes, 16 A. Yes.
17 EXAMINATION BY MS. GILBERT: 17 Q. -- have you had an opportunity to
18 Q. Okay. I am going to show you this 18 review the July 11th, 1985 Supplemental
19 document that -- I am -- 19 Information Report to complement the final
20 (Joe Bruno enters conference room.) 20 composite Environmental Impact Statement for
21 (Whereupon a discussion was held 21 operation and maintenance work on the three
22 off the record.) 22 projects in the Lake Borgne Vicinity Louisiana
23 MS. GILBERT: 23 which was filed with the Council of
24 Let's mark this for the record, 24 Environmental Quality on May 21st, 1976?
25 just so we put it in. We left 8 open for the 25 A. This one (indicating).
Page 115 Page 117
1 -- 1 Q. Yes. Marked as Exhibit 8?
2 MR. SMITH: 2 A. I have looked at it.
3 I thought we were just going to 3 Q. Now, you have described the process
4 identify the Bates numbers. 4 -- the purpose of the Supplemental
5 MS. GILBERT: 5 Information Report is just to add information
6 Okay. Then this will be 8. 6 to a previous FEIS?
7 MR. SMITH: 7 A. Correct.
8 Yes. 8 Q. What is the information that was
9 EXAMINATION BY MS. GILBERT: 9 supplementing the FEIS in this report?
10 Q. Okay. We have marked as Exhibit 8 a 10 A. This relates to the impacts
11 nine-page document Bates stamp numbered 11 associated with the use of allowable
12 NOP-0022282 through 2290. And I am going to 12 over-depth or advanced maintenance I would say
13 ask you if you -- 13 for MRGO.
14 (Whereupon a discussion was held 14 Q. And is that over-depth dredging, as
15 off the record.) 15 you understand it?
16 MR. STEVENS: 16 A. Yes.
17 And you're marking this as what 17 Q. Okay. And does this Supplemental
18 exhibit number? 18 Information Report have to include the
19 MS. GILBERT: 19 perceived environmental impacts of whatever
20 This is 8. 20 information it is reporting on?
21 EXAMINATION BY MS. GILBERT: 21 A. It does. It talks on page 3,
22 Q. Take a moment -- 22 "Affected environments".
23 MR. SMITH: 23 Q. Okay.
24 Can you have -- 24 MR. SMITH:
25 MS. GILBERT: 25 The question wasn't whether it
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1 does. The question was whether it has 1 your name?
2 to. 2 A. That's fine.
3 MS. GILBERT: 3 Q. Saia?
4 Oh, yes, he did. He said it 4 A. Saia. Saia. Saia.
5 does. 5 Q. Saia.
6 MR. SMITH: 6 A. I've had them all.
7 I thought he was -- I'm sorry. 7 Q. I'm another one of the lawyers for
8 MS. GILBERT: 8 the Plaintiffs in the Robinson case and the
9 He looked at the reg and said it 9 other consolidated cases, and you have been
10 does. 10 designated for a few additional topics and I
11 MR. SMITH: 11 appreciate you letting me interrupt Miss
12 Okay. I apologize. That's fine. 12 Gilbert's flow.
13 MS. GILBERT: 13 Topic 3 on the list of 30 (b)(6)
14 Don't worry. 14 is, quote, "The Army Corps' budget,
15 EXAMINATION BY MS. GILBERT: 15 appropriations, proposals, and requests for
16 Q. Okay. Now, the next question is, 16 funding associated with the construction and
17 Mr. Saia, does this Supplemental Information 17 maintenance of the MRGO, including all
18 Report discuss any of the impacts of widening 18 supporting documentation and submissions to
19 the channel caused by over-depth dredging of 19 Congress." Is that an area that you have been
20 the MRGO? 20 designated by the Corps to testify about?
21 A. Restate that again, please? 21 A. Yes.
22 (Requested question read back.) 22 Q. Okay. What was your -- Very
23 THE WITNESS: 23 briefly, during your career with the Corps
24 It discusses over-depth dredging 24 were you involved in this area regularly?
25 and anything that relates to that that 25 A. Yes.
Page 119 Page 121
1 there's an impact on. 1 Q. Okay. What was your function?
2 EXAMINATION BY MS. GILBERT: 2 A. You want me to go way back or --
3 Q. And in the impacts discussed by 3 Q. Well, however far you need to go.
4 over-depth dredging, does this information, 4 A. I was Chief of Programs Management
5 Supplemental Information Statement discuss or 5 from about 1980 to '88 in Sacramento,
6 analyze widening of the channel with respect 6 California.
7 -- as an impact of over-depth dredging? 7 Q. Chief of Programs Management?
8 A. See that it talks about the depth of 8 A. Yeah, Programs Management.
9 the -- of the channel. It discusses that. 9 Q. This is all with the Corps; right?
10 Q. But does -- I'm sorry. 10 A. Yeah, all with the Corps.
11 A. I don't see -- I see channel depth. 11 Q. And that was with the Sacramento
12 I don't see channel -- anything about channel 12 District?
13 widening in here. 13 A. Yes.
14 Q. Okay. So that is not included among 14 Q. Okay.
15 the impacts discussed by over-depth dredging? 15 A. And I was -- supervised that
16 A. I don't see a discussion of it. I 16 function for about six years and was
17 just see a discussion of the depth related. 17 responsible for the budgetary activities here
18 MS. GILBERT: 18 in New Orleans.
19 Okay. Before we go on to Exhibit 19 Q. And what period of time were you
20 9, I'm going to hand over the 20 responsible for the budgetary activities?
21 deposition to Mr. Pierce O'Donnell to 21 A. 2000, July, 2000 to December, 2004.
22 complete. 22 Q. Prior to July, 2000, did you have
23 EXAMINATION BY MR. O'DONNELL: 23 any involvement with the budgeting process for
24 Q. I finally get a chance? 24 the New Orleans District with regard to the
25 Mr. Saia, how should I pronounce 25 MRGO?
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1 A. No. 1 Headquarters reviews it relative to the
2 Q. From July, 2000 to 2004 when you 2 overall budget for the nation for the various
3 were responsible for budget programming in the 3 appropriations. After that, it goes to the
4 New Orleans District, was the MRGO one of the 4 Assistant Secretary of the Army's Office,
5 activities that was included within the 5 who's also responsible for the overall
6 purview of your work? 6 budget. And that would be in the summer,
7 A. Yes. 7 probably August time frame, somewhere around
8 Q. You know, there's "Computers for 8 there, August, September. So during that
9 Dummies". Can you give me the Corps budgeting 9 period of time.
10 process for me, dummies, in just a skeletal 10 Then after that, the Assistant
11 form? In other words, there's a process, and 11 Secretary of the Army for Civil Works submits
12 I have read a lot of documents on it. 12 it to OMB, and I would say that was probably
13 A. Yes. 13 around September time frame, something like
14 Q. Just tell me the basic steps by 14 that. Then you'll get a pass-back from the
15 which you ultimately get a proposal to 15 Office of Management & Budget around November
16 Congress for appropriations. 16 or December.
17 A. Okay. 17 Q. What is a pass-back?
18 Q. And why don't we focus on the MRGO. 18 A. A pass-back is basically telling you
19 As I understand it, there was an annual, or 19 what you're going to get by project in terms
20 maybe not annual, but there was a periodic 20 --
21 appropriation from Congress for operations and 21 Q. It is project by project?
22 maintenance of the MRGO. Is that correct? 22 A. Yes.
23 O&M? 23 Q. So OMB would actually get to the
24 A. Yes, for many years. 24 MRGO O&M level?
25 Q. For many years. Okay. I have heard 25 A. I would assume so. You know, I
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1 a lot of testimony in the last two days that 1 can't answer for them, but the way I
2 that -- included within that was the regular 2 understand it, they define by project what the
3 dredging activities; correct? 3 requirements will be.
4 A. For O&M. 4 Q. They don't just say, "Instead of a
5 Q. For O&M. Right. 5 billion and a half, we're only going to give
6 A. Yeah, O&M appropriation. 6 you a billion and you whack it -- you whack or
7 Q. Just tell me the steps, you know, 7 divide it up." No, they're more precise than
8 that you would follow by which you would 8 that?
9 ultimately get to Congress for a request for 9 A. As far as I understand.
10 an appropriation for the MRGO. 10 Q. Okay. Fine. Go ahead. Now we got
11 A. Well, I'm going to tell you in 11 the OMB that says, "This is what you're going
12 general for all projects, which MRGO would 12 to get."
13 fall under the same procedures that are used 13 A. Well, then the pass-back, and then
14 for all projects. About -- Let's say you 14 there's rebutting or responding to it.
15 would start in March and starting the 15 Q. Okay. There's a dialogue, so to
16 formulation of your budget to go to Congress, 16 speak?
17 which would be a year and a half later, for 17 A. There's a dialogue between the
18 funds that you would get a year and a half 18 Secretary of the Army's Office and so forth.
19 later hopefully. So in March you prepare your 19 So you're into the December time frame.
20 needs at the District level. You submit those 20 After that, you have all the
21 to the Division by approximately June. 21 adjustments made, you're ready for presenting
22 Subsequently, they review it; you have 22 the President's budget; that will occur in --
23 comments going back and forth relative to the 23 you know, it's changed a little bit here and
24 budget request. Then after that, you -- after 24 there, but about the beginning of February,
25 submission, it goes to Headquarters. 25 the President releases the budget to
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1 Congress. 1 process, starting in the New Orleans District,
2 Okay. After that, that's -- Now 2 various types of documents are generated to
3 everyone knows what's in the budget and then 3 justify a budget request. Am I correct about
4 there is local testimony that occurs to the 4 that?
5 subcommittee. Normally that's done in March 5 A. That's correct.
6 or April. So we're already a year, you know, 6 Q. Do you remember generically what
7 past a year. Then during that period after 7 some of them are called?
8 interested parties, public testimony, you go 8 A. Well, normally you prepare a
9 to -- it starts going through the -- to the 9 justification sheet.
10 committee for action, to subcommittees. 10 Q. A justification sheet? Okay.
11 Q. To subcommittee, committee? 11 A. Of course, different projects, you
12 A. Yeah, to the House, Senate, and so 12 prepare different documents. For construction
13 forth. And so from maybe April, May, you 13 projects, you prepare a PB-2-A, which is the
14 start seeing some work on it. And then you 14 schedule of expenditures and obligations they
15 get into the summer. 15 were going to incur through the life of a
16 If you do get a budget agreement 16 construction project.
17 in the House, they go through their process, 17 Q. O&M gets a justification sheet?
18 and in the Senate, and then there's going to 18 A. Yes, it does.
19 be differences between the projects as they're 19 Q. Because that's already an existing
20 looked at at each -- they're looked at at the 20 project? And this is the operation --
21 project level. If there are differences, then 21 A. Yes, and that's submitted all the
22 they have a conference committee come together 22 way up ultimately to committee, that document.
23 and the conference committee then makes a 23 Q. So that goes to the committee.
24 recommendation to the House and the Senate, 24 A. And it's also published in a
25 and they reach an agreement between what -- 25 document, a Congressional document.
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1 you know, what's going to be appropriated in 1 Q. Do you know what that document is
2 the bill. 2 called?
3 Q. Okay. 3 A. It's some House report, Senate
4 A. And then after that, if it's acted 4 report on appropriations for the energy and --
5 on, once it's acted on in the House and the 5 you know, for the committee, Energy and Water
6 Senate, it's passed, it goes to the President 6 Development, something like that.
7 for signature. And it may be different than 7 Q. And the justification sheet on O&M
8 what we started with. It could be plus or 8 for the MRGO is initiated at the District
9 minus, whatever, compared to the President's 9 level?
10 budget, or it doesn't get signed at all and 10 A. Yes, it is.
11 the -- what happens is a continuing 11 Q. Is it modified or altered as it goes
12 resolution. Just to continue at the same 12 up through this pecking order you described?
13 levels that you -- of obligation in the 13 A. Yes, it is.
14 previous year and you're not allowed to start 14 Q. Okay.
15 -- generally you're not allowed to start any 15 A. And one thing I might point out,
16 new work. 16 each year the preparation of the budget is
17 Q. And the fiscal year begins what, 17 based on an Engineering Circular that's put
18 October 1st? 18 out, and each year it changes to some degree.
19 A. October 1st. 19 Q. Okay.
20 Q. So that's the 18 month cycle 20 A. And it specifies how the budget is
21 approximately you described earlier? 21 to be put together.
22 A. Correct. 22 Q. I have seen documents called
23 Q. Now, I have read a fair number of 23 disposition form? Does that have to do with
24 Corps documents the last couple of years and I 24 the budget?
25 have noticed that as part of the budgeting 25 A. A disposition form is used many
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1 years ago, but it's -- it's just a -- a way of 1 let's take just the lower end, because that
2 sending out a note, a message. It's the 2 was a MRGO allocated cost; correct?
3 old-time email you'd say. 3 A. Yes.
4 Q. Got it. Okay. 4 Q. Was that done under the O&M
5 A. Something like that. 5 budgeting process?
6 Q. We got emails, too. I'll ask you to 6 A. I believe it was. I don't recall.
7 assume that, and I had a lot of them here, 7 Q. Are you aware of any other budget
8 over the years of the MRGO, over some 50 years 8 category for the MRGO during its history, or
9 the Corps periodically initiated studies of 9 certainly during the period you were here more
10 the MRGO's impacts. I think some of them have 10 precisely, other than O&M?
11 been -- 11 A. During the period I was here, it was
12 A. The ones we have discussed. 12 O&M and construction.
13 Q. Yes. There's a habitat study that 13 Q. Okay. And give me -- what was --
14 was done and there was a bank erosion 14 What was a construction budget item under MRGO
15 reconnaissance report in '88, another one in 15 from mid 2000 on?
16 '94. Are you familiar with these documents 16 A. It was -- The re-evaluation report
17 generally? 17 was under construction general.
18 A. No. 18 Q. What was the purpose of the
19 Q. Okay. I take it -- 19 re-evaluation report?
20 A. I am just familiar with the ones we 20 A. To re-evaluate the need for the
21 have discussed here. 21 navigation channel and consideration of
22 Q. Okay. You were not employed in the 22 potentially closing it.
23 New Orleans District until July of 2000? Is 23 Q. Ultimately the Corps did a final,
24 that correct? 24 I'll call it shorthand, deauthorization study
25 A. That's correct. 25 for Congress? You're familiar with that?
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1 Q. So you didn't have anything to do 1 A. Did a re-evaluation report.
2 with the MRGO or any of the studies or reports 2 Q. Was the re-evaluation report that
3 that preceded that? 3 led ultimately to the recommendation of the
4 A. Correct. 4 deauthorization of the MRGO part of that
5 Q. If the Corps -- This is a 5 process? Was that an ongoing process?
6 hypothetical. If the Corps concluded that 6 A. It started in I believe 1999 and
7 something had to be done to ameliorate the 7 there was a draft report, as I understand, put
8 MRGO, say, foreshore protection -- Do you know 8 out after I left, which was something like May
9 what foreshore protection is? 9 of 2005. There was a draft report.
10 A. (Witness nods head affirmatively.) 10 Q. That was just before Katrina; right?
11 Q. Do you know what that is? 11 A. Yes.
12 A. Yeah, along the MRGO. 12 Q. To your knowledge, until the Corps
13 Q. Upper -- 13 submitted to Congress sometime I believe in
14 A. In the upper reaches along the north 14 2007 the final deauthorization report, had the
15 and south banks. 15 Corps ever recommended to Congress the closure
16 Q. Right. Would that be done through 16 of the MRGO? Or in the technical parlance,
17 the normal O&M process, or was there another 17 the deauthorization of the MRGO?
18 process for budgeting that? 18 A. Right. During the period I was
19 A. Let me think about -- There was a 19 here, we did not make that recommendation and
20 determination that I read where part of it at 20 as far as I could see in the 2005 report did
21 along the lower end, or towards the south end 21 not make that recommendation, the May.
22 was done under -- under MRGO, and the upper 22 Q. Okay. The budgeting that was done
23 end was done as part of Lake Pontchartrain and 23 on the foreshore protection for the upper end
24 Vicinity project, the north side. 24 on the LPV, have you studied at all why the
25 Q. Okay. I think that's correct. Now, 25 decision was made to make that an LPV budget
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1 item rather than an O&M MRGO item? In other 1 were going to do a $10,000 study or a million
2 words, can you speak authoritatively on that? 2 dollar study, for example; right?
3 A. I did read something recently about 3 A. Just a lot of issues. Whether you
4 it and I would have refer back to that. That 4 have an existing project that's ongoing or
5 it was considered that -- Well, as a matter of 5 versus you have an authority that goes -- Some
6 fact, it had been authorized by -- under LPV. 6 authorities go back to the '60s, for
7 Q. The foreshore protection? 7 instance. We talked about the Louisiana
8 A. Yes. 8 coastal area going back to the 1960s when that
9 Q. Okay. Was that the basis of a 9 authority to do that study. Now, that work
10 recommendation made by the Corps to have that 10 didn't happen, as a study didn't happen until
11 done as part of the LPV? 11 2000.
12 A. I don't recall. I don't have that 12 Q. Four decades later?
13 information. 13 A. Right.
14 Q. But what you're telling me is if the 14 Q. Okay. We've learned that there are
15 Corps determines that some work needs to be 15 different stages of studies or reports done by
16 done to remediate the MRGO, there are 16 the Corps. Are you familiar with a
17 budgetary procedures for doing that? 17 feasibility study, what a feasibility study
18 A. There are budgetary procedures. 18 is?
19 Q. Okay. 19 A. Yes, sir.
20 A. Could you clarify "remediate"? 20 Q. What is it?
21 Q. Well, if the Corps is concerned with 21 A. A feasibility study is done to look
22 the widening of the channel in the lower end 22 at certain issues, problems of the nature that
23 and we need to do some kind of armoring or 23 the Corps of Engineers could be involved in,
24 jetties or dikes, -- 24 whether it be flood control, navigation,
25 A. Okay. 25 environmental restoration, et cetera, et
Page 135 Page 137
1 Q. -- there's a procedure to go to 1 cetera. And a feasibility study lays out the
2 Congress and do that; right? 2 cost and benefits and justification and
3 A. Yes. 3 assesses the environmental impact, social
4 Q. In your experience at the Corps, did 4 impacts, et cetera, as a basis for working
5 you ever see Congress initiate an activity 5 with the local community, state agencies,
6 with regard to the MRGO as opposed to the 6 Federal agencies, et cetera, to define a plan
7 Corps recommending some activity to the 7 to respond to those problems that were -- were
8 Congress as part of the budget process? 8 indicated, and the feasibility report is used
9 A. You know, generally, I am going to 9 to go to Congress for authorization of a
10 talk generally, not specifically to MRGO, 10 project.
11 there is a lot of nuances in starting work. 11 Q. Okay. So when we see House Report
12 But the Corps, to start work, needs authority 12 number 245, House Report number 231, which
13 to do the work. You know, to do a study. It 13 pre-dated NEPA, but those would be feasibility
14 just doesn't come -- Unless there's a project 14 studies that lead to a recommendation of a
15 that can be elevated that there is an issue, 15 project to Congress?
16 then there's a request to consider proceeding 16 A. Normally, yes.
17 with something on an ongoing project. But if 17 MR. SMITH:
18 it's a new project, then there has to be 18 Objection to the form of the
19 Congressional authority provided. 19 question. It's vague. "They would
20 Q. So -- 20 be".
21 A. Now, in many cases that authority 21 EXAMINATION BY MR. O'DONNELL:
22 does exist in many various acts. The Congress 22 Q. They were in effect feasibility
23 did provide different authorities to do 23 studies recommending the MRGO or the LPV or
24 studies. 24 whatever to Congress?
25 Q. And it might depend on whether you 25 MR. SMITH:
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1 Objection to the phrase "in 1 determination whether to proceed into the
2 effect." It's vague. 2 feasibility phase. At this point in time, a
3 EXAMINATION BY MR. O'DONNELL: 3 reconnaissance report is done at full Federal
4 Q. Are you familiar with HR-23 -- House 4 -- full Federal cost, and a feasibility cost
5 Report number 231 or 245? 5 is cost shared. So when you complete the
6 A. I don't recall those numbers, but go 6 recon you determine whether to proceed, you
7 ahead and explain what they were. 7 lay out the plan for the feasibility study and
8 Q. Okay. The Chief Engineer sends a 8 you need a sponsor to proceed to the next step
9 study, a report, to Congress and says, "We 9 that is willing to cost share.
10 would like to build the MRGO." 10 Q. We're going to mark this as the next
11 A. Uh-huh (affirmatively). 11 exhibit in order, Exhibit 10.
12 Q. This happened in '51 or -- sometime 12 MR. SMITH:
13 in -- sometime a long time ago. Okay? 13 Are you going to be asking him
14 Congress passes an act -- 14 about this? Because I'm not sure he's
15 A. Right. 15 the one we've got designated to
16 Q. -- of legislation saying -- 16 discuss this.
17 authorizing that -- referencing the report, 17 MR. O'DONNELL:
18 authorizing that that project go forward. You 18 No, generically.
19 would be substantially in accordance with the 19 MR. SMITH:
20 recommendation of the Chief, et cetera, et 20 Got you.
21 cetera, referring to the report. 21 EXAMINATION BY MR. O'DONNELL:
22 A. Right. 22 Q. Sir, I put before you Exhibit 10, a
23 Q. Is that a feasibility study? 23 February, 1988 Army Corps reconnaissance
24 A. Well, could you -- do you have the 24 report on bank erosion for the MRGO. Do you
25 number that you're referring to? Could you 25 see that?
Page 139 Page 141
1 just -- Do you have it there? 1 A. Yes, I do.
2 MR. KELLS: 2 Q. Is this a reconnaissance report?
3 I don't. I'm not sure. 3 A. That's what it states.
4 EXAMINATION BY MR. O'DONNELL: 4 Q. Okay.
5 Q. I don't have it handy, but --. 5 A. Yes.
6 A. Well, I can explain a feasibility 6 Q. I'll represent that it seems to be.
7 report process that you go through for a new 7 MR. SMITH:
8 project, and MRGO did have a feasibility 8 So stipulated.
9 report that was processed to Congress. 9 EXAMINATION BY MR. O'DONNELL:
10 Q. That's all I needed to know. You 10 Q. At this time period in 1988 --
11 also mentioned a reconnaissance report. What 11 MR. O'DONNELL:
12 is a reconnaissance report as opposed to a 12 Well, probably one of the few
13 feasibility report or study? 13 things we'll agree on, buddy.
14 A. A reconnaissance report -- The thing 14 EXAMINATION BY MR. O'DONNELL:
15 is, you got to realize reconnaissance reports 15 Q. But in February of '88, would a
16 have changed over time. So if you look at one 16 reconnaissance report in the process precede a
17 today, it's different than one many years 17 feasibility report or study?
18 ago. But what a reconnaissance report does is 18 A. Yes.
19 you, with available information, you look at 19 Q. Okay. And do reconnaissance reports
20 -- Say if you have a navigation issue or a 20 typically make a recommendation one way or
21 flood control problem, you look at the 21 another about further study or action?
22 potential for constructing a project to 22 A. Yes.
23 resolve those problems and if there's anything 23 Q. Okay.
24 that's viable. If there is something that's 24 MR. O'DONNELL:
25 viable, then it's a basis for making the 25 All right. I want to mark this
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1 as 10. That's the only copy I have, 1 exhibits, both bank erosion reconnaissance
2 Robin. I saved a tree. But it's the 2 reports, one in '98 and -- one in '88 and one
3 -- 3 in '94. Do you see that? 1988 and 1994. Do
4 EXAMINATION BY MR. O'DONNELL: 4 you see that?
5 Q. Sir, would you just take a look at 5 A. Yes, I do.
6 Saia Exhibit 11? It is also an Army Corps 6 Q. Okay. Do you know why they did two
7 reconnaissance report on bank erosion, but 7 reports six years apart?
8 this one is dated 1994. Do you have that? 8 A. They may have been for different
9 A. Wait a minute. These are the same. 9 purposes.
10 MR. SMITH: 10 Q. Okay. That's fair. Do you know of
11 No, they're -- This is '88. 11 the different purposes? And if you're not the
12 That's '94. Oh, this is '94. I think 12 witness on that, that's fine.
13 you must have gotten mixed up. 13 MR. SMITH:
14 MR. O'DONNELL: 14 He's really not the witness on
15 There's two of them. 15 that. I really think we ought to just
16 MR. SMITH: 16 wait until we get the witness.
17 I know, but he gave him the '94 17 MR. O'DONNELL:
18 and marked it as 10. We can fix it. 18 All right.
19 MR. O'DONNELL: 19 EXAMINATION BY MR. O'DONNELL:
20 Let's fix this. We'll stipulate 20 Q. Let me see if I can summarize this
21 that the '98 report will be 10 and the 21 very easily, sir. And at least I have them
22 '94 report -- 22 marked so you don't have to mark them again.
23 MR. SMITH: 23 Typically at least in this time
24 '88? 24 period of the late '80s or early '90s a
25 MR. O'DONNELL: 25 reconnaissance report would precede a
Page 143 Page 145
1 I'm sorry, the 1988 report will 1 feasibility report?
2 be 10 and the January, 1994 report 2 A. Correct, or not.
3 will be 11. 3 Q. May not lead to a feasibility
4 EXAMINATION BY MR. O'DONNELL: 4 report?
5 Q. Okay. So let's go back again. 5 A. That's correct. It may stop right
6 A. Okay. 6 there.
7 Q. Approximately six years apart, 7 Q. I got that. You mentioned another
8 between 1988 and 1994, another bank erosion 8 type of report or study called re-evaluation.
9 reconnaissance report for the MRGO was 9 A. Yes.
10 prepared. Do you see that? 10 Q. Is that a third type of report the
11 A. Wait. 11 Corps did in this time period?
12 MR. SMITH: 12 A. That was another report that was
13 His confusion is he's only seen 13 started I believe in '99.
14 -- He's seen the '94 report twice. 14 Q. Again, would it have been authorized
15 You were asking him about '88. 15 by Congress and a budget appropriated for it?
16 EXAMINATION BY MR. O'DONNELL: 16 A. It was based on the authorized
17 Q. Forgive me. 17 project that existed, yes. And it was funded
18 MR. SMITH: 18 by Congress during a period of time.
19 You showed him the '94. 19 Q. To evaluate --
20 THE WITNESS: 20 A. Yes.
21 Okay. I'll give you this one. 21 Q. To evaluate or re-evaluate the
22 EXAMINATION BY MR. O'DONNELL: 22 continuing viability or utility of keeping the
23 Q. The closest to a senior moment I 23 MRGO open?
24 hope to have today. 24 A. Yes.
25 Now I put before you the two 25 Q. I don't believe you have been
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1 designated on that subject, correct, the 1 A. Yes.
2 closure of the MRGO? 2 Q. In what capacity? In what context
3 MR. SMITH: 3 did you see it?
4 No, he's not. 4 A. More recently.
5 EXAMINATION BY MR. O'DONNELL: 5 Q. Because you were going to testify
6 Q. Other than the annual appropriation 6 about it?
7 process which you were kind enough to describe 7 A. Yes.
8 to me at the beginning of my examination, is 8 Q. You were designated? Is that why?
9 there a special or supplemental budget process 9 A. Right. That's correct.
10 at least in your experience with Congress when 10 Q. Okay. I believe that the first
11 the Corps finds that a need arises that is not 11 part, the first 43 pages, relates to a task
12 covered by an existing authority or 12 force that was done by St. Bernard Parish.
13 appropriation? 13 But attached to it beginning on page 44, sir,
14 A. On occasion there are supplemental 14 it's the last Bates numbers in the right
15 appropriations and sometimes they have been 15 corner is 1556. Do you see that?
16 used for operation and maintenance. Maybe 16 A. Okay. Correct.
17 there's been a large storm occur along the 17 Q. "Habitat impacts of the construction
18 coast of -- 18 of the MRGO, December, 1999"? Do you see
19 Q. Okay. Fair. I am going to mark 19 that?
20 this as the next, which hopefully is 12. 20 A. Yes.
21 Thank God it's not a reconnaissance report. 21 Q. And it says "Prepared by the New
22 A. I need to look at it first. 22 Orleans District Corps of Engineers for the
23 Q. I wouldn't be able to get it right. 23 Environmental Subcommittee of the Technical
24 I have put before you as Exhibit 11 -- 24 Committee convened by EPA in response to the
25 MR. O'DONNELL: 25 St. Bernard Parish Council resolution". Do
Page 147 Page 149
1 Can I borrow yours for one 1 you see that?
2 second, Robin, after you sticker it? 2 A. Yes.
3 MR. SMITH: 3 Q. And then there's a report that goes
4 Let me make sure I get this 4 from Bates stamp 1556 to 1630. Do you see
5 stickered right here. Which one do 5 that?
6 you want? 6 A. Yes.
7 MR. O'DONNELL: 7 Q. Was this prepared by Susan Hawes, to
8 The latest one, yes, the one I 8 your knowledge?
9 just marked. 9 A. As far as I know, yes.
10 MR. SMITH: 10 Q. Okay. Do you know why she prepared
11 The latest is 12. 11 it?
12 MR. O'DONNELL: 12 A. She was participating on the
13 12. Just give that to the 13 committee.
14 witness for one second. 14 Q. Do you know whether this document
15 MR. SMITH: 15 was ever given to Congress?
16 Sure. 16 A. Not to my knowledge.
17 MR. O'DONNELL: 17 Q. Do you know what use, if any, was
18 I just want to identify it. 18 made of this document other than providing
19 EXAMINATION BY MR. O'DONNELL: 19 this information to this committee convened by
20 Q. Sir, I put before you as Saia 12 a 20 EPA?
21 report of the Environmental Subcommittee to 21 A. As I understood, it relates to the
22 the MRGO Technical Committee dated March 16, 22 re-evaluation report and was provided as some
23 2000. Do you see that? 23 information for the re-evaluation.
24 A. Yes. 24 Q. So this was commissioned, if you
25 Q. Have you seen this document before? 25 will, internally by the Corps to be prepared
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1 by Ms. Hawes as part of the re-evaluation 1 in a report that we discussed earlier.
2 study and was also furnished to this other EPA 2 Q. Right. In terms of MRGO budget, not
3 convened committee? 3 some other coastal wetlands, Breaux Act or
4 A. I don't know if it was 4 whatever else may have been going on,
5 commissioned. It was her participation on the 5 vis-a-vis the MRGO are you aware during your
6 committee. 6 tenure, was there ever any money requested of
7 Q. And who is Susan Hawes? 7 Congress and appropriated for wetlands
8 A. Susan Hawes is -- works in Planning 8 restoration?
9 Programs and Project Management Division. She 9 A. In operation and maintenance?
10 is an advisor, environmental advisor to the 10 Q. Yes.
11 District Engineer. 11 A. The only funds that were -- that
12 Q. She's a -- 12 were used was relative to the beneficial use
13 A. At that time that's what she did. 13 for dredged material which is under a Section
14 Q. She was like a biologist or 14 204 program.
15 something? 15 Q. Under the Clean Water Act or WARDA?
16 A. Environmental. I don't know what 16 A. Or WARDA. It's WARDA.
17 her environmental background is. 17 Q. That's all caps W A R D A? Is that
18 Q. For a number of years she was 18 the Water --
19 involved with the issue of the wetlands along 19 A. Resources Development Act.
20 the MRGO? 20 Q. Right. Thank you.
21 A. Yes, and many other projects. 21 A. And that related to putting
22 Q. A knowledgeable person? 22 materials on lands to restore -- to create
23 A. Yes. 23 habitat.
24 Q. Okay. In the period that you were 24 Q. During your tenure did the Army
25 at the Corps between 2000 and -- was it 2004 25 Corps ever recommend to Congress the creation
Page 151 Page 153
1 you said? 1 of any kind of rock plug dike or other
2 A. Yes. 2000. 2 structure to prevent saltwater from the Gulf
3 Q. Do you recall any budget requests 3 going up the MRGO Reach 2 into the
4 initiated by the New Orleans District to 4 marshlands?
5 Congress for wetlands preservation or 5 A. I think it was under consideration
6 retarding the loss of wetlands because of the 6 in the report.
7 MRGO? 7 Q. The re-evaluation study?
8 A. You're talking about environmental 8 A. The re-evaluation report, but that
9 restoration. 9 didn't go to Congress.
10 Q. Yes, as part of the O&M budget of 10 Q. Until much later, 2007?
11 the MRGO between -- You were there in '00 11 A. I don't know.
12 sometime to '04. Do you remember that the 12 Q. You weren't there?
13 Corps ever initiated any budget proposals to 13 A. No.
14 Congress dealing with either retarding the 14 MR. O'DONNELL:
15 loss of wetlands or restoring the wetlands? 15 I have nothing further. Thank
16 A. There was, and I can't remember the 16 you.
17 exact year, probably around 2003, 2004, and 17 So, to be fair, we have exhausted
18 also there was associated with the Louisiana 18 with this witness topic 3 and 27 to
19 Coastal Area environmental restoration in the 19 30.
20 MRGO area. So there was consideration of a 20 MR. SMITH:
21 budget request relative to MRGO. However, it 21 Pierce, is there anything we can
22 got, as I recall, it got wrapped into 22 do to get you to stay?
23 Louisiana coastal area. 23 MR. STEVENS:
24 Q. Right. 24 He'll take that as a supreme
25 A. And got taken -- it got responded to 25 compliment.
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1 MR. O'DONNELL: 1 Environmental Impact Statement that had to be
2 You know I can't respond to 2 submitted to the CEQ?
3 that. 3 A. According to the regulation, there
4 MR. BRUNO: 4 are two options. Either proceed with a FONSI
5 Robin, we're still on the 5 or proceed with a supplemental EIS.
6 record. 6 Q. Because -- And since we have already
7 MS. GILBERT: 7 determined that there have never been any
8 Off the record. 8 supplemental EISs filed with regard to the
9 VIDEO OPERATOR: 9 MRGO project, if there had been any
10 Off the record at 2:56. 10 environmental assessments conducted with
11 (Recess.) 11 regard to any aspects of the MRGO project,
12 VIDEO OPERATOR: 12 then by necessity they would have had to have
13 Returning to the record, it's 13 resulted in a finding of no significant
14 3:11. 14 impact?
15 EXAMINATION BY MS. GILBERT: 15 A. I would assume so.
16 Q. Mr. Saia, I am going to direct your 16 Q. Okay. This document outlines
17 attention to what's been marked as Exhibit 9. 17 environmental assessments that had been
18 It's a two-page document Bates stamped number 18 conducted associated with the MRGO project
19 NOP-019, five zeroes, 108 and 109 and it's 19 relating to two discrete actions. If you look
20 entitled, handwritten on the top, "NEPA 20 at the bottom paragraph of the first page,
21 documents and project authority." Have you 21 there are a series of environmental
22 ever seen this document before? 22 assessments listed relating to the impact of
23 A. Not until now. 23 construction of foreshore protection measures
24 Q. Have you ever seen a document like 24 along portions of the MRGO and Lake Borgne.
25 this that summarizes all of the NEPA-related 25 A. You're referring to the first page
Page 155 Page 157
1 documents associated with the MRGO project? 1 again?
2 A. No. 2 Q. The first page, the last paragraph,
3 Q. Have you ever seen a document like 3 the first sentence.
4 this associated with any other project? 4 A. The first sentence. Yeah, I see the
5 A. Not like this, no. I have seen 5 first sentence.
6 listings of, in time, of different projects, 6 MR. STEVENS:
7 different actions, but not -- not something 7 We're talking about Exhibit 9,
8 like this. 8 for the record.
9 Q. Have you had an opportunity to look 9 MS. GILBERT:
10 at the environmental assessments itemized in 10 Exhibit 9. It's right here.
11 this document? 11 Here's a copy for you (indicating).
12 A. No. 12 MR. SMITH:
13 Q. Because you have testified already 13 Thank you.
14 that there were no other final environmental 14 THE WITNESS:
15 impact statements filed with the CEQ relating 15 So what you said, that the
16 to the MRGO project, would it be safe to say 16 following EAs have been prepared to
17 that all of the environmental assessments 17 assess impacts of construction of
18 conducted associated with the MRGO resulted in 18 foreshore protection.
19 a finding of no significant impact? 19 EXAMINATION BY MS. GILBERT:
20 A. For those that are listed -- what I 20 Q. And then there's another category of
21 have in front of me, there -- I would have to 21 EAs identified on page -- on the second page
22 look. It looks like they're all FONSIs. 22 that address impacts of construction of dikes
23 Q. If there was an environmental 23 associated with dredge material disposal areas
24 assessments that resulted in something other 24 along portions of the MRGO?
25 than a FONSI, would that have been an 25 A. Yes.
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1 Q. Are you aware of any environmental 1 statements that address the issue of widening
2 assessments, any other categories of 2 of the channel, would it be fair to say that
3 environmental assessments conducted with 3 the Corps either concluded that widening was
4 regard to activities associated with the MRGO 4 not significant or that it wasn't a result of
5 project? 5 operation and maintenance?
6 A. As I indicated, I wasn't aware of 6 MR. SMITH:
7 all the environmental assessments that were 7 Objection. Assumes facts not in
8 discussed in here, so -- 8 evidence.
9 Q. Are you aware of any other -- 9 THE WITNESS:
10 A. Any other assessments beyond this? 10 Okay. Let me see that again.
11 Q. Categories of environmental 11 Read it more closely, what she said.
12 assessments. 12 Well, an EA is a document that's
13 A. I am not aware. 13 very short and brief and concise to
14 Q. In evaluating the environmental 14 the point in discussing environmental
15 assessments, would the Corps -- In creating an 15 impacts. The determination of
16 environmental assessment, would the Corps have 16 significant and so forth is with the
17 to identify what it perceives to be the 17 team that prepares it and the District
18 environmental impact of the conduct 18 Engineer, as I have indicated before.
19 described? 19 That that's left up to them to
20 A. In an environmental assessment, yes. 20 conclude.
21 Q. Okay. And is it the Corps' position 21 EXAMINATION BY MS. GILBERT:
22 that the absence of any discussion of the 22 Q. So --
23 specific activity's impact on widening of the 23 A. So we're, you know, --
24 channel, of the MRGO channel, land loss of the 24 Q. Can you think of --
25 MRGO channel, salinity, loss of trees, storm 25 A. I don't know of any widening EA.
Page 159 Page 161
1 surge, or impacts on other Federal projects in 1 No, I don't. If that's what you're looking
2 the area is because the Corps determined that 2 at.
3 the conduct and the impact was either not 3 Q. So you don't know of any widening
4 significant or a result of construction of the 4 EA. And had there been a widening EA, because
5 MRGO? 5 we don't have an Environmental Impact
6 A. Could you please read over that 6 Statement, the finding of the impact of
7 statement again? You had a number of things 7 widening would either have been
8 in it so I need -- 8 non-significant --
9 (Requested question read back.) 9 A. I don't know. You know, I don't
10 THE WITNESS: 10 know what the issues -- You're giving me a
11 Okay. I -- I can't conclude 11 hypothetical of something and I don't know all
12 that. I would have to look at the 12 the facts and, you know, it depends on all the
13 documents and see what they were all 13 people involved. It's not me saying to you
14 about, each one of these. That 14 whether it's significant or not significant
15 determination would have been made by 15 because it wasn't in there.
16 the people that were involved and 16 Q. Are you aware of whether or not the
17 ultimately the District Engineer who 17 MRGO has widened from its original design
18 signs the document. 18 width?
19 EXAMINATION BY MS. GILBERT: 19 MR. SMITH:
20 Q. Would you know if there are any EAs 20 Objection. Asked and answered.
21 that address the impact of widening of the 21 MS. GILBERT:
22 MRGO channel? 22 That's what I thought. Okay.
23 A. No, I don't. I'm not aware. 23 Withdrawn.
24 Q. If there had been an EA, given that 24 THE WITNESS:
25 we have no additional environmental impact 25 Okay.
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1 EXAMINATION BY MS. GILBERT: 1 question. Calls for speculation.
2 Q. Are you aware of any EAs that 2 THE WITNESS:
3 discuss the environmental impacts of land loss 3 I am just telling you the
4 associated with O&M activities in the MRGO? 4 process. The process is --
5 A. I haven't read these EAs so I can't 5 EXAMINATION BY MS. GILBERT:
6 tell you that. I'd have to be specifically 6 Q. Well, if it was discussed and it was
7 looking at each one of them. No, relative to 7 not found to have had no significant impact,
8 these EAs, I -- 8 an Environmental Impact Statement would have
9 Q. Okay. And with regard to any of 9 been drafted; correct?
10 these EAs, if there was an EA that dealt with 10 A. If there was a significant impact
11 the issue of land loss, because they all have 11 and there was a need identified from the EA,
12 associated FONSIs, the drafters would have 12 then a supplemental EIS would have been
13 considered that the land loss had no 13 prepared with the term needed. If an
14 significant impact? That the activity -- 14 environmental assessment indicated that there
15 Withdrawn. 15 was a no significant impact, then the FONSI
16 Because if there was an EA in this 16 would have been prepared and filed.
17 selection that addressed the issue of land 17 Q. So any EIS, given the history of the
18 loss, -- 18 MRGO environmental impact documents, any EIS
19 A. Uh-huh (affirmatively). Yes. 19 that would have discussed the impact of land
20 Q. -- because there would be an 20 loss would have concluded that there was no
21 associated finding of no significant impact, 21 significant impact of land loss caused by the
22 the Corps would have determined that the 22 operation and maintenance?
23 activity had no significant impact on land 23 A. You're now saying --
24 loss? 24 MR. SMITH:
25 MR. SMITH: 25 Objection to the form of the
Page 163 Page 165
1 Object to the form of the 1 question. It's vague.
2 question. It's vague. 2 THE WITNESS:
3 EXAMINATION BY MS. GILBERT: 3 Okay. Yeah, I don't understand
4 Q. Is that what a FONSI would be? 4 the question.
5 MR. SMITH: 5 EXAMINATION BY MS. GILBERT:
6 Objection, vague. 6 Q. If the Corps -- Given that we have
7 THE WITNESS: 7 no additional environmental impact statements
8 As we go back to the definition 8 associated with the MRGO --
9 of a FONSI, it's the Finding of No 9 A. Okay.
10 Significant Impact based on the 10 Q. -- and the only Environmental Impact
11 results of an EA, the coordination and 11 Statement that was drafted associated with the
12 all the comments and -- that once you 12 MRGO is the 1976 Final Environmental Impact
13 put all of that together, there needs 13 Statement dealing with operation and
14 to be a determination by the District 14 maintenance, --
15 Engineer as to whether it's a finding 15 A. Uh-huh (affirmatively).
16 of no significant impact or need for 16 Q. -- and we've gone through that in
17 an EIS as we discussed earlier. 17 some detail, --
18 EXAMINATION BY MS. GILBERT: 18 A. Correct.
19 Q. So if there had been an EA that even 19 Q. -- and we have also gone through the
20 addressed the question in this list of land 20 possibility of other environmental impact
21 loss, because there was no EIS, the Corps 21 statements that were filed with the CEQ, if
22 would have determined that the land loss was 22 there were any dealing with all of these
23 not a significant impact? 23 issues that we have discussed during the
24 MR. SMITH: 24 course of this deposition, i.e., land loss,
25 Object to the form of the 25 widening, salinity, loss of trees, storm
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1 surge, and we have determined that there 1 MS. GILBERT:
2 weren't any, right? 2 Okay.
3 A. Yes. 3 THE WITNESS:
4 Q. An EA would be an environmental 4 I don't see any filing with the
5 assessment that was not filed with the CEQ; 5 CEQ of an EA in the most recent one,
6 correct? 6 and I didn't see anything in the
7 MR. SMITH: 7 previous ones relative to filing an
8 Objection, vague. 8 EA.
9 EXAMINATION BY MS. GILBERT: 9 EXAMINATION BY MS. GILBERT:
10 Q. Is an EA filed with the CEQ? 10 Q. So we have gone over documents that
11 A. Well, check -- You know, the 11 would have to be filed with the CEQ,
12 regulations have changed. Let me verify 12 Environmental Impact Statements that have to
13 that. 13 be filed with the CEQ, and so my question is,
14 Q. Okay. 14 are you aware of any environmental assessments
15 MR. SMITH: 15 that the Corps prepared that did not result in
16 What time period is this? 16 an Environmental Impact Statement in which the
17 MS. GILBERT: 17 Corps analyzed the impact of widening of the
18 Forever. Through the history of 18 MRGO channel due to operation and maintenance
19 the EA. 19 activities?
20 MR. SMITH: 20 A. I am not aware.
21 All time periods? 21 MR. SMITH:
22 MS. GILBERT: 22 Objection, asked and answered.
23 Through the whole history. 23 EXAMINATION BY MS. GILBERT:
24 MR. SMITH: 24 Q. Okay. How about, are you aware of
25 50 years. 25 any environmental assessments that the Corps
Page 167 Page 169
1 THE WITNESS: 1 undertook to analyze the effect of land loss
2 Well, I could -- Where is the 2 in the vicinity of the MRGO channel as a
3 most recent -- Here. 3 result of operation and maintenance activities
4 EXAMINATION BY MS. GILBERT: 4 that did not result in an Environmental Impact
5 Q. Do you know if the EAs have to be 5 Statement?
6 filed with the CEQ? 6 A. I don't --
7 MR. SMITH: 7 MR. SMITH:
8 Wait. Excuse me. There was a 8 Objection, asked and answered.
9 question pending. Are you withdrawing 9 MS. GILBERT:
10 it? 10 That did not result in an
11 MS. GILBERT: 11 Environmental Impact Statement that
12 Yes. Let me withdraw it. 12 had to be filed. I am only looking
13 EXAMINATION BY MS. GILBERT: 13 for the record that did not -- When I
14 Q. Do you know if the EAs have to be 14 asked it before, I was asking with
15 filed with the CEQ? 15 regard to any statements that were --
16 A. I need -- 16 had to be filed with the CEQ. Any
17 MR. SMITH: 17 evaluations and reports that had to be
18 Objection, vague as to time. 18 filed.
19 MS. GILBERT: 19 MR. SMITH:
20 Ever. 20 You asked him -- According to my
21 MR. SMITH: 21 notes, you asked him previously are
22 This is what we're -- He's 22 you aware of any EAs that discuss the
23 already answered that. He said it 23 environmental impact of land loss
24 depends on the reg that was in effect 24 associated with operation and
25 at the time and he is looking. 25 maintenance. And he said "I can't
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1 answer that question." 1 What was the format of that
2 MS. GILBERT: 2 question?
3 Was that just in relation -- 3 EXAMINATION BY MS. GILBERT:
4 MR. SMITH: 4 Q. That the Corps prepared that did not
5 That was before. 5 result in an Environmental Impact Statement in
6 MS. GILBERT: 6 which the Corps analyzed the impact of loss of
7 EAs. Did I ask -- Okay. Then 7 trees and marshlands in the vicinity of the
8 I'll withdraw that. 8 MRGO environment associated with operation and
9 EXAMINATION BY MS. GILBERT: 9 maintenance of the MRGO?
10 Q. Are you aware of any EAs that the 10 MR. SMITH:
11 Corps engaged in that dealt with the 11 I'm going to object to the form.
12 environmental assessments of saltwater 12 MS. GILBERT:
13 intrusion in the wetlands area in the vicinity 13 Okay.
14 of the MRGO associated with the operation and 14 MR. STEVENS:
15 maintenance of the MRGO that did -- 15 But subject to Mr. Smith's
16 MR. SMITH: 16 eloquent objection, you can still
17 Objection. 17 answer the question, sir.
18 EXAMINATION BY MS. GILBERT: 18 THE WITNESS:
19 Q. -- not result in an Environmental 19 Okay. I'm ready to answer the
20 Impact Statement? 20 question you were --
21 MR. SMITH: 21 EXAMINATION BY MS. GILBERT:
22 Objection, asked and answered. 22 Q. Oh, we were ready.
23 Go ahead and answer again. 23 A. I'm not aware.
24 THE WITNESS: 24 Q. Okay. And the same question with
25 I am not aware. 25 regard to storm surge impacts on operation and
Page 171 Page 173
1 MS. GILBERT: 1 maintenance in the vicinity of the MRGO.
2 Let's go off the record. 2 A. I am not aware.
3 VIDEO OPERATOR: 3 Q. Okay. And lastly, the same question
4 We're off the record. It is 4 with regard to the impact of the operation and
5 3:34. 5 maintenance of the MRGO on other Federal
6 (Whereupon a discussion was held 6 projects in the vicinity of the MRGO.
7 off the record.) 7 A. I am not aware.
8 MS. GILBERT: 8 Q. Okay. I'm definitely coming in the
9 Okay. Back on the record. 9 home stretch. I promise you.
10 Sorry. 10 A. Okay.
11 MR. SMITH: 11 Q. When, if ever, is the worst case
12 I think you have asked it, but go 12 analysis of the environmental impacts to be
13 ahead and ask it again for 13 included in an EA? EIS. I'm sorry.
14 completeness. 14 A. State that again.
15 EXAMINATION BY MS. GILBERT: 15 Q. When, if ever, must a worst case
16 Q. Okay. Mr. Saia, -- 16 analysis of environmental impacts of an action
17 A. Yes. 17 be included in an EIS?
18 MS. GILBERT: 18 MR. SMITH:
19 Are we back on the record? 19 Objection. Asked and answered.
20 MR. STEVENS: 20 MS. GILBERT:
21 Yes. 21 Worst case scenario?
22 EXAMINATION BY MS. GILBERT: 22 MR. SMITH:
23 Q. Are you aware of any environmental 23 Object to the form of the
24 assessments that the Corps conducted -- 24 question.
25 MS. GILBERT: 25 MS. GILBERT:
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1 Okay. 1 Objection. This is -- I'm
2 MR. SMITH: 2 sorry.
3 Object, assuming facts not in 3 MS. GILBERT:
4 evidence. Any other objections? 4 You're almost done. You're
5 EXAMINATION BY MS. GILBERT: 5 really almost done.
6 Q. If ever. When, if ever, must a 6 MR. SMITH:
7 worst case analysis of the environmental 7 No, really, we are done. Because
8 impacts of a proposed action be included in an 8 you already asked this question and it
9 EIS, if you know? 9 was answered. So if this is it, we're
10 A. Worst case, it's stated in the 10 done.
11 regulation. 11 MS. GILBERT:
12 Q. That's what I am asking you, if the 12 No, we have some more.
13 Corps has a policy on when, if ever, the Corps 13 MR. SMITH:
14 will include a worst case analysis of an 14 But they have already been asked
15 environmental impact in an EIS. 15 and answered, too.
16 A. I am not familiar with those terms. 16 MR. STEVENS:
17 Q. A worst -- 17 You hadn't heard them yet.
18 (Whereupon a discussion was held 18 MR. SMITH:
19 off the record.) 19 I have heard them all. 16
20 EXAMINATION BY MS. GILBERT: 20 times.
21 Q. Under what circumstances, if you 21 EXAMINATION BY MS. GILBERT:
22 know, do old EISs have to be supplemented 22 Q. Okay.
23 before continuing operation and maintenance 23 A. If you have a change in a project
24 activities are engaged in an ongoing project? 24 that's significant, a change in the length of
25 MR. SMITH: 25 the project, we did talk about this before, --
Page 175 Page 177
1 Objection. This was asked and 1 Q. Okay.
2 answered. 2 A. -- that would require you to put out
3 MS. GILBERT: 3 a supplement. You would -- could either do an
4 The circumstances? 4 EA to determine whether it needs to be changed
5 EXAMINATION BY MS. GILBERT: 5 or need a supplemental EIS, or you could
6 Q. Do you know? 6 proceed to an EIS. Or, you know, if you had a
7 MR. SMITH: 7 modification to the project, an authorization
8 When you need to do a 8 to add something, then you would need to make
9 supplemental EIS has been answered. 9 that determination to whether you do a FONSI
10 EXAMINATION BY MS. GILBERT: 10 or a supplemental EIS. So that's -- Again,
11 Q. Do old EISs have to be supplemented? 11 that's a determination of the District
12 MR. SMITH: 12 Engineer in consultation with many other
13 They're all old if you're going 13 people.
14 to have to supplement them. I mean, 14 Q. I am just going to mark one more
15 what's old? 15 document and then we are done.
16 EXAMINATION BY MS. GILBERT: 16 (Whereupon a discussion was held
17 Q. Okay. 17 off the record.)
18 MR. SMITH: 18 MS. GILBERT:
19 Objection, vague then. How old 19 The last document we have to
20 do they have to be to be old? 20 mark. We designated this document,
21 EXAMINATION BY MS. GILBERT: 21 and I don't know when we made copies
22 Q. Okay. Do you know under what 22 of it. We don't have complete
23 circumstances -- Are there general 23 versions of it. It would be NOP-019,
24 circumstances in which you have to -- 24 six zeroes, 852 through 865.
25 MR. SMITH: 25 MR. SMITH:
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1 You gave it to us yesterday or 1 Q. And do you know why he prepared this
2 today? 2 document?
3 MS. GILBERT: 3 A. Because he thought there --
4 No, no, no. We gave it to you in 4 MR. SMITH:
5 the documents. 5 The answer is do you know. The
6 MR. SMITH: 6 question is, excuse me, do you know.
7 Oh, previously. 7 THE WITNESS:
8 (Whereupon a discussion was held 8 No, I don't.
9 off the record.) 9 EXAMINATION BY MS. GILBERT:
10 MS. GILBERT: 10 Q. Do you know what this document was
11 We're going to mark as Exhibit 11 intended to be used for?
12 Number 13 -- Let's go back on the 12 A. He has a recommendation on page 3
13 record. 13 and 4 that goes on to discuss what he is
14 VIDEO OPERATOR: 14 recommending.
15 Returning to the record, it is 15 Q. All right. Does Mr. Bow acknowledge
16 3:47. 16 that the disposal sites and methods that had
17 MS. GILBERT: 17 been used along the inland reach since the
18 Okay. I am going to show the 18 '80s were significantly changed from the time
19 witness a document that's been marked 19 that the original Environmental Impact
20 as Exhibit 13. It's Bates stamped 20 Statement had been prepared in 1976?
21 number NOP-019, six zeroes, 862 21 A. He just discusses a series of
22 through 865. 22 changes over time and environmental
23 EXAMINATION BY MS. GILBERT: 23 assessments that were done.
24 Q. I ask you if you reviewed that 24 Q. And does he conclude that despite
25 document in preparation for today's 25 the fact that several environmental
Page 179 Page 181
1 deposition. 1 assessments had been prepared, in each
2 (Whereupon a discussion was held 2 instance a finding of no significant impact
3 off the record.) 3 was generated?
4 THE WITNESS: 4 MR. SMITH:
5 I'd seen it before, yes. 5 Objection, calls for
6 EXAMINATION BY MS. GILBERT: 6 speculation.
7 Q. Oh, you have? Okay. 7 EXAMINATION BY MS. GILBERT:
8 A. I just needed to look at it again. 8 Q. Does he conclude in this document
9 (Whereupon a discussion was held 9 that despite the fact that assessments,
10 off the record.) 10 environmental assessments had been prepared
11 EXAMINATION BY MS. GILBERT: 11 and the findings of no significant impact had
12 Q. Let's go back on. Back on the 12 accompanied those environmental assessments,
13 record. Okay. We're back on the record. 13 that the cumulative effect was significant?
14 Have you reviewed this document? 14 MR. SMITH:
15 A. Yes. 15 Objection, calls for
16 Q. Do you have any -- Do you know who 16 speculation.
17 prepared this document? 17 EXAMINATION BY MS. GILBERT:
18 A. Yes. 18 Q. Does it say that in the document?
19 Q. Who prepared this document? 19 A. It says here on the first page, he
20 A. Richard Bow. 20 addresses FONSIs, "All of the changes that
21 Q. Who is Richard Bow? 21 have occurred in the dredging and disposal
22 A. Richard Bow is a Section Chief in 22 plan since preparation originally have been
23 Environmental Branch of Planning Programs and 23 addressed in environmental assessments and
24 Project Management Division of New Orleans 24 associated findings of no significant impact."
25 District. 25 Q. But does he also conclude -- Does he
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1 start that paragraph by saying -- by pointing 1 THE WITNESS:
2 out that the disposal sites and methods that 2 This, his comments, page 4, he
3 had been used along the inland reach since the 3 discusses the major points.
4 mid 1980s bear little resemblance to those 4 EXAMINATION BY MS. GILBERT:
5 described in the Environmental Impact 5 Q. Which are? Does he discuss that
6 Statement of 1976 for operation and 6 Supplemental Environmental Impact Statements
7 maintenance of the MRGO? 7 need to be prepared for the O&M program of the
8 MR. SMITH: 8 MRGO?
9 Objection, calls for 9 A. That's what he indicates, SEIS.
10 speculation. 10 Q. And in the very first paragraph
11 EXAMINATION BY MS. GILBERT: 11 doesn't he say that -- on page 1, the very
12 Q. Doesn't it state that in the 12 first page, doesn't he say that the main
13 letter? 13 reason why Supplemental Environmental Impact
14 A. It states -- 14 Statements had not been prepared is that each
15 MR. SMITH: 15 change has been discrete and not associated
16 Objection. 16 with other changes?
17 THE WITNESS: 17 A. Could you direct me to where you're
18 It states in the -- in this 18 reading?
19 draft, whatever document that it is, 19 Q. I am reading --
20 NEPA compliance is complete for all 20 A. On page 1?
21 existing O&M activities, and then he 21 Q. I am reading the second-to-last
22 goes on to however it's stated. I 22 sentence on the first page.
23 believe you read it, so I don't need 23 A. The second-to-last sentence on the
24 to read it again. 24 first page. "The main reason". Okay. Got
25 EXAMINATION BY MS. GILBERT: 25 it. That's what he says.
Page 183 Page 185
1 Q. And does he conclude -- 1 Q. So he concludes that each individual
2 MR. SMITH: 2 -- that there was no analysis of the
3 We're going to have to finish 3 cumulative effect of this conduct?
4 this up here. I have got a conference 4 A. That's his statement.
5 with the Judge in about two minutes. 5 MR. SMITH:
6 MS. GILBERT: 6 Objection. Calls for
7 Okay. But -- 7 speculation.
8 MR. SMITH: 8 EXAMINATION BY MS. GILBERT:
9 We can continue tomorrow. 9 Q. Is that what the document says?
10 MS. GILBERT: 10 MR. SMITH:
11 No, I'll ask him a couple of more 11 The draft document?
12 questions. 12 THE WITNESS:
13 EXAMINATION BY MS. GILBERT: 13 That's what he says in the
14 Q. Does Mr. Bow conclude that the 14 document.
15 reason that supplemental impact statements 15 EXAMINATION BY MS. GILBERT:
16 should have been prepared? 16 Q. On the second page at the end of the
17 MR. SMITH: 17 third full paragraph --
18 Objection, calls for 18 A. The second page, the third full --
19 speculation. 19 Q. The second page, the end of the
20 EXAMINATION BY MS. GILBERT: 20 third full paragraph -- no, I'm sorry.
21 Q. You can answer it if you believe 21 Withdrawn.
22 that that's what he is saying. 22 What was the gentleman, Mr. Bow's
23 A. He's recommending -- 23 position at the time this document was
24 MR. SMITH: 24 drafted?
25 Objection, argumentative. He -- 25 MR. SMITH:
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1 Objection, asked and answered. 1
2 EXAMINATION BY MS. GILBERT: 2 REPORTER'S CERTIFICATE
3 Q. What was his title? 3
4 MR. SMITH: 4 I, ROGER D. JOHNS, RMR, RDR, CRR,
5 I'm going to ask that this be 5 Certified Court Reporter, do hereby certify
6 adjourned at this time so I can go 6 that the above-named witness, after having
7 talk to the Judge. 7 been first duly sworn by me to testify to the
8 MS. GILBERT: 8 truth, did testify as hereinabove set forth;
9 All right. Well, we can wait. 9 that the testimony was reported by me in
10 MR. STEVENS: 10 shorthand and transcribed under my personal
11 How long are you guys going to 11 direction and supervision, and is a true and
12 be? 12 correct transcript, to the best of my ability
13 MR. SMITH: 13 and understanding; that I am not of counsel,
14 I don't know. 14 not related to counsel or the parties hereto,
15 MR. BRUNO: 15 and not in any way interested in the outcome
16 Very short. 16 of this matter.
17 MS. GILBERT: 17
18 Okay. Great. 18
19 MR. STEVENS: 19
20 We'll stand by. 20 ROGER D. JOHNS
21 MR. SMITH: 21 CERTIFIED COURT REPORTER
22 I'm not going to be any longer 22 STATE OF LOUISIANA
23 than you were. 23
24 VIDEO OPERATOR: 24
25 Off the record. It is 3:58. 25
Page 187
1 (Whereupon a discussion was held
2 off the record.)
3 (Testimony continued at this point.)
4 * * *
5 WITNESS'S CERTIFICATE
6
7 I, JOHN SAIA, read or have had the
8 preceding testimony read to me, and hereby
9 certify that it is a true and correct
10 transcription of my testimony, with the
11 exception of any attached corrections or
12 changes.
13
14
_____________________
15 (Witness' Signature)
16 ____________
DATE SIGNED
17
18 DEPONENT PLEASE INITIAL ONE:
19
_____ Read with no corrections
20
21 _____ Read and correction sheet attached
22
23
DATE TAKEN: OCTOBER 1, 2008
24
25

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ability 13:3 31:6,17 112:2 135:5,7 advisor 150:10,10 60:21 61:9,19 176:9,15 186:1
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above-named actual 100:6 131:10 138:11 70:20 71:23 79:3 apparent 27:9
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absence 158:22 117:5 177:8 aforementioned ameliorate 131:7 2:1 3:1
accept 18:24 added 30:25 90:19 4:5 AMERICA 1:18 APPEARING 3:8
acceptable 31:13 93:9 AFW-180 8:13 9:6 2:16 appears 67:13
31:13 addition 105:13 AFW-180000001... analysis 33:9 34:21 appendices 95:5
accompanied additional 37:11 5:7 34:22 35:7 45:13 appendix 8:2 29:12
181:12 120:10 159:25 AFW-180000001... 45:20 46:25 47:14 34:15 35:3
accompany 36:2,8 165:7 5:6 47:24 48:16 67:6 applicable 66:7,8
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action 1:6 10:13,18 162:17 163:20 69:20 70:2,17 87:25 88:8 91:18 34:17 49:20 50:23
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actions 11:14 18:16 69:21 126:16,25 23:17,21,24 24:1 appropriations
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26:11 59:4 78:25 67:25 68:2,17 82:5 113:24 37:12 53:16 60:4 124:3 129:4
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activities 60:16 adjustments allocated 132:2 170:1,23 172:17 38:24 47:20
103:4 121:17,20 125:21 allowable 117:11 172:19 180:5 123:21 127:21
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169:3 174:24 advanced 117:12 alteration 64:6 24:15,20,23 30:15 archives 37:2
182:21 advantage 78:15 altered 39:7 47:18 76:11 161:20 area 39:15 64:1,23
activity 60:23 adverse 64:9 129:11 167:23 168:22 88:20 92:2 120:19
advise 31:6 alternative 50:16 169:8 170:22 120:24 136:8

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areas 39:8 64:4 158:15 168:14,25 136:5,9 146:12 118:22 121:2 145:25 148:10
157:23 170:12 171:24 154:21 123:23 134:4 182:23 183:21
argument 95:17 180:23 181:1,9,10 authorization 136:6,8 143:5 believed 89:7 90:18
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arises 146:11 associated 38:19 57:1 59:15,16,23 background 61:12,22 65:7
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Army 1:19,20 2:22 117:11 120:16 145:14,16 balanced 28:10 benefits 137:2
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