KTR00158

MILLER (VOL III), GREGORY
10/14/2008
Page 216
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 III)
Rule 30(b)(6) deposition of THE UNITED
STATES OF AMERICA, BY AND THROUGH THE UNITED
STATES ARMY CORPS OF ENGINEERS' DESIGNEE
GREGORY MILLER, given at the U.S. Army Corps of
Engineers New Orleans District offices, 7400
Leake Avenue, New Orleans, Louisiana
70118-3651, on October 14th, 2008.
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005
Johns Pendleton Court Reporters 800 562-1285

10/14/2008
Page 217 Page 219
1 REPRESENTING THE PLAINTIFFS: 1 PRESENT VIA I-DEP:
2 BRUNO & BRUNO 2
3 (BY: JOSEPH M. BRUNO, ESQUIRE) 3 ELISA GILBERT, ESQ.
4 (BY: FLORIAN BUCHLER, ESQUIRE) 4 BRENDAN O'BRIEN, ESQ.
5 855 Baronne Street 5 ELWOOD STEVENS, ESQ.
6 New Orleans, Louisiana 70113 6
7 504-525-1335 7 VIDEOGRAPHER:
8 - AND - 8 KEN HART
9 ELWOOD C. STEVENS, JR., APLC 9
10 (BY: ELWOOD C. STEVENS, JR., ESQUIRE) 10
11 1205 Victor II Boulevard 11
12 Morgan City, Louisiana 70380 12
13 - AND - 13
14 MCKERNAN LAW FIRM 14
15 (BY: ASHLEY E. PHILEN, ESQUIRE) 15
16 8710 Jefferson Highway 16
17 Baton Rouge, Louisiana 70809 17
18 225-926-1234 18
19 - AND - 19
20 ANDRY LAW FIRM 20
21 (BY: KEA SHERMAN, ESQUIRE) 21
22 610 Baronne Street 22
23 New Orleans, Louisiana 70113 23
24 504-586-8899 24
25 - AND - 25
Page 218 Page 220
1 THE GILBERT FIRM, LLC 1 EXAMINATION INDEX
2 (BY: ELISA GILBERT, ESQUIRE) 2
3 325 E. 57th Street 3 EXAMINATION BY: PAGE
4 New York, N.Y. 10022 4
5 212-286-8503 5 MR. BRUNO ...............................222
6 6 EXHIBIT INDEX
7 REPRESENTING THE UNITED STATES OF AMERICA: 7
8 UNITED STATES DEPARTMENT OF JUSTICE, 8 EXHIBIT NO. PAGE
9 TORTS BRANCH, CIVIL DIVISION 9 EXHIBIT 50 ...............................333
10 (BY: ROBIN SMITH, ESQUIRE) 10 EXHIBIT 51 ...............................336
11 (BY: CONOR KELLS, ESQUIRE) 11
12 P.O. Box 888 12
13 Benjamin Franklin Station 13
14 Washington, D.C. 20044 14
15 202-616-4289 15
16 16
17 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 17
18 CORPS OF ENGINEERS, OFFICE OF COUNSEL 18
19 (BY: DAVID DYER, ESQUIRE) 19
20 7400 Leake Avenue 20
21 New Orleans, Louisiana 70118-3651 21
22 504-862-2843 22
23 23
24 ALSO PRESENT: 24
25 R. SCOTT HOGAN, ESQ. 25
2 (Pages 217 to 220)

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Page 221 Page 223
1 STIPULATION 1 1970, okay?
2 IT IS STIPULATED AND AGREED by and 2 A. Yes.
3 among counsel for the parties hereto that the 3 Q. Okay. Now, at the time of the last
4 deposition of the aforementioned witness may be 4 deposition we went into detail about the extent
5 taken for all purposes permitted within the 5 to which the Corps interacted with other
6 Federal Rules of Civil Procedure, in accordance 6 agencies in connection with the survey and the
7 with law, pursuant to notice; 7 application for authorization with the
8 That all formalities, save reading 8 Congress. You remember that?
9 and signing of the original transcript by the 9 A. Yes.
10 deponent, are hereby specifically waived; 10 Q. Can you tell me why the Corps had
11 That all objections, save those as to 11 interaction with other agencies as we discussed
12 the form of the question and the responsiveness 12 in the previous questions? Why did that occur?
13 of the answer, are reserved until such time as 13 A. In general, it occurred because of
14 this deposition, or any part thereof, is used 14 responsibilities that we have as an
15 or sought to be used in evidence. 15 organization in planning federal water
16 16 resources projects. In specific, there were
17 17 occasions where they were in direct response to
18 * * * 18 letters received from other agencies such as
19 19 the Department of the Interior.
20 20 Q. All right. Can you define for me what
21 21 those responsibilities that you have as an
22 JOSEPH A. FAIRBANKS, JR., CCR, RPR, 22 organization are?
23 Certified Court Reporter in and for the State 23 A. Well, our responsibility is to comply
24 of Louisiana, officiated in administering the 24 with all existing rules, regulations and laws
25 oath to the witness. 25 affecting our planning or operation and
Page 222 Page 224
1 GREGORY MILLER 1 maintenance of water resources projects.
2 U.S. Army Corps of Engineers New Orleans 2 Q. Okay.
3 District offices, 7400 Leake Avenue, New 3 A. I could do it, but I would rather see
4 Orleans, Louisiana 70118-3651, a witness named 4 documents in terms of, you know, the specific
5 in the above stipulation, having been first 5 requirements of the day if we're going to talk
6 duly sworn, was examined and testified on his 6 about specific actions required up to the
7 oath as follows: 7 authorization of the project, and even those
8 EXAMINATION BY MR. BRUNO: 8 until my tenure before joining the Corps.
9 Q. Mr. Miller, referring to Paragraph 2 9 Q. Okay. When it comes to the issue of
10 which you've been designated to speak about 10 analyses and/or evaluations of impacts to the
11 there's a request that you address impacts on 11 health and safety of the human environment --
12 the health and safety of the human environment 12 okay? That's a general topic, I'm not being
13 both before the enactment of the National 13 specific. What is the responsibility of the
14 Environmental Policy Act and after. Just so 14 Corps with regard to advising the Congress
15 that we scan make sure the record is clear, do 15 about those evaluations? This is all pre-1970.
16 you know when the national environment policy 16 Okay?
17 act came into being? 17 A. I'm not sure in terms of specific
18 A. Yes. 18 requirements, although we do have in the record
19 Q. Okay. When is that? 19 that we've seen a number of various evaluations
20 A. 1970. 20 and reports that we produced. We have to be
21 Q. 1970. Okay. 21 careful here because not all of that would be
22 A. Act is actually designated '69, but it 22 sent to the Congress, and the question deals
23 was signed in 1970. 23 with, you know, reporting to the Congress.
24 Q. So the distinction, then, with regard 24 Q. And that's why I asked the question.
25 to these questions would we pre 1970 and post 25 I'm trying to get handle on what the Corps
3 (Pages 221 to 224)
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1 perceives its responsibility to be. I mean, 1 A. Is there any particular point in time,
2 where are the lines drawn, if there are any 2 or is it just in general right now?
3 lines, with regard to what it is that you have 3 Q. Well, I'm framing the question
4 to disclose to Congress and what you don't have 4 pre-1970. Okay? And since we're here to talk
5 to disclose to Congress in the context of 5 about the MRGO, I'm talking about from the
6 analyses and/or evaluations that relate to the 6 point in time when the surveys were done, which
7 impact on health and safety on the human 7 I guess would be the early fifties and the
8 environment? 8 like. I can break it down further, we can talk
9 A. I would say that in general there are 9 bought the fifties if you'd like.
10 two specific things. One would be part of a 10 A. Well, I guess my answer would still be
11 regular budget preparation. If the Corps 11 that, you know, upon specific requests. And
12 submitted part of its budget seeking funds for 12 beyond that, I'm not aware of any.
13 certain activities, that would be a way where 13 Q. Okay. All right. Now, we talked a
14 the Congress would interact with the 14 lot about, you know, the design of the MRGO,
15 administration on activities and, therefore, 15 you'll remember, and we talked about the
16 they would be apprised of it. The second would 16 general design memorandum. You'll remember
17 be any specific report required by 17 that, as well. And specifically those
18 Congressional, um -- either resolution or 18 paragraphs that regarded the recognition that
19 actual law or authority passed. 19 the wave wash was -- had the potential of
20 Q. Okay. I'm gathering your response to 20 eroding the banks. You remember that?
21 regard opportunities wherein the Corps may in 21 A. I do.
22 fact have some interaction with the Congress. 22 Q. And you remember that specifically in
23 The question is a little different with 23 the design memorandum it said that if we need
24 respect -- it is, when is it that the Corps 24 to deal with this, we'll deal with it in the
25 believes it's required to communicate to the 25 future, or words to that effect. I'm not
Page 226 Page 228
1 Congress? And then the context is very 1 trying to quote it exactly. But you remember
2 specific, it's about analyses and/or 2 that.
3 evaluations about the health and safety on the 3 A. In general, yeah.
4 human environment related to its projects. 4 Q. Okay. All right. And obviously if
5 A. Well, it would be in response to any 5 the Corps needs to deal with that -- and we can
6 specific request by the Congress to report on a 6 find the precise words if that causes you some
7 specific project. 7 pain, but generally I recall the general design
8 Q. Okay. 8 memorandum to say, if we need to do something
9 A. It would also be as part of a 9 about shore protection we'll do it. There will
10 submittal process, for example, for a project 10 be necessarily a cost associated with that
11 approval. 11 effort; right?
12 Q. Okay. 12 A. Could we take a quick look at it just
13 A. Speaking in general. Again, I would 13 to --
14 want to go back and make sure of the specific 14 Q. Oh, sure. Yeah. Well, you've got it.
15 time. Um -- but in those types of situations 15 I think you can find it faster than I can. I
16 there would be a requirement because you've got 16 think it's Paragraph -- all right. I'm with
17 a request from Congress -- 17 you. I forgot which exhibit number this is.
18 Q. Sure. 18 You'll forgive me. It's Paragraph 16 of 1A?
19 A. -- for certain information. 19 A. Right.
20 Q. All right. Well, am I gathering then 20 Q. So the precise words are, protection
21 that unless the Congress asks for information, 21 for this area can be provided if and when the
22 or unless the Corps is looking for approval to 22 need for it becomes necessary. Those are the
23 spend money or to get money to spend it, the 23 precise words.
24 Corps is under no obligation to report to the 24 A. That's right.
25 Congress? 25 Q. Okay. Now, that's going to obviously
4 (Pages 225 to 228)
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1 involve spending money. Right? 1 rights-of-way will be furnished when the need
2 A. Yes. 2 arises.
3 Q. Okay. Now, before we get to the 3 Q. All right. Well, that's a different
4 spending the money part there's the necessary 4 subject, isn't it? That sentence refers to the
5 component. What are the considerations that go 5 fact that the Corps owns a chunk of land which
6 into a determination as to whether or not 6 it regards as expendable and if that erodes
7 protection is necessary? 7 away due to wave wash and then you now are
8 A. It's difficult for me to say at the 8 into -- and you've reached the conclusion that
9 time on what the rule or requirement, if there 9 you have this need, then we'll go and we'll get
10 even was one, would have been in 1957. 10 some more rights-of-way. That's a mechanical
11 Q. Okay. So the answer is you don't 11 issue, that is, that's what they're going to do
12 know. 12 when they decide that they have the need, isn't
13 A. No, I don't know. 13 that true?
14 Q. Okay. Now, do you believe that it 14 A. Not necessarily.
15 would have been appropriate to advise the 15 Q. Well, what does it mean?
16 Congress of the need for channel protection if 16 A. It could be that at the time that that
17 the Corps had determined that it had become 17 was the method, if you will, of allowing for
18 necessary? 18 the project to be operated, that enough
19 MR. SMITH: 19 right-of-way would be provided as a navigation,
20 Objection. Vague. 20 um -- I'm probably not using the right term,
21 A. I think at the time of this 21 but right-of-way, if you will, um -- that you
22 particular -- and this is 1957, that the 22 wouldn't go to the cost of building physical
23 determination is that, you know, it's not 23 protection, you would simply absorb the cost of
24 necessary. Not necessary at this time. 24 purchasing the right for that channel to be
25 EXAMINATION BY MR. BRUNO: 25 there. And I think that's the context of this
Page 230 Page 232
1 Q. Okay. It's not necessary to advise 1 paragraph in terms of, you know, some future
2 the Congress of the need for channel 2 action, and then also provision of those
3 protection; right? 3 interests from the locals.
4 A. Well, I think what the document says 4 Q. Okay. So you believe that what this
5 is no channel protection is recommended 5 sentence refers to is the notion that the Corps
6 initially. 6 expects the shores to wash away due to wave
7 Q. Right. 7 erosion and that the Corps expects that to wash
8 A. So at this time they're not 8 away and the washing away of the shore is a
9 recommending that any channel protection, um -- 9 component of the design. Right?
10 Q. Okay. 10 A. Well, it actually reads, you know,
11 A. -- you know, be provided. And it goes 11 protection for the area can be provided if and
12 on further to note, and this is important, 12 whether the need for it becomes necessary. And
13 that, um -- you know, that's not considered, at 13 that's, you know -- that's a different --
14 least at this time, the time of authorization, 14 Q. Exactly. Well, what do you think
15 that it was part of the cost of the job. 15 protection means?
16 Q. Precisely. That's why I'm asking 16 A. I think in this case it means, you
17 these questions. Because it says protection 17 know, prevention of erosion due to wave wash.
18 for this area can be provided. That's what the 18 Q. Okay. All right. And the use of the
19 sentence says; right? 19 phrase it can be provided if and when it
20 A. Yes. 20 becomes necessary refers to some type of
21 Q. All right. By whom? 21 protection. Right? Some device, be it
22 A. Well, in this case it says it is 22 armoring or vegetation or whatever device would
23 presumed that sufficient rights-of-way will be 23 be appropriate. Right?
24 furnished by local interests to preclude use of 24 A. Yeah. I believe that's right.
25 channel protection, or that additional 25 Q. Okay. And so we know that the costs
5 (Pages 229 to 232)
10/14/2008
Page 233 Page 235
1 for that are not included in this project. And 1 that that paragraph that you just read
2 I think we've established that the Corps has 2 reflects, one, that the protection could be
3 the authority to install this channel 3 provided, and you said it meant we have the
4 protection. Right? We established that the 4 engineering knowhow to do it. You then
5 last time we were together. 5 testified the budget didn't include money for
6 A. Did we establish that or did we 6 it. Okay? So now we have in April of '68 a
7 establish that there was provision in the 7 design memo to install foreshore protection.
8 authority for certain measures, I believe it 8 So that Paragraph 16 becomes relevant because
9 was jetties or protective -- 9 now we have foreshore protection being
10 Q. We talked about this paragraph. We 10 installed. Right?
11 know this paragraph doesn't talk about jetties. 11 A. Yes.
12 I'm talking about this protection. 12 Q. Okay. Who was it that decided that
13 A. Right. 13 there was a need for foreshore protection?
14 Q. The sentence protection for this area 14 A. Sorry. Just trying to make myself
15 can be provided if and when the need for it 15 familiar with something.
16 becomes necessary implies, does it's not, that 16 Q. That's all right.
17 this project has within it authority for this 17 A. I'm forty years old.
18 kind of protection? There's no money for it, 18 Q. That's okay.
19 but there's authority for it. 19 A. I'm reading from the same document you
20 A. I thought my interpretation of this 20 referred to, the Foreshore Protection General
21 was that it meant from an engineering 21 Design Memorandum 2, Supplement Number 4, from
22 perspective that you could provide something, 22 April, 1968.
23 um -- because this was a design memorandum. I 23 Q. Yes, sir.
24 thought that -- 24 A. Paragraph 2, purpose -- this
25 Q. That's fine. Whatever your answer is 25 supplement was prepared in accordance with ENGC
Page 234 Page 236
1 it is. So you're saying to me today, though, 1 WEZ6 endorsement dated 12 April 1967 to
2 that this is -- all they're saying here now is 2 LMNED-PR letter dated 29 November 1966, subject
3 not that they have the authority but they have 3 Lake Pontchartrain, Louisiana and Vicinity
4 the engineering knowhow to install protection 4 Modification in the Chalmette Area Plan to
5 if it becomes necessary; it's an engineering 5 include larger area. It's purposes are to
6 sentence, right? 6 present the basis for inclusion of foreshore
7 A. Well, I think that's the general 7 protection in the Mississippi River Gulf Outlet
8 context of it, yes. 8 project, the location of such protection, and
9 Q. Okay. All right. So in 1968 or 9 revised cost estimate for the overall MRGO
10 thereabouts, when it was decided to install 10 project.
11 foreshore protection, apparently someone had 11 It's a memorandum sent to the acting
12 determined that there was a need, in the 12 Division Engineer of the Lower Mississippi
13 context of that sentence, right? 13 Valley Division, it's from Colonel Thomas
14 A. Can you point me to -- it's 14 Bowen, the District Engineer in the New Orleans
15 Paragraph 16 again? 15 District.
16 Q. No, no. I'm saying foreshore 16 Q. Are you referring to a letter now?
17 protection. We don't have to go over this 17 A. It's a memorandum.
18 again, I hope. You remember that we talked 18 Q. It's dated 26 May '66?
19 about the fact that in 1968 the Corps of 19 A. Excuse me, no. 29 November 1966.
20 engineers prepared a General Design Memorandum, 20 Q. 29 November. Let see if I can find
21 Supplement Number 4, the purpose of which was 21 it.
22 to install foreshore protection along certain 22 Can you give me a page number or
23 banks of the MRGO, right? 23 something?
24 A. Yes. 24 MR. KELLS:
25 Q. Okay. I mean, we just established 25 What's the Bates number?
6 (Pages 233 to 236)
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1 A. It's in the Appendix A. 1 chose?
2 EXAMINATION BY MR. BRUNO: 2 A. It is a mod -- the decision was made
3 Q. Appendix A. Okay. 29 November 1966? 3 that this is a modification of the MRGO
4 A. Yes. 4 project.
5 Q. All right. Well, I appreciate the 5 Q. Okay. Now, what analysis was done in
6 reference, but so what's the answer? Who 6 order to determine that there was a need for
7 determined that there was a need for foreshore 7 this foreshore protection?
8 protection? 8 Are you reading by any chance the 29
9 A. The broad answer is the Army Corps of 9 November 1966 letter? Is that where we were
10 Engineers, it looks, through recommendation of 10 looking for the answer? Or are we looking
11 the district engineer. That's why I pointed 11 somewhere else?
12 out that. 12 A. Well, I was at the, um -- 27
13 Q. Okay. That's fair. And so what you 13 November 1967, but I didn't find the answer I'm
14 did for me was you found for me the document 14 looking for.
15 which points out the need. And this is the 15 Do we have a design memorandum for
16 document, 29 November 1966 by Colonel Thomas 16 Lake Pontchartrain and Vicinity, um -- General
17 Bowen who's the District Engineer of the New 17 Design Memorandum Number 3?
18 Orleans office. Right? 18 Q. We do. I know we do because it's in
19 A. Yes. 19 the pile of depositions. Whether we can put
20 Q. He decides. Correct? 20 our hands on it very easily is another matter.
21 A. Well, he makes recommendation -- 21 A. I can tell you what I'm looking at and
22 Q. He made the recommendation. 22 then we can decide if we need to go into
23 A. -- to, um -- the division engineer. 23 detail.
24 Q. Okay. 24 Q. Let me see if I can head you off at
25 A. And -- 25 the pass. There's no question but that there's
Page 238 Page 240
1 Q. But it started with him. 1 a large discussion about hurricane protection,
2 A. Yes. 2 the location of the levee alignments and the
3 Q. Okay. Now, would you tell me, please, 3 like. What I'm trying to figure out is who
4 whether or not the installation of foreshore 4 decided that because of wave wash there was a
5 protection is a modification of the MRGO 5 need to protect the levee, and what analyses
6 project? 6 were done in order to draw that conclusion?
7 A. Ultimately that is how this was 7 MR. KELLS:
8 handled, from reading this. 8 Is that what you wanted?
9 Q. Okay. 9 (Tendering.)
10 A. But -- and I believe that's the issue. 10 THE WITNESS:
11 The crux of a lot of this memorandum back and 11 Yes.
12 forth was what should be the responsible for 12 A. Based on just looking at these
13 the paying authority or project. If you want, 13 memorandums, I would say that the District
14 we can try to find that and walk through. But 14 Engineer Thomas Bowen -- I'm looking at 29
15 the long and short of what you're asking is, 15 November 1966, Paragraph 16.
16 it's the Corps of Engineers. 16 EXAMINATION BY MR. BRUNO:
17 Q. Right. But that was the old question. 17 Q. Okay. Of the -- let me just catch up
18 Here's the new question: The new question is, 18 to you. You're now in --
19 is the installation of foreshore protection a 19 A. No, no.
20 modification of the project, is it a change to 20 Q. Oh, you went back to the MRGO?
21 the project? 21 A. I haven't left it. I'm trying to
22 A. In this particular phase, ultimately 22 decide -- you asked again who is it that
23 that's how this was decided. 23 decided, and I'm telling you that based on
24 Q. Meaning that it is? Or that's just 24 reading 29 November 1966, um -- talking about a
25 the particular method of resolution that they 25 modification increase the total estimated cast
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1 of the Chalmette area plan from $29,552,200 to 1 but what it is they're going to do to solve the
2 $37,697,000 which includes $4,337,400 for 2 problem, right?
3 foreshore protection along the Mississippi 3 A. It doesn't really cover the analysis,
4 River Gulf Outlet. 4 um -- but it does state what the problem is and
5 Q. Okay. 5 what can be done about it. That's one thing I
6 A. And that's signed by the District 6 was looking for was the -- if there was any
7 Engineer Thomas Bowen. 7 engineering analysis contained in this design
8 Q. So we know, A, it's expensive, and we 8 memorandum. Or it could be in a separate
9 know Bowen did it, but do we know what analysis 9 appendix.
10 he did in order to reach the conclusion? I 10 Q. Do you know what the distance was as
11 mean, for example, you know -- 11 planned between the shore of the MRGO and the
12 A. Now we're going into the design -- 12 levee toe?
13 Q. -- how do we know foreshore protection 13 A. I do not.
14 is appropriate, how do we know where the 14 Q. Well, can we -- would you agree with
15 foreshore protection is appropriate, how do we 15 me that their conclusion here is that the
16 know what kind of foreshore protection is 16 expectation was that wave wash was going to
17 appropriate, those kind of analyses? 17 actually wash away whatever that distance was
18 Look at Page 35 of the general design 18 between the shore of the MRGO and the levee
19 memorandum Paragraph 50, foreshore protection. 19 toe?
20 You with me? 20 A. I think the answer lies in the second
21 A. Yes. 21 sentence, erosion of the foreshore area between
22 Q. Is that it? 22 the levee and the channel bank by
23 A. That's not it. I was checking 23 ship-generated waves will pose a threat to the
24 something else. 24 integrity of the levee.
25 Q. All right. 25 Q. Right. So the expectation was that
Page 242 Page 244
1 A. Not having read any of this document 1 that shore would erode to the point where it
2 before just a minute ago, that does describe, 2 would effect the integrity of the levee, right?
3 you know, the requirement for foreshore 3 A. Yes.
4 protection. 4 Q. And how close to the toe of the levee
5 Q. All right. For the record, it's -- 5 do you have to get before you affect the
6 this is General Design Memorandum Number 3, 6 integrity of the levee?
7 November 1966. Page 35, Paragraph 50 entitled 7 A. I don't know.
8 Foreshore Protection. It says, ultimately the 8 Q. Okay. But it's clear that the
9 banks of the MRGO will stabilize generally at a 9 expectation was that a certain portion of that
10 slope not flatter than 1 on 3; however, erosion 10 shore was going to wash away.
11 of the foreshore area between the levee and the 11 A. Yes.
12 channel bank by ship-generated waves will pose 12 Q. Right?
13 a threat to the integrity of the levee. 13 A. Erosion of the foreshore area, yes.
14 Accordingly, a stabilization dike to protect 14 Q. All right. And it's also true -- I
15 the levee from such erosion will be provided on 15 mean -- I'm sorry. And that accepted fact was
16 the channelward slope of the existing front 16 not only true for the area where there was a
17 retaining dike. Based upon experience in the 17 levee to be built, but it's true for the whole
18 Mississippi River below New Orleans the 18 length of the MRGO channel. Isn't that true?
19 stabilization dike will consist of two feet of 19 A. Sorry. Could you ask it again?
20 riprap on .75-foot of shell placed on a 1 on 3 20 Q. All right. It says here that erosion
21 slope between elevations -3 and approximately 21 of the foreshore area between the levee and the
22 5 feet. Details of the foreshore protection 22 channel bank by ship-generated waves will pose
23 including gradation of the riprap are shown on 23 a threat to the integrity of the levee.
24 Plates 23, 24 and 25. 24 Now, the ships travel up and down the
25 So that explains not only the analysis 25 entire length of the MRGO, right?
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1 A. Yes. 1 Q. All right. Well, can we conclude that
2 Q. And presumably they create waves along 2 the consideration here was the health and
3 the entire length of the MRGO. Right? 3 safety of the human environment that dictated
4 A. Yes. 4 the need for foreshore protection? Given your
5 Q. And wave wash along the entire length 5 last answer?
6 of the MRGO will cause erosion of the shore. 6 MR. SMITH:
7 Isn't that true? 7 Objection. Vague.
8 A. Well, only in areas where these wakes 8 A. I don't see in the -- you know, the
9 reach, um -- you know, reach the shoreline. 9 paragraphs that we've read that that is the
10 And there are lots of areas such as the open 10 basis for that conclusion. I don't see that
11 sound where there is no shoreline. 11 language in the information that we've read.
12 Q. Well, we're not talking about the open 12 EXAMINATION BY MR. BRUNO:
13 sound. We're talking about the landlocked 13 Q. Right. I know it's not there, so I'm
14 component of the channel. We're talking about 14 asking you, though, as the 30(b)(6) witness on
15 the 76-mile length from the IHNC to where it 15 the subject, whether you believe that concerns
16 touches the sound. I'm just talking about 16 for the health and safety of the human
17 where there is an actual land bank. 17 environment dictate the necessity for foreshore
18 A. Yes. I think erosion could be 18 protection to protect the levee which itself is
19 expected in the areas where waves -- ship 19 intended to protect people from hurricane
20 waves, um -- come in contact with, as you call 20 surge.
21 it, the land bank. 21 THE WITNESS:
22 Q. Well, what I want to know is whether 22 Can I ask you a question?
23 or not the expectation with regard to erosion 23 MR. BRUNO:
24 at this particular point, that is, where 24 He's a 30(b)(6) witness.
25 they're building a levee, would be different or 25 (Whereupon the deponent conferred with
Page 246 Page 248
1 generally the same as every other point along 1 counsel off the record.)
2 the channel where there is a bank. 2 A. I can tell you what I believe, but
3 A. I don't know that I would be the 3 that's not necessarily what's contained in the
4 person to answer if it would be exactly the 4 documents.
5 same. 5 EXAMINATION BY MR. BRUNO:
6 Q. I never said it was exactly the same. 6 Q. Well, this is not a test of what's in
7 A. But -- 7 the document or not in the document. Recall,
8 Q. I said just generally the same. 8 you're a 30(b)(6) witness, you're speaking for
9 MR. SMITH: 9 the Corps. And so the Corps' belief is
10 Objection. Vague. 10 entirely relevant to this inquiry.
11 MR. BRUNO: 11 A. I believe the purpose of recommending
12 I know that's humorous, but the 12 foreshore protection was to protect the levee
13 question stands. 13 and the purpose of the levee there is to
14 A. In general, the passage of vessels 14 protect communities.
15 along the channel generates waves and those 15 Q. Okay. All right. Now, do you know
16 cause erosion along the banks of the channel. 16 whether or not the Corps did any analyses to
17 EXAMINATION BY MR. BRUNO: 17 determine whether or not increasing the width
18 Q. Well, why was it, if you know, that 18 of the channel would have any impact on wave
19 foreshore protection was deemed necessary for 19 generation in a hurricane environment? At that
20 this particular location as opposed to any 20 time. In other words, the same time they're
21 other location along the length of the channel? 21 thinking about foreshore protection, okay? I'm
22 A. I don't know why -- I don't know 22 now asking -- withdraw the question. Let me
23 specifically why it would be proposed at this 23 construct it better.
24 area versus any other area other than the fact 24 Obviously, if the shores wash away,
25 of the presence of the levee. 25 the surface -- the surface width of the channel
9 (Pages 245 to 248)
10/14/2008
Page 249 Page 251
1 gets wider. Right? 1 Just on quick review I don't see
2 A. Yes. 2 anything in this document, but again, I
3 Q. Okay. All right. So do you know if 3 don't -- I think you can find somebody that may
4 the Corps did any analyses to determine whether 4 be more familiar with this particular record
5 or not widening of the width of the channel 5 that can say whether or not we did perform that
6 would have any impact on hurricane generated 6 type of evaluation.
7 waves? 7 Q. Okay.
8 A. I don't know at the time whether that 8 A. I'm not familiar with it.
9 analysis was conducted or not. 9 Q. Well, I didn't ask you if they had,
10 Q. All right. Given the fact that 10 I'm asking you whether or not you feel that it
11 someone felt compelled to evaluate the 11 would have been appropriate.
12 potential of erosion to negatively impact the 12 And here's the question again: If the
13 levees, do you believe it would have been 13 fact that the widening of the MRGO channel had
14 appropriate to evaluate whether or not that 14 had a negative impact -- if, and I know that's
15 erosion may have had a negative impact on 15 a hypothetical -- on hurricane generated waves,
16 hurricane generated waves? 16 if the Corps had known that would the Corps
17 MR. SMITH: 17 have done something to deal with that negative
18 Objection. Vague. 18 impact in the same way that the Corps did
19 A. I think you're getting outside of the 19 something about the negative impact of erosion
20 technical area that I can answer your 20 on the stability of the levee that we've just
21 question -- for questions that I can answer. 21 read? It would have done something, wouldn't
22 EXAMINATION BY MR. BRUNO: 22 it have?
23 Q. Well, you are designated as the guy 23 MR. SMITH:
24 for analyses and evaluations deemed necessary 24 Objection. Calls for
25 to address the impacts on the health and safety 25 speculation.
Page 250 Page 252
1 of the human environment. So that's why I'm 1 A. I think yes, there would have been
2 asking the question. 2 investigations into that. I don't necessarily
3 A. I understand. 3 agree with sort of the premise, if you will, of
4 Q. I understand that you may not be able 4 your question, but I think that if we found
5 to answer it, but you're supposed to be the 5 anything that would have been a concern we
6 guy. And we would agree, would we not, that if 6 would have looked into it and come up with a
7 the MRGO -- if the fact that the widening of 7 solution for the particular concern.
8 the MRGO channel had a negative impact on 8 EXAMINATION BY MR. BRUNO:
9 hurricane generated waves, if the Corps had 9 Q. Right. The premise is simply this:
10 known that the Corps would have done something 10 If in fact there is a characteristic about the
11 to deal with that negative impact, isn't that 11 MRGO between 1965 and 1970 that would have had
12 true? 12 a negative impact on the health and safety of
13 MR. SMITH: 13 the environment the Corps would have
14 Objection. Vague. 14 investigated it, and if it determined that
15 A. I think if you can give me a minute, 15 there was some connection it would have done
16 just let me look through the document and I'll 16 something about it. That's all I'm asking you.
17 see -- it could be in here and I'm just not 17 Isn't that true?
18 familiar with it. 18 MR. SMITH:
19 EXAMINATION BY MR. BRUNO: 19 Objection. Asked and answered.
20 Q. In the -- where are you looking? 20 Calls for speculation. You just asked
21 A. In the design memorandum. 21 him that, and he gave you the answer
22 Q. Number 2? 22 you wanted. Why are we going over
23 A. Number 3, General Design -- 23 this again?
24 Q. Oh. You're back on that one. 24 MR. BRUNO:
25 A. -- Lake Pontchartrain, Louisiana. 25 No. I'll review his answer. If
10 (Pages 249 to 252)
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Page 253 Page 255
1 we want to do that, we'll just do this 1 answering this question, because I don't know
2 all day and all night. 2 the particular authority.
3 He said, I don't agree with the 3 Q. That's why I'm asking it. I'm
4 premise. Okay? He said, I think if 4 wondering if the Corps has authority to
5 we found anything that would have 5 evaluate its projects to determine whether or
6 been -- 6 not they have a negative impact on the human
7 (Whereupon the previous answer was 7 environment. That obviously includes the
8 read back.) 8 specific question I asked you about hurricane
9 EXAMINATION BY MR. BRUNO: 9 protection. Do they have that authority?
10 Q. And the reason I asked the question 10 A. On this particular case we're talking
11 the way I did was because I wanted to make it 11 about documents that are authored prior to the
12 clear to you that the premise wasn't sneaky, 12 National Environmental Policy Act.
13 the premise was simply this, that is if there 13 Q. Yes. That's exactly rise.
14 was a connection between the MRGO -- if there 14 A. And if I'm right, I believe last week
15 was a question between a characteristic of the 15 we were saying that that language, health and
16 MRGO, be it the surface width, the depth or the 16 safety of the human environment, is from that
17 volume of water or the like that had a negative 17 particular law. Is that correct?
18 impact on hurricane protection, the Corps would 18 Q. No, actually it came from the
19 have evaluated it and tried to do something 19 paragraph --
20 about it. Isn't that true? 20 A. Okay. So it's just from this?
21 MR. SMITH: 21 (Indicating.)
22 Objection. Asked and answered. 22 Q. Right.
23 MR. BRUNO: 23 A. Okay.
24 I understand. 24 Q. In fairness, the language is mentioned
25 A. I believe that we would have taken a 25 in NEPA, but I'm asking the question about
Page 254 Page 256
1 comprehensive look at the system and the 1 pre-1970.
2 threats to the area around and that we would 2 A. Then my answer would be I'm not -- if
3 have -- if we felt something was of concern to 3 NEPA is the law that designates that phrase --
4 what we were trying to accomplish, that we 4 Q. Sure.
5 would have done something about it. 5 A. -- this design memorandum and the
6 EXAMINATION BY MR. BRUNO: 6 project, at least the analysis undertaken at
7 Q. All right. Now -- 7 this time, predates that, so I'm not sure if
8 (Brief interruption.) 8 there was another law at the time that would
9 EXAMINATION BY MR. BRUNO: 9 have required that particular evaluation.
10 Q. Okay. As you said very well, the 10 Q. Well, we know that the evaluation that
11 Corps would have taken a comprehensive look to 11 was undertaken to look at foreshore protection
12 make that determination. So my next question 12 as a response to erosion of the bank which
13 would be whether or not the Corps has the 13 could hurt the levee, that was all done before
14 authorization in circumstances like that to do 14 NEPA. So there was something, you know, some
15 a comprehensive evaluation. 15 obligation, regulation, moral code, something
16 MR. SMITH: 16 that caused the Corps to believe it to be the
17 Objection. Vague. 17 right thing to do. And I'm just trying to see
18 EXAMINATION BY MR. BRUNO: 18 if I can learn from you what that is.
19 Q. Well, I'm asking the question because 19 We agree, do we not, that the Corps
20 I thought in the past you've told me sometimes, 20 had an obligation to protect that levee once it
21 not always, in order for the Corps to do 21 found out that wave wash might damage its
22 studies it needs Congressional authorization. 22 integrity?
23 A. That's correct. 23 A. Yes.
24 Q. So what I'm trying -- 24 Q. Of course. Okay. So the whole
25 A. And that's why I'm having trouble 25 business, then, of making an inquiry as to
11 (Pages 253 to 256)
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Page 257 Page 259
1 whether or not the channel or the 1 MR. SMITH:
2 characteristics of the channel may have a 2 Calls for speculation.
3 negative impact on hurricane protection, that 3 EXAMINATION BY MR. BRUNO:
4 is likewise an obligation on the part of the 4 Q. He just doesn't know, right?
5 Corps, and was before NEPA came around. Isn't 5 MR. SMITH:
6 that true? 6 Same objection.
7 A. I think in general terms, yes. Again, 7 A. I haven't talked to him in a while.
8 my concern is not, as you phrase it, the right 8 EXAMINATION BY MR. BRUNO:
9 or wrong thing to do in a sense, but it's what 9 Q. The point I'm making is, the New
10 was required at the time. If that's what 10 Orleans District office is the New Orleans
11 you're asking me, I can't answer that because 11 District office precisely because it's in
12 I'm not familiar. 12 charge of this geographic area which includes
13 Q. Well, when you use the term required, 13 the MRGO. Right?
14 you mean you're not aware of any particular 14 A. Yes.
15 legislation which said you must do this or you 15 Q. And so you guys are charged with
16 must do that. 16 knowing what's going on with the MRGO, right?
17 A. Or policy of the Corps of Engineers at 17 A. Yes.
18 the time. That's also a possibility. 18 Q. And you have been since 19 -- since it
19 Q. Well, doing the right thing is a 19 was designed and constructed, right?
20 policy, isn't it? I mean, in the simplest 20 A. Yes.
21 terms it is. 21 Q. All right. And all I'm saying is, I
22 A. Yeah. Sure. 22 recognize that it's the whole executive branch
23 Q. And maybe you're not agreeing with me, 23 that has to communicate to the Congress, but
24 but I thought you were agreeing with me that 24 you would agree with me, would you not, that
25 evaluating the MRGO 's characteristics to see 25 information about the potential hazards
Page 258 Page 260
1 if they would have a deleterious effect on 1 associated with the MRGO, those would be
2 hurricanes would be the right thing to do. 2 discovered here, and if they were discovered
3 Just because it just flat out is. Isn't that 3 here that information would be sent up the
4 true? 4 ladder, and yeah it would ultimately get to the
5 A. If that was a concern, yes. 5 President but it would start here.
6 Q. And if -- how about this? If the 6 MR. SMITH:
7 Corps didn't have a specific authorization to 7 Objection. Calls for
8 study that, the Corps could always go to 8 speculation.
9 Congress and ask them for the authority to do 9 A. In general I believe reports about the
10 that study if they thought it appropriate. 10 status and condition of the projects within the
11 Right? 11 district are the responsibility of the district
12 A. I think then you get into the concept 12 to provides updates on, and therefore that
13 of the Corps as part of the administration and 13 information is available to higher authority.
14 whether or not the administration asked for 14 EXAMINATION BY MR. BRUNO:
15 that authority from Congress, and not 15 Q. All right. And you guys at the
16 necessarily, um -- the New Orleans District or 16 district level, you don't control what happens
17 even the headquarters of the Corps. 17 in Vicksburg and you don't control what happens
18 Q. Okay. That's a good point. Let me 18 in Washington, right?
19 see if I can't qualify that for us both. 19 A. Right.
20 Because the President doesn't know what's going 20 Q. But you can't blame Washington and you
21 on in the New Orleans office, does he? He 21 can't blame Vicksburg if you don't tell
22 doesn't know all the goings on. He doesn't 22 Vicksburg and Vicksburg doesn't tell
23 know we're sitting here having this deposition 23 Washington. Right? The information over which
24 today, does he? Unless y'all caused Bush when 24 you have control has to be communicated to
25 I wasn't looking. 25 somebody higher above in order for that
12 (Pages 257 to 260)
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Page 261 Page 263
1 information to be properly utilized by whoever 1 environment --
2 is in authority on the executive side. 2 MR. BRUNO:
3 A. It's so hypothetical in the sense 3 I didn't say Congress.
4 that -- you know, there's all kinds of other 4 MR. SMITH:
5 ways that -- the administration can develop a 5 -- or other deleterious effects
6 policy position or decide to do something. 6 caused by the design, construction or
7 They might have read the States Item or 7 maintenance --
8 whatever the paper was. 8 MR. BRUNO:
9 Q. Well, that's true. 9 I didn't Congress, Robin. In
10 A. But we're just speculating. If you 10 fact, Zontan said he can't tell
11 want to know if project conditions and updates 11 Congress anything unless folks below
12 and budgets and things like, generally they 12 him tell him. That's my memory of
13 originate within New Orleans District and that 13 that deposition. So I wasn't asking
14 is reported up. That's what we see in these 14 about what Zontan decided to tell
15 types of documents. 15 Congress, I'm asking about what New
16 Q. Let me just ask you then, you know -- 16 Orleans district office decides to
17 fine. Before NEPA, what were you supposed to 17 tell its higher-ups.
18 tell your higher-ups, if anything at all, about 18 EXAMINATION BY MR. BRUNO:
19 MRGO and the characteristics of the MRGO that 19 Q. Information has to start here. And
20 could have a negative impact or hurt the 20 I'm not asking you about Congress. He's right.
21 environment or hurt hurricane protection, at 21 That's Zoltan Montavi.
22 all? What were you guys required to tell 22 But if you have information and you
23 anybody? Or perhaps you weren't required to 23 don't give it to your higher-ups, they can't
24 tell them a darned thing. I don't know. But 24 give it to Washington, isn't that true? I
25 what was the obligation with regard to 25 mean, it's an obvious fact.
Page 262 Page 264
1 communication? 1 A. Unless they received it from -- I'm
2 MR. SMITH: 2 not trying to be difficult here. Unless they
3 Objection. Compound. 3 received it from some other source, A newspaper
4 A. I can only speak in general because I 4 article, you know, other sources.
5 don't -- I wasn't here at the time and I don't 5 Q. But are you telling me that New
6 know what exact regulations or procedures were. 6 Orleans District office relies on, at that
7 There would be reporting about budget 7 time, the States Item to communicate
8 requirements for a project and needs to 8 information to the Vicksburg office?
9 continue construction or operation and 9 A. No. No.
10 maintenance of something. There would be 10 MR. SMITH:
11 reporting of information in response to 11 Objection, argumentative.
12 requests from Congress, if we had authority, 12 EXAMINATION BY MR. BRUNO:
13 um -- you know, for example, it looks that Lake 13 Q. What I'm saying is this: I know that
14 Pontchartrain and Vicinity, Chalmette Area Plan 14 there are many other avenues by which Vicksburg
15 is a decade after the authorization for 15 and/or Mr. Montavi and/or whatever was in
16 Mississippi River Gulf Outlet. Those types of 16 charge in Washington in 1960, could have gotten
17 general reporting. I don't know, um -- you 17 information. I'm not interest in that. I'm
18 know, you read these documents and they're 18 interest in knowing what obligation did this
19 telegraphs sent back and forth. I don't know 19 New Orleans District office have to communicate
20 what procedures were at that point. 20 with the Vicksburg office, if not Washington
21 MR. SMITH: 21 directly, about characteristics of the MRGO
22 And in fact, this is Topic 1A 22 that would have some negative impact on the
23 which was addressed by Zoltan Montavi 23 environment or specifically may have had a
24 a week ago. Decisions on when to 24 negative impact on hurricane protection systems
25 advise Congress on damage to the 25 that were in place. That's what I'm trying to
13 (Pages 261 to 264)
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Page 265 Page 267
1 figure out. 1 is reported to the -- this is Design Memorandum
2 A. And I feel like I've answered it in 2 for Chalmette Area Plan. Page 2 is a
3 general. 3 memorandum from -- to the Chief of Engineers.
4 MR. SMITH: 4 It's contained within this design memorandum
5 And this has also been addressed 5 which points out the need for foreshore
6 by John Saia, the Corps procedures for 6 protection.
7 obtaining, coordinating 7 EXAMINATION BY MR. BRUNO:
8 interdisciplinary input for evaluation 8 Q. At one location.
9 of any environment impacts of projects 9 A. I forget what paragraph.
10 and continued maintenance of projects. 10 Q. Yeah. No, you're right. But what's
11 MR. BRUNO: 11 described there is not the fact that there's
12 That's interdisciplinary, Robin. 12 erosion of the banks along entire length,
13 MR. SMITH: 13 what's described there is a suggestion about
14 This isn't interdisciplinary. 14 what needs to be done for a small piece. I'm
15 MR. BRUNO: 15 talking specifically about the broad issue,
16 I don't think so. 16 hey, guys, Washington, listen to me, channel
17 EXAMINATION BY MR. BRUNO: 17 banks of the MRGO from A to B are being eroded.
18 Q. So your testimony is outside of budget 18 That fact was never communicated to
19 requests or outside of a Congressional request, 19 any higher authority, isn't that true?
20 you guys wouldn't tell your higher-ups. Is 20 A. No, I don't think that's true. Um --
21 that the testimony you're going stand on? If 21 Q. All right. That's fine.
22 that's what it is, I'm fine, we'll move on to 22 A. To what level of authority I can only
23 something else. 23 say based on this, but here is an April 1957,
24 You got no obligation. 24 um -- Design Memorandum Number 1. Mississippi
25 A. I don't know what -- at the time, I 25 River Gulf Outlet, Louisiana, and it is, um --
Page 266 Page 268
1 don't know what type of -- of, um -- frequency 1 provided to Division Engineer, Vicksburg,
2 or the type of reporting that would have been 2 Mississippi.
3 done. 3 Q. Okay.
4 Q. Okay. 4 A. And this has the paragraph that we've
5 A. I will tell you that if it were today 5 talked about for two days now related to
6 there would be lots of reporting about this 6 foreshore protection.
7 issue up and down the chain. 7 Q. Okay.
8 Q. And we're going to get there. And I 8 A. So --
9 frankly would love to get there. I'm so 9 Q. All right. So all I'm trying to get
10 desperate to get off of this subject but I need 10 is your testimony. So your testimony is the
11 to finish this out. Because what we have, in 11 New Orleans District office communicated to its
12 fact, up to 1970, we know in fact the district 12 superiors that the banks of the MRGO were
13 office, this New Orleans District office knows 13 eroding to the point where at least in one
14 that wave wash from vessels is eroding the 14 location it may have affected the integrity of
15 banks of the MRGO channel. 15 the levee. Is that fair enough? That was
16 This office knows that; correct? 16 done.
17 A. Yes. 17 A. No. What I'm saying is that here's a
18 Q. All right. What we don't know is 18 document that references the need for foreshore
19 whether or not this office reported that fact 19 protection, as you reference it, in one area.
20 to any higher authority. Right? We don't know 20 Q. Yes, sir.
21 that. 21 A. Here's a document that dates back to
22 MR. SMITH: 22 1957 that talks about another section of the
23 Objection. Misstates prior 23 channel. And we've gone through each of these
24 testimony. 24 design memorandums and shown various -- a
25 A. I disagree. I think we know that it 25 similar paragraph.
14 (Pages 265 to 268)
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Page 269 Page 271
1 Q. Right. And so what I'm -- 1 A. It was talking about in the future.
2 A. And each of these design memorandums 2 Q. Fair enough. So erosion of the banks
3 is provided with communication throughout, from 3 was reported to higher-ups in authority, right?
4 the local level here to the higher authority. 4 Right?
5 Q. Exactly. And what these general 5 A. Yes.
6 design memorandums communicate is that the 6 Q. Okay. And you're not here to tell us
7 shores of the MRGO are eroding to the point 7 about whether that information was communicated
8 that at least where there's a levee nearby it 8 to Congress, that's somebody else, Mr. Zoltan
9 could affect the integrity of the levee. 9 Montavi, right?
10 That's what these things communicate; isn't 10 A. Yes.
11 that true? 11 Q. Okay. Now, what about salinity? This
12 A. No, that's what this one particular 12 district office knew that the MRGO was causing
13 document communicates. Because this is the one 13 increases in salinity all the way to the lake,
14 that's subject of the levee. 14 isn't that true? That would be the Seabrook
15 Q. Well, tell me what other information 15 lock feature the -- I think it's Design Memo 3,
16 is communicated then about shore erosion other 16 if you want to read that section. I think.
17 than that fact. 17 A. I think as part of the record we see
18 A. Well, in the case of these design 18 early on that there were, um -- correspondence
19 memorandums, there's no discussion of whether 19 back and forth about the potential for salinity
20 there's a levee to be built there or not. 20 increase in the project area. Now those go
21 These are -- 21 prior to construction, during the planning for
22 Q. These are? 22 the, um -- the seaward leg from Bayou La Loutre
23 A. -- specific to the channel. These are 23 to the Gulf of Mexico, and then in subsequent
24 the MRGO, um -- excuse me, with the exception 24 documents related to other aspects of the
25 of the very last one that we talked about, the 25 channel.
Page 270 Page 272
1 General Design Memorandum Number 2 Supplement 1 Q. All right. What analysis if any was
2 4, these are all channel construction, they're 2 done by the Corps to determine whether or not
3 not referencing any levee. 3 those increases in salinity may damage the
4 Q. Right. But they don't address any 4 marsh and/or the swamp and/or the trees to
5 foreshore protection at all. In fact, they say 5 point that there would be a negative impact on
6 there's no need for it. Let's be specific 6 hurricane protection?
7 here. I mean, I'm trying to get you to stay 7 A. I don't know. I'd have to look, um --
8 focused on what I'm talking about. 8 I don't know.
9 A. I thought we went through, for the 9 Q. Okay.
10 second day now and we talked about, you know, 10 A. Not at the 1966 time of this
11 foreshore protection and erosion, and I thought 11 particular --
12 that was -- the question dealt with whether or 12 Q. Fair enough. If they knew about it,
13 not there was any reporting from the district 13 should the Corps have evaluated the potential
14 level to others about erosion. 14 of that increased salinity to damage to marsh
15 Q. All right. And I'm just trying to see 15 to the point where it may impact negatively the
16 if I can characterize what it is that was 16 ability of the marsh to provide some hurricane
17 reported. So what was reported, you believe, 17 buffering effects?
18 was that the shores of the MRGO were eroding, 18 MR. SMITH:
19 to what point we don't know, but at least when 19 Objection. Vague. Calls for
20 it comes to levees it was to the point where it 20 speculation.
21 might affect the integrity of the levee. How 21 A. And this is a general response, but I
22 about that? Is that what was reported? 22 believe that a lot of the correspondence and
23 A. Well, I think it was that it could 23 discussion at the time was about the value of
24 erode. 24 the marsh in terms of the fisheries production
25 Q. It could erode. 25 and such. I don't know that in -- excuse me.
15 (Pages 269 to 272)
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Page 273 Page 275
1 There is, I believe, one reference in the Corps 1 the fauna and the like?
2 document about hurricanes and such. Excuse me. 2 MR. SMITH:
3 Give me a minute. 3 Objection. Vague.
4 Sorry. I was checking a June 1959 4 A. In general, the Act has a, um --
5 Design Memorandum Number 2 for -- 5 public involvement and comment, um -- set of
6 Q. MRGO? 6 procedures that are followed where the Act --
7 A. Yeah. For -- I'm sorry. For MRGO 7 the proposed actions of a federal agency are
8 Louisiana. 8 evaluated, um -- and then, you know, the
9 Q. Right. 9 rationale for determination of the action to
10 A. And I was just verifying, and I don't 10 take is documented and then given additional
11 see anything in the memorandum -- excuse me, 11 opportunity for the public to comment on.
12 the report by a Gordon Gunther. He talked a 12 EXAMINATION BY MR. BRUNO:
13 about a number of different concerns that had 13 Q. Okay.
14 been raised in the past. And again, I think it 14 A. I will make one caveat to this. Okay?
15 was more on the value of the marsh in terms of 15 We talk about precision in terms of when the
16 productivity. I don't believe he made any 16 President signed this law. But there is a
17 reference to, um -- 17 period of time from when the law is signed to
18 Q. Hurricane protection. 18 when it is enacted. We see this today with our
19 A. Well, hurricane damages or surge. 19 financial crisis where the law was signed
20 That's not protection. That was the subject. 20 several weeks ago and we're still now learning
21 Q. So the concerns that were expressed by 21 what's going on. Obviously, not relevant to
22 the Corps at that time was that the salt 22 the MRGO, but there is a period of time from
23 might -- the increase salinity might damage the 23 the enactment of a piece of federal legislation
24 marsh with the effect that fisheries and 24 until it reaches implementation stage.
25 wildlife would be damaged. Right? 25 Q. Sure. Well, we're talking about fifty
Page 274 Page 276
1 A. Well, I think that this series shows a 1 years, so I think we can find some room for
2 recognition by the other agencies and an 2 gray. But in 1970, '71, it's enacted.
3 interaction of the Corps with those agencies to 3 Now, is it your testimony that NEPA
4 try to identify what those potential damages 4 only applies to proposed actions; in other
5 could be, and then how to, um -- 5 words, projects that haven't come into being
6 Q. Right. 6 but you're contemplating?
7 A. -- determine a route for the channel, 7 A. No. There are -- without defining the
8 and also determine some, um -- construction 8 term proposed, our -- some of our ongoing
9 methodologies to be incorporated into building 9 actions that are subject -- are subject to
10 that particular project. 10 compliance with NEPA, operations and
11 Q. But in the process, increased salinity 11 maintenance activities, um -- things that we
12 was identified as a fact that was coexistent 12 may never actually implement. We may evaluate
13 with this route choice and that the increased 13 them as part of a larger planning process and
14 salinity would in fact damage the wildlife and 14 they may be rolled up into one of our NEPA
15 fisheries, isn't that true? 15 documents.
16 A. Yeah. 16 Q. Is the MRGO an ongoing project?
17 Q. Okay. Now, let's go to 1970. We have 17 A. At the time of your questions?
18 NEPA now. How does NEPA, if it does, change 18 Q. Yes.
19 your, the Corps', responsibility to report 19 A. Yes.
20 things like the fact that the MRGO was eroding 20 Q. It's no longer an ongoing project
21 its banks, increased salinity were being caused 21 today, but I mean in the decade of the
22 by the MRGO, that coupled with the conjunction 22 seventies it was an ongoing project.
23 of the eroded banks with the increased salinity 23 A. Yes.
24 caused saltwater to intrude in the marsh and 24 Q. Okay. And so as such, the NEPA
25 damage the marshes and trees and the flora and 25 reporting requirements applied to the MRGO,
16 (Pages 273 to 276)
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Page 277 Page 279
1 right? 1 Environmental Quality?
2 A. Yes. 2 A. Yes.
3 Q. Okay. Now, in a general sense, NEPA 3 Q. And he or she is really nothing more
4 required the Corps to give information to 4 than an intermediary between the reporting
5 what's -- well, let me ask you this: To whom 5 agency and Congress, isn't that true?
6 was the Corps required to give information 6 MR. SMITH:
7 under the NEPA act and its myriad requirements? 7 I think this is beyond the scope
8 Who gets the information at the end of the day? 8 of this witness' --
9 MR. SMITH: 9 EXAMINATION BY MR. BRUNO:
10 Are we talking about 10 Q. If you know, just give me the answer
11 environmental impact statements or -- 11 so I can move on.
12 EXAMINATION BY MR. BRUNO: 12 MR. SMITH:
13 Q. We're speaking just generally about 13 Do you know what CEQ is?
14 the reporting requirements that may or may not 14 A. In general, it's the administrative --
15 apply to this ongoing project. It's all the 15 it's set up by the law and it's the
16 same place. 16 administrative counsel for all --
17 A. Well -- 17 considerations of environmental impacts or
18 MR. SMITH: 18 proposed activities.
19 Because we went into some detail 19 EXAMINATION BY MR. BRUNO:
20 on NEPA with John Saia. 20 Q. All right. Now, the NEPA required the
21 MR. BRUNO: 21 Corps to report the fact that the shores of the
22 Who didn't know anything. Let's 22 MRGO were eroding, isn't that true?
23 not go there. 23 A. I don't remember the exact wording of
24 A. Who gets the information is your 24 the NEPA, but that's an aspect of this
25 question? That's your question? 25 particular project that, um -- that should be
Page 278 Page 280
1 EXAMINATION BY MR. BRUNO: 1 evaluated when considering future actions.
2 Q. Well, yeah. Who are we talking to? 2 Q. Which means that they were supposed to
3 A. If you read this 1976 final 3 report that information to CEQ, right?
4 environmental statement on Page II and III and 4 A. Again, I don't know the exact
5 IV, there is a list of folks that we requested 5 regulation requirement at the time, but we
6 comments from, and it runs a gamut from the 6 would report on the various -- you know, the
7 delegation -- the Louisiana Congressional 7 proposed action, in this case it was I believe
8 delegation to, um -- the U.S. Department of 8 the operation and maintenance work of the
9 Housing and Urban Development, lots and lots of 9 channel on a number of various aspects or
10 agencies, state level from the Governor to 10 environmental considers, we're talking soil,
11 various agencies. 11 water, biology, um --
12 Q. I'm not asking from whom you got 12 Q. All right. You're supposed to be the
13 comments. I'm asking who did you give the 13 guy that knows about the analyses and
14 report to? Didn't you give it to CEQ? 14 evaluations of any modifications to MRGO deemed
15 A. We do have a statement given to the 15 necessary to address impacts on the health and
16 CEQ, yes. 16 safety of the human environment as defined by
17 Q. But that's the only person that you're 17 the National Environmental Policy Act. You're
18 required to give the report to, that's the 18 the guy. So I'm just trying to find out
19 primary person that you're required to give the 19 whether or not the erosion of the banks of the
20 report to, right? At that time. It's changed, 20 MRGO that we know about as of the time that
21 but at that time it was CEQ. 21 this act is enacted, passed and they're doing
22 A. I'm not familiar with the reg at the 22 business, are you required to report the fact
23 time, but, you know, based on looking at the 23 the banks are eroding on the MRGO?
24 document, yes, that is who we provided it to. 24 A. I would think we would be. Yes.
25 Q. And CEQ is the Counsel for 25 Q. All right. Did the Corps do an
17 (Pages 277 to 280)
10/14/2008
Page 281 Page 283
1 analysis to understand whether or not the 1 same questions, except with regard to salinity.
2 erosion of the banks of the MRGO were impacting 2 Okay? Did the Corps of Engineers conclude that
3 the health and safety of the human environment 3 the increases in the salinity and the resultant
4 in response to the implementation of NEPA? 4 changes in the marsh from fresh to salt and
5 A. Yes. 5 from slightly brackish to more brackish were
6 Q. All right. And did the Corps conclude 6 having an effect on the health and safety of
7 that the erosion of the banks of the MRGO were 7 the human environment?
8 in fact negatively impacting the health and 8 MR. SMITH:
9 safety of the human environment? 9 Objection, asked and answered.
10 A. I'd have to read the, um -- the full 10 MR. BRUNO:
11 document before I could answer that. I don't 11 I did?
12 see it in a summary section. 12 A. There is evaluation of salinities,
13 Q. Okay. Let's take a break. Read it. 13 especially from, um -- perspectives over time,
14 This is a specific topic. I'm sorry. I'm not 14 and not just time between just prior to
15 trying to make you read stuff, but this is a 15 construction of the channel and the period of
16 very precise topic. 16 time of this analysis, but actually on a, um --
17 (Brief recess.) 17 a geologic scale in terms of the abandonment of
18 EXAMINATION BY MR. BRUNO: 18 the St. Bernard Delta complex. It doesn't
19 Q. You were I believe trying to answer 19 appear, and looking very quickly at a pretty
20 that question. Do we need to read it back or 20 big document, that there was any conclusion
21 anything for you? 21 that the salinity changes had an effect on the
22 A. Sure. Why not. 22 health -- what is your phrase -- health and
23 MR. BRUNO: 23 safety of the human environment.
24 Would you mind? 24 Q. Did they do any analysis in order to
25 (Whereupon the previous question was 25 make that determination?
Page 282 Page 284
1 read back.) 1 A. There is documentation, and I suppose
2 A. Not that I can tell from reading the 2 that could be called analysis, of the existing
3 1976 final environmental statement. 3 salinity regime in terms of --
4 EXAMINATION BY MR. BRUNO: 4 Q. Page number?
5 Q. What analysis did the Corps do in 5 A. 2-74 through 2-77. Actually, it's
6 order to reach that conclusion? 6 2-78, also.
7 A. I think the analysis in the document 7 Q. Okay. 2-74 doesn't have a Bates
8 was more specific to the proposed operation and 8 number. Does yours have a Bates number? I
9 maintenance methodologies and locations of 9 guess not.
10 dredge material disposal. There is 10 MR. KELLS:
11 documentation of other projects in the area 11 Yeah. It does.
12 such as the levees being built, but there is no 12 A. Then the contain conclusion part,
13 analysis that I can tell that reaches the 13 um -- ranges from IV -- give me a second,
14 specific conclusion of the health and safety of 14 please. Page IV-2 in Section 4.
15 the human environment related to erosion of the 15 Q. Okay.
16 banks. 16 A. You want me to read it?
17 Q. All right. So then can we conclude 17 Q. Okay. I'm just trying to understand
18 that the Corps did not do an analysis to 18 what you're saying to me. Forgive me.
19 determine whether or not the erosion of the 19 A. What I'm telling you is that there is
20 banks of the MRGO negatively impacted the 20 analysis in the sense of documentation of the
21 health and safety of the human environment? 21 various, um -- plant communities associated
22 A. Based on what I've read in this 22 with certain salinity changes in the area of
23 particular document, I think that is -- that's 23 the channel in one section of this report, and
24 an okay conclusion. 24 then there is analysis or conclusion of the
25 Q. All right. Let me just ask you the 25 effect of the MRGO construction on the
18 (Pages 281 to 284)
10/14/2008
Page 285 Page 287
1 environmental setting. 1 Q. Well, it says -- all right. When they
2 Q. Okay. So as I read Table IV-1, it's 2 say the salinity of water increases, what water
3 entitled A Summary of Some of the Events and 3 are they talking about?
4 Actions which Affect the Environmental Setting, 4 A. I believe they mean -- it's a general
5 and it talks about the construction of the 5 reference to the water in the project area.
6 MRGO. It says, alteration of marshland for 6 Q. Okay.
7 economic benefit. I guess they're referring 7 A. By reading it as a -- well, it's not a
8 there to the digging of the channel. Right? 8 bullet, but a substatement under abandonment of
9 Which necessitated removal of some of the 9 the St. Bernard Delta complex, I would suggest
10 marsh. 10 that it's the water in the St. Bernard Delta
11 A. I believe so, yes. 11 complex.
12 Q. Okay. Then it says, continuation of 12 Q. Okay. So when they talk about the
13 saltwater intrusion caused by several processes 13 continuation of saltwater intrusion, they're
14 and actions. So first of all, can I conclude 14 saying that whatever was begun by the
15 that the word continuation means that from the 15 abandonment of the St. Bernard Delta complex
16 digging of the channel up until 19 whenever 16 has been continued by the construction of the
17 this report was issued there has been 17 MRGO.
18 continuous saltwater intrusion? Is that what 18 A. Yes.
19 that's saying? 19 Q. Okay. Now they say that's caused by
20 A. I believe it's saying more than just 20 several processes and actions. Do we know what
21 from the time period you've identified. I 21 processes and actions they're referring to?
22 think it dates back to, again, as I mentioned 22 A. I think if you read historical
23 earlier, the abandonment of the St. Bernard 23 actions, the paragraph at the top of the table,
24 Delta complex. Just above in the table it 24 that would answer that question. The ecosystem
25 references the leveeing of the Mississippi 25 is still in the process of coming to
Page 286 Page 288
1 River would result in additional restriction of 1 equilibrium as a result of changes caused by
2 eastward Mississippi River freshwater flow. 2 abandonment of the St. Bernard Delta complex by
3 Q. Okay. I'm trying to understand your 3 the Mississippi River, of changes caused by
4 answer. So what this seems to be saying is 4 construction of the Mississippi River levees
5 that the abandonment of the St. Bernard Delta 5 and the MRGO.
6 complex by the river has caused an increase in 6 Q. Okay.
7 salinity. Right? 7 A. Present environmental trends are a
8 A. I think it's a contributing factor. I 8 continuation of changes associated with these
9 think that just from my quick reading of this, 9 events. Then they subsequently show each of
10 that's what we're showing. 10 those events and the associated change.
11 Q. All right. And then when I go down 11 Q. Right. But they separate them out.
12 under the caption Construction of the MRGO, 12 They talk about the St. Bernard complex and
13 MRGO is causing a continuation of saltwater 13 then they talk about the levee construction,
14 intrusion. Right? 14 and then they talk about the construction of
15 A. Yeah. Continued from the, um -- 15 the MRGO. And I'm assuming when they talk
16 increases in salinity -- um, from other 16 about the MRGO they're talking about processes
17 activities, not just the construction. That's 17 and actions that are related to MRGO. Am I
18 my point, is you're referencing point in time, 18 reading that incorrectly?
19 and I'm saying there's a number of other 19 A. I think you're reading it correctly.
20 factors prior to that point in time that relate 20 Q. Okay. Now, what we don't know is what
21 to the word continuation. 21 is the effect of this increased salinity,
22 Q. Well, what water are they talking 22 right? I mean, there's nothing in this report
23 about? That's all. 23 that talks about how that may or may not affect
24 A. Well, the source of saltwater in the 24 the human environment.
25 area is the Gulf of Mexico. 25 A. Well, the statement that we just went
19 (Pages 285 to 288)
10/14/2008
Page 289 Page 291
1 over, um -- continuation of saltwater intrusion 1 stopped. Has it?
2 caused by several processes and actions and 2 A. No. It talks about a gradual shift.
3 resultant marsh deterioration in some areas, 3 So yes, it would imply that it is still going
4 then goes on to read, gradual shift in biotic 4 on it at the time of this particular document.
5 community composition toward greater proportion 5 Q. Right. And I think we talked last
6 of species tolerant of higher salinity levels 6 time we met that, you know, the destruction
7 in response to changes in system hydrology and 7 kept going until it leveled out I think you
8 salinity, that is an assessments of the effect 8 said in the mid seventies.
9 on the environment. 9 A. And this is a 1976 document.
10 Q. Okay. So the Corps' assessment of the 10 Q. That's when it was published, that
11 effect of saltwater on the environment is, A, 11 wasn't when it was -- first draft was six years
12 marsh deterioration in some areas, right? 12 earlier. But that's neither her nor there.
13 A. Uh-huh. 13 All I'm saying is, I thought we agreed that the
14 Q. And -- 14 saltwater intrusion continued.
15 A. Yes. 15 A. I'm not arguing that point with you.
16 Q. And a shift in biotic community 16 I'm saying --
17 composition toward a greater proportion of 17 Q. You agree with me.
18 species tolerant to higher salinity levels. 18 A. Yes.
19 That's the other impact on the environment, 19 Q. I'm just saying the document does not
20 right? 20 discuss whether or not this saltwater intrusion
21 A. Yes. 21 has any negative effect on the human
22 Q. Okay. And so there is nothing in here 22 environment. How about that?
23 about death of trees or death of plants or the 23 A. Other than noting these impacts, um --
24 death of any other biota at all. Right? 24 you know, I don't see those words used in this
25 A. I think we need to look at Page IV-7, 25 evaluation of this document.
Page 290 Page 292
1 effects of disposal on land. Paragraph 3, I'm 1 (Off the record.)
2 sorry. Effects of disposal on land. 2 EXAMINATION BY MR. BRUNO:
3 Q. Okay. So it says -- they're talking 3 Q. In fact, Mr. Miller, this entire
4 about -- well, this is disposal on. This is 4 document doesn't use the phrase human
5 not salinity. I mean, you're right, this talks 5 environment at all, does it, in assessing the
6 about -- the question was, to be fair, was 6 potential impacts?
7 whether or not there's a discussion about 7 A. Are you telling me that you've read it
8 whether the increased salinities were causing 8 and that's what you --
9 the death of trees or plant or biota, just that 9 Q. Yes.
10 one issue. We can talk about disposal in a 10 A. I don't have any reason not to believe
11 minute, but there is no discussion about the 11 you. I haven't read the entire document, but
12 impact on that environment, is there? 12 there's no reason to doubt what you're telling
13 A. I think it goes to the context of the 13 me.
14 document in the sense that they're talking 14 MR. SMITH:
15 about the O&M activity itself, and that is the 15 Wait a minute, now. You've sat
16 dredging and the disposal activities that were 16 through how many days of deposition,
17 proposed in order to maintain the depths of the 17 and you can honestly say that?
18 channel, not, um -- the events that you talk 18 THE WITNESS:
19 about in terms of the trees and other biotics 19 Well, he's under oath. If he's
20 that may have occurred with the original 20 telling me --
21 construction of the channel. And I think 21 MR. SMITH:
22 that's why. 22 He's not under oath.
23 Q. Well, did they stop? You read this to 23 THE WITNESS:
24 me. It said, continuation of saltwater 24 He's not?
25 intrusion. And we agreed that that hadn't 25 MR. SMITH:
20 (Pages 289 to 292)
10/14/2008
Page 293 Page 295
1 You don't understand this process 1 EXAMINATION BY MR. BRUNO:
2 at all. 2 Q. All right. I think we established
3 THE WITNESS: 3 that saltwater intrusion caused the death of
4 Okay. I'm sorry. I don't 4 trees -- of certain trees, certain marsh,
5 understand half of what we're doing 5 certain vegetation over time. Remember that
6 here. 6 testimony from the last time we were together?
7 A. I can go back and read the document. 7 MR. SMITH:
8 MR. SMITH: 8 He just asked you to repeat the
9 Mr. Bruno can testify about this 9 question, Joe.
10 and you can accept his testimony, 10 A. Try repeating it, let's see if I can
11 that's fine. 11 answer it. Then we can talk about everything.
12 THE WITNESS: 12 EXAMINATION BY MR. BRUNO:
13 All right. I'm sorry. 13 Q. Because saltwater intrusion is
14 EXAMINATION BY MR. BRUNO: 14 continuing and because saltwater intrusion
15 Q. We can go to a section and look, if 15 causes the death of plants and trees and the
16 you want, but -- take a peek. 16 like, these trees not yet destroyed, these
17 A. I can't say, because I have not read 17 plants not yet destroyed, those marsh not yet
18 the document in its entirety. And please don't 18 destroyed, could potentially be damaged or
19 tell me you want a break so I can do that at 19 destroyed by this continuous -- continuing
20 quarter to 5:00 [sic] on a Tuesday. 20 saltwater intrusion, right?
21 (Off the record.) 21 MR. SMITH:
22 EXAMINATION BY MR. BRUNO: 22 Objection. Vague. Calls for
23 Q. Let me see if we can just sum it up. 23 speculation.
24 We talked about where we were at the 24 A. I will answer in that it would depend
25 pre-NEPA stage, late sixties, now we're 25 upon the area that you're talking about
Page 294 Page 296
1 post-NEPA and this is the final impact -- final 1 specifically. An area that, um -- with saline
2 Environmental Impact Statement which has a date 2 marsh prior to the construction of the channel,
3 on it of March, 1976. Right? Okay. So now 3 it's probably not going to have -- it's not
4 it's 1976 and we know, one, the banks of the 4 going to have any effect on that area.
5 MRGO are still eroding. Correct? 5 EXAMINATION BY MR. BRUNO:
6 A. Yes. 6 Q. Right, if it's already saline.
7 Q. Salinity is still increased and 7 A. It's subjected to the same water
8 increasing over time, isn't that true? 8 conditions. It's in the project area.
9 A. The document on Page IV-2 says 9 Q. Right. That's what I'm saying.
10 continuation of saltwater intrusion. 10 That's why I asked the question the way I did.
11 Q. Right. 11 Those trees not yet dead which might be
12 A. I prefer to use the phrase from the -- 12 affected by increased salinity, those are still
13 Q. All right. So saltwater intrusion is 13 obviously at risk for damage.
14 continuing. 14 A. I'll answer in two parts. One is that
15 A. Yes. 15 in part that they could be at risk for damage
16 Q. All right. And because saltwater 16 from a number of different factors affecting
17 intrusion is continuing, to the extent that 17 the environment in this area, subsidence being
18 everything is not dead that might be dead as a 18 one. The second part being that there are
19 result of saltwater intrusion there's the 19 trees currently in the project area, um -- that
20 potential that whatever the saltwater hadn't 20 are considered freshwater trees and they remain
21 killed it can kill it in the future. Right? 21 alive today.
22 MR. SMITH: 22 Q. All right.
23 Objection. Vague. Calls for 23 A. So.
24 speculation. 24 Q. And all I said was potential.
25 A. Repeat it, place. 25 A. Potential, yes.
21 (Pages 293 to 296)
10/14/2008
Page 297 Page 299
1 Q. Okay. So there's always -- saltwater 1 Q. The central wetlands unit?
2 could potentially harm freshwater trees that 2 A. No.
3 live in freshwater. Right? 3 Q. There's some portions of that above
4 A. Potentially. 4 water?
5 Q. All right. Now, does saltwater cause 5 A. Yes.
6 subsidence? 6 Q. Okay. Most of it is below water.
7 A. No. 7 A. I don't know the percentage separation
8 Q. What analysis has the Corps done to 8 between wetland and open water and other land
9 determine what impact, once you have destroyed 9 forms in the area. There are remaining areas
10 the trees and the vegetation in a particular 10 that are intertidal which occasionally are
11 area, how that land, or whether that land will 11 above water and sometimes covered by water.
12 further deteriorate because there's no 12 That was an intertidal marsh.
13 vegetation or trees on it? 13 Q. Okay. Right. Now, as of 1976, did
14 A. We're talking about an answer in 14 the Corps conduct any analyses or evaluations
15 general or this particular document? 15 to determine the impact of the MRGO on that
16 Q. An answer in general. 16 central wetlands unit?
17 A. We have performed analysis of land 17 A. As of 1976?
18 change trends in the project area, and in some 18 Q. (Nods affirmatively.) Yes.
19 cases those will show shifts from one type of 19 A. Yes.
20 vegetation to another type. And so that 20 Q. All right. And those are reflected in
21 analysis would show you that there could be a 21 this report?
22 transition in that particular area -- 22 A. They're reflected in reports after
23 Q. All right. 23 this one. I'm not sure about if there's a
24 A. -- from salt marsh to brackish marsh, 24 land/water classification or documentation in
25 from brackish to intermediate marsh. In some 25 this. I didn't see it on a quick review of
Page 298 Page 300
1 cases it's a change in the salinity regime but 1 this. But there are numerous reports
2 not a change in the plant community itself 2 subsequent to this where the central wetlands
3 because some of those plants are capable of 3 were evaluated.
4 growing in multiple salinity ranges. 4 Q. All right. Now, we talked about the
5 Q. All right. The Central wetlands unit. 5 foreshore protection that the Corps considered
6 That is that space between MRGO and the Forty 6 in '68. When is the next time that the Corps
7 Arpent Canal. 7 considered the necessity of foreshore
8 A. Uh-huh. 8 protection along the banks of the MRGO? In
9 Q. Back in the sixties when the canal was 9 time.
10 dug, that was forested with trees, wasn't it? 10 MR. SMITH:
11 A. There were areas in the central 11 Objection. Vague.
12 wetlands that had trees in it -- 12 EXAMINATION BY MR. BRUNO:
13 Q. Right. 13 Q. Well, we know the reconnaisance report
14 A. -- not -- 14 did so in '88. Let's see if we can use that as
15 Q. Not the whole thing. 15 a -- you agree with me that the 1988
16 A. Not chock-full. 16 reconnaisance report represented an evaluation
17 Q. No, I understand. And you could walk 17 of the need for modification in order to
18 on that land. It was above ground. It was 18 install foreshore protection along the banks of
19 above water. 19 the MRGO.
20 A. You're telling me or you're asking me? 20 A. I recall a 1982 Congressional, um --
21 Q. Isn't that true? 21 resolution asking the Corps to begin evaluating
22 A. I don't know. 22 erosion along the MRGO. It is possible that
23 Q. Well, now it's all underwater, today, 23 between 1976 and that 1928 directive that there
24 right? 24 were other efforts undertaken, um -- in
25 A. No. 25 particular, I'm referencing the sections in the
22 (Pages 297 to 300)
10/14/2008
Page 301 Page 303
1 reach contiguous between the MRGO and the GIWW, 1 notion -- where did that come from? Where did
2 but I can't recall the exact document. 2 that idea have its birth, was it here in this
3 Q. All right. Well, in fact, during that 3 office, the New Orleans District office?
4 period of time from 1968 to 1982, that time is 4 A. It may have come from a local sponsor,
5 coexistent with a time when the Corps had the 5 but I'm speculating by saying that. I don't
6 view that there may be a widening and a 6 know what the genesis for that is. It may have
7 deepening of the channel along Reach 2, isn't 7 been a specific directive from Congress.
8 that true? 8 Q. All right.
9 A. Yes. 9 A. I'm not sure.
10 Q. And isn't it true that because the 10 Q. Well, we know it wasn't from a local
11 Corps had expected that the channel be widened 11 sponsor. They were opposed to this for some
12 and deepened that they had no interest in 12 time, were they not? The local sponsors.
13 evaluating the necessity for foreshore 13 A. The Port of New Orleans?
14 protection along its banks because, obviously, 14 Q. Oh, you're referring to the port.
15 if they were going to widen it they would have 15 Okay. I'm sorry. So you think the port may
16 to remove the foreshore protection that they 16 have had some interest in widening the channel.
17 had just installed? Isn't that true? 17 A. Again, I'm speculating, but I would
18 A. I don't know. 18 imagine that, um-- that could be the source of
19 Q. All right. 19 such a recommendation, considering that their
20 A. I can, um -- I can read a document, 20 interest is in the expansion of shipping and
21 the one which you're referencing, the study of 21 trade.
22 the potential enlargement, and see if that was 22 Q. All right. And your testimony is that
23 evaluated or as a reasoning for, um -- you 23 there's no connection between the potential of
24 know, waiting to do those types of evaluations 24 the channel widening and the failure of the
25 until the determination was made on 25 Corps to do any more evaluation of the need for
Page 302 Page 304
1 enlargement. There were other projects in the 1 foreshore protection or some modifications to
2 area that were also being evaluated at the time 2 deal with increased salinity.
3 that might affect the, um-- 3 A. Well, I would disagree with the
4 Q. Well, I'm just wondering -- 4 premise. I don't know that we failed to do
5 A. -- the channel itself and whether or 5 that. We may have looked at that in other
6 not, you know, you would place protection at a 6 documents. Um -- I just don't recall any at
7 certain area or not. 7 this moment.
8 Q. Can you identify a single study or 8 Q. Okay. Now, the 1982 reference, is
9 evaluation or thought process even, between 9 that --
10 1968 and 1982, wherein the Corps considered or 10 (Off the record.)
11 studied or evaluated or did an analysis to 11 EXAMINATION BY MR. BRUNO:
12 determine whether or not there was a need to 12 Q. All right. I got you now. The
13 install foreshore protection to prevent the 13 resolution that you're referring to is the
14 loss of the shore and the increased salinity of 14 resolution which was the study authority for
15 the marsh? 15 the reconnaisance report itself. Right?
16 A. Not by, um-- recent recollection, but 16 A. Yes.
17 I would like to look at some of these other 17 Q. So the Corps didn't do any study until
18 documents that we talk about before I give you 18 it began the reconnaisance study. Right?
19 a definitive answer. 19 A. Page 4 of the reconnaisance study
20 Q. Sure. All right. Now, this, the idea 20 makes reference to an interim evaluation report
21 of widening the channel, was there some kind of 21 on test sections of selected foreshore
22 Congressional resolution that told the Corps 22 protection structure designs which was prepared
23 that that was what the Congress wanted to do? 23 by the New Orleans District in 1983. Um-- if
24 A. I'm not sure. 24 your question is -- this is a 1988 report and
25 Q. All right. Well, where did the 25 the authority is given in 1982, was there
23 (Pages 301 to 304)
10/14/2008
Page 305 Page 307
1 anything done before this report came out, 1 it says, resolved by the committee that the
2 that's a reference to it. 2 board is to review the Report of the Chief
3 I also don't -- 3 which is published as House Document 245 with a
4 Q. Let me find the reference. Let me 4 view toward determining whether in light of the
5 catch up to you. 5 extensive erosion which has been occurring in
6 A. I'm sorry. Page 4. 6 St. Bernard Parish along the unleveed banks of
7 Q. Page 4 of the? 7 the gulf outlet channel -- okay? The Unleveed
8 A. Reconnaisance report. 8 banks -- any modifications to the
9 Q. All right. Well, it says, the 9 recommendations as contained therein are
10 foreshore protection structures were designed 10 advisable with reference to the feasibility of
11 specifically for the leveed portion of the MRGO 11 bank protection measures. So let me ask it to
12 south shore. That already had foreshore 12 you this way: Are you aware of any evaluation,
13 protection on it, so -- right? Or not? The 13 study, analysis, at all, done by the United
14 foreshore protection that was discussed in the 14 States Army Corps of Engineers as to an
15 design memorandum issued in '69, did that 15 evaluation of bank erosion along the unleveed
16 foreshore protection ever get installed? 16 portions of the MRGO channel, at any time in
17 A. I think we would be best served if we 17 its history up until this reconnaisance report
18 got this particular document. Um-- 18 of 1988?
19 Q. Which one? 19 A. Yes.
20 A. Um-- this miscellaneous paper -- 20 Q. All right. What evaluation were done
21 excuse me, I'm reading the wrong thing. The 21 along the unleveed banks?
22 interim evaluation report. It doesn't say 22 A. There are documentation of the
23 channel miles here, so it's difficult to say 23 construction of the channel and, um-- I don't
24 whether this is in the leveed section, for 24 remember the exact words they use, but in the
25 example, as you referred to it in Reach 2 or if 25 construction of the channel they're concerned
Page 306 Page 308
1 it is in the section of levees in the 1 about material from the banks having to be
2 contiguous part of the GIWW and the MRGO. 2 redredged that would slough into the channel,
3 Q. Well, except that it says very 3 and so there are reports that date back to the
4 specifically, were designed specifically for 4 construction time period about the erosion on
5 the leveed portion of the MRGO south shore. 5 the bank channels. And I don't have an
6 A. And there is a portion of the MRGO 6 exhaustive list of them, but there are periodic
7 south shore that's also contiguous with the 7 references throughout the Corps documentation
8 Gulf Intracoastal Waterway between the 8 of these concerns.
9 Industrial Canal and just past the Paris Road 9 Q. Okay. So up until 1982 when Congress
10 bridge. If you can get the report -- 10 says go study this, the Corps has these
11 Q. We can. I don't know if I have that 11 concerns, right?
12 report, but my memory is that the south shore, 12 A. Yes.
13 they decided not to put any foreshore 13 Q. Okay.
14 protection along that reach, on Reach 1. If 14 A. Or notes them in the effect of, you
15 you'll remember. 15 know, the impact it has to channel
16 A. Is that from your recollection of the 16 construction, or notes them in terms of
17 document that dates back to the 1950s or in a 17 consideration of other projects in the area.
18 subsequent time of the subsequent time of 18 We discussed today the Lake Pontchartrain and
19 the -- 19 Vicinity area, things like that.
20 Q. That's the General Design Memorandum 20 Q. So tell me, then, up until the request
21 Number 2 is what it is. 21 by Congress for this evaluation, what
22 Well, if we go to the reconnaisance 22 information has the Corps, the New Orleans
23 report, and we look at the resolution, it says 23 District office, given to its, um-- superiors
24 very specifically that regardless of what that 24 about bank erosion and the effect on the
25 report may or may not say, if you go to Page 2, 25 environment? Last time we said we looked at it
24 (Pages 305 to 308)
10/14/2008
Page 309 Page 311
1 was in 1968, and to the extent it's at all 1 should be investigated further.
2 looked at in the '76 environmental report is 2 Q. All right. I will show you a document
3 there any other report that you're aware of 3 which is marked AFW 180-1499 to 1512.
4 that the district office makes to any of its 4 (Tendering.) Have you ever seen that?
5 superiors? 5 MR. SMITH:
6 A. I think I'll answer similar to what I 6 Do you have an extra copy?
7 mentioned a little while ago, and that is that 7 A. I have not.
8 I believe that there are references between the 8 EXAMINATION BY MR. BRUNO:
9 1976 environmental statement and the 1982 9 Q. Okay. This is a planning document.
10 Congressional resolution and the 1988 draft 10 It's a Guidelines for Assessment of Economic,
11 report, in other studies, um-- that, um-- note 11 Social and Environmental Effect of Civil Works
12 channel erosion. I don't know the specific 12 Projects. Now, the reconnaisance report
13 titles of those. We've talked about them in 13 itself, it's a planning document, isn't it?
14 general in terms of the potential enlargement 14 A. Yes.
15 of the channel, plus there was an investigation 15 Q. Okay. It says, this guideline -- this
16 of the lock and connecting channels in the 16 is a '72 guideline, so it would be applicable
17 vicinity of Violet. I believe that those 17 to this reconnaisance report, would it not?
18 documents would reference, um-- 18 A. Not necessarily.
19 Q. That was done -- 19 Q. Because there may be a more up-to-date
20 A. -- these conditions. 20 one?
21 Q. That was done in the nineties, wasn't 21 A. That's correct.
22 it? The study of the lock came out in '97. 22 Q. Well, if there is not a more
23 A. No, I believe the Violet -- the option 23 up-to-date one, then this one would be
24 of a lock and connecting channel in the 24 applicable, right?
25 vicinity of Violet is a 1970s era document. 25 A. Can I see the front of it?
Page 310 Page 312
1 We're talking about a lot of different things. 1 Q. Sure. (Tendering.)
2 I could be wrong, but I believe you're 2 A. Without seeing an expiration date or
3 referencing the IHNC lock replacement. That 3 knowing whether any subsequent law, I'd say
4 was a different project. 4 yes, it would be applicable as long as no other
5 Q. Okay. All right. Well, can you point 5 regulation became in effect that that would
6 to a comprehensive analysis that would have 6 supersede it.
7 investigated the extent to which MRGO was 7 EXAMINATION BY MR. BRUNO:
8 eroding its banks and having environmental 8 Q. Page 1, Paragraph 4, reports cover the
9 impact, other than the environmental impact 9 guidelines, specify steps in effect, assessment
10 report of '76 and the '68 foreshore protection 10 to be taken as part of the planning process and
11 general design memorandum? 11 pre-authorization investigations. They shall
12 A. No. 12 be appropriately adapted by reporting officers,
13 Q. Now, the basis for the -- the 13 however, to cover, effect assessment and
14 reconnaisance report established the need for 14 planning for projects under continuing
15 bank protection, did it not? 15 authorities and in the post-authorization
16 A. I'll point to Page 1, Channel Bank 16 plannings the guidelines will apply to the
17 Erosion. It talks about the findings of the 17 following reports. And then it says survey
18 reconnaisance study, it talks about the use of 18 reports now under preparation or in progress,
19 available data and field reconnaisance, um-- 19 reports being prepared or now being processed,
20 and notes that environmentally -- economically 20 general design memoranda and the like.
21 justified and environmentally acceptable plans 21 So it's clear, is it not, that under
22 have been identified that warrant proceeding to 22 Paragraph 4 this reconnaisance report, if
23 more detailed studies. So it documents bank 23 there's no subsequent version of this thing,
24 erosion and the erosion-related problems and 24 would be subject to these -- this reg, right?
25 then identifies some potential solutions that 25 A. I believe that's right.
25 (Pages 309 to 312)
10/14/2008
Page 313 Page 315
1 Q. All right. It stays the action on the 1 reconnaissance report.
2 five reporting officers will incorporate 2 A. Yes.
3 utilization of these guidelines into all phases 3 Q. That's what -- we were talking about
4 of the planning process to ensure that, A, all 4 reconnaissance and we're still talking about
5 significant adverse and beneficial project 5 reconnaisance.
6 effects, particularly the adverse effects 6 So this reconnaisance report should
7 specified in Section 122 are identified and 7 have included a profile of the existing
8 assessed in a systematic way. You see that, 8 condition in the planning area, right?
9 Page 2? 9 A. Right.
10 A. Yes. 10 Q. Okay.
11 Q. Do you know what Section 122 is? 11 A. And it does.
12 A. No. 12 Q. Okay. And does it extend the profile
13 Q. Okay. 13 to make projections of the without project
14 A. If you give me a minute -- one second, 14 conditions throughout the expected life of the
15 please. There is an Attachment A that 15 project? In other words, does this
16 references Section 122. 16 reconnaisance report discuss what happens if
17 Q. Okay. Where is that? Where are you? 17 you don't do foreshore protection?
18 A. A-7 in this document. 18 A. Yes. It does.
19 Q. Okay. All right. Attachment A says, 19 Q. Where is that?
20 specifically, taking into consideration the 20 A. Page 54, Conclusion.
21 need for flood control, navigation and 21 Q. All right. You're referring to the
22 associated purposes and the costs of 22 sentence that says the current bank erosion
23 eliminating or minimizing such adverse effects 23 problem will become a major channel maintenance
24 in the following, and Number 2, it says 24 problem in the future?
25 destruction or disruption of manmade and 25 A. I was referring to the -- all of the
Page 314 Page 316
1 natural resources. 1 conclusions, um -- but, you know, that is a
2 So it is clear, is it not, that any 2 problem that would occur in the future.
3 report which may be subject to this section 3 Q. Does it identify the significant
4 should have included a discussion of the 4 effects?
5 destruction or disruption of natural resources 5 A. Yes.
6 that may be related to a project? 6 Q. And what are the significant effects?
7 A. Yes. I believe so. As long as there 7 A. Well, the entire document runs through
8 were no subsequent law that required us to do 8 effects on, um-- biological resources, marsh --
9 something else. 9 the shoreline and marsh, the cost of
10 Q. Sure. All right. And if you look at 10 maintenance of the channel, um--
11 A1, here are the guidelines, and there's a 11 Q. Okay.
12 sequence of steps, in effect, effect assessment 12 A. Um-- saltwater intrusion.
13 and which is summarized below, right? 13 Q. All right. So we have a Corps
14 A. What page? 14 document develop by this office which
15 Q. Page A1. 15 demonstrates that all these environmental
16 A. Yes. 16 effects are significant, right?
17 Q. All right. Assemble a profile of the 17 A. I believe so. I'm not sure if it used
18 existing condition in the planning area, which 18 the word significant in its conclusion. Give
19 would be the MRGO area, right? 19 me a second, I'll verify --
20 A. Are we making reference to any 20 Q. Okay.
21 particular document or just if we were applying 21 A. I think the point is that it evaluated
22 this Reg to evaluating MRGO? 22 ongoing erosion along the channel and it
23 Q. Reconnaisance. 23 recommended some potential solutions for
24 A. Yes. 24 further investigation.
25 Q. This one right here, the 25 Q. All right.
26 (Pages 313 to 316)
10/14/2008
Page 317 Page 319
1 A. Do you want me to look for 1 on --
2 significance? 2 Q. $121,000?
3 Q. Well, the word significant is defined, 3 A. On Page 40,4 they put a value on marsh
4 let's see if we can -- Page A3 -- identify a 4 on a per acre basis.
5 significant effect. It says, examine causative 5 Q. Right.
6 factors and the effects they produce for each 6 A. And then in the table there's a -- and
7 alternative. Select those effects which appear 7 there's a value in terms of the benefit, as you
8 significant in view of the conditions, problems 8 mentioned, a marsh loss reduction savings.
9 and needs of the affected area as projected for 9 Q. Of $121,000.
10 the with and without project conditions. 10 You think that's a fair number to put
11 A. Uh-huh. 11 on the reduction of marsh loss --
12 Q. It says, a significant effect is one 12 MR. SMITH:
13 which would be likely to have a material 13 Objection. Vague.
14 bearing on the decision-making process. 14 EXAMINATION BY MR. BRUNO:
15 A. Uh-huh. 15 Q. -- in light of its significant
16 Q. So given that definition of 16 significance?
17 significant, do you believe that the 17 MR. SMITH:
18 conclusions in the reconnaisance report which 18 Objection. Vague.
19 describe, at Page 54, severe erosion is 19 A. I'm not going to be able to judge the
20 occurring along the banks of the MRGO. The 20 fairness in the sense of that, um-- the, um--
21 current back erosion problem will become a 21 the research and the ability to put an economic
22 major channel maintenance problem in the 22 value on an acre of marsh is -- continues today
23 future. An estimated sixfold increase in the 23 and is still not resolved to any point where
24 required average annual maintenance dredging of 24 the Corps uses a specific dollar amount for
25 the MRGO could be realized by the year 2002. 25 acreage. I don't recall the specifics, but I
Page 318 Page 320
1 Wave wash and drawdown effects produced by 1 believe that in some of the comments in the
2 large vessel traffic by causing highly 2 division memorandum reviewing the draft there
3 productive marsh to be converted to open water. 3 was a question about the use of that dollar
4 Saltwater intrusion in the marsh that remains 4 amount. I think the take-away point here from
5 has significantly modified the former fresh, 5 the Corps perspective is that they were able to
6 intermediate marsh character of much of the 6 demonstrate a value above unity and to make a
7 study area. Recreational hunting and fishing 7 recommendation that there be further
8 resources have been diminished and cultural 8 investigation of pursuing the bank
9 resources are threatened by the currently 9 protection -- potential bank protection
10 unabated bank erosion. 10 measures.
11 Now, would you agree with me that 11 Q. What was the cost of bank protection
12 those are significant effects? 12 in this reconnaissance report?
13 A. Yes. 13 A. Do you have a page number for me or is
14 Q. All right. Now, in this document 14 there something that you're --
15 there's a cost-benefit analysis done which 15 Q. I think it's the same page, wherever I
16 compares the costs of the project to the 16 was, the table.
17 benefits achieved. But in that analysis there 17 It ranges between 34 and 110 million?
18 really is not a number put on the value of the 18 A. Do you have a page number?
19 items that we've just discussed. Isn't that 19 Q. 47.
20 true? 20 A. Yeah. I believe that is right.
21 A. Can you point to the section in the 21 That's what it says here in this table in the
22 report that has the cost-benefit analysis? 22 first column.
23 Q. Yes. Page 41. 23 Q. All right.
24 A. I'm not the economist, but it looks 24 A. I don't actually remember the
25 like to me that on Page 40 they put a value 25 scenario, but I assume that that's the cost of
27 (Pages 317 to 320)
10/14/2008
Page 321 Page 323
1 bank protection measures. 1 that costs went up significantly. This may
2 Q. All right. And this reconnaisance 2 involve much further work, it may involve a
3 report really never went into a feasibility 3 newly demonstrated technique on how to do this
4 study, and there was another reconnaisance 4 work. I don't know what -- the alternatives
5 report done in '94, right? 5 comparison may be different. And so I wouldn't
6 A. If I remember correctly -- 6 make that conclusion --
7 MR. SMITH: 7 Q. Okay.
8 Objection. Asked and answered. 8 A. -- without reading --
9 EXAMINATION BY MR. BRUNO: 9 Q. Now, did the Corps undertake any
10 Q. You were answering? 10 evaluation as to what the loss of the wetlands
11 MR. SMITH: 11 bank erosion was worth in terms of dollars?
12 This was covered in detail with 12 MR. SMITH:
13 Mr. Podany. 13 Objection. Asked and answered.
14 MR. BRUNO: 14 A. You're asking again, I'm sorry, the
15 I know. Just context, Robin. 15 value -- I'm sorry? Could you repeat it,
16 A. If I remember right, the '88 draft led 16 please?
17 to subsequent drafts where there was a 17 EXAMINATION BY MR. BRUNO:
18 recommendation to pursue a feasibility study. 18 Q. They put a dollar amount of the loss
19 EXAMINATION BY MR. BRUNO: 19 to the environment, up to this point in time.
20 Q. Right. 20 This is 1994.
21 A. And, um-- I don't believe that the 21 A. Just from a quick glance at this Table
22 port, who was the project local sponsor, um-- 22 17, it looks like they placed a potential value
23 wanted to cost share the study. 23 on the acres of marsh saved, but not on lost.
24 Q. Exactly. 24 I'm not sure in terms of date, you know, what
25 A. And that there were other -- there 25 your starting point is for asking that. But
Page 322 Page 324
1 were efforts to identify other entities in 1 nonetheless, this looks, um-- into the future
2 terms of a local sponsor and they were not 2 value of acres of marsh saved.
3 agreeable to cost sharing the -- 3 Q. All right, sir.
4 Q. Right. 4 A. I'll point out again that this -- and
5 A. -- feasibility. 5 I'm not an economist, I've just dealt with this
6 Q. In the second reconnaisance report, 6 in a number of different studies. It's not --
7 the evaluation of the cost of the project had 7 I don't know that there's agreement in the,
8 gone up pretty substantially, didn't it? 8 um-- economics community or the Corps, or even
9 A. I don't remember the details. If you 9 outside in research areas, in terms of how to
10 you'll show it to me I'll look at it for us. 10 place a value dollar on an acre of marsh for
11 MR. SMITH: 11 certain activities.
12 Objection. Asked and answered. 12 Q. Okay. So, um-- in 1988, or in the
13 (Off the record.) 13 eighties -- let's have the decade of the
14 EXAMINATION BY MR. BRUNO: 14 seventies. Did the Corps undertake any
15 Q. At Page 43, it suggests that the costs 15 evaluation or assessment to ascertain whether
16 are anywhere from as high as $195 million. 16 or not whatever damage the MRGO had done had
17 Right? Isn't that true? 17 any impact on the ability of the hurricane
18 A. Table 9 shows a range of 13, um-- 18 protection system to do what it was designed to
19 first cost gross investment of 13 million to, 19 do?
20 as you mentioned, 195 million. I don't know 20 A. There's a reconnaisance report, I've
21 that the options presented here compare to the 21 not seen it in the, um-- the documents that
22 scenarios presented here. (Indicating.) Um-- 22 we've been going over, that did look at the --
23 you have to make sure you're comparing apples 23 excuse me, I use the word reconnaisance report.
24 to apples in the sense -- in order to be able 24 There's a report on the Lake Pontchartrain and
25 to make the statement which you said, which is 25 Vicinity Project that does talk about the loss
28 (Pages 321 to 324)
10/14/2008
Page 325 Page 327
1 of marshlands and the, um-- the hurricane 1 which is described in this Exhibit NPM 38-612
2 protection projects. I don't recall the exact 2 was ever done by the Corps in the past?
3 data that, um -- I believe I have a copy in my 3 MR. SMITH:
4 office, actually. 4 Objection. Vague.
5 Q. All right. Well, um-- 5 A. For the reevaluation study, I recall
6 A. You asked about the seventies. But 6 there was an analysis of storm, um-- hurricane
7 this is a 19 -- I'd have to look at the exact 7 storm surge in the channel, but I don't recall
8 date. 8 if it included each of these particular
9 Q. Yeah. I'm going to ask -- when we 9 alternatives. We can verify that. I believe
10 break for the day I'll ask you to just give me 10 we have that study in the binders.
11 the name. Because I'm going to ask you the 11 EXAMINATION BY MR. BRUNO:
12 same question about the eighties and the 12 Q. All right. Well, the question really
13 nineties. Are you aware of any evaluation like 13 is not for each of these designs but for the
14 that done in the decade of the eighties and 14 channel itself was the effect of storm surge
15 then the nineties? 15 evaluated by the Corps in the past?
16 A. I'd have to look at the date on it for 16 A. Yes.
17 the eighties. Um-- for the 1990, I believe 17 Q. And when? And by whom? And under
18 that the Louisiana Coastal Area Authority had 18 what circumstances?
19 some reports that came out that did, um -- and 19 MR. SMITH:
20 I believe their feasibility or either 20 Objection. Compound.
21 reconnaisance or feasibility or both, studies 21 A. In the reevaluation report -- or
22 that, um-- note the diminishing amount of 22 excuse me, for the reevaluation report there
23 wetlands along the coast and that some of the 23 was an evaluation like that conducted. Um--
24 values -- or excuse me, some of the issues of 24 there are evaluations in the IPET documentation
25 concern would be hurricane protection. And 25 of the channel and, um-- hurricane surge, and I
Page 326 Page 328
1 that I don't know is specific to the valuations 1 think that is specific to Hurricane Katrina.
2 in those reports. That authority is very 2 Q. Right. The question was --
3 broad, it covers flood control, fish and 3 A. And then there are evaluations of --
4 wildlife resources, um-- and hurricane 4 through the Louisiana Coastal Area -- Coastal
5 protection. 5 Protection, excuse me, the Technical Report for
6 Q. All right. Now, in the late nineties, 6 Louisiana Coastal Protection and Restoration.
7 we have the reevaluation of the MRGO. 7 There are earlier documents that have evaluated
8 A. It started in the late nineties, yes. 8 this, but I'm not familiar with them. I don't
9 Q. '99. 9 know the dates or the individuals involved. I
10 A. Right. 10 do know the individuals involved in the ones
11 Q. And in that study was included a very 11 that I mentioned in the beginning of my answer.
12 specific evaluation of the effect of the MRGO 12 Q. All right. Let's see if I can follow
13 on surge, isn't that true? 13 your answer. The Louisiana Coastal Area
14 A. Yes. It would have been in the, um-- 14 Coastal Protection is what I'm reading here.
15 2004 or so range there would have been an 15 A. I'm sorry. Louisiana Coastal
16 analysis of the channel itself. 16 Protection and Restoration. It's a technical
17 Q. In the meantime -- well, I'll show 17 report --
18 you. We showed this to Mr. Russo. It's 18 Q. By the Corps.
19 Exhibit 8 to his deposition. It's NPM 38-612. 19 A. -- by the Corps.
20 You see at the bottom where it says the 20 Q. When?
21 effective storm surges should be included in 21 A. Um -- authority came in late 2005.
22 all of the above alternatives? 22 The Work was done in 2006 and 2007.
23 A. I do. 23 Q. Okay.
24 Q. Okay. So that is as of '01. Now, do 24 A. The IPET work was done after the
25 you know if an evaluation like the evaluation 25 storm, um-- and I believe available in 2006, I
29 (Pages 325 to 328)
10/14/2008
Page 329 Page 331
1 believe. 1 Because that falls squarely
2 Q. The question was, before this, which 2 within --
3 is dated 2001. 3 MR. SMITH:
4 A. I don't know -- there are studies that 4 Come on, Joe. Just because
5 were performed on hurricane surge in the area, 5 there's some overlap -- she can answer
6 but I don't know the dates or the individuals 6 the question. She will answer that
7 involved in that. Um-- 7 question. Let's just move on with
8 Q. All right. Well, let me try it one 8 this witness.
9 more time because I want to make sure that we 9 MR. BRUNO:
10 understand the question. Okay? I'm talking 10 You know, I don't --
11 about an evaluation of the MRGO 's effect on 11 MR. SMITH:
12 hurricane surge. That's what this document 12 She knows about that. And he
13 seems to be saying. It says at the bottom of 13 doesn't.
14 the page, the effect of storm surge should be 14 MR. BRUNO:
15 included in all of the available alternatives. 15 Hold the phone.
16 So maybe I'm reading it incorrectly, but it 16 Where is Nancy Powell 's thing?
17 sounds like somebody has decided to evaluate 17 I don't even think that's something
18 how these channel designs impact storm surge. 18 that she's designated for.
19 Am I reading that correctly? 19 MR. KELLS:
20 A. You know, it looks like this is a 20 She's designated for evaluations
21 meeting agenda, and then it's followed by, you 21 by the Corps regarding storm surges
22 know, update points from various technical, 22 with the MRGO. Number 10.
23 um-- areas. And it includes on here, um-- for 23 MR. BRUNO:
24 the engineering division to negotiate with Joe 24 Within the MRGO.
25 Suhayda on a hurricane model. Um-- whether 25 MR. KELLS:
Page 330 Page 332
1 that's an update on the need to evaluate the 1 It says with the MRGO.
2 surge effect of these different alternatives -- 2 MR. BRUNO:
3 Q. That's not the question. The question 3 Minimum says within. All right.
4 is not whether this was done or designed to be 4 Fine. I'll ask her.
5 done. I'm trying to figure out whether in the 5 EXAMINATION BY MR. BRUNO:
6 past anything like this was done. Okay? So 6 Q. All right. What is the difference
7 reading this isn't going to help us. All I'm 7 between a reevaluation study and a
8 saying is that they're describing something 8 reconnaisance study?
9 here, and I'm asking you if what they're 9 A. Reconnaisance study is part of the
10 describing is a study of the effect of storm 10 two-part study process for, um-- potential new
11 surge as that may be impacted by each of these 11 water resources projects. The reconnaisance
12 channel designs? That's study that I'm talking 12 study in specific identifies whether there is a
13 about. And with that in mind, I'm asking the 13 federal interest in a particular problem and
14 question did the Corps in the past, before 14 the potential solutions and whether there
15 2001, evaluate the effect that the MRGO had or 15 appears to be, um-- a cost effective solution
16 didn't have on storm surge? That's the 16 available -- or a technically feasible solution
17 question. 17 available. A reevaluation study would look at
18 MR. SMITH: 18 an existing project, and it can look at it in
19 You need to have Nancy Powell 19 terms of the continuing need for the project,
20 address that topic, if you ever get to 20 potential changes in the economics of it.
21 her. She's specifically designated 21 Q. Why wasn't a reevaluation study done
22 for that topic. I don't know why 22 of the MRGO before this particular point in
23 you're asking this witness that. 23 time?
24 That's her topic. 24 MR. SMITH:
25 MR. BRUNO: 25 Objection. Vague as to time.
30 (Pages 329 to 332)
10/14/2008
Page 333 Page 335
1 MR. BRUNO: 1 project at this time.
2 Sorry? 2 Q. Well, I'm showing you 216. And it
3 MR. SMITH: 3 indicates that it was passed in December of
4 Vague as to time. 4 1970.
5 MR. BRUNO: 5 A. (Nods affirmatively.) Uh-huh.
6 I said at this point in time. 6 Q. All right. So can we agree that at
7 Prior to this point in time. This 7 least as early as 1970 the Corps could have
8 point in time is when the study was 8 undertaken a reevaluation study.
9 done. How vague is that as to time? 9 A. The authority was there, according to
10 A. Well, I believe that the local 10 this document. I don't know that the funding
11 sponsor, um -- you know, up until that point in 11 would have been there to do so.
12 time the local sponsor had expressed strong 12 Q. Okay. Let's just talk about
13 interest in continuing the MRGO as a navigation 13 authority. I didn't ask you ask you about
14 project. 14 funding. Just authority.
15 EXAMINATION BY MR. BRUNO: 15 Let me ask you very quickly, what is
16 Q. Let me show you -- let's mark this, 16 the meaning of the phrase standing authority?
17 please, Exhibit 50. This is NPM 38-636 to 648 17 A. I don't know, other than I'll give my
18 in seriatim. It's entitled Mississippi River 18 personal definition. It would be something
19 Gulf Outlet Reevaluation Study, Study Plan. 19 that we have available as an authority. We
20 (Tendering.) Have you seen this before? 20 have a program for smaller water resource
21 (EXHIBIT 50 was marked for 21 projects investigation called a continuing
22 identification and is attached hereto.) 22 authorities program. My familiarity with the
23 A. I believe so, yes. 23 Section 216 is that that's a phrase that could
24 EXAMINATION BY MR. BRUNO: 24 provide, um--
25 Q. Okay. All right. Well, if you look 25 Q. I took it back. I'm sorry.
Page 334 Page 336
1 at Page 2 it tells what the authority is, 1 (Tendering.)
2 right? Under Paragraph 2? You see that? 2 A. You know, the ability to look at a
3 A. I do. 3 project -- I just want to see if he happens to
4 Q. All right. See where it says the 4 use this language. It doesn't say it in that
5 Corps has standing authority to conduct a 5 authority, but I think that standing authority
6 reevaluation study? So it's really not 6 would -- 216 would be an example of a standing
7 necessary to have any input from the local 7 authority that we would have.
8 sponsor in order to do this, right? 8 Q. Have you ever seen the River and
9 A. Well, it depends on the timing of when 9 Harbors Act of 1968? Here's a copy for you.
10 this was written. I think I mentioned this in 10 We'll mark it as Exhibit 51.
11 the past, the Section 216 authority. I don't 11 (EXHIBIT 51 was marked for
12 remember the date in which that became an 12 identification and is attached hereto.)
13 authority for the Corps. 13 A. I have not.
14 Q. Is it your testimony that this 14 EXAMINATION BY MR. BRUNO:
15 language the Corps has standing authority to 15 Q. All right. At Section 111 it says,
16 conduct a reevaluation study is a recitation of 16 the Secretary of the Army acting through the
17 the authority granted under 216? 17 Chief of Engineers is authorized to
18 A. No, it's not my testimony. I was just 18 investigate, study and construct projects for
19 asking or stating that I'm not sure at what 19 the prevention or mitigation of shore damages
20 point in time the 216 authority became a law -- 20 attributable to federal navigation works. The
21 Q. Here it is. 21 cost of installing, operating an maintaining
22 A. -- and then there is a lot more to the 22 such projects shall be borne entirely by the
23 answer. This is dealing with what was the 23 United States. No such project shall be
24 interest of the local sponsor or other, um-- 24 constructed without specific authorization by
25 other entities regarding the future of the 25 Congress if the estimated first cost exceeds
31 (Pages 333 to 336)
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Page 337 Page 339
1 $1 million. 1 in 1988 -- 1982? I'm sorry.
2 A. Uh-huh. 2 MR. SMITH:
3 Q. Would you agree with me that this is a 3 Objection. Vague.
4 standing authority to at least investigate and 4 EXAMINATION BY MR. BRUNO:
5 study? 5 Q. There's still a question on the table.
6 A. I believe this is actually something 6 A. I don't remember what you asked me. I
7 that we now refer to as a continuing authority, 7 thought he said --
8 but by the way I read this, yes, that would be 8 Q. Would it be true in 1982? And you
9 something that was available. Given the 9 didn't answer.
10 caveats of the language, though. 10 A. I'm sorry. I thought you were looking
11 Q. So as early as 1968 -- the Corps could 11 something up. Ask me. I apologize.
12 have had the authority to study the impact of 12 Q. Would this statement have been true in
13 the MRGO as it relates to damaging its shores, 13 1982 when the Congress issued its resolution
14 right? 14 asking the Corps to evaluate the original --
15 A. At the point in time where regulations 15 A. The statement in terms of the 216
16 for the implementation of this Section 111, 16 authority?
17 Rivers and Harbors Act 1968, then we would have 17 Q. No. That statement in yellow.
18 that authority. We would need to have, you 18 (Indicating.)
19 know, the implementing regulations available. 19 A. Well, I think in that time, and we can
20 Q. Okay. Now, the second sentence of 20 reference back to the, um-- reconnaisance
21 this authority description says, these studies 21 reports, we referenced the specific authority
22 are undertaken pursuant to project specific 22 given to us in the '82 resolution.
23 construction authorities. Construction 23 Q. Well, actually, let me ask you that,
24 authorities imply the authority to undertake 24 because the resolution doesn't say do a
25 necessary revaluation studies. Studies may be 25 reconnaisance report, does it?
Page 338 Page 340
1 undertaken if a significant period of time has 1 A. Well, it does talk about the
2 elapsed or conditions have changed since the 2 advisability at this time with reference to the
3 feasibility study was completed or construction 3 feasibility of bank protection measures, and
4 of the project was initiated. Inasmuch as 4 it's a two-step process of a reconnaisance
5 conditions have changed it is appropriate to 5 report and then a feasibility study.
6 conduct a reevaluation study of the MRGO. 6 Q. Well, in a reevaluation, do you need
7 Okay. Do you believe that's an 7 to have a local sponsor put up money?
8 accurate statement? 8 MR. SMITH:
9 A. Yes. 9 Objection. Asked and answered.
10 Q. As of 19 -- let's see. Let me give 10 A. It doesn't talk about -- the
11 you the date. 1999. 11 authority -- the '82 authority didn't direct
12 A. Yes. 12 for reevaluation, just look at modifications in
13 Q. Do you believe that's accurate 13 dealing with bank protection measures.
14 statement as of 1970? Go back in time. 14 EXAMINATION BY MR. BRUNO:
15 A. I believe it could be, but it would be 15 Q. Right. My question, though, is does a
16 specific to the circumstances -- it would be 16 reevaluation study require the local sponsor to
17 specific to the circumstances of the, um -- the 17 put up any money in order for the Corps to do
18 changed conditions and the availability of 18 the study?
19 funding. 19 MR. SMITH:
20 Q. For the study. 20 Objection. Asked and answered.
21 A. Yes. 21 MR. BRUNO:
22 Q. Not for -- we're just talking about 22 When did I ask that?
23 the study now. 23 MR. SMITH:
24 A. Right. 24 I can't remember all the things
25 Q. Okay. Well, would it have been true 25 that have been asked.
32 (Pages 337 to 340)
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Page 341 Page 343
1 MR. BRUNO: 1 REPORTER'S CERTIFICATE
2 Then you don't know if it's been 2 I, JOSEPH A. FAIRBANKS, JR., CCR, RPR,
3 asked and answered. 3 Certified Court Reporter in and for the State
4 MR. SMITH: 4 of Louisiana, do hereby certify that the
5 No, but that's why I have to 5 aforementioned witness, after having been first
6 object. 6 duly sworn by me to testify to the truth, did
7 EXAMINATION BY MR. BRUNO: 7 testify as hereinabove set forth;
8 Q. Okay. It's getting close to quitting 8 That said deposition was taken by me
9 time. Let's just get this answer and then 9 in computer shorthand and thereafter
10 we'll go. 10 transcribed under my supervision, and is a true
11 A. I think it depends on the -- I don't 11 and correct transcription to the best of my
12 know. I'd have to look at -- 12 ability and understanding.
13 Q. Why don't you look into it and we'll 13 I further certify that I am not of
14 talk about it tomorrow. Okay? Let's break for 14 counsel, nor related to counsel or the parties
15 the day. 15 hereto, and am in no way interested in the
16 (Recessed.) 16 result of said cause.
17 17
18 18
19 19
20 20
21 21
22 22
23 23 ____________________________________
24 24 JOSEPH A. FAIRBANKS, JR., CCR, RPR
25 25 CERTIFIED COURT REPORTER #75005
Page 342
1 WITNESS' CERTIFICATE
2
3 I, GREGORY MILLER, do hereby
4 certify that the foregoing testimony was given
5 by me, and that the transcription of said
6 testimony, with corrections and/or changes, if
7 any, is true and correct as given by me on the
8 aforementioned date.
9
10 ______________ _________________________
11 DATE SIGNED GREGORY MILLER
12
13 _______ Signed with corrections as noted.
14
15 _______ Signed with no corrections noted.
16
17
18
19
20
21
22
23
24
25 DATE TAKEN: October 14th, 2008
33 (Pages 341 to 343)
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A 249:25 270:4 alteration 285:6 339:9 341:9 254:2 259:12

abandonment 280:15 330:20 alternative 317:7 answered 252:19 262:14 267:2
283:17 285:23 addressed 262:23 alternatives 323:4 253:22 265:2 268:19 271:20
286:5 287:8,15 265:5 326:22 327:9 283:9 321:8 282:11 284:22
288:2 administering 329:15 330:2 322:12 323:13 286:25 287:5
ability 272:16 221:24 AMERICA 216:12 340:9,20 341:3 295:25 296:1,4,8
319:21 324:17 administration 218:7 answering 255:1 296:17,19 297:11
336:2 343:12 225:15 258:13,14 amount 319:24 321:10 297:18,22 299:9
able 250:4 319:19 261:5 320:4 323:18 anybody 261:23 302:2,7 308:17,19
320:5 322:24 administrative 325:22 APLC 217:9 314:18,19 315:8
absorb 231:23 279:14,16 analyses 224:10 apologize 339:11 317:9 318:7
accept 293:10 adverse 313:5,6,23 225:6 226:2 240:5 apparently 234:11 325:18 328:4,13
acceptable 310:21 advisability 340:2 241:17 248:16 appear 283:19 329:5
accepted 244:15 advisable 307:10 249:4,24 280:13 317:7 areas 245:8,10,19
accomplish 254:4 advise 229:15 299:14 appears 332:15 289:3,12 298:11
accurate 338:8,13 230:1 262:25 analysis 239:5 appendix 237:1,3 299:9 324:9
achieved 318:17 advising 224:14 241:9 242:25 243:9 329:23
acre 319:4,22 affect 244:5 269:9 243:3,7 249:9 apples 322:23,24 arguing 291:15
324:10 270:21 285:4 256:6 272:1 281:1 applicable 311:16 argumentative
acreage 319:25 288:23 302:3 282:5,7,13,18 311:24 312:4 264:11
acres 323:23 324:2 affirmatively 283:16,24 284:2 application 223:7 arises 231:2
act 222:14,17,22 299:18 335:5 284:20,24 297:8 applied 276:25 armoring 232:22
255:12 275:4,6 aforementioned 297:17,21 302:11 applies 276:4 Army 216:13,14
277:7 280:17,21 221:4 342:8 343:5 307:13 310:6 apply 277:15 218:17 222:2
336:9 337:17 AFW 311:3 318:15,17,22 312:16 237:9 307:14
acting 236:11 agencies 223:6,11 326:16 327:6 applying 314:21 336:16
336:16 223:18 274:2,3 ANDRY 217:20 appreciate 237:5 Arpent 298:7
action 216:4 232:2 278:10,11 and/or 224:10 apprised 225:16 article 264:4
275:9 280:7 313:1 agency 275:7 279:5 225:6 226:2 appropriate 229:15 ascertain 324:15
actions 224:6 275:7 agenda 329:21 264:15,15 272:4,4 232:23 241:14,15 ASHLEY 217:15
276:4,9 280:1 ago 242:2 262:24 342:6 241:17 249:14 asked 224:24
285:4,14 287:20 275:20 309:7 annual 317:24 251:11 258:10 240:22 252:19,20
287:21,23 288:17 agree 243:14 250:6 answer 221:13 338:5 253:10,22 255:8
289:2 252:3 253:3 227:10 229:11 appropriately 258:14 283:9
activities 225:13,15 256:19 259:24 233:25 237:6,9 312:12 295:8 296:10
276:11 279:18 291:17 300:15 239:10,13 243:20 approval 226:11,22 321:8 322:12
286:17 290:16 318:11 335:6 246:4 247:5 approximately 323:13 325:6
324:11 337:3 249:20,21 250:5 242:21 339:6 340:9,20,25
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actual 225:19 agreed 221:2 256:2 257:11 236:1 267:23 asking 230:16
245:17 290:25 291:13 279:10 281:11,19 area 228:21 230:18 238:15 247:14
adapted 312:12 agreeing 257:23,24 286:4 287:24 232:11 233:14 248:22 250:2
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address 222:11 alive 296:21 309:6 328:11,13 244:13,16,21 257:11 263:13,15
allowing 231:17 331:5,6 334:23 246:24,24 249:20 263:20 278:12,13

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asks 226:21 authorized 336:17 307:6,8,21 308:1 beyond 227:12 277:12,21 278:1
aspect 279:24 availability 338:18 310:8 317:20 279:7 279:9,19 281:18
aspects 271:24 available 260:13 Baronne 217:5,22 big 283:20 281:23 282:4
280:9 310:19 328:25 based 240:12,23 binders 327:10 283:10 292:2
Assemble 314:17 329:15 332:16,17 242:17 267:23 biological 316:8 293:9,14,22 295:1
assessed 313:8 335:19 337:9,19 278:23 282:22 biology 280:11 295:12 296:5
assessing 292:5 Avenue 216:16 basis 236:6 247:10 biota 289:24 290:9 300:12 304:11
assessment 289:10 218:20 222:3 310:13 319:4 biotic 289:4,16 311:8 312:7
311:10 312:9,13 avenues 264:14 Bates 236:25 284:7 biotics 290:19 319:14 321:9,14
314:12 324:15 average 317:24 284:8 birth 303:2 321:19 322:14
assessments 289:8 aware 227:12 Baton 217:17 blame 260:20,21 323:17 327:11
associated 228:10 257:14 307:12 Bayou 271:22 board 307:2 330:25 331:9,14
260:1 284:21 309:3 325:13 bearing 317:14 borne 336:22 331:23 332:2,5
288:8,10 313:22 A-7 313:18 began 304:18 bottom 326:20 333:1,5,15,24
assume 320:25 A1 314:11,15 beginning 328:11 329:13 336:14 339:4
assuming 288:15 A3 317:4 begun 287:14 bought 227:9 340:14,21 341:1,7
attached 333:22 belief 248:9 Boulevard 217:11 BUCHLER 217:4
336:12 B believe 229:14 Bowen 236:14 budget 225:11,12
Attachment 313:15 B 220:6 267:17 232:4,24 233:8 237:17 240:14 235:5 262:7
313:19 back 226:14 238:11 238:10 247:15 241:7,9 265:18
attributable 336:20 240:20 250:24 248:2,11 249:13 Box 218:12 budgets 261:12
authored 255:11 253:8 262:19 253:25 255:14 brackish 283:5,5 buffering 272:17
authorities 312:15 268:21 271:19 256:16 260:9 297:24,25 building 231:22
335:22 337:23,24 281:20 282:1 270:17 272:22 branch 218:9 245:25 274:9
authority 225:19 285:22 293:7 273:1,16 280:7 259:22 built 244:17 269:20
233:3,8,17,19 298:9 306:17 281:19 285:11,20 BREACHES 216:4 282:12
234:3 238:13 308:3 317:21 287:4 292:10 break 227:8 281:13 bullet 287:8
255:2,4,9 258:9 335:25 338:14 309:8,17,23 310:2 293:19 325:10 Bush 258:24
258:15 260:13 339:20 312:25 314:7 341:14 business 256:25
261:2 262:12 bank 242:12 316:17 317:17 BRENDAN 219:4 280:22
266:20 267:19,22 243:22 244:22 320:1,20 321:21 bridge 306:10
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304:14,25 325:18 256:12 307:11,15 328:25 329:1 broad 237:9 267:15 C 217:9,10
326:2 328:21 308:5,24 310:15 333:10,23 337:6 326:3 call 245:20
334:1,5,11,13,15 310:16,23 315:22 338:7,13,15 Bruno 217:2,2,3 called 284:2 335:21
334:17,20 335:9 318:10 320:8,9,11 believes 225:25 220:5 222:8 Calls 251:24
335:13,14,16,19 321:1 323:11 beneficial 313:5 229:25 237:2 252:20 259:2
336:5,5,7 337:4,7 340:3,13 benefit 285:7 319:7 240:16 246:11,17 260:7 272:19
337:12,18,21,24 banks 227:20 benefits 318:17 247:12,23 248:5 294:23 295:22
339:16,21 340:11 234:23 242:9 Benjamin 218:13 249:22 250:19 canal 216:4 298:7,9
340:11 246:16 266:15 Bernard 283:18 252:8,24 253:9,23 306:9
authorization 267:12,17 268:12 285:23 286:5 254:6,9,18 259:3 capable 298:3

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caption 286:12 chance 239:8 charge 259:12 communicated 240:6 241:10

careful 224:21 change 238:20 264:16 260:24 267:18 243:15 247:10
case 230:22 232:16 274:18 288:10 charged 259:15 268:11 269:16 282:6,14,24
255:10 269:18 297:18 298:1,2 checking 241:23 271:7 283:20 284:12,24
280:7 changed 278:20 273:4 communicates 315:20 316:18
cases 297:19 298:1 338:2,5,18 Chief 267:3 307:2 269:13 323:6
cast 240:25 changes 283:4,21 336:17 communication conclusions 316:1
catch 240:17 305:5 284:22 288:1,3,8 chock-full 298:16 262:1 269:3 317:18
causative 317:5 289:7 332:20 choice 274:13 communities condition 260:10
cause 245:6 246:16 342:6 chose 239:1 248:14 284:21 314:18 315:8
297:5 343:16 channel 229:16 chunk 231:5 community 289:5 conditions 261:11
caused 256:16 230:2,5,9,25 circumstances 289:16 298:2 296:8 309:20
258:24 263:6 231:24 233:3 254:14 327:18 324:8 315:14 317:8,10
274:21,24 285:13 242:12 243:22 338:16,17 compare 322:21 338:2,5,18
286:6 287:19 244:18,22 245:14 City 217:12 compares 318:16 conduct 299:14
288:1,3 289:2 246:2,15,16,21 Civil 216:4 218:9 comparing 322:23 334:5,16 338:6
295:3 248:18,25 249:5 221:6 311:11 comparison 323:5 conducted 249:9
causes 228:6 250:8 251:13 classification compelled 249:11 327:23
295:15 257:1,2 266:15 299:24 completed 338:3 conferred 247:25
causing 271:12 267:16 268:23 clear 222:15 244:8 complex 283:18 Congress 223:8
286:13 290:8 269:23 270:2 253:12 312:21 285:24 286:6 224:14,22,23
318:2 271:25 274:7 314:2 287:9,11,15 288:2 225:4,5,14,22
caveat 275:14 280:9 283:15 close 244:4 341:8 288:12 226:1,6,17,21,25
caveats 337:10 284:23 285:8,16 coast 325:23 compliance 276:10 229:16 230:2
CCR 216:24 290:18,21 296:2 Coastal 325:18 comply 223:23 258:9,15 259:23
221:22 343:2,24 301:7,11 302:5,21 328:4,4,6,13,14 component 229:5 262:12,25 263:3,9
central 298:5,11 303:16,24 305:23 328:15 232:9 245:14 263:11,15,20
299:1,16 300:2 307:7,16,23,25 code 256:15 composition 289:5 271:8 279:5
CEQ 278:14,16,21 308:2,15 309:12 coexistent 274:12 289:17 302:23 303:7
278:25 279:13 309:15,24 310:16 301:5 Compound 262:3 308:9,21 336:25
280:3 315:23 316:10,22 Colonel 236:13 327:20 339:13
certain 225:13 317:22 326:16 237:16 comprehensive Congressional
226:19 233:8 327:7,14,25 column 320:22 254:1,11,15 310:6 225:18 254:22
234:22 244:9 329:18 330:12 come 245:20 252:6 computer 343:9 265:19 278:7
284:22 295:4,4,5 channels 308:5 276:5 303:1,4 concept 258:12 300:20 302:22
302:7 324:11 309:16 331:4 concern 252:5,7 309:10
CERTIFICATE channelward comes 224:9 254:3 257:8 258:5 conjunction 274:22
342:1 343:1 242:16 270:20 325:25 connecting 309:16
Certified 216:25 character 318:6 coming 287:25 concerned 307:25 309:24
221:23 343:3,25 characteristic comment 275:5,11 concerns 247:15 connection 223:6
certify 342:4 343:4 252:10 253:15 comments 278:6,13 273:13,21 308:8 252:15 253:14
343:13 characteristics 320:1 308:11 303:23
chain 266:7 257:2,25 261:19 committee 307:1 conclude 247:1 CONOR 218:11
Chalmette 236:4 264:21 communicate 281:6 282:17 consideration
241:1 262:14 characterize 225:25 259:23 283:2 285:14 247:2 308:17
267:2 270:16 264:7,19 269:6,10 conclusion 231:8 313:20

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considerations continues 319:22 327:2,15 328:18 currently 296:19 decide 231:12

229:5 279:17 continuing 294:14 328:19 330:14 318:9 239:22 240:22
considered 230:13 294:17 295:14,19 331:21 334:5,13 261:6
296:20 300:5,7 312:14 332:19 334:15 335:7 D decided 234:10
302:10 333:13 335:21 337:11 339:14 D 220:1,6 235:12 238:23
considering 280:1 337:7 340:17 damage 256:21 240:4,23 263:14
303:19 continuous 285:18 correct 237:20 262:25 272:3,14 306:13 329:17
considers 280:10 295:19 254:23 255:17 273:23 274:14,25 decides 237:20
consist 242:19 contributing 286:8 266:16 294:5 296:13,15 324:16 263:16
CONSOLIDATED control 260:16,17 311:21 342:7 damaged 273:25 decision 239:2
216:5 260:24 313:21 343:11 295:18 Decisions 262:24
construct 248:23 326:3 corrections 342:6 damages 273:19 decision-making
336:18 converted 318:3 342:13,15 274:4 336:19 317:14
constructed 259:19 coordinating 265:7 correctly 288:19 damaging 337:13 deemed 246:19
336:24 copy 311:6 325:3 321:6 329:19 darned 261:24 249:24 280:14
construction 262:9 336:9 correspondence data 310:19 325:3 deepened 301:12
263:6 270:2 Corps 216:13,14 271:18 272:22 date 294:2 308:3 deepening 301:7
271:21 274:8 218:17,18 222:2 cost 228:10 230:15 312:2 323:24 define 223:20
283:15 284:25 223:5,10 224:8,14 231:22,23 236:9 325:8,16 334:12 defined 280:16
285:5 286:12,17 224:25 225:11,21 316:9 320:11,25 338:11 342:8,11 317:3
287:16 288:4,13 225:24 226:22,24 321:23 322:3,7,19 342:25 defining 276:7
288:14 290:21 228:5 229:17 332:15 336:21,25 dated 236:1,2,18 definition 317:16
296:2 307:23,25 231:5 232:5,7 costs 232:25 313:22 329:3 335:18
308:4,16 337:23 233:2 234:19 318:16 322:15 dates 268:21 definitive 302:19
337:23 338:3 237:9 238:16 323:1 285:22 306:17 delegation 278:7,8
contact 245:20 248:9,9,16 249:4 cost-benefit 318:15 328:9 329:6 deleterious 258:1
contain 284:12 250:9,10 251:16 318:22 DAVID 218:19 263:5
contained 243:7 251:16,18 252:13 counsel 218:18 day 224:5 253:2 Delta 283:18
248:3 267:4 307:9 253:18 254:11,13 221:3 248:1 270:10 277:8 285:24 286:5
contemplating 254:21 255:4 278:25 279:16 325:10 341:15 287:9,10,15 288:2
276:6 256:16,19 257:5 343:14,14 days 268:5 292:16 demonstrate 320:6
context 225:5 257:17 258:7,8,13 coupled 274:22 dead 294:18,18 demonstrated
226:1 231:25 258:17 265:6 course 256:24 296:11 323:3
234:8,13 290:13 272:2,13 273:1,22 Court 216:1,25 deal 227:24,24 demonstrates
321:15 274:3,19 277:4,6 221:23 343:3,25 228:5 250:11 316:15
contiguous 301:1 279:21 280:25 cover 243:3 312:8 251:17 304:2 Department 218:8
306:2,7 281:6 282:5,18 312:13 dealing 334:23 223:19 278:8
continuation 283:2 289:10 covered 299:11 340:13 depend 295:24
285:12,15 286:13 297:8 299:14 321:12 deals 224:22 depends 334:9
286:21 287:13 300:5,6,21 301:5 covers 326:3 dealt 270:12 324:5 341:11
288:8 289:1 301:11 302:10,22 create 245:2 death 289:23,23,24 deponent 221:10
290:24 294:10 303:25 304:17 crisis 275:19 290:9 295:3,15 247:25
continue 262:9 307:14 308:7,10 crux 238:11 decade 262:15 deposition 216:11
continued 265:10 308:22 316:13 cultural 318:8 276:21 324:13 221:4,14 223:4
286:15 287:16 319:24 320:5 current 315:22 325:14 258:23 263:13
291:14 323:9 324:8,14 317:21 December 335:3 292:16 326:19

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343:8 322:9 315:16 282:11 284:1,20 311:10 319:21

depositions 239:19 deteriorate 297:12 discussed 223:11 299:24 307:22 economically
depth 253:16 deterioration 289:3 305:14 308:18 308:7 327:24 310:20
depths 290:17 289:12 318:19 documented economics 324:8
describe 242:2 determination discussion 240:1 275:10 332:20
317:19 229:6,23 254:12 269:19 272:23 documents 224:4 economist 318:24
described 267:11 275:9 283:25 290:7,11 314:4 248:4 255:11 324:5
267:13 327:1 301:25 disposal 282:10 261:15 262:18 ecosystem 287:24
describing 330:8 determine 239:6 290:1,2,4,10,16 271:24 276:15 effect 227:25 244:2
330:10 248:17 249:4 disruption 313:25 302:18 304:6 258:1 273:24
description 337:21 255:5 272:2 274:7 314:5 309:18 310:23 283:6,21 284:25
design 227:14,16 274:8 282:19 distance 243:10,17 324:21 328:7 288:21 289:8,11
227:23 228:7 297:9 299:15 distinction 222:24 doing 257:19 291:21 296:4
232:9 233:23 302:12 district 216:1,2,15 280:21 293:5 308:14,24 311:11
234:20 235:7,21 determined 229:17 222:3 236:14,15 dollar 319:24 320:3 312:5,9,13 314:12
239:15,17 241:12 234:12 237:7 237:11,17 240:13 323:18 324:10 314:12 317:5,12
241:18 242:6 252:14 241:6 258:16 dollars 323:11 326:12 327:14
243:7 250:21,23 determining 307:4 259:10,11 260:11 doubt 292:12 329:11,14 330:2
256:5 263:6 267:1 develop 261:5 260:11,16 261:13 draft 291:11 330:10,15
267:4,24 268:24 316:14 263:16 264:6,19 309:10 320:2 effective 326:21
269:2,6,18 270:1 Development 278:9 266:12,13 268:11 321:16 332:15
271:15 273:5 device 232:21,22 270:13 271:12 drafts 321:17 effects 263:5
305:15 306:20 dictate 247:17 303:3 304:23 draw 240:6 272:17 290:1,2
310:11 312:20 dictated 247:3 308:23 309:4 drawdown 318:1 313:6,6,23 316:4
designated 222:10 difference 332:6 division 218:9 drawn 225:2 316:6,8,16 317:6
222:22 249:23 different 225:23 236:12,13 237:23 dredge 282:10 317:7 318:1,12
330:21 331:18,20 231:3 232:13 268:1 320:2 dredging 290:16 effort 228:11
designates 256:3 245:25 273:13 329:24 317:24 efforts 300:24
designed 259:19 296:16 310:1,4 document 230:4 due 231:7 232:6,17 322:1
305:10 306:4 323:5 324:6 330:2 235:19 237:14,16 dug 298:10 eighties 324:13
324:18 330:4 difficult 229:8 242:1 248:7,7 duly 222:6 343:6 325:12,14,17
DESIGNEE 264:2 305:23 250:16 251:2 DUVAL 216:6 either 225:18
216:13 digging 285:8,16 268:18,21 269:13 DYER 218:19 325:20
designs 304:22 dike 242:14,17,19 273:2 278:24 D.C 218:14 elapsed 338:2
327:13 329:18 diminished 318:8 281:11 282:7,23 elevations 242:21
330:12 diminishing 325:22 283:20 290:14 E eliminating 313:23
desperate 266:10 direct 223:17 291:4,9,19,25 E 216:10 217:15 ELISA 218:2 219:3
destroyed 295:16 340:11 292:4,11 293:7,18 218:3 220:1,1,6,6 ELWOOD 217:9
295:17,18,19 directive 300:23 294:9 297:15 earlier 285:23 217:10 219:5
297:9 303:7 301:2,20 305:18 291:12 328:7 enacted 275:18
destruction 291:6 directly 264:21 306:17 307:3 early 227:7 271:18 276:2 280:21
313:25 314:5 disagree 266:25 309:25 311:2,9,13 335:7 337:11 enactment 222:13
detail 223:4 239:23 304:3 313:18 314:21 easily 239:20 275:23
277:19 321:12 disclose 225:4,5 316:7,14 318:14 EASTERN 216:2 endorsement 236:1
detailed 310:23 discovered 260:2,2 329:12 335:10 eastward 286:2 ENGC 235:25
details 242:22 discuss 291:20 documentation economic 285:7 engineer 236:12,14

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237:11,17,23 285:1,4 288:7 estimated 240:25 240:16 246:17 243:25 244:9

240:14 241:7 294:2 309:2,9 317:23 336:25 247:12 248:5 245:23
268:1 310:8,9 311:11 evaluate 249:11,14 249:22 250:19 expected 245:19
engineering 233:21 316:15 255:5 276:12 252:8 253:9 254:6 301:11 315:14
234:4,5 235:4 environmentally 329:17 330:1,15 254:9,18 259:3,8 expects 232:6,7
243:7 329:24 310:20,21 339:14 260:14 263:18 expendable 231:6
engineers 216:13 equilibrium 288:1 evaluated 253:19 264:12 265:17 expensive 241:8
216:15 218:17,18 era 309:25 272:13 275:8 267:7 275:12 experience 242:17
222:2 234:20 erode 244:1 270:24 280:1 300:3 277:12 278:1 expiration 312:2
237:10 238:16 270:25 301:23 302:2,11 279:9,19 281:18 explains 242:25
257:17 267:3 eroded 267:17 316:21 327:15 282:4 292:2 expressed 273:21
283:2 307:14 274:23 328:7 293:14,22 295:1 333:12
336:17 erodes 231:6 evaluating 257:25 295:12 296:5 extend 315:12
enlargement eroding 227:20 300:21 301:13 300:12 304:11 extensive 307:5
301:22 302:1 266:14 268:13 314:22 311:8 312:7 extent 223:4
309:14 269:7 270:18 evaluation 251:6 319:14 321:9,19 294:17 309:1
ensure 313:4 274:20 279:22 254:15 256:9,10 322:14 323:17 310:7
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part 221:14 225:10 perspectives 245:24 246:1 332:20 296:2 333:7
225:12 226:9 283:13 258:18 259:9 potentially 295:18 probably 231:20
229:4 230:15 PERTAINS 216:7 262:20 268:13 297:2,4 296:3
257:4 258:13 phase 238:22 269:7 270:19,20 Powell 330:19 problem 243:2,4
271:17 276:13 phases 313:3 272:5,15 286:18 331:16 315:23,24 316:2
284:12 296:15,18 PHILEN 217:15 286:18,20 291:15 pre 222:25 317:21,22 332:13
306:2 312:10 phone 331:15 310:5,16 316:21 precise 228:6,20,23 problems 310:24
332:9 phrase 232:19 318:21 319:23 281:16 317:8
particular 227:1 256:3 257:8 320:4 323:19,25 precisely 230:16 Procedure 221:6
229:22 238:22,25 283:22 292:4 324:4 332:22 259:11 procedures 262:6
245:24 246:20 294:12 335:16,23 333:6,7,8,11 precision 275:15 262:20 265:6
251:4 252:7 255:2 physical 231:22 334:20 337:15 preclude 230:24 275:6
255:10,17 256:9 piece 267:14 pointed 237:11 predates 256:7 proceeding 310:22
257:14 269:12 275:23 points 237:15 prefer 294:12 process 226:10
272:11 274:10 pile 239:19 267:5 329:22 premise 252:3,9 274:11 276:13
279:25 282:23 place 264:25 policy 222:14,16 253:4,12,13 304:4 287:25 293:1
291:4 297:10,15 277:16 294:25 255:12 257:17,20 preparation 225:11 302:9 312:10
297:22 300:25 302:6 324:10 261:6 280:17 312:18 313:4 317:14
305:18 314:21 placed 242:20 Pontchartrain prepared 234:20 332:10 340:4
327:8 332:13,22 323:22 236:3 239:16 235:25 304:22 processed 312:19
particularly 313:6 PLAINTIFFS 250:25 262:14 312:19 processes 285:13
parties 221:3 217:1 308:18 324:24 presence 246:25 287:20,21 288:16
343:14 plan 236:4 241:1 port 303:13,14,15 present 218:24 289:2
parts 296:14 262:14 267:2 321:22 219:1 236:6 288:7 produce 317:6
pass 239:25 333:19 portion 244:9 presented 322:21 produced 224:20
passage 246:14 planned 243:11 305:11 306:5,6 322:22 318:1
passed 225:19 planning 223:15,25 portions 299:3 President 258:20 production 272:24
280:21 335:3 271:21 276:13 307:16 260:5 275:16 productive 318:3
paying 238:13 311:9,13 312:10 pose 242:12 243:23 presumably 245:2 productivity
peek 293:16 312:14 313:4 244:22 presumed 230:23 273:16
people 247:19 314:18 315:8 position 261:6 pretty 283:19 profile 314:17
perceives 225:1 plannings 312:16 possibility 257:18 322:8 315:7,12
percentage 299:7 plans 310:21 possible 300:22 prevent 302:13 program 335:20,22
perform 251:5 plant 284:21 290:9 post 222:25 prevention 232:17 progress 312:18
performed 297:17 298:2 post-authorization 336:19 project 224:7 226:7
329:5 plants 289:23 312:15 previous 223:12 226:10 231:18

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233:1,17 236:8,10 240:1 241:3,13,15 319:10,21 323:18 rationale 275:9 recollection 302:16
238:6,13,20,21 241:16,19 242:4,8 340:7,17 reach 241:10 245:9 306:16
239:4 256:6 242:22 246:19 P.O 218:12 245:9 282:6 301:1 recommendation
261:11 262:8 247:4,18 248:12 301:7 305:25 237:10,21,22
271:20 274:10 248:21 253:18 Q 306:14,14 303:19 320:7
276:16,20,22 255:9 256:11 qualify 258:19 reached 231:8 321:18
277:15 279:25 257:3 261:21 Quality 279:1 reaches 275:24 recommendations
287:5 296:8,19 264:24 267:6 quarter 293:20 282:13 307:9
297:18 310:4 268:6,19 270:5,11 question 221:12 read 235:1 242:1 recommended
313:5 314:6 272:6 273:18,20 224:22,24 225:23 247:9,11 251:21 230:5 316:23
315:13,15 317:10 300:5,8,18 301:14 227:3 238:17,18 253:8 261:7 recommending
318:16 321:22 301:16 302:6,13 238:18 239:25 262:18 271:16 230:9 248:11
322:7 324:25 304:1,22 305:10 246:13 247:22 278:3 281:10,13 reconnaisance
332:18,19 333:14 305:13,14,16 248:22 249:21 281:15,20 282:1 300:13,16 304:15
335:1 336:3,23 306:14 307:11 250:2 251:12 282:22 284:16 304:18,19 305:8
337:22 338:4 310:10,15 315:17 252:4 253:10,15 285:2 287:22 306:22 307:17
projected 317:9 320:9,9,11 321:1 254:12,19 255:1,8 289:4 290:23 310:14,18,19
projections 315:13 324:18 325:2,25 255:25 270:12 292:7,11 293:7,17 311:12,17 312:22
projects 223:16 326:5 328:5,6,14 277:25,25 281:20 301:20 337:8 314:23 315:5,6,16
224:1 226:4 255:5 328:16 340:3,13 281:25 287:24 reading 221:8 317:18 321:2,4
260:10 265:9,10 protective 233:9 290:6 295:9 235:19 238:8 322:6 324:20,23
276:5 282:11 provide 233:22 296:10 304:24 239:8 240:24 325:21 332:8,9,11
302:1 308:17 272:16 335:24 320:3 325:12 282:2 286:9 287:7 339:20,25 340:4
311:12 312:14 provided 228:21 327:12 328:2 288:18,19 305:21 reconnaissance
325:2 332:11 230:11,18 231:19 329:2,10 330:3,3 323:8 328:14 315:1,4 320:12
335:21 336:18,22 232:11,19 233:15 330:14,17 331:6,7 329:16,19 330:7 record 222:15
properly 261:1 235:3 242:15 339:5 340:15 reads 232:10 224:18 242:5
proportion 289:5 268:1 269:3 questions 222:25 realized 317:25 248:1 251:4
289:17 278:24 223:12 230:17 really 243:3 279:3 271:17 292:1
proposed 246:23 provides 260:12 249:21 276:17 318:18 321:3 293:21 304:10
275:7 276:4,8 provision 232:2 283:1 327:12 334:6 322:13
279:18 280:7 233:7 quick 228:12 251:1 reason 253:10 Recreational 318:7
282:8 290:17 public 275:5,11 286:9 299:25 292:10,12 redredged 308:2
protect 240:5 published 291:10 323:21 reasoning 301:23 reduction 319:8,11
242:14 247:18,19 307:3 quickly 283:19 recall 228:7 248:7 reevaluation 326:7
248:12,14 256:20 purchasing 231:24 335:15 300:20 301:2 327:5,21,22 332:7
protection 228:9 purpose 234:21 quitting 341:8 304:6 319:25 332:17,21 333:19
228:20 229:7,16 235:24 248:11,13 quote 228:1 325:2 327:5,7 334:6,16 335:8
230:3,5,9,17,25 purposes 221:5 received 223:18 338:6 340:6,12,16
231:23 232:11,15 236:5 313:22 R 264:1,3 refer 337:7
232:21 233:4,12 pursuant 221:7 R 218:25 recess 281:17 reference 237:6
233:14,18 234:4 337:22 raised 273:14 Recessed 341:16 268:19 273:1,17
234:11,17,22 pursue 321:18 range 322:18 recitation 334:16 287:5 304:8,20
235:2,7,9,13,20 pursuing 320:8 326:15 recognition 227:18 305:2,4 307:10
236:7,8 237:8 put 239:19 306:13 ranges 284:13 274:2 309:18 314:20
238:5,19 239:7 318:18,25 319:3 298:4 320:17 recognize 259:22 339:20 340:2

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referenced 339:21 remember 223:8 279:4 312:12 respect 225:24 257:8,19 258:2,11
references 268:18 227:15,16,20,22 313:2 response 223:17 259:4,13,16,19,21
285:25 308:7 228:1 234:18 reports 224:20 225:20 226:5 260:15,18,19,23
309:8 313:16 279:23 295:5 260:9 299:22 256:12 262:11 263:20 266:18,20
referencing 270:3 306:15 307:24 300:1 308:3 312:8 272:21 281:4 267:10,21 268:9
286:18 300:25 320:24 321:6,16 312:17,18,19 289:7 269:1 270:4,15
301:21 310:3 322:9 334:12 325:19 326:2 responsibilities 271:3,4,9 272:1
referred 235:20 339:6 340:24 339:21 223:14,21 273:9,25 274:6
305:25 removal 285:9 represented 300:16 responsibility 277:1 278:20
referring 222:9 remove 301:16 REPRESENTING 223:23 224:13 279:20 280:3,12
236:16 285:7 repeat 294:25 217:1 218:7,17 225:1 260:11 280:25 281:6
287:21 303:14 295:8 323:15 request 222:11 274:19 282:17,25 285:8
304:13 315:21,25 repeating 295:10 226:6,17 265:19 responsible 238:12 286:7,11,14 287:1
refers 231:4 232:5 replacement 310:3 308:20 responsiveness 288:11,22 289:12
232:20 report 225:17 requested 278:5 221:12 289:20,24 290:5
reflected 299:20,22 226:6,24 273:12 requests 227:11 Restoration 328:6 291:5 293:13
reflects 235:2 274:19 278:14,18 262:12 265:19 328:16 294:3,11,13,16,21
reg 278:22 312:24 278:20 279:21 require 340:16 restriction 286:1 295:2,20 296:6,9
314:22 280:3,6,22 284:23 required 224:6 result 286:1 288:1 296:22 297:3,5,23
regard 222:24 285:17 288:22 225:17,25 256:9 294:19 343:16 298:5,13,24
224:14 225:3,21 299:21 300:13,16 257:10,13 261:22 resultant 283:3 299:13,20 300:4
245:23 261:25 304:15,20,24 261:23 277:4,6 289:3 301:3,19 302:20
283:1 305:1,8,22 306:10 278:18,19 279:20 retaining 242:17 302:25 303:8,22
regarded 227:18 306:12,23,25 280:22 314:8 revaluation 337:25 304:12,15,18
regarding 331:21 307:2,17 309:2,3 317:24 review 251:1 305:9,13 307:20
334:25 309:11 310:10,14 requirement 252:25 299:25 308:11 310:5
regardless 306:24 311:12,17 312:22 226:16 229:9 307:2 311:2,24 312:24
regards 231:6 314:3 315:1,6,16 242:3 280:5 reviewing 320:2 312:25 313:1,19
regime 284:3 298:1 317:18 318:22 requirements revised 236:9 314:10,13,17,19
regular 225:11 320:12 321:3,5 224:5,18 262:8 right 223:20 314:25 315:8,9,21
regulation 256:15 322:6 324:20,23 276:25 277:7,14 226:20 227:2,13 316:13,16,25
280:5 312:5 324:24 327:21,22 research 319:21 228:4,11,16,19,24 318:14 319:5
regulations 223:24 328:5,17 339:25 324:9 229:1 230:3,7,19 320:20,23 321:2,5
262:6 337:15,19 340:5 reserved 221:13 230:21 231:3,20 321:16,20 322:4
relate 225:6 286:20 reported 216:23 resolution 225:18 231:24 232:9,18 322:17 324:3
related 226:4 268:5 261:14 266:19 238:25 300:21 232:21,23,24 325:5 326:6,10
271:24 282:15 267:1 270:17,17 302:22 304:13,14 233:4,13 234:6,9 327:12 328:2,12
288:17 314:6 270:22 271:3 306:23 309:10 234:13,23 235:10 329:8 332:3,6
343:14 Reporter 216:25 339:13,22,24 235:16 237:5,18 333:25 334:2,4,8
relates 337:13 221:23 343:3,25 resolved 307:1 238:17 241:25 335:6 336:15
relevant 235:8 REPORTER'S 319:23 242:5 243:2,25 337:14 338:24
248:10 275:21 343:1 resource 335:20 244:2,12,14,20,25 340:15
relies 264:6 reporting 224:23 resources 223:16 245:3 247:1,13 rights-of-way
remain 296:20 262:7,11,17 266:2 224:1 314:1,5 248:15 249:1,3,10 230:23 231:1,10
remaining 299:9 266:6 270:13 316:8 318:8,9 252:9 254:7 right-of-way
remains 318:4 276:25 277:14 326:4 332:11 255:14,22 256:17 231:19,21

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riprap 242:20,23 290:5 294:7 second 225:16 233:14 234:6,13 322:10 326:17
rise 255:13 296:12 298:1,4 243:20 270:10 243:21 315:22 333:16
risk 296:13,15 302:14 304:2 284:13 296:18 337:20 showed 326:18
river 236:7 241:4 salt 273:22 283:4 313:14 316:19 separate 243:8 showing 286:10
242:18 262:16 297:24 322:6 337:20 288:11 335:2
267:25 286:1,2,6 saltwater 274:24 Secretary 336:16 separation 299:7 shown 242:23
288:3,4 333:18 285:13,18 286:13 section 268:22 sequence 314:12 268:24
336:8 286:24 287:13 271:16 281:12 seriatim 333:18 shows 274:1 322:18
Rivers 337:17 289:1,11 290:24 284:14,23 293:15 series 274:1 sic 293:20
Road 306:9 291:14,20 294:10 305:24 306:1 served 305:17 side 261:2
Robin 218:10 294:13,16,19,20 313:7,11,16 314:3 set 275:5 279:15 signed 222:23
263:9 265:12 295:3,13,14,20 318:21 334:11 343:7 241:6 275:16,17
321:15 297:1,5 316:12 335:23 336:15 setting 285:1,4 275:19 342:11,13
ROBINSON 216:7 318:4 337:16 seventies 276:22 342:15
rolled 276:14 sat 292:15 sections 300:25 291:8 324:14 significance 317:2
room 276:1 save 221:8,11 304:21 325:6 319:16
Rouge 217:17 saved 323:23 324:2 see 224:3 236:20 severe 317:19 significant 313:5
route 274:7,13 savings 319:8 239:24 247:8,10 share 321:23 316:3,6,16,18
RPR 216:24 221:22 saying 234:1,2,16 250:17 251:1 sharing 322:3 317:3,5,8,12,17
343:2,24 255:15 259:21 256:17 257:25 shell 242:20 318:12 319:15
rule 216:11 229:9 264:13 268:17 258:19 261:14 SHERMAN 217:21 338:1
rules 221:6 223:24 284:18 285:19,20 270:15 271:17 shift 289:4,16 significantly 318:5
runs 278:6 316:7 286:4,19 287:14 273:11 275:18 291:2 323:1
Russo 326:18 291:13,16,19 281:12 291:24 shifts 297:19 signing 221:9
296:9 303:5 293:23 295:10 ship 245:19 similar 268:25
S 329:13 330:8 299:25 300:14 shipping 303:20 309:6
s 221:1 257:25 says 230:4,17,19,22 301:22 311:25 ships 244:24 simplest 257:20
329:11 331:16 242:8 244:20 313:8 317:4 ship-generated simply 231:23
safety 222:12 285:6,12 287:1 326:20 328:12 242:12 243:23 252:9 253:13
224:11 225:7 290:3 294:9 305:9 334:2,4 336:3 244:22 single 302:8
226:3 247:3,16 306:3,23 307:1 338:10 shore 228:9 232:8 sir 235:23 268:20
249:25 252:12 308:10 311:15 seeing 312:2 243:11,18 244:1 324:3
255:16 280:16 312:17 313:19,24 seeking 225:12 244:10 245:6 sitting 258:23
281:3,9 282:14,21 315:22 317:5,12 seen 224:19 311:4 269:16 302:14 situations 226:15
283:6,23 320:21 326:20 324:21 333:20 305:12 306:5,7,12 six 291:11
Saia 265:6 277:20 329:13 332:1,3 336:8 336:19 sixfold 317:23
saline 296:1,6 334:4 336:15 Select 317:7 shoreline 245:9,11 sixties 293:25
salinities 283:12 337:21 selected 304:21 316:9 298:9
290:8 scale 283:17 sense 257:9 261:3 shores 232:6 slightly 283:5
salinity 271:11,13 scan 222:15 277:3 284:20 248:24 269:7 slope 242:10,16,21
271:19 272:3,14 scenario 320:25 290:14 319:20 270:18 279:21 slough 308:2
273:23 274:11,14 scenarios 322:22 322:24 337:13 small 267:14
274:21,23 283:1,3 scope 279:7 sent 224:22 236:11 short 238:15 smaller 335:20
283:21 284:3,22 SCOTT 218:25 260:3 262:19 shorthand 343:9 SMITH 218:10
286:7,16 287:2 Seabrook 271:14 sentence 230:19 show 288:9 297:19 229:19 246:9
288:21 289:6,8,18 seaward 271:22 231:4 232:5 297:21 311:2 247:6 249:17

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252:18 253:21 speak 222:10 262:4 stage 275:24 309:11 310:23 285:3
254:16 259:1,5 speaking 226:13 293:25 324:6 325:21 superiors 268:12
260:6 262:2,21 248:8 277:13 stand 265:21 329:4 337:21,25 308:23 309:5
263:4 264:10 species 289:6,18 standing 334:5,15 337:25 supersede 312:6
265:4,13 266:22 specific 223:16 335:16 336:5,6 study 258:8,10 supervision 343:10
272:18 275:2 224:4,6,13,17 337:4 301:21 302:8 supplement 234:21
277:9,18 279:6,12 225:10,17 226:2,6 stands 246:13 304:14,17,18,19 235:21,25 270:1
283:8 292:14,21 226:7,14 227:11 start 260:5 263:19 307:13 308:10 suppose 284:1
292:25 293:8 255:8 258:7 started 238:1 326:8 309:22 310:18 supposed 250:5
294:22 295:7,21 269:23 270:6 starting 323:25 318:7 321:4,18,23 261:17 280:2,12
300:10 311:5 281:14 282:8,14 state 221:23 243:4 326:11 327:5,10 sure 222:15 224:17
319:12,17 321:7 303:7 309:12 278:10 343:3 330:10,12 332:7,8 226:14,18 228:14
321:11 322:11 319:24 326:1,12 statement 278:4,15 332:9,10,12,17,21 256:4,7 257:22
323:12 327:3,19 328:1 332:12 282:3 288:25 333:8,19,19 334:6 275:25 281:22
330:18 331:3,11 336:24 337:22 294:2 309:9 334:16 335:8 299:23 302:20,24
332:24 333:3 338:16,17 339:21 322:25 338:8,14 336:18 337:5,12 303:9 312:1
339:2 340:8,19,23 specifically 221:10 339:12,15,17 338:3,6,20,23 314:10 316:17
341:4 227:17,22 246:23 statements 277:11 340:5,16,18 322:23 323:24
sneaky 253:12 264:23 267:15 States 216:1,12,13 stuff 281:15 329:9 334:19
Social 311:11 296:1 305:11 218:7,8 261:7 subject 231:4 236:2 surface 248:25,25
soil 280:10 306:4,4,24 313:20 264:7 307:14 247:15 266:10 253:16
solution 252:7 330:21 336:23 269:14 273:20 surge 247:20
332:15,16 specifics 319:25 stating 334:19 276:9,9 312:24 273:19 326:13
solutions 310:25 specified 313:7 Station 218:13 314:3 327:7,14,25 329:5
316:23 332:14 specify 312:9 status 260:10 subjected 296:7 329:12,14,18
solve 243:1 speculating 261:10 stay 270:7 submittal 226:10 330:2,11,16
somebody 251:3 303:5,17 stays 313:1 submitted 225:12 surges 326:21
260:25 271:8 speculation 251:25 steps 312:9 314:12 subsequent 271:23 331:21
329:17 252:20 259:2 STEVENS 217:9 300:2 306:18,18 survey 223:6
sorry 235:14 260:8 272:20 217:10 219:5 312:3,23 314:8 312:17
244:15,19 273:4,7 294:24 295:23 STIPULATED 321:17 surveys 227:6
281:14 290:2 spend 226:23,23 221:2 subsequently 288:9 swamp 272:4
293:4,13 303:15 spending 229:1,4 stipulation 222:5 subsidence 296:17 sworn 222:6 343:6
305:6 323:14,15 sponsor 303:4,11 stop 290:23 297:6 system 254:1 289:7
328:15 333:2 321:22 322:2 stopped 291:1 substantially 322:8 324:18
335:25 339:1,10 333:11,12 334:8 storm 326:21 327:6 substatement systematic 313:8
sort 252:3 334:24 340:7,16 327:7,14 328:25 287:8 systems 264:24
sought 221:15 sponsors 303:12 329:14,18 330:10 sufficient 230:23
sound 245:11,13,16 squarely 331:1 330:16 331:21 suggest 287:9 T
sounds 329:17 St 283:18 285:23 Street 217:5,22 suggestion 267:13 T 220:1,6 221:1,1
source 264:3 286:5 287:9,10,15 218:3 suggests 322:15 table 285:2,24
286:24 303:18 288:2,12 307:6 strong 333:12 Suhayda 329:25 287:23 319:6
sources 264:4 stability 251:20 structure 304:22 sum 293:23 320:16,21 322:18
south 305:12 306:5 stabilization structures 305:10 summarized 323:21 339:5
306:7,12 242:14,19 studied 302:11 314:13 take 228:12 275:10

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254:11 312:10 282:2,13 293:19 229:21 230:4 278:20,21,23 298:10,12
342:25 343:8 308:20 231:25 232:14,16 280:5,20 283:13 trends 288:7
take-away 320:4 telling 240:23 233:2 234:7 283:14,16 285:21 297:18
talk 224:5 227:4,8 264:5 284:19 243:20 245:18 286:18,20 291:4,6 tried 253:19
233:11 275:15 292:7,12,20 249:19 250:15 294:8 295:5,6 trouble 254:25
287:12 288:12,13 298:20 251:3 252:1,4 300:6,9 301:4,4,5 true 231:13 244:14
288:14,15 290:10 tells 334:1 253:4 257:7 302:2 303:12 244:16,17,18
290:18 295:11 Tendering 240:9 258:12 265:16 306:18,18 307:16 245:7 250:12
302:18 324:25 311:4 312:1 266:25 267:20 308:4,25 323:19 252:17 253:20
335:12 340:1,10 333:20 336:1 270:23 271:15,16 329:9 332:23,25 257:6 258:4 261:9
341:14 tenure 224:8 271:17 273:14 333:4,6,7,8,9,12 263:24 267:19,20
talked 227:13,15 term 231:20 257:13 274:1 276:1 279:7 334:20 335:1 269:11 271:14
233:10 234:18 276:8 280:24 282:7,23 337:15 338:1,14 274:15 279:5,22
259:7 268:5 terms 224:4,17 285:22 286:8,9 339:19 340:2 294:8 298:21
269:25 270:10 232:1 257:7,21 287:22 288:19 341:9 301:8,10,17
273:12 291:5 272:24 273:15 289:25 290:13,21 timing 334:9 318:20 322:17
293:24 300:4 275:15 283:17 291:5,7 295:2 titles 309:13 326:13 338:25
309:13 284:3 290:19 303:15 305:17 today 234:1 258:24 339:8,12 342:7
talking 227:5 308:16 309:14 309:6 316:21 266:5 275:18 343:10
233:12 240:24 319:7 322:2 319:10 320:4,15 276:21 296:21 truth 343:6
245:12,13,14,16 323:11,24 324:9 328:1 331:17 298:23 308:18 try 238:14 274:4
255:10 267:15 332:19 339:15 334:10 336:5 319:22 295:10 329:8
270:8 271:1 test 248:6 304:21 339:19 341:11 toe 243:12,19 244:4 trying 224:25
275:25 277:10 testified 222:6 thinking 248:21 told 254:20 302:22 228:1 235:14
278:2 280:10 235:5 Thomas 236:13 tolerant 289:6,18 240:3,21 254:4,24
286:22 287:3 testify 293:9 343:6 237:16 240:14 tomorrow 341:14 256:17 264:2,25
288:16 290:3,14 343:7 241:7 top 287:23 268:9 270:7,15
295:25 297:14 testimony 265:18 thought 233:20,24 topic 224:12 280:18 281:15,19
310:1 315:3,4 265:21 266:24 254:20 257:24 262:22 281:14,16 284:17 286:3
329:10 330:12 268:10,10 276:3 258:10 270:9,11 330:20,22,24 330:5
338:22 293:10 295:6 291:13 302:9 TORTS 218:9 Tuesday 293:20
talks 268:22 285:5 303:22 334:14,18 339:7,10 total 240:25 two 225:10 242:19
288:23 290:5 342:4,6 threat 242:13 touches 245:16 268:5 296:14
291:2 310:17,18 thereabouts 234:10 243:23 244:23 trade 303:21 two-part 332:10
technical 249:20 thereof 221:14 threatened 318:9 traffic 318:2 two-step 340:4
328:5,16 329:22 thing 243:5 256:17 threats 254:2 transcribed 343:10 type 232:20 251:6
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MILLER (VOL III), GREGORY

IN RE: KATRINA CANAL BREACHES CIVIL ACTION

Johns Pendleton Court Reporters 800 562-1285

2 (Pages 217 to 220)

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