Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

Document 194-2

Filed 04/25/2007

Page 1 of 18

EXHIBIT A

Case 1:99-cv-04451-ECH

Document 194-2

Filed 04/25/2007

Page 2 of 18

i

1

IN THE UNITED STTES COURT OF FEDERAL CLAIMS

2
3

JOHN H. BANKS, et al,

4
5 6 7
8

Plaintiffs,
-vsNo. 99-445 L

THE UNITED STATES,

Defendant.

9

/

10 11
12

DEPONENT: GUY A. MEADOWS, Ph. D .

cej

,

'.'-'"

13

;'~~t,,-:

14

DATE: Wednesday, December 6, 2000 TI ME : 11 : 00 a. m.
LOCATION: 2600 Draper, Ann Arbor, Michigan
REPORTER: Nora Grenier, RMR, CRR, CSR-2642

15
16
17 18

19

20 21
22
23 24

25
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Case 1:99-cv-04451-ECH

Document 194-2

Filed 04/25/2007

Page 3 of 18

2

1 APPEARCES:
2

3 MR. JOHN B. EHRET
4 20860 Greenwood Drive
5 Olympia Fields, Illinois 60461

6 708-748-8975
7 Appearing on behalf of the Plaintiffs.
8

9 US ARMY CORPS OF ENGINEERS

10 BY: Mr. Gary W. Segrest
11 477 Michigan Avenue, Rm. 659

12 Detroit, Michigan 48231

13 313-226-2215

14 Appearing on behalf of the Defendant.
15

16 US DEPARTMENT OF JUSTICE

17 BY: Mr. Alan Brenner
18 601 Pennsylvania, N.W., Rm. 847
19 Washington, P. C. 20004

20 202-305~0466

21 Appearing on behalf of the Defendant.
22 23
24

25

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Case 1:99-cv-04451-ECH

Document 194-2

Filed 04/25/2007

Page 4 of 18
8

1 proj ect of special merit -2

MR. EHRET: Why don i t we enter this

3 as Exhibi t 3, please.

4 DEPOSITION EXHIBIT 3
5 WAS MARKED BY THE REPORTER

6 FOR IDENTIFICATION.
7

Q.

(BY MR. EHRET)

I'm a mechanical engineer
I went to Cornell

8

also.

So, we have that in common.

9 but probably about the time when you were born, 1952 I

10 graduated.
11
12

A.
Q.

I see.

Now, in your project you established project,

13 by proj ect I mean Exhibi t 3 proj ect, you established
14 survey lines, is that what you call

them, or

15 transects?
16

A.

If I can make a clarification on your

17 characterization. You said our most recent report.
18

Q.

Okay.
We have enjoyed 12 years of continuous funding

19

A.

20 by the Michigan Department of Environmental Quality,

21 and there are both reports prior to and since this
22 report that deal with coastal processes on the Lake

23 Michigan shoreline.

24 This particular proj ect reports as
25 of 1998 the most recent surveys on selected lines that

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Case 1:99-cv-04451-ECH

Document 194-2

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Page 5 of 18

9

1 we have - - survey lines that we have establ ished for

2 coastal monitoring for the Department of Environmental

3 Quality.
4

Q.

So, those lines were previously established

5 though?
6 7
8

A.
Q.

That's correct.
In earlier reports?

A.
Q.

That's correct.
IL.d since this report which we are - - which we

9

10 have marked as Exhibit 3, YOl ~'J_ave done anot r

11 report?
12 13

A.
Q.

Several others.
Having to do with these same survey lines?

14 15

A.
Q.

That's correct.
And were those reports intended to produce the

16 same kind of appendix one charts of the bot tom of the
17 lake at those same survey points?

18 A. We have done a number of things in subsequent
19 reports. We have continued to monitor all of the U of
20 M lines, meaning University of Michigan permanent

21 survey lines that were established in 1987 and first
22 surveyed in 1988. We have continued to monitor those
23 at least annually, and in some of those more often

24 than once a year.

25 Some of the reports deal with the
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10

1 impact of private shore protection structures on the

2 shoreline and some of those deal with the impact of

3 larger federal structures on the shoreline.
4

Q.

In connection with the impact of the larger

5 federal structures, have you ever actually tried to
6 analyze the volume of sand that is accumulated north

7 and south of the jetties at St. Joe?
8

A.

Yes, we worked in the St. Joseph i s region a

9 substantial amount over this 12 -year period both ~nder
10 contract froD' Michigan DEQ at well as from the ;, .my

11 Corps of Engineers in monitoring their beach fill
12 programs.
13
Q.

So, if I wanted to know how much volume is

14 accumulated in the fillet to the north of the jetties
15 at St. Joe, would I look in this report or some other

16 report?
17
A.

We would never have performed the calculation

18 of the rate of increase of total sediment volume or 19 the rate of change of total sediment volume in the

20 updrift side. Most of our efforts have been

21 concentrated on the southern side of the harbor.
22

, There are, however, several lines

23 to the north of the St. Joe that were monitored

24 for a number of years under Corps of Engineer

25 contracts.

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Page 7 of 18
:20

1 closure, that term implies that the waves are no

-----I

2 longer able to move that sediment. So, losing
3 sediment to the offshore region loses that sediment

4 forever.

5 Similarly sediment can be
6 transp~rted out of a particular region parallel to the
7 shoreline and if sufficient sediment is not brought in 8 from the updrift side, then again there is a net loss

9 of sediment to that region.
10

We consider near shore sediment)s a

11 natural resource that needs to be managed and

12 preserved.
13

Q.

Have you ever heard the term total barrier to

14 littoral drift?
15 16

A.
Q.

Yes, sir.

Is that a term you use?
Yes, it is.

17
18

A.
Q.

Do you consider that the jetties at St. Joseph

19 represent a total barrier to littoral drift?
20

A.

I wouldn i t consider them a total barrier.

21 There is some sediment that does move around the

22 outside from the north to the south which necessitates 23 periodic dredging of the harbor entrance. So, some 24 sediment is getting around there, but for practical

25 purposes the St. Joseph harbor and other harbors

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Case 1:99-cv-04451-ECH

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Page 8 of 18

21

1 similar to it are a very significant barrier to the
2 longshore transport of sediment.
3

Q.

And we started to get close to discussing how

4 much sand was accumulated on the north side of the

5 jetties at St. Joseph. Do you have a number in mind

6 or
7

A.

I don't have a number in mind simply because I

8 have not done the calculation. Based on our survey
9 data as well as Corps of Engineers survey data it is

10 certainly possible to calculate the tota- volume of

11 sediment on the northern side.

12 Also from our wave analysis studies
13 we estimate that somewhere between 50 to 60 thousand

14 cubic yards of sediment could potentially be 15 transported along that shoreline given the wave energy

16 that is incident along that section.
17
Q.

And that section being to the north or to the

18 south?
19

A.

That section being -- looking to either side

20 of the harbor wi th the harbor in the center, the
21 incident wave climate that strikes that shoreline 22 given the geometry and orientation of that shoreline, 23 those waves have the potential to transport somewhere
24 between 50 to 60 thousand cubic yards of material from

25 north to south.

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22
1 2
3

Q.

On

an annual basis?
an annual

A.
Q.

On
SO

basis.
would move along there

that that sand

if

4 the piers weren't there?
5

A.
Q.

That is correct.

6

Have you ever heard of a design that would

7 permit the piers to be there but allow the sand to go

8 through?
9

A.

Attempts to allow sand to naturally pass a

10 struc~ure have not been successf ~l, but there
11 certainly is a variety of mechanical means

by which

12 sediment can be transported around the structure. 13 These are called sand bypassing operations. They have
14 existed in a number of harbors.
15
Q.

And what do they consist of? Essentially are

16 they dredging?
17
A.

They consist of some form of dredging that

18 picks sand up from the updrift side where it is
19 impounded by the structure and mechanically transports
20 it to the downdrift side which in this case would be

21 the southern side of the structure at a rate equal to
22 the potential transport by the waves.
23
Q.

Are you familiar with the Corps i mitigation

24 program for St. Joseph harbor?
25
A.

I am familiar with it in general but not with

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Case 1:99-cv-04451-ECH

Document 194-2

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Page 10 of 18

23
1 the specific quantities that have been transported

2 each particular year.
3

Q.

Are you familiar with - - do you know

4 Mr. Nairn, Rob Nairn?
5
6

A.
Q.

Yes, I do.

I i m going to show you - - I i m not going to mark

7 this but it's a technical report CHL-97-15 dated July
8 1997 and it i S entitled effectiveness of beach

9 nourishment by Robert B. Nairn.

10 Do you know any of these other
11 gentlemen, Peter Zuzack (phonetic), Andrew Morange

12 (phonetic), Larry Parsons?
13

A.

I know Andrew Morange and Larry Parsons from

14 the Corps of Engineers water waste experiment station.
15

Q.

Okay, thanks. Now, in this brochure or book

16 or technical report -- I take it you've looked at

17 this?
18

A.
Q.

Yes, I have.

19

There is a table which purports to show the

20 beach nourishment that the Corps has done for the St.
21 Joe harbor over a period of years. Do you remember

22 having seen that? I'm trying to find it for you so
23 that your memory will be refreshed.
24

A.
Q.

Thank you.
I know I pulled it out of here but I just

25

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Case 1:99-cv-04451-ECH

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24

1 2
3

can't seem to put my fingers on it.

DEPOSITION EXHIBITS 4, 5, 6

WERE MAKED BY THE REPORTER

4
5 6

FOR IDENTIFICATION.

Q. Now, I don't expect you to digest all those
figures, but if anybody could, I think you could.

7
8

They do show what Mr. Nairn has published and I assume
he acquired this information from the Corps records,
what the annual mitigation has been.

9

10 11
12
13

This is a chart which came frome
same report, the same technical report, CHL 97-15 showing that the mitigation has dropped off in the
period of 1991 through 1995.

14

His paper is in cubic meters, and
I've converted 40 thousand 852 cubic meters to 53

15
16

thousand 532 cubic yards.
A. That would be about right.

17
18

Q. Were you -- are you privy to all this
information or have you ever studied this in any way?

19 20 21
22 23 24

A.

I have not studied it in any detail.

I am

aware that it exists.

Q. I i m struck by the similarity between the
number you used of the capability of the waves, the

wave climate to move 50 thousand cubic yards to the
south annually and the number 53 thousand cubic yards

25

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25

1 which the Corps according to these records has
2 historically been putting down at various places along

3 the shore south of St. Joe.

4 Were you previously aware of this

5 similari ty?
6
7

A.
Q.

No, sir.
So, theoretically based on that information

8 what would that lead you to conclude?
9

A.

That if they have indeed placed somewhere on

10 the order of 50 thousand cubic yards per year as 11 figure two which is not marked as an exhibit indicates
12 13

MR. EHRET: Let i s mark this as an

14 exhibit.
15 DEPOSITION EXHIBIT 7
16 WAS MARKED BY THE REPORTER

17 FOR IDENTIFICATION.
18

A.

That if that quantity of material has been

19 placed on the beach and that it has been properly
20 placed so that it can be absorbed back into the

21 transport, then the Corps has more or less mitigated

22 for the total impact that this structure is having.
23
Q.
(BY MR. EHRET)

To my knowledge the most

24 recent nourishment that the Corps has done has been 25 what they refer to as heavy sand or coarse sand, and

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Page 13 of 18

46
1

Q.

And have you ever run totals to see how much

2 sand has been dredged and dumped out deep in the

3 water?
4
5

A.
Q.

Yes. Now you are getting somewhere.

That i s significant?
Yes, sir, it is.

6 7
8

A.
Q.

Do you have those totals?
I don't.

A.
Q.

9

Now, those

in the beginning of this case I

10 was much more ambitious and I looked at every web site

11 so that what you are looking at there has really 12 become irrelevant except for St. Joseph, but in St.

13 Joseph I bel ieve that there are - - there were one 14 million nine hundred thousand cubic yards of sand that
15

were deep dumped between '63 and '83.

I don i t expect

16 you to memorize numbers like that, but does that 17 number shock you at allover a 20-year time?
18
That's about

two million divided

19 by 20 is about a hundred thousand a year, or is it 20 only ten thousand a year? No, it's a hundred thousand

21 a year, isnlt it? 22 A. That seems a little high but not totally
23 unreasonable.
24
Q.

Are you aware whether they i ve stopped doing

25 that?
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47

1

A.

It i S my understanding that that is no longer
to near shore sediment

2 the practice, and when I refer

3 as being a resource, this is precisely what I 'm

4 referring to, the loss of material to the offshore
5 region is unrecoverable.
6

Q.

But that dredging is coming out of the ri ver,
I'm sure some of it is sand deposits out of

7 isn't it, out of the channel?
8

A.

9 the channel. The bulk of it is most likely material
10 that has moved around the end of the breakwaters and

11 not allowing the channel to be at the project depth.

12 I believe the bulk of this is significant beach-type 13 sand that has been transported offshore not only at
14 this harbor but other harbors as well and is no longer

15 available to the near shore environment.
16
Q.

But would that be included within the 50

17 thousand cubic yards per year that you're referring to

18 or would that be in addition to it, if it was still
19 there? Maybe I i m not - - if I give you a question you

20 don't understand, just say I don1t understand your

21 question.
22
23

A.
Q.

Yes, sir.
Should I repeat that?
(The requested portion of

24
25

the record was read by the

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48
1 2 3

reporter)
A. The 50 thousand cubic yards is the amount of
sand, beach sand type of material that the annual wave
climate is available to transport past a location.

4
5

If some of that material is trapped
in, the updrift fillet or some of that material is

6 7
8 9

trapped within the harbor structures themselves, that

material is no longer available to flow naturally to
the downdrift beaches.
So, the fact that - - and if this is

10

11
12
13 14 15

truly sand size material all of which was dredged and
dropped offshore, it is a loss from the near shore
system of the 14 million cubic yards that you've

calculated.
So, it is material that would have flown past the harbor most of it and would have

16

17
18

nourished the downdrift beaches, and I hope that answers your question.

19

Q. We've already established that there is a
dominant littoral drift from north to south?

20

21
22
23 24

A. Yes, sir.
Q. You fully agree with that?

A. I do.
Q. So, would all this sand now have been taken
down to the Indiana dunes, this dredged sand?

25
,

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49
1
2 stable, that is

A.

In a perfect world for the beach to remain
i for a property owner such as yourself

3 to stake out a claim and have certain dimensions on
4 that, for that to remain stable for a long period of
5 time an equivalent amount of sand has to enter in your
6 case from the north that is being transported out the

7 south and being transported offshore.

8 So, there has to be a net balance
9 of sediment. Otherwise, the beach decreases or if
10 there is a surplus of sediment, the beach would

11 increase.

12 We don't usually see increasing
13 beaches other than a few locations within the Great
14 Lakes.

15 So, if there were no alterations to
16 the shoreline, whatever comes in from the north is
17
generally transported out by the south.

Superimposed

18 on that is the fact that the Great Lakes are very new

19 features geologically. They are only 10 to 12

20 thousand years old. They are unusually steep sided 21 and unusually deep, and mother nature tends to broaden

22 that out.

23 So, even ïn the absence of any
24 man-made intervention on the shoreline, erosion does

25 exist on the Great Lakes shorelines, and that is
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50

1 somewhere around a foot per year most places and

2 referred to in the literature as the background

3 erosion rate.

4 Superimposed on that are the
5 influences of man-made structures, both small private
6 structures as well as large navigation structures that

7 perturb that general equilibrium.
8

MR. SEGREST: How much did you say

9 was an annual erosion?
10

THE WITNESS: The background erosion

11 is approximately one foot per year. The lakes are

12 trying to become swamps.
13

Q.

(BY MR. EHRET)

Are you talking about the

14 line, the shoreline between the visible beach and the
15 water itself, or are you talking about the four dunes

16 and the main dunes and the bluffs?
17

A.

Generally the top of the dune or the top of

18 the bluff, that edge towards the lake is chosen for a

19 couple reasons. One, it's visible in aerial
20 photography which is perhaps one of the best ways to

21 keep track of its migration over a long period of
22 time, and how wide the beach is is dependent on water

23 levels on that particular day and in that particular

24 sequence of years.

25 So, normal beach slopes are one to a
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51

1
2
3

hundred. So, a change of water level by one foot
would either erase or produce a hundred foot
difference in the width of the beach.

4
5
6 7 8 9

So, for those two reasons the edge
of the bluff is usually the point that is referenced.

Q. I'm going to show you a photograph, and this
is our property, my wife's property, but it

's not

atypical of the area. It's a poor - - I'm going to use
-- I think you've seen this before.

10

This is an aerial photograph - - I l II

11
12
13 14

gi ve you the original.
MR. EHRET: Let's mark the copy.
DEPOSITION EXHIBIT 19
WAS MAKED BY THE REPORTER

15
16

FOR IDENTIFICATION.
Q.
(BY MR. EHRET)

This house here happens to be

17
18

ours. This house was built in 1913, and it was there
along with trees in front of it which we have

19

photographs of that are a hundred years old, and they
were at the edge of the bluff which would indicate to
us that our bluff line was over a hundred years old at
least and that had never been subj ected to erosion.
Now, the only - - I want to keep

20

21
22

23 24

asking you questions, but I do want to lay the

25
;

foundation.

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