Miller 1010

MILLER (VOL II), GREGORY 10/10/2008 Page 83 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

II)

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 10th, 2008.

REPORTED BY: JOSEPH A. FAIRBANKS, JR., CCR, RPR CERTIFIED COURT REPORTER #75005

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REPRESENTING THE PLAINTIFFS: BRUNO & BRUNO (BY: JOSEPH M. BRUNO, ESQUIRE) (BY: FLORIAN BUCHLER, ESQUIRE) 855 Baronne Street New Orleans, Louisiana 70113 504-525-1335 - AND ELWOOD C. STEVENS, JR., APLC (BY: ELWOOD C. STEVENS, JR., ESQUIRE) 1205 Victor II Boulevard Morgan City, Louisiana 70380 - AND MCKERNAN LAW FIRM (BY: ASHLEY E. PHILEN, ESQUIRE) 8710 Jefferson Highway Baton Rouge, Louisiana 70809 225-926-1234 - AND ANDRY LAW FIRM (BY: KEA SHERMAN, ESQUIRE) 610 Baronne Street New Orleans, Louisiana 70113 504-586-8899

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PRESENT VIA I-DEP: SCOTT GASPARD, ESQ. NICK DIETZEN, ESQ. ELISA GILBERT, ESQ. BRENDAN O'BRIEN, ESQ. VIDEOGRAPHER: KEN HART

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REPRESENTING THE UNITED STATES OF AMERICA: UNITED STATES DEPARTMENT OF JUSTICE, TORTS BRANCH, CIVIL DIVISION (BY: ROBIN SMITH, ESQUIRE) (BY: CONOR KELLS, ESQUIRE) P.O. Box 888 Benjamin Franklin Station Washington, D.C. 20044 202-616-4289

1 2 3 4 5 6 7 8 9 10 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 11 CORPS OF ENGINEERS, OFFICE OF COUNSEL 12 (BY: RITA TROTTER, ESQUIRE) 13 7400 Leake Avenue 14 New Orleans, Louisiana 70118-3651 15 504-862-2843 16 17 ALSO PRESENT: 18 ANDRE LAGARDE, ESQ. 19 CHARLES SUTTON, ESQ. 20 DARCY DECKER, ESQ. 21 TIANA CHRISTOPHER, ESQ. 22 R. SCOTT HOGAN, ESQ. 23 24 25

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EXAMINATION INDEX EXAMINATION BY:

PAGE

MR. BRUNO ................................89 EXHIBIT INDEX EXHIBIT NO. PAGE Exhibit 45 ...............................172 Exhibit 46 ...............................177 Exhibit 47 ...............................181 Exhibit 48 ...............................210 Exhibit 49 ...............................212

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STIPULATION IT IS STIPULATED AND AGREED by and among counsel for the parties hereto that the deposition of the aforementioned witness may be taken for all purposes permitted within the Federal Rules of Civil Procedure, in accordance with law, pursuant to notice; That all formalities, save reading and signing of the original transcript by the deponent, are hereby specifically waived; That all objections, save those as to the form of the question and the responsiveness of the answer, are reserved until such time as this deposition, or any part thereof, is used or sought to be used in evidence. * * *

JOSEPH A. FAIRBANKS, JR., CCR, RPR, Certified Court Reporter in and for the State of Louisiana, officiated in administering the oath to the witness.

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GREGORY MILLER U.S. Army Corps of Engineers New Orleans District offices, 7400 Leake Avenue, New Orleans, Louisiana 70118-3651, a witness named in the above stipulation, having been first duly sworn, was examined and testified on his oath as follows: EXAMINATION BY MR. BRUNO: Q. Mr. Miller, I know it's been days for you but it seems like months for me, since we've been in many, many hours of deposition, since we last met. I think where we were was we were talking about the requirement of law that the Corps of Engineers consult with other agencies in connection with certain projects, and I think we were at the point where I was asking you what the -- what coordination the Corps had done before submission of the project to the Congress for approval. And you had requested an opportunity to read the letter from the Secretary of the Army, which of course is the project. And I think -- is that your best memory of where we were with this thing? A. I don't really recall. Q. Okay. Well, do you recall a request

to read the -A. Yes. Q. You remember that stuff. A. I do. Q. And do you remember the purpose for which you had asked to read the letter? A. I don't remember the exact questions that led up to the -Q. Okay. All right. Have you read the letter? A. I have. Q. Okay. Well, can you tell me what coordination there was between the United States Army Corps of Engineers and any other agency which -- including the Secretary of the Interior, Louisiana Department of Wildlife and Fisheries, in particular, and any other agencies? A. The document that you've given me shows coordination with parts of -- other parts of the government through the, um -- at least apparently at the time what was called the Bureau of the Budget, through the Executive Office of the President. It also shows coordination with the Governor of the State of Page 91

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Louisiana. Q. Okay. Does it show coordination with the United States Department of the Interior? A. It shows coordination through the Executive Office of the President, and the President being the Chief of the Executive Branch would have secretaries, including the Secretary of the Interior. Q. Where do you see that, sir? A. On Page 2 of the document. Q. Okay. Page 2? What's the -A. Comments of the Bureau of the Budget, Executive Office of the President. Q. All right. And where -- is there a particular sentence that you're relying on? A. Again, saying that if it came through the Executive Office of the President, then you're talking about the President being in charge of all the various departments. There is no specific reference here to the Secretary of the Interior, but it the Executive Office of the President. Q. Well, is there any reference to the United States Fish and Wildlife Service? A. No.

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Q. All right. A. Not in this particular report. Q. Okay. Is there any reference to the Louisiana Department of Wildlife and Fisheries? A. Um -- not specifically that I have read, but there is reference to -- not reference, there is provision in the comments of the Governor of the State of Louisiana. Q. And that would be at Page 3? Is that what you're were -A. That's correct. On the bottom, a letter from Governor of Louisiana Jimmy Davis, in support of the project. Q. Okay. Have you encountered any documents which would suggest that the Louisiana Department of Wildlife and Fisheries was opposed to this project? A. There are documents where the Department of Wildlife and Fisheries provided comments on the various potential routes, but not -- by my recollection, not in opposition to the project in general, just some of the particular routes. In fact, they took it further -- it might be better if we went to the specific documents, but took it further and

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actually recommended a route for the channel. Q. Okay. Now, on that point about the route, is there a recommended route which is contained in the project documents as submitted to the Congress for approval? A. Yes. Q. And where are you looking, sir? A. On Page 4 of the report of the Chief of Engineers. Q. Okay. And where are you reading? A. That would be in Paragraph 3 of the Report of the Chief where he says, I recommend, and then it reads and shows the particular route recommended in this report. Q. All right. And is that the route that was actually utilized by the Corps? A. I believe so. In general. It doesn't, um -- it doesn't provide any latitude and longitude type coordinates, it's more general reference to geographic areas. Q. Right. Well, in particular it says, um -- first of all, it describes the channel width and depth and length, right? That certainly is what was utilized by the Corps. A. That's correct.

Q. Okay. And then it says, um -- it curves from a point south of the Intracoastal Waterway at Michoud, southeasterly to and along the south shore of Lake Borgne and through the marshes to and across Chandeleur Sound to Chandeleur Island at or north of Errol Island thence increasing gradually to a width of 600 feet and depth of 38 feet in the Gulf of Mexico with protective jetties at the entrance, a permanent retention dike through Chandeleur Sound and a wing dike along the islands as required, a turning basin at the landward end of the seaway canal 36 feet deep, 1,000 feet wide, 2,000 feet long in the connecting channel, 36 feet deep and 500 feet wide extending westerly along the Gulf Intracoastal Waterway from the turning basis to the Industrial Canal, including construction of the highway bridge with appropriate approaches to the Louisiana state highway. Does that, in fact, generally describe the route that was used by the Corps? A. I'd have to say I'm not exactly sure where Errol Island is. That's what I'm saying. I don't see lat and longitude here, which is Page 95

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one of the ways we would reference things today. Also another reference point would be channel miles, and I don't see that. I could go and try to learn where Errol Island is and tell you, but in general this does describe the route that -Q. Okay. That's fine. A. -- at this point in time is recommended. Q. All right. Now is this the route -- I think you told me that the Louisiana Department of Wildlife and Fisheries has endorsed -- maybe I got it wrong. Did they endorse a particular route or reject a particular route? I forgot what you told me. A. I don't believe I said either one of those. Q. You said something about the Louisiana Department of Wildlife and Fisheries. A. Well, there are documents that -- the Department of Wildlife and Fisheries recommended that the channel be constructed a certain route. Q. All right. And is this route the route that they recommended?

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THE WITNESS: Could I get the binders with the general design memorandum? MR. SMITH: Uh-huh. MR. KELLS: I think this one has all of them. A. I'll make reference to a letter from -(Off the record.) EXAMINATION BY MR. BRUNO: Q. Okay. Are you in 1A? Or are you in -A. I am in, um -- Design Memorandum Number 2, June 1959. Q. Got you. Okay. And page, please? A. Well -Q. Or just give me a route -A. I'm in Appendix 3. MR. KELLS: You can give him a Bates number, too, if you want. MR. BRUNO: Unfortunately I don't have a Bates numbered copy, so -- I

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appreciate your effort, but. MR. SMITH: Just for the record, why don't we give the Bates number. A. It's EDP-023-000000783. EXAMINATION BY MR. BRUNO: Q. That's Appendix 3, right? A. Yes. Q. Okay. And is it a report or a letter? A. Well, this is a letter contained in the design memorandum. Q. All right. And we identified it by Bates number, but it's a letter from -A. The State of Louisiana Wildlife and Fisheries Commission -Q. Okay. A. -- March, 1959. Um -- Paragraph 3 reads, it's our opinion based on the fish and wildlife resources of the overall area, and without the benefit of biological studies or general engineering date that Route D would be the best alignment of the three alignments suggested. If you refer in the design memorandum there's a map that's referred to as Plate 2.

Q. Is it still in the appendix, Mr. Miller? A. No, it's in the report. Q. Okay. I'm with you. A. It's about Page 39 in the report. Q. Plate 2. Yes, sir, I'm with you. A. Okay. That depicts routes that are lettered, references this Route D. In general, Route D follows the description of the Chief of Engineers report, with the one caveat that I'm not sure of the location of Errol Island. Q. Okay. I'm trying to follow you there, because if you'll notice, and tell me if I'm reading this incorrectly, but if we go near Lake Borgne, I see two routes that seem to be roughly parallel to one another. A. That's right. Q. Okay. Do you know which one -- there is one that's closer to Lake Borgne and one that's further away, for lack of a better descriptor. Do you know which is which? And it seems to me that the one that's closer to Lake Borgne is a broken line and the one that's further away from Lake Borgne is a solid line. A. I cannot really tell from just the Page 99

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map, the black and whites. I could spend some time reading -- I'm sure it's probably better described in the text part, but the general point is that the Wildlife and Fisheries Commission recommended a certain route that is generally in the same location as the route recommended in the report of the Chief of Engineers. Q. Okay. All right. Well, you'll recall, though, that my question was about coordination before the project was submitted to Congress. This is 1959, so clearly this is a post-authorization engagement between the Wildlife and Fisheries and the Chief. Right? A. That's right. Q. Okay. All right. So have you encountered any documents that predated the submission to the Congress that would have described conversations or correspondence between the Louisiana Wildlife and Fisheries Commission and the Corps? A. I believe, and this is just from memory, um -- that there was participation at one of the public hearings. But I'd have to go back and check that for sure, if it was

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representative of the state in general or if it was specifically the Wildlife and Fisheries Commission. Q. If you go down in Appendix 3 just a few pages -- maybe this will help, maybe it won't -- it's entitled Report to the United States Army Engineer District New Orleans on the Possible Biological Effects of Various Proposed Routes of the Mississippi River Gulf Outlet by Gordon Gunther. A. What page number? Q. It's in Appendix 3. MR. SMITH: Just a couple pages after the one you were referencing before. EXAMINATION BY MR. BRUNO: Q. In fact, I would say that it -MR. SMITH: Why don't you just read for the court reporter the Bates number there. THE WITNESS: It's EDP-023-000000785. EXAMINATION BY MR. BRUNO: Q. All right. So you found it? A. Yes.

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Q. Okay. It doesn't have a date unfortunately. Do you have any sense of its date -A. I do not. Q. -- through reviewing the document? They talk about letters dated 30 July '58. A. Just on a quick glance it looks like it says January 8th, 1959 on Page 9. Q. You're on Page 9. Okay. Okay. That's at end of the letter, all right. So this is a post-authorization document, as well. And there's a comment here about the Louisiana Fish and Wildlife Commission proposal. And it says here that, in the middle, this proposal has the disadvantage -A. Do you have a page number for me? Q. Page 8. I'm sorry. You see where it says the Louisiana Wildlife and Fisheries Commission proposal? A. Yes. Q. This proposal has the disadvantage that it traverses water in an area of soupy, uncompacted sediments and will be very hard to hold without virtually complete retaining dikes along both sides.

Do you know what they're referencing there? A. This is in reference to an earlier recommended route from the Department of Wildlife and Fisheries that would have gone through the -- at least portions of the open waters of Lake Borgne. Q. Okay. And that's why the discussion of the difficulty of keeping the channel open because of the high probability of silting, right? A. I assume that was the opinion of Gordon Gunter, yes. Q. Okay. Do you know who Gordon Gunther was? A. I sure don't. Q. Okay. Go to Page 6. Mr. Gunther reports again on one general criticism of the channel should be discussed and it's been stated by some officials of the Louisiana Wildlife and Fisheries Commission that the deep channel will permit and enhance the encroachment of high salinity water into low salinity areas where it will cause considerable damage such as killing out the freshwater Page 103

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marsh, the oysters, et cetera. However, no one else seems to be greatly disturbed by the possibility, and neither am I, because the chances seem rather remote. Do you know if the Corps considered the potential effect of high salinity in the selection of this route? MR. SMITH: Which route, Joe? MR. BRUNO: Oh, this route is the route -according to this document seems to be the route that's the subject of the -the same one as the, um -- was selected. It says here -EXAMINATION BY MR. BRUNO: Q. At Page 5 it talks about the area involved. And in the beginning it says, the proposed canal starts at a point where it connects with the Inner Harbor Navigation Canal. It says it runs due east five miles from this point on to where the channel will connect with waters of the open gulf. Several alternate routes have been considered and proposed by various groups of interest along

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the Mississippi and Louisiana coast, as well as one state government and one branch of the federal government. So clearly they're describing all those routes that you pointed us to in that Plate Number 2. Right? A. Well, it looks like the report is submitted to the Corps from Gordon Gunther and he goes through a number of different, um -proposals, I guess, from the State of Mississippi, the one from the Department of Wildlife and fisheries from Louisiana, and he makes various comments about -Q. Right. A. -- either one. Q. Well, let's see if we can do it this way: It seems like, and I want to make sure I've got this correct, but the plate that you referred to, Plate Number 2, talks about routes, but insofar as the route from the Industrial Canal to about Bayou La Loutre, there isn't a great deal of difference between those two routes. Is that accurate? A. I would agree with that. Q. Okay. And then when you start seeing

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the real big difference is when you go from Bayou La Loutre to the gulf. And that's where you see Route E, D, project document location and Route B. Right? A. Yeah. In general, you know, they're different routes, and one goes northeast, one goes southeast and some go south southeast. Q. Right. But I'm trying to see if I can just kind of coordinate this with the document. In the letter to the Congress, the chief describes a particular route that's very similar to what's described on Plate 2 without being, as you pointed out, terribly particular in terms of lat and longitude. Right? A. Right. Q. Okay. And then if you go to Paragraph Number 17 of the report of the Board of Engineers in the same letter -- in the actual letter to the Congress -- you see Paragraph 17? A. I do. Q. Okay. It says, the board is of the opinion that the exact location of the outlet to the gulf and the alignment of the seaway should be determined after more complete studies of sand movement, wave action, local

currents are made in cooperation with the beach erosion board. Hence, if the improvement is authorized, ample provision should be made for modification of the location and alignment of the canal should further studies show that a more suitable location is available. So am I correct in gathering that the chief describes a route that's generally described in Table 2 of the general design memorandum? I'm sorry. Plate 2, not Table 2. And that the board is saying, he needs discretion to finalize with precision the financial location. Is that a reasonable conclusion to draw from these documents? A. Well, in general, with the one caveat that I'm not sure of the precise location of Errol Island, that is what this document says, and it is what the report of the Board of Engineers for Rivers and Harbors also said. Q. Precisely. A. It should be noted, though, that this is a report from the chief from 1951 referencing the need for potentially more studies, and that's exactly what happened through the process of the design memorandum. Page 107

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Q. And that frankly was going to be my next question. And that would explain, would it not, why after the authorization you have this dialogue about the precise location of certain portions of the channel, because the authorization gave the chief that discretion to more precisely locate the channel within the framework of what you see on Plate 2. Right? A. Do we have the wording of the authorization of the channel? Q. Yes. It's in evidence. It's -MR. SMITH: Oh. You mean the law itself? THE WITNESS: The law that authorized. EXAMINATION BY MR. BRUNO: The actual law says -MR. SMITH: Generally in accordance with. MR. BRUNO: We will stipulate that it says generally in accordance with. A. Yes. EXAMINATION BY MR. BRUNO: Q. So that's a reasonable conclusion.

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A. He would generally have that discretion, yes. Q. So the dialogue that we're talking about between the Louisiana department of fisheries and to whatever extent there was with the Department of Interior, that occurred after -- at least what you're aware of occurred after the authorization. So can I conclude that we really do not know what if any interaction there was before the project was submitted to Congress with regard to consultation and/or communication between the Department of the Interior, the Department of Wildlife and Fisheries -- the Louisiana Department of Wildlife and Fisheries and the like? We just don't know. A. I don't agree with that. Q. Okay. Your last answer was you don't agree, and I thought you were going to tell me what the basis of your disagreement was. A. You asked me a question, I said no I don't agree with that. Q. And what is the basis for the disagreement? A. The document in one of the binders

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that I've reviewed is Mississippi River Gulf Outlet 30 September 1946, Serial 18, has a number at the bottom of the Page AIN-112-000000575. Q. Okay. I'm with you. A. Review of Report of the Mississippi River Gulf Outlet and the Mobile to New Orleans Intracoastal Waterway. They make preference to Page 38, Paragraph 80, coordination with other agencies. Q. Okay. A. It says, the Director of the Louisiana Department of Public Works, designee for the Governor for Louisiana, has full concurrence with the findings presented to the President of the New Orleans Tidewater Development Association, also concurs but favors construction priority for the outlet channel and preference to the lock and access channel. And the Chief of Engineers of the Board of Commissioners for the Port of New Orleans advises that plan is substantially that proposed by that agency. Q. Okay. And so what is this document that you're reading from? So what is this

document? A. Well, this is a report -Q. Okay. A. -- from 1956. And your line of questions references whether there was coordination prior to the authorization or prior to the Chief of Engineers report. Q. Yeah. I know. I'm wanting to understand what is the genesis of this document? Mine says not for public release, on the first page. So it's just -A. From a read of the document, it appears that it was produced by the Offices of the Division of Engineers of the Lower Mississippi Valley Division, Vicksburg, Mississippi. Q. Okay. A. Meaning the Corps of Engineers. (Off the record.) EXAMINATION BY MR. BRUNO: Q. All right. So this is a report generated by the Mississippi Valley engineers office, I guess? A. Yeah. That is how I read it. Q. Okay. Now, if you look at Figure 1 in Page 111

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that same document, which unfortunately, it's a Bates Number 649 -- you see there's a variety of outlets proposed. There is an E1, E2, 3, E4, E5 and E7 -- E6? A. Uh-huh. (Nods affirmatively.) Q. Do you know which of those routes is endorsed by the folks that you just -- the paragraph that you just referenced? A. I'm not sure I'm following you. You're talking about Paragraph 80? Q. Yes. You say, in Paragraph 80, you say that they agree, and I mean unless I'm missing something here this report has a proposal about at least seven different routes. So I'm just trying to figure out if what's being endorsed by the Department of Public Works is the idea that there be a channel and that those routes are acceptable, or are they approving a particular route? A. I apologize, I just want to get this right. Q. No. That's okay. A. It looks like to me from Paragraph 80 that we're talking about the State of Louisiana, at least through the Governor 's

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designee, the Department of Public Works, concurring with the recommendation of the President of the Tidewater Development Association, also notes prior reference to -excuse me, also, the Board of Commissioners for the Port of New Orleans which earlier in the report there's reference to the desired improvements, talks about the public hearing that was held in 1943, and the Board of Commissioners of the Port of New Orleans proposing a deep draft outlet channel from the Industrial Canal to the gulf east of the Chandeleur Islands. Q. Okay. That's fine. Just for completeness, my copy of those document which is Bates numbered has all these lines through a variety of pages. Do you know if this is an actual final version of this document? A. I do not know that. Q. Okay. All right. Now, does the project as described in the letter from the Secretary of the Army, which is House Document 245, does it describe whether or not included in the project is foreshore protection or some kind of protection for the shores of the

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with this report, which included provisions for some jetty work. I can't tell you at the time whether there were reports, you know, design reports or funding appropriated and things like that for it. Q. Okay. Well, maybe if we look at Design Memorandum Number 1A it will help us answer that question. In particular, at Page -- once again, Page 7. I'm looking at Design Memorandum Number 1A, channel mile 63.77 to mile 68.85. Are you with me? A. Yes. Q. And do you see there where it says channel protection, Paragraph 16? Okay? Are you there? A. Yes. Q. Okay. You see where it says no channel protection is recommended initially; however, erosion due to wave wash in open areas can be expected in the upper part of the channel slope where the peat and highly organic clays are exposed. It says, protection for this area can be provided if and when the need for it becomes necessary.

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channel? A. It does make reference to protective jetties and a permanent retention dike. Q. That's at the gulf, though, isn't it? A. Um -- well, not at the gulf, in Chandeleur Sound. Q. Okay. So does that mean that the Congress was authorized to put -- the Congress authorized the Corps to include in the design protection of the banks, including jetties, rock dikes and the like, as you've just described to us? A. Well, the authorization from Congress, um -- in 1956 reads substantially in accordance with the recommendation of the Chief of Engineers -Q. Right. A. -- in this report. Q. So you would agree with me that the chief had the authority to install rock protection on the shores, including jetties I think is what you said, if he felt it was necessary, right? A. I think in general he had the authority to build the project in accordance

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So doesn't that support the view that the chief had the authority to install slope protection or channel protection if he felt it was warranted? MR. SMITH: Joe, you've already covered this with a previous witness. You asked this very question of a previous witness. This is a 30(b)(6) of the Corps of Engineers. MR. BRUNO: No, I didn't. Not only that, you told me that I was limited to the reconnaisance report and this is all I could talk about. Obviously, we're not talking about the reconnaissance report and I don't have any recollection of any other witness that I asked the question to, and it really doesn't matter. MR. SMITH: It does matter, Joe. MR. BRUNO: No. This subject includes this issue.

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MR. SMITH: You can't ask the same question of multiple witnesses in a 30(b)(6) deposition. MR. BRUNO: I don't believe that I'm asking the same question. And I'm certainly not going to take your word for it. Your memory can't be any better than mine. We've been sitting through countless hours of depositions. I don't remember ever asking this question, and I am specifically talking about the subject that this person is designated for. MR. SMITH: No, he's not designated to tell you whether the chief was authorized to install shoreline protection along the MRGO, and that's what you just asked him. In fact, you've covered this multiple times. The testimony you've received is that as long as it served the purpose of the project they were

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allowed the put the channel. MR. BRUNO: Are you instructing him not to answer? MR. SMITH: No, I'm not. I'm telling you you've already gotten testimony on that. MR. BRUNO: Let's just go through it. You know what? It would take three seconds to get an answer. I have to go through all this foolishness with you every time. I could be well beyond. MR. SMITH: It's not -- look was gone into in great detail already. MR. BRUNO: Then make your objection so we can move on. Okay? Just note it. MR. SMITH: Objection. Asked and answered. MR. BRUNO: Father enough.

MR. SMITH: This witness is not prepared to talk about whether or not Chief of Engineers was authorized or the Corps was able to install shoreline protection wherever it felt like as a result of Paragraph 16 in DM Number 1A. He can give you his opinion, but the Corps is not going to be bound by whatever he says. MR. BRUNO: Paragraphs 7, Paragraphs 11, all speak to this issue. MR. SMITH: He can give you his opinion. It will be just his opinion. MR. BRUNO: That's your objection. I'd like an answer. EXAMINATION BY MR. BRUNO: Q. Do you remember the question, Mr. Miller? A. Vaguely. Q. Okay. Then -MR. SMITH: Page 119

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Objection. Vague. EXAMINATION BY MR. BRUNO: Q. The general design memorandum says, protection for this area can be provided if and when the need for it becomes necessary. Doesn't that imply the chief had the authority, if he thought it appropriate, to include channel protection within the authority given him by Congress? A. I'm not -- I don't know that I agree with that. I don't think that's what this report says. I think what it means is from an engineering perspective that you could build protection if it became necessary in this area. It's a design memorandum. It's not the Chief of Engineers. Q. That's fine. So what it says, though, does it not, is that the chief is recognizing that there's the potential need for channel protection, right? MR. SMITH: Objection. Assumes facts not in evidence. Calls for speculation. EXAMINATION BY MR. BRUNO: Q. Isn't that true?

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A. Your question is about the chief, and this is a report from the district engineer. I don't see in the report that it was signed by the chief. Q. Isn't the general design memorandum not a general design memorandum until it's approved by the U.S. Army Corps of Engineers in some fashion pursuant to its policy, its rules and its regulations? MR. SMITH: Objection. Vague. EXAMINATION BY MR. BRUNO: Q. You can answer. A. Oh. This is a report of the Army Corps of Engineers. Q. Exactly. Can I accept it as a report of the Army Corps of Engineers? A. Yes. But your question was about, you know, the beliefs of the chiefs or the ability of the chiefs. Q. Well, when I'm referring to the chief, I'm talking about the United States Army Corps of Engineers, right? He's the guy. He's where the buck stops. He's the person who represents the Corps, isn't that true?

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A. Yes. Q. Okay. All right. So the fact of the matter is, this general design memorandum is the statement by the United States Army Corps of Engineers about how miles 63.77 to mile 68.85 should be built, right? Isn't that true? A. Yes. Q. All right. And this document recognizes that the channel can erode its banks. That is a potential of the channel. Isn't that a fact as indicated by this document? A. I think it would be better just to read exactly what it says. It says, erosion due to wave wash in open areas can be expected in the upper part of the channel slope. Q. Okay. What does that mean? MR. SMITH: Objection. Calls for speculation. A. I think it means exactly what it says. Erosion due to wave wash in open areas can be expected in the upper part of the channel slope. MR. SMITH:

Joe, if you tell him which word you don't understand maybe he could help you. MR. BRUNO: That's what I was about to do. Thank you very much. (Off the record.) EXAMINATION BY MR. BRUNO: Q. M. Miller, Paragraph 9 of the notice of deposition says, evaluations by the Corps regarding erosion of the banks of the MRGO from wave wash of vessels traversing the MRGO. And you're the designee. Okay? So that's why I'm asking you. You're the man. It says, erosion due to wave wash. What's wave wash? MR. SMITH: Sorry. Is this an evaluation? MR. BRUNO: Yeah. MR. SMITH: This is before the thing was ever built. How could it be an evaluation? MR. BRUNO: Well, you went to go through an Page 123

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explanation of the meaning of the word evaluation now? We'll do that, too. We'll be here until January. MR. SMITH: I withdraw my objection. EXAMINATION BY MR. BRUNO: Q. What's wave wash? A. In my words, the wash of waves, um -on the shoreline. Q. What's erosion? A. Erosion is, um -- retreat of a shoreline or, um -- the conversion of some shore body or, um -- in this particular case it's probably, um -- clays, in this case, according to this. Q. All right. Does it mean that the wave wash removes a piece of land from the shore so that you have less shore than you had before this erosion thing? A. You're talking about the general definition of erosion or what we mean in this particular -Q. What you mean right here. Right here in this sentence. A. It means the upper part of the channel

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slope can erode, it can, um -- if there was an area of dirt -Q. It moves that area of dirt. A. Yes. Q. So the surface width of the channel gets wider, right? That's what it says, right? A. I think it would be better just to stick to what it says exactly. Q. We are sticking to what it says exactly. I'm trying to understand -A. No, you said it gets wider. It doesn't say that in here. Q. Well, does erosion due to wave wash cause the channel to become wider? That's the question. A. It could be that the erosion actually occurs underwater and that you're actually eroding parts of the bottom of the channel or the side slope of the channel and it actually does not widen the top part of the channel. Q. Okay. Then help me understand what is meant when they say can be expected in the upper part of the channel slope, then. A. Well, I was hoping that we had it shown on a drawing so we could just point to

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it. Q. I'm sorry. Hoping what was shown on the drawings? A. I was hoping that we had shown the, um -- labeled the slope on this drawing so it would be easier for everyone to just look at. Q. Let's make it easy for us. What's channel slope? A. It's the, um -- the angle from the bottom of the channel to the top. Q. Okay. And we remember that the authorized bottom depth of the channel was 500 feet, right? I'm sorry. Bottom width of the channel was 500 feet, right? A. Yes. Q. 36-foot depth. And there's a channel slope described of 2 on 1, I think? A. I don't believe the authorization has the, um -- the slope angle defined. Q. Okay. I think you may find it in the design memorandum. Page 4. A. I'm sorry. I apologize for being literal, but you said the authorization. It doesn't reference -Q. Well, the general design memorandum

comes from the authorization, doesn't it? A. Yes. The work is done based on the authority we have. Q. That's fine. Okay. That's all right. So the chief had the authority to design the channel slope, and he selected a channel side slope of 1 on 2. Isn't that true? A. I don't know. Q. Page 4. A. Yes. Page 4. Channel slope. Q. 1 on 2. A. I apologize. Q. No problem. So now we know what the channel slope is. It's the side of the channel. And we know it's angle, it's a 1 on 2. We know its depth. Now, the next question is, what's the upper part of that slope versus the lower part of that slope? Can you give me any guess as to what that might refer to? MR. SMITH: Objection. Calls for speculation. MR. BRUNO: I'm sure it does on the part of Page 127

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the Corps. Maybe we should bring in somebody who's more able to answer the question. EXAMINATION BY MR. BRUNO: Q. Do you know what upper versus lower means? A. Take a look at this drawing. Q. Show me. A. This is the slope right here. Q. Okay. Fair enough. Just tell me where you are and I'll follow it. A. Listen, there's no reason for you to insult me. Okay? Ask me a question, I'll try to answer it the best I can. Q. I have to tell you something. I'm the one that feels insulted. I'm asking you what upper means is, and you tell me you don't know what upper is. A. I didn't say I didn't know what upper was. Q. Then tell me what upper means. A. I'm pointing to -MR. SMITH: Why are you harassing him, Joe? MR. BRUNO:

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You know why I'm asking the question. EXAMINATION BY MR. BRUNO: Q. What does upper mean, Mr. Miller? I not trying to insult you, I'm trying to ask a simple question. A. Upper is above or on top. Q. Fine. Look, we only have about four thousand pieces of paper that say that the MRGO erodes its channel bank and it makes it wider. Why do we have to play this game? That's exactly what's in this piece of paper in 1957. That's all I'm trying to confirm. It's no big deal. MR. SMITH: Then why do you keep asking the same question over and over again? MR. BRUNO: Because I can't get an answer. MR. SMITH: You don't need this witness to tell you that. You've got that in the record already. You just said that. MR. BRUNO: If I don't need it, why is it so

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difficult? If you've got such a lock of this case, if you're going to win this case, if you're going to win it on discretionary function, if you're going to win it on -- why is it so difficult to answer such a simple question? What is erosion? What does it mean? Does erosion make the channel width get wider? Can't get an answer to that. I mean, come on. We all know where we're going. MR. SMITH: You already have testimony to that effect in this. MR. BRUNO: Then why is it so difficult to get the answer? MR. SMITH: Why do you have to keep going over the same question? MR. BRUNO: Because I can't get an answer to a simple question. MR. SMITH: Joe, I'll bet you've got that

very answer in this transcript -MR. BRUNO: I want it from this witness. MR. SMITH: -- from prior witnesses. You're not entitled to it from every witness we put up. MR. BRUNO: I never said I was. MR. SMITH: Then stop asking the same question. MR. BRUNO: You designated this witness for this subject. I'm tied by your designation. Remember yesterday -MR. SMITH: You've already asked the question, Joe, and you got an answer. MR. BRUNO: You wouldn't let me ask a single question beyond the reconnaissance. You said, Joe, this guy is designated for reconnaissance and nothing else, I am going to instruct the witness not Page 131

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to answer. You recall you did that four of five times. MR. SMITH: Let's take a break. MR. BRUNO: That's a good idea. (Brief recess.) EXAMINATION BY MR. BRUNO: Q. Mr. Miller, I really had no intention of insulting you. That's not what I'm here for. A. Got you. Q. Let's try it -- it's clear, is it not, that Paragraph 16 of the design memo reflects that the Corps did an evaluation as to whether or not -- I'm sorry. The Corps did an evaluation about wave wash and its relationship to erosion of the banks of the MRGO. Let's just be real general. Right? That's what this is describing. A. Yes. It's an evaluation of the engineering needs for this section of the channel. Q. For channel slope protection. All right. And I want to -- they're concluding

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that you can expect some erosion from wave wash in the upper part of the channel slope where there's peat and highly organic clays which are exposed, to be precise. A. That's what they're saying. That's what it says. Q. Okay. Now, and they're saying protection can be provided, if needed. Right? And the need is based upon whether or not there's erosion going on. Is that a fair conclusion? A. It says, protection for this area can be provided if and when the need for it becomes necessary. Q. Right. What I'm trying to understand is, help me understand the need. In other words, when does erosion reach the point that protection is necessary? And I basically took that same sentence and inverted it in asking that question. So just when is it necessary? A. Well, I'm reading the paragraph and putting it in context. It says, um -- it is presumed that sufficient rights-of-way will be furnished by local interests to preclude use of channel protection or that additional

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rights-of-way will be furnished when the need arises. It's going further to say, the reach covered by this report lies in the proposed new harbor development area and the construction of slips, wharves, piers and other structures will probably provide for some channel protection that may be required. Q. Right. And I read that to mean that they're accepting the fact that you're going to erode away the right-of-way but there will be a problem when you reach the point where you are new eroding away land that you don't own. Did I get that wrong? A. Well, I'm not sure that's what they're saying. I think they're saying, you know, when the need arises. It doesn't make a determination that the need is there now. Q. No, I know that. But what's curious to me is it says, when the need arises, it says, that additional rights-of-way will be furnished. So I'm thinking to myself, okay, you've got a right-of-way, meaning you can build the channel, and you have this right to build the channel, and you own -- the

right-of-way extends to the shoreline. Now, when that shoreline gets washed away and you're going to the line of your right-of-way, or perhaps over the line of your right-of-way, then they're saying that's when you may need this channel protection. Is that a fair conclusion? A. Well, I would just again just read what the report says. Um -- protection can be provided if and when the need for it becomes necessary. No channel protection is included in the overall cost of the project. It's presumed that sufficient rights-of-way will be furnished by local interests to preclude use of channel protection. Q. All right. Well, would need include a concern for health and safety of the human environment; would that be an appropriate way to define need? A. I don't know. And I especially don't know in the context of what they're saying here in the design memorandum. I think this is more of an engineering, um -- give me a second. I'll read the purpose statement. Q. Sure. Page 135

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A. Presentation of pertinent information and data. Q. Sorry. Where are you, sir? A. I'm sorry. I'm in Paragraph 4, Page 2, just the purpose of this particular document. So I don't know that other than in an engineering -- assessment of the engineering data that they were looking at other -especially the -- you said the human -Q. -- health and safety of the human environment is the particular phrase that I used in my question. A. I don't know. Q. Okay. Well, certainly the Corps, if it was apprised that the erosion of the banks may implicate the health and safety of the human environment, the Corps would recognize that as an appropriate basis for a need for shore protection. That's a fair conclusion, right? That's the way the Corps operates. A. Yes. Q. Okay. All right. And just to kind of follow through, there is -- you know, you were right, this design memo only regards about five miles. Okay? Remember?

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A. No. Q. 63.77 to 68.85. 1A. Remember the front page? A. Yes. Yes. Q. Now, in fairness to you, let's just take a quick peek at the design memo for the remainder of the -- the next section of the channel, which is 1B. If you don't have it, I've got it right here. A. I have it. Q. Okay. And this is Mile 39.1 to Mile 63.77, right? A. Yes. Point 0. Q. I'm sorry. Did I say it wrong? Mile 31.01 to Mile 63.77. And just for the Court, the lower mile is closer to the gulf and the larger mile is closer to the IHNC. Right? A. It is today, and I just want to verify that that was the case then. Q. That's fair. A. Yes. That's correct. Q. All right. Now, and I just want to point out that at Page 5 of this document we see -- and I'm sorry. The question would be, would you agree that the same paragraph appears

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regarding the need for channel protection? And it's at Paragraph 19. A. I just want to back up for a second. We were talking -- you asked me a question about a document. I thought the document we were talking about before we took a break was Design Memorandum 1A. Q. It was. A. Okay. Okay. Just to make sure. Q. And now we're switching. In fairness to you, we're switching to a new document. Now we're talking about 1B, which is a different section of the channel. A. Just from a quick read, it doesn't have all of the sentences in it. The last sentence in, um -Q. All right. Let me just catch up to you. A. The last sentence in Paragraph 16 of Design Memorandum 1A is not included in Paragraph 19 of Design Memorandum Number 1B. Q. Okay. Right. Well, okay. I hadn't read that and didn't question you on it, but you're absolutely correct. I'm trying to avoid asking the same questions again. That's why

I'm doing this. A. Okay. Q. But Paragraph 16 of Design Memo 1-A and Paragraph 19 of 1B are identical with the exception that the sentence the reach covered by this report lies in the proposed new harbor development area and the construction of slips, wharves, piers and other structures will probably provide for some channel protection that may be required. That's the difference. A. Yes. Q. And that's because in Reach 1 -- and I don't know if you and I have -- do you know what Reach 1 refers to? In these many, many depositions -- I don't even know if we invented it or it came from you guys, but we are referring to Reach 1 as that section between the IHNC where it coexists with the inner harbor waterway. Okay? And then where it veers off and goes south, we refer to that part as Reach 2. A. Okay. Q. Are you familiar with those -- the use of those phrases? A. I've seen it designated a number of Page 139

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ways, but I know where you're talking about right now. Q. All right. So Reach 1 is 1A and Reach 2 is 1B, correct? A. Is your Reach 2 below Bayou La Loutre or is it just to Bayou La Loutre? Q. Well, you're correct, 1B includes only a portion of Reach 2. A. Okay. Q. So we're talking about the same thing. A. Right. Okay. Q. And so what I was driving at is, the proposed new harbor development that they're talking about here is in Reach 1. A. Okay. Yes. Q. And that's why the sentence obviously doesn't appear in the 1B design memo, because there's no harbor development there. Okay. Do you agree? A. I just wanted to be careful. I think there is a portion of this reach that does have harbor development planned in it. So I'm not sure you're 100 percent accurate there. It's the portion in the vicinity of the Michoud, um -- canal.

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Q. The Michoud canal is not in Reach 2, though, is it? That's the point. A. Well, I thought that -Q. Reach 1 is -A. The design memorandum 1A went up to the highway. Q. No, I said it was coexistent with the Inner Harbor -- I'm sorry. Gulf Intracoastal Waterway. But that's okay, it's not a terribly important issue. Let's move on. If you look at Page 8 of the design memo, they have a section use of other agencies. Do you know why that's there? And I'm asking you the question because you're designated to talk about the coordination between other agencies, okay? So that's why I'm asking it. Why do you care what these other people have to say about your design memo for 1B? A. Well, it's part of project coordination. You know, you may have one activity that affects another. The highway is a good example of that here. Q. Okay. Well, if you look at Paragraph

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Number 35, the U.S. Department of Interior, Wildlife -- the U.S. Department of Interior, Fish and Wildlife Service in particular, on Page 9, it says, the report which outlines the existing conditions concluded that sufficient data are not available upon which to predict the effects of the project and recommends extensive environmental and model studies be made covering a period of several years and costing upwards of five hundred thousand dollars exclusive of the model. Subsequent conferences and discussions have demonstrated that the model study is impractical and it has been eliminated. Tentative agreement has been reached on a plan for submission of interim fish and wildlife reports covering sections of the channel, such reports to contain recommendations for remedial measures for protection of fish and wildlife values. The amount of $64,400 is tentatively made available to the service in fiscal year 1959 for the studies on a reimbursable basis. Okay. First of all, I'm a little confused as to who's giving the money and who's getting the money, the 64 grand.

A. The Corps of Engineers is providing funds for the fish and wildlife service to, um -- conduct studies of the project area. Q. Okay. All right. And do you know what it is about the channel that the Fish and Wildlife Service believes may negatively impact fish and wildlife resources? A. I thought -- there's really not a lot of specifics here, but it does say probable effects the channel will have on fish and wildlife values of the area traversed. Q. Where are you, sir? A. I'm sorry. Paragraph 35, Page 8. Q. Yeah. I meant probable effects. I just was trying to figure out what are those probable effects, if you know? A. Well, they're -- you know, they're recommendations that are here, let's see, 1 through 9. They relate to the placement's of spoil, the discharge of water, the exclusion of, um -- spoil from Bayou Villere. I guess it's a concern. They said, if future studies reveal that fish and wildlife habitat north east of the channel alignment is deteriorating, the dike could be constructed. Um -- we Page 143

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also -Q. Where -A. -- you know, measured retention dikes in order to minimize the dispersal of spoil material. So those measures are designed to address the concerns that they have. I would imagine that there is -- excuse me, I don't imagine. There is a letter that would have detailed those -- or a report that would have detailed those concerns in specific. Q. All right. Can I conclude from this that the Corps had the authority to build dikes if it was necessary to protect fish and wildlife resources, based upon what I'm reading here in Paragraph 35? MR. SMITH: Objection. Calls for speculation. A. This Paragraph 35 lists the things that the Fish and Wildlife Service is asking for. It has a concluding paragraph that says, um -- these -- paraphrasing, these recommendations, except for Number 7 which is the one the references construction of a dike, um -- are generally incorporated in the plans

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and specifications of the initial contract for excavation of this reach. It states that that recommendation, Number 7, which is for the construction of a dike, be considered further when it becomes apparent that work on the northeast side of the right-of-way is necessary to prevent losses. EXAMINATION BY MR. BRUNO: Q. Exactly. So that's why I asked the question. So I'm trying to figure out, if the Corps determines that the channel is causing damage to fish and wildlife as is suggested may be -- may be a possibility, in Number 7, does the Corps have the authority to build that dike? It sounds like they do. A. Based on my read, yes, I would think we would. Q. Okay. And just 33, just to round it out, that's the State of Louisiana Wildlife and Fisheries Commission, and they're talking -this is -- we've talked about this with other witnesses before, I do remember this, that the wildlife and fisheries really didn't want to have the channel go through Lake Borgne. Do I take the last sentence really to be the Corps'

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response, experience indicates that channels should be sited through land cuts or provided with effective barriers in shallow, exposed coastal lakes and sounds. The route adopted makes maximum use of land cuts and traverses a minimum length of shallow sound crossing of the routes considered. Would you agree that's the Corps' response to the Louisiana Wildlife and Fisheries' concern? A. Yes. Q. Okay. And the Corps is recognizing -A. Well, I'm sorry. That is the Corps' response to the Wildlife and Fisheries Commission recommendation of a route, um -through open water of Lake Borgne, not necessarily all of -Q. No, no. I know. That's exactly what I'd said. I said, we've had testimony in other depositions that we don't want to go through again that the Wildlife and Fisheries Commission for the state of Louisiana opposed a land route and wanted to go through the lake. That's where they wanted to put the channel. And I just wanted to confirm that the last sentence is the Corps' response to that

proposition, and I think we agree that it is. A. To that, yes. Q. All right. And the Corps is saying that channels should be sited through land cuts or they have to be provided with effective barriers in shallow exposed coastal lakes or sounds. Right? That's the Corps' position. A. Yes. Q. All right. And then finally, just to confirm, at Page 11, the full project width is 500 feet. That is, and that refers to the bottom. I just want to get that confirmation. A. Yes. Q. Okay. All right. And again, just for completeness, now we look at Design Memorandum 1C, which is Mile 0 to Mile 36.43, which is Bayou La Loutre. And I just want to confirm at Page 7 we have the same paragraph about channel protection at Paragraph 17. A. Not the same paragraph. It is a paragraph on channel protection, um -- it is similar but not the same. Q. What's the difference? A. Um -Q. I wasn't comparing it to reach 1, now. Page 147

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We've already got that done. The second -A. Well, there's specific reference to marsh that's not in the earlier one, and to, um -- passing ships. Q. Oh, I see. Instead of saying the upper slope, they're saying along -- they're saying along the upper portion of the route in the marsh area can be expected where peat -there's a little bit of change in the sentence there. A. Yes. Q. Do you know why -- can you explain why there would be a difference in that, that little slight difference in language there? A. I don't know the specifics, no. I don't know why. Q. Okay. That's fine. That's fine. All right. If we move to Design Memo Number 2, just for context, do you know what Design Memo 2 does that 1 and 1A, 1B and 1C don't? A. This Design Memorandum 2, um -- is the determination -- or review of the engineering information and determination of the route, um -- from Bayou La Loutre to the Gulf of Mexico.

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Q. Okay. So this is what confirms the final decision as the route, right? That's the only real difference? A. Well, that segment of the route, yes. Q. Okay. Because at Page 9 -- and in fact Page 9 will tell us exactly what the departure from the project plan are. A. Yes. Paragraph 18 under the heading departures from project document plan. Q. All right. Would you look at Paragraph 17. A. Okay. Q. You see there where it says a dike on the north side of the channel from -6 feet contour to the -20 feet contour is included in the project but its construction will be deferred until justified by actual channel maintenance experience? A. Yes. Q. Do you know where that is? A. It says in the sentence above that retention dikes extending from the shoreline to the 6-foot depth contour. Q. Is that in the gulf? A. I believe this is where the channel

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enters Chandeleur Sound. It doesn't say it specifically, but -- give me one second and I'll look at the map and see if we -- it doesn't say Chandeleur Sound, but I believe that is where -MR. SMITH: Greg, go the Paragraph 35 and I think you'll see it. A. Yeah. Yeah. Chandeleur Sound. EXAMINATION BY MR. BRUNO: Q. Okay. All right. Let's move to General Design Memorandum Number 2, Supplement Number 4. This one is entitled Foreshore Protection. You with me? A. Yes. Q. What is the purpose of this design memorandum? A. I'll read from Paragraph 2. Purposes are to present the basis for inclusion of foreshore protection in the Mississippi River Gulf Outlet project, the location of such project and revised cost estimate for the overall MRGO project. Q. Okay. Now, I need to understand the

parlance of the Corps. Is this a modification of the project, or is this still the original -- within the original project authorization? There's a Paragraph 1 which is entitled authority. A. (Nods affirmatively.) Q. And it says that the Mississippi River Gulf Outlet navigation improvement was authorized by the River and Harbor Act approved 29 March 1956, Public Law 455, 84th Congress, Second Session. The Act and description of the project as recommended by the Chief of Engineers in House Document Number 245, 81st Congress, First Session, are given in detail. In Mississippi River Gulf Outlet Louisiana Design Memorandum Number 2, General Design, dated 30 June 1959 and approved 16th September 1959. So does that help us understand what the authority is of the Corps to do the foreshore protection as described by this supplement Number 4? A. I'm not sure about your question in that this is a modification. I cannot tell from reading this. It does mention the word modification in Paragraph 2, but that is in Page 151

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reference to the Chalmette area plan, which is part of the Lake Pontchartrain and Vicinity Project, not the Mississippi River Gulf Outlet. Q. Right. Okay. Well, using the word authority as the Corps uses the word authority, and I'm assuming that's why they use the word authority in Paragraph 1, in this document the Corps is indicating what it believes its authority is to do foreshore protection, isn't that true? A. Yes. Q. Okay. And it's interesting because they're not only citing the statutory authority but they're also citing the General Design Memorandum Number 2. Right? Isn't that true? Isn't that what they're saying there? A. Yeah. They're stating that the authority is the Act of Congress. Q. Okay. As well as the general design memorandum. A. That's how it's written, yes. Q. Okay. And does the General Design Memorandum Number 2 subsume General Design Memorandums 1A, B and C? A. I only went to Newman High School.

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What does the word subsume mean? Q. Include. A. It would -- they would be referenced. They're sequential over time. Q. Of course. All right. And what I'm driving at, and this is kind of tying back, you know, from my previous questions about the paragraphs that deal with foreshore protection and the like: The Corps recognized that it had the authority to install foreshore protection if it thought it appropriate. That's basically what is indicated by this paragraph Number 1. Right? A. Well, I think this paragraph is just stating that the authority for the MRGO project is -- are those documents. Q. Well, actually -A. You know, there the Public Law 455 and the House document. Q. Actually, this is the authority for the Design Memorandum Number 2, General Supplement Number 4. Right? A. Well, I think it's just stating that the MRGO navigation program was authorized by the River and Harbor Act, March 1956.

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Q. Okay. Fine. What is the authority, then, for the Corps to do Design Memorandum Number 2 General Supplement Number 4? What is the authority for this design memo, if it's not in Paragraph 1? A. But -- it is the authority for this design memorandum. Q. Thank you. Okay. Now, this design memorandum is a design memorandum for foreshore protection. And I know you've read this, and hopefully we don't have to go through it in detail, but generally the Corps recognized that wave wash from vessels was eroding the shoreline in the area where they'd begun building the Lake Pontchartrain and Vicinity Hurricane Protection levee. Isn't that true? A. Could you just state it one more time for me? I was just trying to read. Q. Sure. The foreshore protection that's contemplated here, let's talk about where it's supposed to be put. It's supposed to be put on the south bank of the MRGO along that portion of the MRGO that is contiguous to where they had started building -- they didn't finish -the Lake Pontchartrain and Vicinity Hurricane

Protection Levee. A. It is in reference to foreshore protection along the south bank of the MRGO in the area of the Chalmette loop portion of the Lake Pontchartrain and Vicinity Project. Q. And the reason why they're putting foreshore protection there is because the Corps recognized that wave wash from vessels passing by was eroding the shoreline and it could potentially damage those levees, isn't that true? A. Yes. Q. Okay. Now, the levees are there to prevent -- are there to preserve the health and safety of the human environment, isn't that true? A. I'm not familiar with the wording of the authorization, but in general public safety is the purpose of those types of projects. (Off the record.) EXAMINATION BY MR. BRUNO: Q. Just one more question before we break, I just want to connect the dots here. So the installation of foreshore protection at that location was intended to minimize the Page 155

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impact on the health and safety of the human environment. That's why they chose to do it right there. Isn't that true? A. I think the purpose is to keep the levee from being eroded by, as it references, wind generated and vessel generated waves. Q. All right. And you would agree that that would -A. I guess I'm just hung up on -- because I don't know what the terminology in the authorization is. You're saying human health and safety. Q. Right. It's not a trick question. It has nothing to do with authorization. I'm just asking you to recognize, or if you do, levees are there to keep people from getting hurt by hurricanes. So it's obviously their health and safety. Right? A. Yes. Q. And so the logical connection is, if you preserve the levee you're preserving the health and safety of human beings in the given environment. A. Yes. Q. Okay.

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MR. BRUNO: Let's break for lunch. (Lunch break.) EXAMINATION BY MR. BRUNO: Q. All right. I want to see if we can sort of establish some understanding with regard to Paragraph 2 of the notice which is what you're here to talk about. That paragraph, you'll remember, and I'll just read it to you again. The Army Corps' analysis and/or evaluations of any modifications to the MRGO deemed necessary to address the impacts on the health and safety of the human environment. By the way, that's where that phrase came from. That's why I was using that, to keep it consistent with the paragraph. I want to talk a little bit about modifications to the MRGO. Okay? Because we've had many other depositions about what you can and cannot do -- the Corps can and cannot do. And as I look at the General Design Memo Number 2, Supplement Number 4, okay, and we go to a memo done by Thomas Bowen, Colonel, Civil Engineering District Engineer -A. Do you have a page number?

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Q. No, it's -- let's see. If you go to the back -A. Oh, I have it. Thomas Bowen. Q. You got it? It's dated 26 May '66? A. No, this is a November letter. Yes. Q. All right. If you look at Paragraph Number 5, this principle is in no wise comparable. Just ignore that, okay? I'm not going to ask you a question about that. What I want to understand is, the principle of taking action to correct an unforeseen condition which has been brought on by the functioning of a project. You see that there? A. Yes. Q. All right. In the context of Paragraph 2, which is what you've been designated to talk about, the modification component, what I'd like to understand is what action can the Corps take to correct an unforeseen condition which has been brought on by the functioning of a project? And I'm happy to limit that question to, you know, the business of those kinds of conditions that are deemed necessary to address impacts on the health and safety of the human environment.

Okay? First, do you understand the question? A. Let me paraphrase from you. You want to know what actions can the Corps take to modify a project in which an unforeseen condition -Q. Exactly. A. -- is brought on. Q. To put it in context, which you've determined will -- could impact the health and safety of the human environment. That's the question. You're right. There's no Bates number, this is the General Design Memo Number 2, Supplement Number 4, Foreshore Protection, which I know is in this somewhere. I don't know whether it has a number. A. I don't know at the time of this, in terms of 1966, but we do today have the ability to reevaluate projects under certain standing authorities. So, um -- we also have multiple authorities that may be specifically directed at certain, um -- conditions associated with projects we have already built. Q. Okay. Page 159

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A. I don't know at the time in 1966 whether we had those same authorities. Q. Okay. A. I would imagine -- I would say that you can see in the documents that when they -they would make reports on the annual operation and maintenance of the channel, and in some cases they may note something that has happened. This particular memo, where you've asked me this language, is not really related to that subject, though. You're just interested in the general aspect of it. Q. Well, as you can see from this memo, and the reason why I chose this memo in particular is because this is a series of memos that go back and forth about foreshore protection and, in particular, which project should pay for that foreshore protection. And that's why I'm wondering if back in 1966 the Corps would have authority to correct an unforeseen condition which has been brought on by the functioning of a project. A. I don't know the date of, for example, the 216 authority which would, um -- enable us to look at a project and re evaluate it.

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Q. Okay. A. It's something we can find out just by -Q. Fair enough. But you don't think this is 216 authority, I guess, by your answer. A. I think it would say it -- no, I don't think it's 216. It should say it. Q. It would say it. All right. So let me ask you the next logical question. What is 216 authority? And I know you don't know the precise date, but, you know, the about date. A. I don't know the date. We can look it up. I can get someone to look it up for us. Q. Okay. We'll do that on a break. I know you like to be precise, and that's fair to you. What is 216 authority? A. It gives us the authority to re evaluate a project, to re evaluate the original premise for its development, changed conditions, um -- needed updates, that kind of thing. Q. Okay. A. Um -Q. All right. I gather when you say 216 that's referring to a particular --

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A. Section of -- yeah. Q. Well, is it a statute or regulation? A. It's a -- I believe it's a section under one of the Water Resource Development Acts, but -- that's what I believe. Q. Okay. All right. The 216 authority that you're alluding to -- and again, remember, we're talking about the phrasing used here by Colonel Bowen. He's talking here about taking action to correct. Does 216 authority allow you to take action and correct, or is it merely another one of those study options? A. It's a study and reporting option that you would report that, um -- for Congressional action to -Q. Okay. All right. So then in that sense it's different from whatever it is that Colonel Bowen is talking about. Because 216 doesn't give you the power to act, it gives you the power to study. Fair? A. Right. Correct. Q. Okay. All right. Okay. Now, in order for us to -- in order for me to ask you questions about these subjects I want to see if we can really narrow the scope of what we're

talking about. Okay? A. Okay. Q. And that is, I'd like to see if we can learn from you what exactly are the problems associated with the MRGO that relate to the environment. Okay? Since that's what we're here to talk about. First, we have talked a little bit about the erosion of the banks. Does the Corps regard that to be a -- an environmental problem? A. Yes. Q. Okay. Let's next talk about salinity. Okay? Before there was any issue about erosion, back when the channel was originally being designed, did the Corps recognize that there was a potential to increase salinity levels along the length of the channel -- start there, and then we'll move on. MR. SMITH: Objection. Asked and answered. MR. BRUNO: From him? MR. SMITH: No, prior witnesses. MR. BRUNO: Page 163

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I know. But Robin, I told you, I'm trying to set up a framework so that I can ask him other questions without having to retread old ground. EXAMINATION BY MR. BRUNO: Q. You can answer. A. Yes. In the development of the project, the Corps was aware of concerns related to salinity. Q. All right. And the concern was that it might increase the salinity levels in those bodies of water that were actually connected to the MRGO, isn't that true? MR. SMITH: Objection. EXAMINATION BY MR. BRUNO: Q. In particular Lake Pontchartrain. MR. SMITH: Objection. Vague. Asked and answered. A. I'd have to go back and look about Lake Pontchartrain itself. EXAMINATION BY MR. BRUNO: Q. Yeah. A. But in general, in the project area,

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um -- there was communication between the Corps of Engineers and other agencies dealing with one factor which is salinity. Q. Right. I'm thinking in particular of the Seabrook lock project, which was, depending upon what papers you read, either a MRGO project or a Lake Pontchartrain project, but all of the documents seem to suggest that one of the major reasons why it was contemplated was to block saltwater intrusion into the lake. Is that accurate? A. Yeah. Do we have the documents about that particular project? I can look at them quickly and -(Off the record.) EXAMINATION BY MR. BRUNO: Q. (Tendering.) A. It says, um -- Page 1, bottom of the page, um -- it's referencing the recommended protection plan. Q. Right. A. A dual purpose navigation lock in the Inner Harbor Navigation Canal at Seabrook for control of hurricane inflows into the lake as well as to limit objectionable salinity

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intrusion into the lake. Q. Okay. So -A. One thing I'll just be careful about here is I don't know if -- this report appears prior to when I think the authorization date of the project is. So this -Q. Which one are you talking about? A. I'm sorry. This 21 November 1962 Interim Survey Report, Lake Pontchartrain Louisiana and Vicinity. Q. Right. Yeah. I don't think I was referencing any particular date. I just meant in general. A. Well, meaning -- the concerns being that this is a report that was submitted before the authorization. I don't know what -- the authorized project may not have had that lock for that purpose. Q. And I was n't asking about authorization, I was just asking about knowledge. That's all we're talking about now is knowledge. Okay? It has nothing to do with authorization. I'm just trying to -- see, I'm trying to limit the scope of the environmental issues so that I can ask about coordination and

all this other business. A. Uh-huh. Q. So the Corps was aware of the potential for increased salinity in the Mississippi River GO channel as early as whatever that was, 1961 or '62? A. And before this. Q. Sure. Okay. Now, the next issue was at some point the Corps learned that because of the deterioration of the banks of the MRGO as a result of erosion, this water with its increased salinity was able to enter into the marshes. Isn't that correct? A. Yes. Q. Okay. And the increased salinity levels caused the death of freshwater trees, marsh vegetation and swamp vegetation. Isn't that true? A. Well, the habitats in the area changed from in some cases low salinity conditions to higher salinity conditions. Q. And that caused the death of those trees and/or vegetation that were previously surviving on freshwater? MR. SMITH: Page 167

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Objection. Vague. EXAMINATION BY MR. BRUNO: Q. Isn't that true? MR. SMITH: Asked and answered. A. Um -- it's a general statement, so it's problematic because there are types of vegetation that can grow in multiple salinity ranges. EXAMINATION BY MR. BRUNO: Q. Sure. I didn't say all, I just said some. A. Okay. Um -- yes, it did convert marsh from one salinity habitat type to another. Q. All right. So I'm trying to see if we can just globally talk about the environmental impact, the negative environmental impact of the MRGO. And if we can agree that it is essentially, number one, the erosion of the banks, the widening of the canal; number two, the fact that it provided a pipeline, if you will, for increased salinity into the channel itself; and number three, that with the increased salinity and the loss of the shoreline protection and the opening of the

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shores into the marsh saltwater was able to intrude and change the character of the marsh from fresh to salt and from low salt to high salt. That generally covers the environmental impact of the MRGO, doesn't it? MR. SMITH: Objection. Compound. A. Those -- these are three factors that would be, you know, considered environmental problems associated with the channel. EXAMINATION BY MR. BRUNO: Q. Well, these are the major ones. I'm sure I haven't listed them all. But I mean, can you think of any other major environmental issue that has been discussed within the Corps over these last forty years that the Corps has associated with the MRGO? MR. SMITH: Objection. Vague. A. No. EXAMINATION BY MR. BRUNO: Q. Okay. Now, we'll now return to those newspaper articles. Here you go, 18, 19 and 21. (Tendering.) A. Oh, wonderful. Here we go.

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Q. Yeah. I know I'm going to strain your eyes. 18 was the July 4th, '58 -- which number is that? A. I have 21. Q. That's 21? Okay. All right. Now, I think we talked a little bit about this, and you'll forgive me because I can't remember every single question that I may have asked, so just bear with me. But this reports on a meeting between the tidewater channel -- and we've already established what that was -- and a Colonel Lewis who was a representative of the Corps. Right? A. Yes. Q. Okay. And here he's asked specifically whether or not the channel may increase storm tide -- it says, Colonel Lewis -- I'm in the five paragraphs in the first column. Colonel Lewis was questioned by Edwin Roy on the effects of storm tides in the parish after the channel construction. Colonel Lewis relied that preliminary studies show that with a 20-foot storm tide in Chandeleur Sound there will only be a one-foot effect in the channel.

Okay. First of all, does the Corps regard the fact that there may be an increase in the storm tide of whatever amount to be an impact on the health and safety of the human environment? MR. SMITH: Objection. Vague as to time. MR. BRUNO: This is as of July 4, 1958. MR. SMITH: Objection. Calls for speculation. A. I don't know at the time. EXAMINATION BY MR. BRUNO: Q. Okay. Can we agree that the Corps represented to the Tidewater Channel at that time that there were not going to construct a project that was going to present hazardous conditions? That's the paragraph right above that. MR. SMITH: Objection. Calls for speculation. A. It's hard to read, but it looks like his quote is following, um -- some questioning Page 171

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by one of the other attendees about -EXAMINATION BY MR. BRUNO: Q. Building bridges, yeah. A. -- bridge construction. Right. Q. Okay. So I don't think you answered my question, which is, can we agree that the Corps represented to the Tidewater Channel Committee that they were not going to construct a project that was going to present hazardous conditions? MR. SMITH: Objection. Calls for speculation. A. You know, assuming the commander -excuse me, the Colonel is quoted correctly, that's exactly what he says, we're not going the construct a project that is going to present hazardous conditions. But the context of that is unclear and, you know, I assume it's related to the bridge discussion above. Q. Okay. Let's go to the next newspaper article. I have one dated January 16, '59. How did I mark that? Can you give me the number? January 16, '59. A. I don't have one with January 16th,

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1959. Q. All right. Let me mark this thing as Exhibit Number 45. This is a copy of the St. Bernard Voice, January 16th, '59. It is the U.S. Engineers and Dock Board Answer 54 Questions Anent Mississippi River Gulf Outlet. I guess they spelled that wrong in the headline of the newspaper. (Exhibit 45 was marked for identification and is attached hereto.) MR. BRUNO: That's what it says. MR. SMITH: That's a word. (Off the record.) THE WITNESS: You going to let us in on what it means? MR. SMITH: In it means concerning. MR. BRUNO: Thank you, Robin. EXAMINATION BY MR. BRUNO: Q. It says, late in December a fact-finding meeting was held between the

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Council 's executive committee and representatives of agencies involved. Present was Colonel William Lewis, planning coordinator for the Corps, dock board representatives and the like. I don't remember, did you answer my question about whether increasing the tides would present -- I don't recall if I got an answer to that. (Off the record.) EXAMINATION BY MR. BRUNO: Q. All right. So on Page 2 of this article there's a question, what will prevented hurricane and storm waters from flooding up the channel and inundating the upper parish and the marshland? And the answer was, no appreciable change in hurricane tides are anticipated due to construction of the channel. Okay. So given that we agree that this is a potential -- this could potentially impact the health and safety of the human environment, what evaluation if any did the Corps do in 1959 or before to enable them to answer the question the way they did when they say no appreciable change in hurricane tides

are anticipated due to construction of the channel? What do you need? A. Can we have the, um -- the pre-authorization documents? I don't know -I'm going see if I can find it. Q. That's fair. A. I just -- in reading this quickly I don't see anything, so I'm not able to answer the question. I don't know. Q. All right. So you don't know one way or the other because there are no documents that would help you answer the question, right? A. Well, not in front of me. Q. Okay. Do you think there are any other document that you might be able to review to answer the question? A. There could be. I'm not aware of any specific document. Q. Okay. Well, we will just ask if you find some, just tell Robin about it. Okay, let's move onto the next one. Let's see. It says, have any studies been made to determine whether or not the marshland will subside and disappear due to the channel waters? Answer: And E, by the way, refers to Page 175

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the Corps of Engineers. No studies are necessary as the channel waters will not make the marshlands subside or disappear. A. What number are we looking at? Q. We're looking at the same exhibit, and we went -- you need to go to the middle column, and it's Question Number 23. I'm sorry. 33. A. And the question is -- it says -- in the answer right at the time no. Q. No, my question to you is, what information allowed the Corps of Engineers to take that position that no study was necessary? What is that based on? A. I guess that it's the basis on the information available at the time. Q. All right. Well, can we agree that no study was made to determine whether or not the channel waters would cause the marshlands to subside or disappear? MR. SMITH: Objection. Calls for speculation. Also, it's vague as to time. MR. BRUNO: I mean as to January 16th, 1959.

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(Brief recess.) EXAMINATION BY MR. BRUNO: Q. All right. I'm assuming that you can answer the question now. Or do we have to re-ask it or something? A. There's reference in Design Memorandum Number 2 from June 1959 to Paragraph 61, to, um -- efforts in fiscal year 1958. Q. Let me just catch up with you. I've got the GDM. What page are you on? A. I'm on Page 24. Q. I'm with you. Page 24. You're at Paragraph -A. 61. Q. 61. Fish and wildlife agencies. Okay. All right, sir. A. It talks about the allocation of money to the fish and wildlife service, um -submittal of a preliminary report, and a report making certain general recommendations for mitigation of loss to fish and wildlife value. I thought, and I was wrong, that there may have been specific studies to subsidence, but these -- and without reading the actual report, they seem to be more about direct fish and

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wildlife values. But the interest there is the timing of this with this being a January 1959 and this is showing that there were studies of the fish and wildlife in the area prior to that. Q. Okay. All right. Let me -- we'll mark as Exhibit Number 46 a document entitled An Interim Report on Fish and Wildlife Resources as Related to the Mississippi River to Gulf Outlet Project and an Outline of Proposed Fish and Wildlife Studies. (Tendering.) Well, look at it first. The question is going to be have you ever seen it before? It's got a Bates number on it MRGO CEI 25 through 41. (Exhibit 46 was marked for identification and is attached hereto.) MR. KELLS: What was that Bates number? MR. BRUNO: It's upside down at the top left. MR. KELLS: His is at the bottom right, and it's UDI --

MR. BRUNO: Well, it's the same thing. We'll give both numbers, though. Why don't you do me the honors of giving me his numbers. MR. SMITH: It's UDI-001-000000122. Actually, that's about three pages in. The last three digits of the first page are 120. EXAMINATION BY MR. BRUNO: Q. All right. A. I have seen the document before. I don't know that I've read it entirely. Q. All right. I have just a few questions. A. But I can answer some questions. Q. It's real simple. Go to Page 10. Paragraph 26. It says, it is relatively simple to visualize changes that will probably occur where marsh vegetation and oyster reefs are concerned, effect of the channel on the many aquatic organisms and its impact on the industries that are dependent upon the harvest of these forms can hardly be speculated. Page 179

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A. Tell me the page and paragraph number again? Q. Page 10. A. Uh-huh. Q. Paragraph 26. Last one. A. Okay. Q. Okay. I'm in the last sentence. It is causing great concern among commercial fisheries industries and national organizations associated with these industries, and it is felt that this concern is justified to the extent that this project should be thoroughly investigated from the biological standpoint before construction through the marshes below Paris Road and the sound is undertaken. Question is really simple. Can you describe for me what investigations, if any, did the Corps undertake to thoroughly investigate the biological issues described in this paragraph? (Whereupon the deponent conferred with counsel off the record.) (Brief recess.) EXAMINATION BY MR. BRUNO: Q. All right. There it is. Do you

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recall the question? A. The question is, what studies resulted as, you know, to investigate the fish and wildlife, um -- values of fish and wildlife in the project area. This report, Number Exhibit 46, shows conferences between the agencies discussing potential impacts to fish and wildlife. Q. Right. A. It also results in some proposals for studies. There's reference in the design memorandum from the following year 1959 to the provision of funds for conducting fish and wildlife investigations. The document you've mentioned was coming next, the 1961 -Q. Okay. Is that one of them? A. Yes. Q. Then good, then let me hand you that, then, in fairness to you. Okay. So bottom line is, at Page 24 of Design Memo 2, Paragraph 61, refers to the fact that $64,400 was made available to the U.S. Fish and Wildlife Service for fiscal year 1959 for the purpose of doing additional biological studies, right?

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A. Yeah. Q. All right. So let me show you what I've marked as Exhibit 47. It is the Agricultural and Mechanical College of Texas Department of Oceanography and Meteorology, College Station, Texas, Research Conducted through the Texas A & M Research Foundation A&M Project 236, Reference 61-20F. Have you ever seen that before? (Exhibit 47 was marked for identification and is attached hereto.) A. I have seen this before. EXAMINATION BY MR. BRUNO: Q. Okay. What is it? A. This is a report provided by the Texas -- you know, the University of Texas A&M to the Fish and Wildlife service, Um -Q. Is that U.S. or Louisiana? A. Um -- it doesn't say United States but it's -- the Fish and Wildlife Service is a United States entity. To review the project area and recommend a program calculated to provide the most useful hydrologic background for subsequent ecological studies. It goes on to say that in September 1959 there was

additional -- a new contract broadening the scope to include biological studies. Q. Okay. All right. So that document is a survey report. Right? A. Well, it says summary report. Um -Q. Okay. By survey, I mean it documented conditions as they existed at the time that the investigation was done. Right? The channel wasn't dug yet. Or it was just starting to. A. I think it's actually, you know, a recommendation for the types of investigations to conduct. I think it does have some survey trends, if that's what you're looking for. Q. Right. A. Um -- but it's not the full report. Or not the full result of the work. Q. Okay. Do you know what if anything this report provoked the Corps to do, if anything? (Off the record.) A. Even prior to the publication of this Texas A&M summary report, which is the September 1961, the Corps was working with the Fish and Wildlife Service, evaluating potential routes for the channel, or portions of the Page 183

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channel -EXAMINATION BY MR. BRUNO: Q. Right. A. -- and accepting recommendations from the Fish and Wildlife Service on measures to include in contract plans and specifications for conservation purposes. It's based on a October 30th, 1959, and that's where I'm showing the timing is a little -Q. I'm sorry. What is October '59? A. October 30, 1959 is a coordination letter between the Corps of Engineers and the Fish and Wildlife Service -Q. Right. A. -- contained in a design memorandum 1C where the Fish and Wildlife Service provides a number of recommendations for construction of the project; containment of spoil, um -certain equipment to be used, retention dikes, et cetera. So -- it's just hard to establish the timing in terms of when this work began and the publication date itself. Q. The Texas work, you mean. A. Yes. But if you -Q. Well, it says right here, actually.

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A. Yeah. You took -Q. The summary. The data on hydrology was collected between April '59 and March 1960. And then it says -- and then throughout the summary section, which I'll hand you, I don't mean to hold it from you -A. Well, that actually makes it easier. April '59, data collection, October 1959 provision of conservation recommendations utilized in the construction plans and specifications. Q. Okay. I'm not sure that I follow that. Forgive me. This study regards data that was collected from April '59 to March 1960. So it's about a year. A. Is there a part of this document that somebody took from me? Q. Yeah. It's this. A. Okay. Let me see the whole thing. Let me take back what I said and answer again. Q. Okay. A. As these efforts were going on in field data collection that were under contract between the Fish and Wildlife Service and Texas A&M using funds provided by the Corps of

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Engineers from the project, there were also coordination activities between the Corps and the Fish and Wildlife Service that were used in Fish and Wildlife Service providing recommendations on, um -- construction practices associated with building the channel. Q. All right. Well -- okay. The original question didn't regard construction practices, it regarded the effects of the MRGO on the biota as well as the marsh and the swamp. So I think what we learned is that the Corps had available to it studies from the United States Department of Wildlife and Fisheries, this report here. Right? A. (Nods affirmatively.) Q. And the Corps was going to react to those reports as the data came in. Isn't that true? MR. SMITH: Objection. Vague. A. What was going on was the coordination between the agencies regarding the concerns that they had raised, you know, the funding of studies to find those concerns, and then the continuing application of different

recommendations to what would be constructed along the channel, or how to construct along the channel. EXAMINATION BY MR. BRUNO: Q. Okay. Well, were these studies intended to impact the construction of the MRGO or were they intended to impact the operation and maintenance of the MRGO? Or both? A. Page 2 of the Texas A&M report, El Sayed, next full paragraph on the bottom of Page 2, the responsibility of the contractor was thus to provide the Fish and Wildlife Service with information that would enable the Service to discuss with the Corps of Engineers ways in which the design of the channel might have minimal effect on the aquatic environment and so on the wildlife. The purpose of the work for Texas A&M. Q. Based upon that language, it's clear that this was intended to address the design of the channel. A. Yes. Q. Okay. All right. And what they found between the time that the study began -- well, when the study was begun, the channel was Page 187

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already designed, isn't that true? A. Um -- no, I believe that the series of design memorandums that we went through earlier today show that the portions of the route were in general accordance with the authorization and the chief's report -Q. Right. A. -- but there were additional design elements undertaken to determine the exact routing, I believe roughly from the vicinity of Bayou La Loutre and then how the channel would reach the Gulf of Mexico. So the design was not complete at that time. Q. Well, the work had begun on or after June '59. A. But in the -- what they call the industrial reaches, the first design memorandum that we went through. Do you understand? Q. Yeah. So that -- well, okay. The reason why I'm hesitating is because the comments made in all these things didn't seem to differentiate between the various sections of the MRGO. But let's see if we can sort of back up and confirm that in fact the construction on the MRGO had begun on that part

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of the reach from the Intracoastal Waterway moving south. That had started in June of '59. A. Um -- it's my understanding that construction began in the area from the Industrial Canal contiguous with the Gulf Intracoastal Waterway and that was the first construction piece which is also detailed in the first design memorandum that we spoke about. Q. 1A. A. Yes. Q. That started when? A. I don't have an exact date. Q. Just approximate. A. 1958. Q. '58. A. Yes. Q. All right. So that it's clear that work had begun before this Texas study was started. And let's see, the various design memos -- let's see. Design 1B was revised May '59, 1C is November '59, and 1A is revised July '57. So the design of the channel was complete by about May '59, at least for those sections covered by 1A, 1B and 1C, right?

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A. Yes. Q. Okay. And so this report by the Texas group was to give the Corps some information about conditions as they existed and as they may be changing -A. Can I back up? Q. Yeah. Sure. A. The 1C design memorandum is a November '59 date. Q. Let me help you with some dates. Maybe we can mark those down. I'm looking at the Development of the Mississippi River Gulf Outlet, it's NIM 700-1 through -- well, unfortunately the whole document has got that only number on it. It says, all channel excavation work was performed by cutter head pipeline dredges, blah, blah. Inner Harbor initiated 17 March '58 and completed 7 May '59. That's the first section. Second phase began 8 May '59 and complete 27 February '61. Okay? Third phase was initiated 28 February 1960 and completed 5 July '63. And then it says, this channel along the north one half of the outlet was open to shipping 25 July

'63. And then the fourth phase, to full dimensions, was 2 March '61, completed 22 July '65. Okay? And you can have this for reference if you'd like to have it. (Tendering.) A. Uh-huh. Q. Okay. A. (Nods affirmatively.) Q. All right. So bottom line is, work was ongoing as they were doing this study. Okay? A. Right. Q. All right. So this work really couldn't have impacted the design of the channel -A. Well -Q. -- isn't that true? A. It couldn't impact the design of parts of the channel that were already under construction. Q. Sure. A. Well, and even then, depending on the timing of that, it possibly could. And that's the point of the October '59, um -- Fish and Wildlife Service letter -Page 191

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Q. Okay. A. -- with direction on how to -- certain equipment to use and spoil retention and things like that. I don't have that page here. Q. Well, I don't want to belabor this but the bottom line is, this gives you a snapshot of environmental conditions as of the time of this report. And there's a summary that goes on for six pages of information which talks about the sampling and the crustaceans and all the other stuff, saltwater, salinity, all that kind of stuff. Tidewater. That information, then, could clearly form a base of information from which the Corps could deduce, over time, whether the channel was impacting the environment. Isn't that true? A. I'm sorry. Ask me again, please. Q. I said, that information could clearly form a base of information from which the Corps could deduce, over time, whether the channel was impacting the environment based on the recorded information in the report. A. Yes. You know, the field observations from the project area.

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Q. All right. Do you know whether or not the Corps ever went back in order to ascertain whether the baseline information had changed in any way from 1960 to 2005? A. Yes. Q. All right. When did that occur? Let me ask it this way: More than once? A. Yes. Q. Okay. When is the first time that occurred, then? A. I don't, um -- I don't know the specific dates. It would have been early in the life of the project, in the 1960s. Q. Okay. Do you know who did the study? A. I believe the Corps, but I'm not positive. Q. All right. You think the Corps did it? A. Yes. Q. Do you know what it revealed? A. I prefer to have documents in front of me to be exact about it. But going back to look at the project area and the fish and wildlife resources has been an ongoing effort for many years.

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Q. Okay. All right. Well, did you review the document in preparation for the deposition? A. Yes. I believe so. Q. All right. Did it have a Bates number on it. Do you remember? A. I don't remember. Q. All right. I'm just trying to figure out -MR. BRUNO: Robin, was that produced to us? A. It would have been documents out of the binders. MR. BRUNO: Okay. MR. SMITH: It would have been one of the ones you gave us, then, because I don't think we added anything to the ones you gave us. MR. BRUNO: Since we gave you the documents, do you mind just showing us the book so we can figure it out? MR. SMITH:

Sure. (Brief recess.) EXAMINATION BY MR. BRUNO: Q. All right. The question on the table was whether or not the Corps had done anything subsequent to the Texas report, and the witness has found a document entitled the Mississippi River Gulf Outlet Study of Bank Stabilization dated December of 1984 which has a bibliography of references in the back. And you tell me if I'm right, you are pointing to a report by G. Rounsefell dated 1964, the title of it is Preconstruction Study of the Fisheries of the estuarine areas traversed by the Mississippi River Gulf Outlet Project, U.S. Fish and Wildlife Service, Fisheries Bulletin 63 (2): 373393. Okay. So that's your memory of another study which evaluated the biota? A. Well, of a follow-up -- the earliest follow-up study that I can remember. And the problem is that title is pre-construction, but it's a '64 publication so that's after the period of time of the Texas A&M 1961. Q. Sure. Okay. Can we assume that any Page 195

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other evaluations done between '64 and the date of this report which contains this reference, which is 1985, would be listed here, as well? A. No. MR. SMITH: Objection. Calls for speculation. A. No. EXAMINATION BY MR. BRUNO: Q. No? All right. So there are other evaluations -A. Yes. Q. -- after '64? A. Yes. Q. Where would we go to find a comprehensive list of all of the studies done by or on behalf of the Corps to evaluate the impact of the MRGO on the biota of the marsh? A. I don't think we have a list in one place but all of the documents that I've seen are the documents that are available. Recon studies and feasibility reports and other documents, environmental impact statements. Q. Well, you have, I know, reviewed the 1976 environmental impact statement by the

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Corps relative to the MRGO. A. Yes. Q. All right. And that document certainly references all of the surveys or studies done by the Corps to evaluate the impact of the MRGO on the biota of the surrounding area, right? MR. SMITH: Objection. Calls for speculation. A. I can take look at it and we can verify that. EXAMINATION BY MR. BRUNO: Q. We have that. Because the other things you've referenced, the reconnaisance study certainly wouldn't contain such a survey, would it, the '88 and '94? Those don't do that. Nor was it the intent of those studies. MR. SMITH: Objection. Compound. A. I'm not sure I understand. The reconnaisance study wouldn't do what? EXAMINATION BY MR. BRUNO: Q. Well, you mentioned that the reconnaisance would include those kinds of

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evaluations, and the only reconnaisance that I'm aware of is the '88 reconnaisance and the '94 reconnaisance, both of which didn't really have anything to do with an evaluation of the impact of the MRGO on the biota but, rather, they were documents which reviewed past evaluations or surveys by the Corps. A. Well, there should be information in those -- I believe there are, from recollection, about prior studies and reports. Q. Right. A. And the subject was -Q. The actual study. A. -- one, the environmental concerns about the channel and the potential of what to do about it. And so if we're interested in has the Corps looked at -- since the early 1960s, has the Corps gone back and looked at those factors, that's an example of, yes, the Corps has done that. Q. Well, I guess we're maybe talking at cross-purposes. I'm not talking about a document review. I'm talking about an in-the-field evaluation of whether or not salinities have gone up, trees are getting

killed, you know, marsh grass is being killed. I mean, a field survey just like what was done by Texas back in '59 to 1960. So let me qualify my question and ask it again. I'm asking about those evaluations by the Corps which would have mandated that they go into the field, look, feel and touch the ground, the water, in order to ascertain what the real impact of the MRGO was on the environment, not a literature review. So have there been -- other than the Texas review and potentially the Rounsefell review in '64, have there been any other in-the-field evaluations of the impact of the MRGO? A. Yes. Q. Okay. And what are those? A. You provided the 1976, um -environment statement. Q. Well, that itself is not even an evaluation in the field, that's a regurgitation of what was done by the Texas folks in 1959. Isn't that true? A. No, I don't think so. Just randomly looking at a page here, the results of the Page 199

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sediment analysis conducted for this report, and then it provides various, um -- figures that follow. Q. Right. A. So it's an indication that there was field work involved in preparation of this report. Q. Well, I know, but a sediment analysis really wouldn't tell you much about whether or not the MRGO was damaging the marsh, would it? MR. SMITH: Objection. Vague. EXAMINATION BY MR. BRUNO: Q. Well, how about -- maybe this helps you: This is a report of the environmental subcommittee to the MRGO technical committee of March 2000. This wasn't done by the Corps, it was done by, um -- Pete Savoye and Brian Leblanc. Do you remember those folks? A. I knew Pete Savoy. I'm not sure about the other fellow. Q. Let me withdraw that because I'm wrong. This a letter by the U.S. Department of Interior by Kerri Curlin, field supervisor, and it seems like she is attempting to list all the

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hydrologic studies, all the biologic studies, fish and wildlife utilization studies available to her as of May 31, 1979. And this, by the way, is NED 188-1536, 37, 38, all way to 55. See if this doesn't help you. And she's with the United States Department of the Interior. (Tendering.) With a list of all the biological studies. (Off the record.) A. I haven't read this, but -- I haven't read this before, but from what I've just read here I have no reason to disagree that these are studies that have been conducted in the past. Um -Q. Okay. A. I'm not really -- I'm not disagreeing with anything you're saying. Q. All right. A. We've done studies in the past. This '76 document that you've put in front of me has evidence of field studies that are done by the Corps of Engineers for this particular report. If you didn't like the soil analysis part of it, I can point to Page 2-74, a vegetation map done with cooperating agencies, Louisiana

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Wildlife and Fisheries Commission, U.S. Army Corps of Engineers -- and something I can't read. Q. But that's my point. That's referring to the same study that's lifted here in the other report. It's not a new one. A. No. This is an August 1968 report. What is that? That's a '79, I believe. Q. No. No. No. I said this is a listing. You can go through them. It's got them all listed here. It's got the Fish and Wildlife Service report, um -- it says the Fish and Wildlife Service conducted extensive studies of marsh vegetation in the project area between '58 and June '63. And then it lists the next one. And that's entitled U.S. Department of the Interior Fish and Wildlife Service, 1960, Preliminary Report of Marsh Vegetation Study, Mississippi River Gulf Outlet Navigation Project. The next one is by Lamelle, 1961, a Preliminary Annotated Checklist of the vascular Plants of the marshes that included higher lands of St. Bernard Parish. The next one is Giles, Relationship of Vegetation to Salinity in the Marsh. And so on

and so on and so on. The point is that all of those studies are conducted in the sixties and there's really no effort -- at least we can't find any other studies which seem to indicate an effort by or on behalf of the Corps to go and evaluate the extent to which the MRGO is impacting the biota, the plants, salinity levels, et cetera, after that date, where they actually go out in the field and evaluate are the trees dying, are the plants dying, is the marsh changing from brackish to, you know, et cetera? Those kinds of things. That's what I'm referring to. I'm not referring to, um -- sediment studies, which are different. A. I believe -MR. SMITH: I'm not sure what the question is. What's the question pending? EXAMINATION BY MR. BRUNO: Q. The question pending is, isn't it true that this is a comprehensive list of all the biological studies done by or on behalf of the Corps to evaluate the connection between the MRGO and adverse impacts on the environment in Page 203

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the immediate area of the MRGO? MR. SMITH: Objection. EXAMINATION BY MR. BRUNO: Q. That's the question. MR. SMITH: Objection. Calls for speculation. Asked and answered. A. Okay. I don't know that that's a comprehensive list. You know, I will tell you that, I guess we disagree here, there is field work referenced in here -Q. In here being? A. -- in the 1976 Environmental Impact Statement that dates after the references we had talked about in the early 1960s. There are other studies available, um -- that I am aware of where the Corps was involved in field investigations of the marsh areas around the Mississippi River Gulf Outlet. Q. Okay. All right. Fine. So the Corps has been -- has had the advantage of biological studies from 1959 up until the present day. So what has the Corps learned from 1959 to the present day about the impact of the MRGO on the

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environment? MR. SMITH: Objection. Vague. EXAMINATION BY MR. BRUNO: Q. Have those studies that you are referencing that have taken place from '58 to 2005 indicated that the MRGO is negatively impacting the health and safety of the human environment? MR. SMITH: Objection. Vague. A. Some of the studies are just documentation of environmental information, water quality, various species presence or absence, fisheries communities in the lakes. They make no judgment on health and safety of the environment. Other studies, um -- associated with wetlands loss talk about the magnitude of -you know, the rate of loss and others, but they make no reference to the implication of that on human health or safety. Q. Okay. All right. Well, then, let's try it a different way. All of those studies that you've been talking about that occurred

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from 1959 to 2005, they do reflect that the MRGO has changed its environment, isn't that true? A. Taken as a whole, yes. Some of them don't -- not all of them say -- show a change. Some of them just document what is there, what fishery community is there in a lake. Q. Sure. A. But taken as a whole, um -- those studies -- you can draw the conclusion that yes, the MRGO has changed the environment there. Q. Right. And it's been consistent that -- not so much whether it's been -- not the degree, but there has been change from 1959 when the first study was done up until 2005 before Hurricane Katrina, it has been constant change, although the degree of change may be higher or lower at any particular point in time. Isn't that true? A. No. Q. Is there a time period where everything stayed the same, it stayed stagnant? A. I can't speak to exact in terms of timing, but in general there appears to have

been a shift in the type of habitat and then a stabilization. Um -- I'd have to talk to some colleagues to put a better time on it. Q. Okay. Well, believe me, I'm not trying to get you to give me like a month, but can you give me a decade? Sixties and seventies? A. Yes. Q. All right. A. Seventies. Q. Seventies? Stabilization occurred sometime in the seventies? A. Well -Q. Just sometime. I'm giving you a whole decade. A. Yes. Q. Okay. Now, what has stabilized, is it the quantity of salt or the fact that, you know, whatever is dead is now dead and there is no more death of trees and marsh, that's done? Or -A. Well, in general, the salinity stabilized after a period of time at a higher level than it was before the channel. Q. Okay. All right. Page 207

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A. But there are lots of other factors that are causing changes to the environment in this area. It's not just the MRGO and salinity or the change in the vegetation type. An example is the lake shore of Lake Borgne. That shoreline erodes with wind blown erosion from the passage of cold fronts. It's changing the environment there. There are bayou systems that are not the same because of that erosion, but the presence of the MRGO is irrelevant to those actions. Q. Uh-huh. All right, sir. But with regard to those things caused by the MRGO which we recognize to be the increased salinity and the resultant loss of vegetation and trees and the like, that has stabilized? A. In general, I believe a change in habitat from areas of lower salinity to higher salinity has stabilized since approximately the 1970s. Q. Okay. A. After the construction of the channel there was a period of shift, and then we -- you know, we observed other factors that continue to affect the environment.

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Q. Okay. The central wetlands unit. Do you know what I'm referring to there? A. Yes. Q. Okay. The death of that, of the trees and the marsh in that area, can I conclude from what you're telling me that that began in '58 and was roughly done by about the mid seventies? A. No. Q. It was not finished yet? A. Well, I believe it may have started earlier than that, prior to the channel 's construction. Q. All right. What do you believe was another cause of that, of the loss of the central wetlands unit? A. Ditching and draining for agricultural purposes. Mosquito control, logging. Q. Okay. And of course the best way to ascertain that is to, again, use that snapshot in 1958 and compare it with a snapshot in 1976. MR. SMITH: Objection. Vague. MR. BRUNO: I'm just picking that as --

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EXAMINATION BY MR. BRUNO: Q. In the central wetland unit, yeah. A. In the sense of what? Q. In the sense of comparing the contribution of the MRGO. MR. SMITH: Objection. Vague. A. I don't think that would give you the whole answer. I think there are other factors occurring at that same time. EXAMINATION BY MR. BRUNO: Q. Sure. A. Or excuse me, not at that same time, in that time period -Q. Sure. Okay. A. -- that would have affected the central wetlands complex. Q. So MRGO is not the only cause, but it's certainly a substantial caution. MR. SMITH: Objection. Vague. EXAMINATION BY MR. BRUNO: Q. Wouldn't you agree? A. It is a cause of some of the wetland changes in that mapping unit.

Q. Okay. All right. Let me have -- take some paper out of your way. Did I give you this already? A. Not that I know of. No, I don't think so. Q. All right. The next document I'm going to show you is marked as -- is not marked. I'm doing to mark that 48. May 29, '57, the Statement of the Louisiana Wildlife and Fisheries Commission relative to the New Orleans to the Gulf Tidewater Channel. (Tendering.) Have you ever seen that before? (Exhibit 48 was marked for identification and is attached hereto.) A. I have seen this before. EXAMINATION BY MR. BRUNO: Q. All right. That document was transmitted to the Army Corps of Engineers; correct? A. I don't know. Q. All right. A. My recollection from when I read it the first time is I couldn't tell who it was sent to. Q. Okay. Page 211

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A. It doesn't show the form, it doesn't show as a letter addressed to anyone, so I'm not sure. Q. Okay. Well, the document reports an opinion that the proposed route which is described by us as Reach 2 would result in adverse affect, including tidal action would be increased in the marsh pond areas and higher salinities, increased turbidity and a wider range of salinities would occur. A. Could you tell me a page or paragraph? Q. I'll find it for you. Found it? A. No. Q. These adverse effects will occur as the present project route is planned: Tidal action would be increased in the marsh pond areas; higher salinities, increased turbidity and a wider range of salinities will result; spoil deposition would fill in large numbers of marsh ponds formerly attractive to waterfowl. That's what's being reported there. A. The question? I'm sorry. Q. The question was whether or not the document reports those beliefs. A. No, it does read tidal action will be

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increased in marsh pond areas; higher salinities, increased turbidity and a wider range of salinities will result; spoil deposition would fill in large numbers of marsh ponds formerly attractive to waterfowl. Q. Okay. Thank you. I show you a document which I've marked as 49. It's to the District Engineer from the United States Department of the Interior, from Walter Gresh. In this letter, Mr. Gresh warns the Army Corps that the canalization from spoil will destroy habitat in the area of right-of-way and spoil deposition. Isn't that true? (Exhibit 49 was marked for identification and is attached hereto.) MR. SMITH: Objection. Calls for speculation. This is a draft. It's not signed. EXAMINATION BY MR. BRUNO: Q. It's NRG document 50-386 produced by the government to plaintiffs. Let's brake it down into two parts. The letter as written in draft form does give that warning, does it not?

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A. I don't really see where you're reading. Can you tell me a paragraph? Q. All right. Next one. (Following a discussion off the record the deposition was recessed for the day.)

WITNESS' CERTIFICATE I, GREGORY MILLER, do hereby certify that the foregoing testimony was given by me, and that the transcription of said testimony, with corrections and/or changes, if any, is true and correct as given by me on the aforementioned date. ______________ DATE SIGNED

_________________________ GREGORY MILLER

_______ Signed with corrections as noted. _______ Signed with no corrections noted.

DATE TAKEN: October 10th, 2008 Page 215

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REPORTER'S CERTIFICATE I, JOSEPH A. FAIRBANKS, JR., CCR, RPR, Certified Court Reporter in and for the State of Louisiana, do hereby certify that the aforementioned witness, after having been first duly sworn by me to testify to the truth, did testify as hereinabove set forth; That said deposition was taken by me in computer shorthand and thereafter transcribed under my supervision, and is a true and correct transcription to the best of my ability and understanding. I further certify that I am not of counsel, nor related to counsel or the parties hereto, and am in no way interested in the result of said cause.

____________________________________ JOSEPH A. FAIRBANKS, JR., CCR, RPR CERTIFIED COURT REPORTER #75005

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ANDRE 85:19 ANDRY 84:20 and/or 108:12 156:11 166:23 214:6 Anent 172:6 angle 125:9,19 126:15 Annotated 201:21 annual 159:6 answer 88:13 108:18 114:8 117:4,12 118:19 120:13 127:2,14 128:19 129:6,10 129:17,22 130:1 130:19 131:1 160:5 163:6 172:5 173:6,9,16,24 174:8,12,16,25 175:9 176:4 178:17 184:20 209:9 answered 117:23 162:20 163:20 167:5 171:5 203:8 anticipated 173:17 174:1 APLC 84:9 apologize 111:20 125:22 126:12 apparent 144:5 apparently 90:22 appear 139:17 appears 110:13 136:25 165:4 205:25 appendix 96:19 97:7 98:1 100:4 100:12 application 185:25 appreciable 173:16 173:25 appreciate 97:1 apprised 135:15 approaches 94:19

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bank 128:10 153:22 154:3 194:8 banks 113:10 121:10 122:11 131:18 135:15 162:8 166:10 167:20 Baronne 84:5,22 barriers 145:3 146:6 base 191:14,20 based 97:18 126:2 132:9 143:14 144:16 175:13 183:7 186:19 191:22 baseline 192:3 basically 132:18 152:11 basin 94:12 basis 94:17 108:20 108:23 135:18 141:22 149:20 175:14 Bates 96:21,25 97:4 97:13 100:20 111:2 112:16 158:13 177:15,20 193:5 Baton 84:17 bayou 104:21 105:2 139:5,6 142:21 146:17 147:24 187:11 207:8 beach 106:1 bear 169:9 began 183:21 186:24 188:4 189:20 208:6 beginning 103:18 begun 153:14 186:25 187:14,25 188:19 behalf 195:17

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blown 207:6 board 105:17,21 106:2,10,18 109:20 112:5,9 172:5 173:4 bodies 163:12 body 123:13 book 193:23 Borgne 94:4 98:15 98:19,23,24 102:7 144:24 145:15 207:5 bottom 92:11 109:3 124:18 125:10,12 125:13 146:12 164:18 177:24 180:19 186:10 190:9 191:6 Boulevard 84:11 bound 118:10 Bowen 156:23 157:3 161:9,18 Box 85:6 brackish 202:12 brake 212:22 branch 85:3 91:7 104:2 BREACHES 83:4 break 131:4 137:6 154:23 156:2,3 160:14 BRENDAN 86:6 Brian 199:18 bridge 94:19 171:4 171:20 bridges 171:3 Brief 131:7 176:1 179:23 194:2 bring 127:1 broadening 182:1 broken 98:23 brought 157:12,20 158:8 159:21 BRUNO 84:2,2,3 87:5 89:8 96:11 96:23 97:6 100:16

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183:19 191:2 certainly 93:24 116:7 135:14 196:4,16 209:19 CERTIFICATE 214:1 215:1 Certified 83:25 88:23 215:3,25 certify 214:4 215:4 215:13 cetera 103:1 183:20 202:8,12 Chalmette 151:1 154:4 chances 103:4 Chandeleur 94:5,6 94:10 112:13 113:6 149:1,4,9 169:23 change 147:9 168:2 173:17,25 205:5 205:15,18,18 207:4,17 changed 160:19 166:19 192:3 205:2,11 changes 178:20 207:2 209:25 214:6 changing 189:5 202:11 207:7 channel 93:1,22 94:15 95:3,22 102:9,19,22 103:22 107:5,7,10 109:18,19 111:17 112:11 113:1 114:10,15,19,22 115:3 117:1 119:8 119:19 121:9,10 121:16,23 123:25 124:5,14,18,19,20 124:23 125:8,10 125:12,14,16 126:6,6,10,14,15 128:10 129:9

131:23,24 132:2 132:25 133:7,24 133:25 134:6,11 134:15 136:8 137:1,13 138:9 141:17 142:5,10 142:24 144:11,24 145:23 146:18,21 148:14,17,25 159:7 162:14,17 166:5 167:22 168:10 169:10,16 169:21,25 170:16 171:7 173:15,18 174:2,24 175:2,18 178:22 182:8,25 183:1 185:6 186:2 186:3,15,21,25 187:11 188:23 189:15,24 190:15 190:19 191:15,21 197:15 206:24 207:22 208:12 210:11 channels 145:1 146:4 character 168:2 charge 91:19 CHARLES 85:20 check 99:25 Checklist 201:22 chief 91:6 93:8,12 98:9 99:7,14 105:11 106:7,22 107:6 109:20 110:7 113:15,20 115:2 116:18 118:3 119:6,15,18 120:1,4,21 126:5 150:12 chiefs 120:19,20 chief's 187:6 chose 155:2 159:14 CHRISTOPHER 85:22 citing 151:13,14

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City 84:12 Civil 83:4 85:3 88:6 156:23 clays 114:23 123:14 132:3 clear 131:13 186:19 188:18 clearly 99:12 104:4 191:13,19 closer 98:19,22 136:16,17 coast 104:1 coastal 145:4 146:6 coexistent 140:7 coexists 138:18 cold 207:7 colleagues 206:3 collected 184:3,14 collection 184:8,23 College 181:4,6 Colonel 156:23 161:9,18 169:12 169:17,19,21 171:15 173:3 column 169:19 175:6 come 129:10 comes 126:1 coming 180:15 commander 171:14 comment 101:12 comments 91:12 92:7,20 104:13 187:21 commercial 179:8 Commission 97:15 99:5,21 100:3 101:13,19 102:21 144:20 145:14,21 201:1 210:10 Commissioners 109:21 112:5,10 committee 171:8 173:1 199:16 communication 108:12 164:1

communities 204:15 community 205:7 comparable 157:8 compare 208:21 comparing 146:25 209:4 complete 101:24 105:24 187:13 188:23 189:21 completed 189:18 189:23 190:2 completeness 112:15 146:15 complex 209:17 component 157:18 Compound 168:7 196:20 comprehensive 195:16 202:22 203:10 computer 215:9 concern 134:17 142:22 145:9 163:10 179:8,11 concerned 178:22 concerning 172:20 concerns 143:6,10 163:8 165:14 185:22,24 197:14 conclude 108:8 143:11 208:5 concluded 141:5 concluding 131:25 143:21 conclusion 106:13 107:25 132:11 134:7 135:19 205:10 concurrence 109:14 concurring 112:2 concurs 109:17 condition 157:11 157:20 158:6 159:21

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conversations 99:19 conversion 123:12 convert 167:13 cooperating 200:25 cooperation 106:1 coordinate 105:9 coordinates 93:19 coordination 89:17 90:13,20,25 91:2 91:4 99:11 109:9 110:6 140:15,22 165:25 183:11 185:2,21 coordinator 173:3 copy 96:25 112:15 172:3 Corps 83:13,14 85:11,12 89:2,14 89:18 90:14 93:16 93:24 94:22 99:21 103:5 104:8 110:18 113:9 115:10 118:4,9 120:7,15,17,22,25 121:4 122:10 127:1 131:15,16 135:14,17,20 142:1 143:12 144:11,14,25 145:8,11,12,25 146:3,7 150:1,19 151:5,8 152:9 153:2,12 154:7 156:10,20 157:19 158:4 159:20 162:9,15 163:8 164:1 166:3,9 168:15,16 169:13 170:1,15 171:7 173:4,23 175:1,11 179:18 182:18,23 183:12 184:25 185:2,12,16 186:14 189:3 191:14,20 192:2

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curves 94:2 cuts 145:2,5 146:4 cutter 189:16 D D 87:1,6 97:21 98:8 98:9 105:3 damage 102:25 144:12 154:10 damaging 199:10 DARCY 85:21 data 135:2,8 141:6 184:2,8,13,23 185:17 date 97:21 101:1,3 159:23 160:11,11 160:12 165:5,12 183:22 188:13 189:9 195:1 202:9 214:8,11,25 dated 101:6 150:17 157:4 171:22 194:9,12 dates 189:10 192:12 203:15 Davis 92:12 day 203:23,25 213:5 days 89:9 dead 206:19,19 deal 104:22 128:14 152:8 dealing 164:2 death 166:16,22 206:20 208:4 decade 206:6,15 December 172:24 194:9 decision 148:2 DECKER 85:21 deduce 191:15,21 deemed 156:12 157:24 deep 94:13,15 102:21 112:11 deferred 148:17

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deterioration 166:10 determination 133:18 147:22,23 determine 174:23 175:17 187:9 determined 105:24 158:10 determines 144:11 development 109:16 112:3 133:5 138:7 139:13,18,22 160:19 161:4 163:7 189:12 dialogue 107:4 108:3 DIETZEN 86:4 difference 104:22 105:1 138:10 146:23 147:13,14 148:3 different 104:9 105:6 111:14 137:12 161:17 185:25 202:15 204:24 differentiate 187:22 difficult 129:1,6,16 difficulty 102:9 digits 178:9 dike 94:10,11 113:3 142:25 143:24 144:4,15 148:13 dikes 101:24 113:11 143:3,12 148:22 183:19 dimensions 190:2 direct 176:25 directed 158:22 direction 191:2 Director 109:12 dirt 124:2,3 disadvantage 101:15,21

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disagree 200:12 203:11 disagreeing 200:16 disagreement 108:20,24 disappear 174:24 175:3,19 discharge 142:20 discretion 106:11 107:6 108:2 discretionary 129:4 discuss 186:14 discussed 102:19 168:15 discussing 180:7 discussion 102:8 171:20 213:4 discussions 141:12 dispersal 143:4 district 83:1,2,15 89:3 100:7 120:2 156:24 212:8 disturbed 103:2 Ditching 208:17 Division 85:3 110:14,15 DM 118:7 dock 172:5 173:4 document 90:19 91:10 101:5,11 103:12 105:3,9 106:17 108:25 109:24 110:1,10 110:12 111:1 112:15,18,22 121:8,12 135:6 136:23 137:5,5,11 148:9 150:13 151:7 152:19 174:15,18 177:7 178:13 180:14 182:3 184:16 189:14 193:2 194:7 196:3 197:23 200:20

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204:13 equipment 183:19 191:3 erode 121:9 124:1 133:11 eroded 155:5 erodes 128:10 207:6 eroding 124:18 133:13 153:13 154:9 erosion 106:2 114:20 121:14,22 122:11,14 123:10 123:11,19,21 124:13,16 129:7,8 131:18 132:1,10 132:17 135:15 162:8,14 166:11 167:19 207:6,9 Errol 94:6,24 95:4 98:11 106:17 especially 134:20 135:9 ESQ 85:19,20,21 85:22,23 86:3,4,5 86:6 ESQUIRE 84:3,4 84:10,15,21 85:4 85:5,13 essentially 167:19 establish 156:6 183:20 established 169:11 estimate 149:23 estuarine 194:14 et 103:1 183:20 202:8,12 evaluate 159:25 160:18,18 195:17 196:5 202:6,10,24 evaluated 194:19 evaluating 182:24 evaluation 122:18 122:23 123:2 131:15,17,21

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four 128:8 131:2 fourth 190:1 framework 107:8 163:2 Franklin 85:7 frankly 107:1 fresh 168:3 freshwater 102:25 166:16,24 front 136:3 174:13 192:21 200:20 fronts 207:7 full 109:14 146:10 182:15,16 186:10 190:1 function 129:4 functioning 157:12 157:21 159:22 funding 114:4 185:23 funds 142:2 180:13 184:25 furnished 132:24 133:1,22 134:14 further 92:24,25 98:20,24 106:5 133:3 144:4 215:13 future 142:22

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Intracoastal 94:2 94:16 109:8 140:8 188:1,6 intrude 168:2 intrusion 164:10 165:1 inundating 173:15 invented 138:15 inverted 132:19 investigate 179:19 180:3 investigated 179:13 investigation 182:8 investigations 179:17 180:14 182:11 203:19 involved 103:18 173:2 199:6 203:18 in-the-field 197:24 198:14 irrelevant 207:10 Island 94:6,6,24 95:4 98:11 106:17 islands 94:11 112:13 issue 115:25 118:13 140:10 162:13 166:8 168:15 issues 165:25 179:19 I-DEP 86:1 J January 101:8 123:3 171:22,24 171:25 172:4 175:25 177:2 Jefferson 84:16 jetties 94:9 113:3 113:10,21 jetty 114:2 Jimmy 92:12 Joe 103:9 115:6,22 122:1 127:24 129:25 130:19,23

JOSEPH 83:24 84:3 88:22 215:2 215:24 JR 83:24 84:9,10 88:22 215:2,24 JUDGE 83:6 judgment 204:16 July 101:6 169:2 170:9 188:22 189:23,25 190:2 June 96:15 150:17 176:7 187:15 188:2 201:15 JUSTICE 85:2 justified 148:17 179:11

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low 102:23 166:20 168:3 lower 110:14 126:18 127:5 136:16 205:19 207:18 lunch 156:2,3

201:22 marshland 173:16 174:23 marshlands 175:3 175:18 material 143:5 matter 115:20,22 121:3 M maximum 145:5 M 83:10 84:3 87:1 MCKERNAN 122:9 181:7 84:14 magnitude 204:19 mean 107:13 maintenance 111:12 113:7 148:18 159:7 121:17 123:16,21 186:8 123:23 128:4 major 164:9 129:8,10 133:9 168:12,14 152:1 168:13 making 176:20 175:25 182:6 man 122:14 183:23 184:6 mandated 198:6 198:2 map 97:25 99:1 meaning 110:18 149:3 200:24 123:1 133:23 mapping 209:25 165:14 March 97:17 means 119:12 150:10 152:25 121:21 123:25 184:3,15 189:18 127:6,17,21 190:2 199:17 172:18,20 mark 171:23 172:2 meant 124:22 177:7 189:11 142:14 165:12 210:8 measured 143:3 marked 172:9 measures 141:18 177:17 181:3,10 143:5 183:5 210:7,8,13 212:7 Mechanical 181:4 212:14 meeting 169:10 marsh 103:1 147:3 172:25 147:8 166:17 memo 131:14 167:13 168:1,2 135:24 136:6 178:21 185:10 138:3 139:17 195:18 198:1 140:12,19 147:18 199:10 201:14,18 147:19 153:4 201:25 202:11 156:21,23 158:14 203:19 206:20 159:9,13,14 208:5 211:8,16,20 180:20 212:1,4 memorandum 96:3 marshes 94:5 96:14 97:11,24 166:13 179:14 106:9,25 114:7,10

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119:3,15 120:5,6 121:3 125:21,25 134:22 137:7,20 137:21 140:5 146:15 147:21 149:12,18 150:16 151:15,20,23 152:21 153:2,7,9 153:9 176:6 180:12 183:15 187:17 188:8 189:8 memorandums 151:24 187:3 memory 89:23 99:23 116:9 194:18 memos 159:15 188:21 mention 150:24 mentioned 180:15 196:24 merely 161:11 met 89:12 Meteorology 181:5 Mexico 94:9 147:25 187:12 Michoud 94:3 139:24 140:1 mid 208:7 middle 101:14 175:6 mile 114:10,11 121:5 136:11,11 136:14,15,16,17 146:16,16 miles 95:3 103:21 121:5 135:25 Miller 83:14 89:1,9 98:2 118:22 122:9 128:4 131:9 214:3 214:11 mind 193:23 mine 110:10 116:10 minimal 186:16

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198:9,15 199:10 109:16,21 112:6 199:16 202:7,25 112:10 133:4,13 203:1,25 204:7 137:11 138:6 205:2,11 207:3,10 139:13 182:1 207:13 209:5,18 201:6 210:10 multiple 116:3,23 Newman 151:25 158:21 167:8 newspaper 168:23 171:21 172:8 N NICK 86:4 N 87:1,1,1,6 88:1 NIM 189:13 named 89:4 Nods 111:5 150:6 narrow 161:25 185:15 190:8 national 179:9 north 94:6 142:23 navigation 103:20 148:14 189:24 150:8 152:24 northeast 105:6 164:22,23 201:20 144:6 near 98:14 note 117:21 159:8 necessarily 145:16 noted 106:21 necessary 113:23 214:13,15 114:25 119:5,14 notes 112:4 132:14,18,20 notice 88:7 98:13 134:11 143:13 122:9 156:7 144:6 156:12 November 157:5 157:24 175:2,12 165:8 188:22 NED 200:4 189:8 need 106:23 114:24 NRG 212:21 119:5,19 128:21 number 96:15,21 128:25 132:9,13 97:4,13 100:11,20 132:16 133:1,17 101:16 104:6,9,19 133:18,20 134:5 105:17 109:3 134:10,16,19 111:2 114:7,10 135:18 137:1 118:8 137:21 149:25 174:2 138:25 141:1 175:6 143:23 144:3,13 needed 132:8 147:18 149:12,13 160:20 150:13,16,21 needs 106:11 151:15,23 152:12 131:22 152:21,22 153:3,3 negative 167:17 156:22,22,25 negatively 142:6 157:7 158:13,14 204:7 158:15,17 167:19 neither 103:3 167:20,23 169:2 never 130:9 171:24 172:3 new 83:15,16 84:6 175:4,7 176:7 84:23 85:15 89:2 177:7,15,20 179:1 89:3 100:7 109:7 180:5 183:17

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