1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA, ROTH FARMS, INC., )
and WEDGEWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., )
5 and UNITED STATES SUGAR )
CORPORATION, )
6 -and- )
FLORIDA FRUIT AND VEGETABLE )
7 ASSOCIATION, LEWIS POPE FARMS, )
W. E. SCHLECHTER & SONS, )
8 INC., and HUNDLEY FARMS, INC., )
Petitioners, )
9 vs. ) DOAH CASE NO.:
SOUTH FLORIDA WATER ) 92-3038
10 MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
MICCOSUKEE TRIBE OF INDIANS, )
12 THE UNITED STATES OF AMERICA, )
FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, )
and FLORIDA WILDLIFE ASSOCIATION,)
14 Intervenors. )
)
15
DEPOSITION OF: JOHN A. DAVIS, Ph.D.
16
TAKEN AT
17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
18
DATE: MARCH 15, 1994
19
TIME: COMMENCED: 9:18 A.M.
20 CONCLUDED: 5:05 P.M.
21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.
2600 BLAIR STONE ROAD
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: LAURIE L. GILBERT
REGISTERED PROFESSIONAL REPORTER
24 NOTARY PUBLIC
25 VOLUME II
PAGES 126-258
127
1 APPEARANCES:
2 Representing Petitioners, Florida Sugar
Cane League, Inc., and United States
3 Sugar Corporation:
4 WILLIAM L. HYDE, ESQUIRE
Earl, Blank, Kavanaugh & Stotts, P.A.
5 Suite 350
215 South Monroe Street
6 Tallahassee, Florida 32301
(904) 681-1900
7
Representing Intervenor Miccosukee Tribe
8 of Indians:
9 TRUMAN E. DUNCAN
Water Resources Director
10 Miccosukee Tribe of Indians
Post Office Box 440021
11 Tamiami Station
Miami, Florida 33144
12 (305) 223-8380
13 Representing Intervenor
The United States of America:
14
THOMAS A. WATTS FitzGERALD, ESQUIRE
15 Assistant United States Attorney
Southern District of Florida
16 99 Northeast Fourth Street
Miami, Florida 33132
17 (305) 536-5927
18 Representing Intervenor Florida
Department of Environmental Protection:
19
LEE M. KILLINGER, ESQUIRE
20 Assistant General Counsel
Department of Environmental Protection
21 640 Twin Towers Office Building
2600 Blair Stone Road
22 Tallahassee, Florida 32399-2400
(904) 488-9730
23
24
25
128
1 ALSO PRESENT:
2 Frank Nearhoos
Douglas Gilbert
3 Russell Frydenborg
4
* * * * *
5
INDEX
6 (VOLUME II)
7 ITEM PAGE
8 DEPOSITION CONTINUED . . . . . . . . . . . . 129
9 CERTIFICATE OF REPORTER. . . . . . . . . . . 258
10 * * * * *
INTERVENOR DEPARTMENT OF
11 ENVIRONMENTAL PROTECTION'S EXHIBITS
12 NUMBER DESCRIPTION PAGE
13 3 Disclosure of Expert and Fact
Witnesses of Petitioners Florida
14 Sugar Cane League, Inc., and
United States Sugar Corporation . . 170
15
4 Pretrial Disclosure of Issues
16 and Witnesses . . . . . . . . . . . 177
17
18
19 * * * * *
20
21
22
23
24
25
129
1
2 (WHEREUPON, DR. NYQUIST AND MR. STORY WERE
3 NOT PRESENT IN THE ROOM.)
4 DIRECT EXAMINATION
(Continued)
5
6
7 BY MR. KILLINGER:
8 MR. KILLINGER: Okay. I guess we're back.
9 Q Wind up this CV questioning a little bit.
10 Dr. Davis, it -- your CV indicates that
11 you're experienced in the use of a variety of
12 computer packages for statistical analyses, data
13 management, and hydrological modeling.
14 Is that an accurate statement?
15 A More or less.
16 Q Okay. Well, let's go to the more part
17 first.
18 What statistical -- what computer packages
19 are you experienced with?
20 A You know, word processing, various
21 spreadsheets, little bit of Sys Stat, I don't
22 really use SAS any more. I used to use it a good
23 bit.
24 Q What is Sys Stat?
25 A It's a statistical package -- package
130
1 that's meant to run on a -- on a PC.
2 Q What is SAS?
3 A Pardon?
4 Q What is SAS?
5 A I don't know what it stands for. But it's
6 a program that's written by some people up in
7 North Carolina I think it is. And been distributed
8 for years, used to run on mainframe, now they
9 license it for PCs. I'm sure you have it in your
10 department.
11 Q What other computer packages for
12 statistical analysis are you --
13 A For statistical.
14 Q -- experienced with?
15 A Reflex --
16 Q Do you have one --
17 A That's all that comes to mind right now.
18 Q I'm sorry.
19 Do you have one that your firm uses?
20 A We use a variety. We mainly use SAS.
21 Q Does your firm do a lot of statistical
22 analysis?
23 A Not so much statistical analysis, probably
24 as just data management.
25 Q Okay. What would you consider the
131
1 differences to be?
2 A You know, data management is more taking,
3 let's say, large volumes of data, and reformatting
4 it in ways that are conducive to quick, you know,
5 analysis and -- and understanding. Generating your
6 descriptive statistic, like, you know, number of
7 observations and min and max and mean and median,
8 and trimmed means --
9 Q Is that more?
10 A -- geometric means, stuff like that.
11 Q Is that more spreadsheet type of --
12 A Well, they're not necessarily --
13 Q -- or --
14 A -- spreadsheets will do these sort of
15 things. But, you know, SAS, for instance, does all
16 these same things, plus a lot more things.
17 Q Uh-hum.
18 A Then we, you know, graph the data and that
19 sort of thing.
20 Q Okay. So it helps you assist in doing
21 plots of data?
22 A (Nodding head.)
23 Q What computer packages do you use for data
24 management?
25 A It's the same ones. And D-Base is also
132
1 used. ARC Info is used. Fortran.
2 Q Any others, generally.
3 A Oh, we have FoxPro; Microsoft; Access;
4 Lotus 1-2-3.
5 Q What computer packages do you have
6 experience with for hydrological modeling?
7 A HSPF.
8 Q Is that an acronym?
9 A Right.
10 Q What does it --
11 A Stands for --
12 Q -- stand for?
13 A Hydrocomp Simulation Program Fortran.
14 It's a -- was a proprietary water quality and water
15 quantity model that was subsequently adopted
16 I guess by EPA, and they put out a -- I guess more
17 public domain type, you know, program that people
18 could, you know, buy and use at a reasonable cost.
19 Q Any other hydrological modeling computer
20 packages?
21 A There's a couple software programs that,
22 you know, apply the, you know, SCS, you know, type
23 little models and that sort of thing.
24 Q Can you name the --
25 A I don't recall what the --
133
1 Q -- programs?
2 A -- vendor is now. But it's the thing that
3 generates, like, TR20 and that sort of thing.
4 They're, you know, computations you can do with a
5 hand calculator and piece of paper. But people
6 have developed programs to make it easier and
7 quicker.
8 Q Do you have any -- does your firm do a lot
9 of hydrological modeling?
10 A It depends on, you know, what the need is
11 for a particular project. We also, you know, did
12 the -- the modeling, you know, for the mixings on
13 stuff.
14 Q Have you done any hydrological modeling
15 for this case?
16 A No.
17 Q Have you looked at anybody else's
18 hydrological modeling for this case?
19 A Yes.
20 Q Whose have you looked at?
21 A The District's. For instance,
22 McDonnell's, Carl Walters --
23 MR. FitzGERALD: I'm sorry. Who was the
24 name? I couldn't --
25 THE WITNESS: Carol -- I mean,
134
1 Carl Walters.
2 A The stuff that John Richardson did as part
3 of Work Order 32. May have been some others, I
4 don't recall right now.
5 Q Do you intend to offer any testimony about
6 hydrological modeling --
7 A I don't recall --
8 Q -- or hydrological --
9 A -- being asked to at this point in time.
10 Q Okay. Have you done any statistical
11 analyses in connection with this case?
12 A Not anything beyond the kind of things I
13 described a while ago as far as the, you know,
14 general descriptive statistics.
15 Q Have you reviewed statistical work done by
16 other -- other people in connection with this case?
17 A Yes.
18 Q Whose work have you reviewed?
19 A Bill Walters, I guess various people at
20 the District, the little bit that Frank did. Stuff
21 done by Dr. Lettenmaier, Dr. Millard, Dr. Loftus,
22 Dr. Reckhow.
23 Q Do you --
24 A -- Dr. Marin.
25 Q Any others?
135
1 A Dr. Robson.
2 Q Do you intend to offer any testimony about
3 statistical analysis based on your review of -- any
4 work you've done or review of other people's work?
5 A I haven't been asked to at this point in
6 time.
7 Q Did you reach any conclusions about the
8 statistical reports that you looked at or reviewed
9 that other people had done?
10 A Not really.
11 Q Okay. What about the hydrologic modeling
12 work that you've reviewed?
13 A I guess some, you know, general thoughts
14 or conclusions.
15 Q Did you reduce any of those to writing?
16 A Not that I recall.
17 Q Did you give any reports to anyone orally
18 about your conclusions about hydrologic modeling?
19 A Probably.
20 Q Probably?
21 A Yes.
22 Q Okay. Who would you probably have given
23 them to?
24 A The attorneys.
25 Q Okay. Were you instructed not to write
136
1 anything down?
2 A Not that I recall specifically, no.
3 Q What's krigging?
4 A A way of taking data -- spatial data,
5 distribute it over an area, and assigning an area
6 of influence to each one of the -- the data points,
7 and then creating isopleths, or if you like,
8 contour maps, depicting the distribution of a
9 particular parameter over a geographical area.
10 Q When you say assigning an area of
11 influence to each data point, what does that mean?
12 A You, let's say, go out into an area that's
13 100 acres --
14 Q Uh-hum.
15 A -- and you take ten points over that area.
16 Then you want to try to extrapolate the
17 data from those, you know, ten points, over the
18 whole, you know, 100 acres. Then you have to
19 decide whether all those points should, you know,
20 simply influence an area, let's say, 10 meters or
21 100 meters, you know, in all degrees or angles from
22 that point; or for some reason, it has more
23 influence in a particular direction.
24 Q So is it -- would it be a simple way to
25 put it, or perhaps a simplification, to say it's a
137
1 type of an averaging process?
2 A Well, it's not -- not simply an averaging
3 process, because you're weighting each one of the
4 points differently. That's what I mean by
5 assigning an area of influence to some points.
6 Because if the influence is not the same
7 in all directions, and the same distance in all
8 directions, then you're, you know, weighting the
9 area that particular influences. So maybe in a
10 weighted kind of average.
11 Q Okay. Does your firm do any of that?
12 A Some. But it's not an area that we
13 profess to be experts in.
14 Q Are you familiar with any computer
15 packages for analysis that -- that -- that do that?
16 A Yes.
17 Q Which ones?
18 A Surfer; there's a package, GS+; GEO EAS.
19 I believe -- we don't use it -- but I think Erdas
20 does it.
21 Q GEO PAK?
22 A GEO PAK does it.
23 And there are, you know, a lot of others
24 that do the same kind of thing.
25 Q Have you participated in any -- any
138
1 meetings where statistical analysis of data was a
2 topic with regard to the Everglades?
3 A Yes.
4 Q Can you give me sort of a general
5 description of what those meetings were about, were
6 those SAGE meetings that -- where that was
7 discussed?
8 MR. HYDE: I'm going to --
9 A I'm sorry --
10 MR. HYDE: -- object to the form of the
11 question. There's two questions --
12 MR. KILLINGER: Okay. I -- I'm trying to
13 clarify a little bit.
14 Q Was -- was that the topic of discussion at
15 some of the SAGE meetings, for instance?
16 A Yes.
17 Q Okay. Was that a topic at any other
18 meetings where you were a participant?
19 A Certainly.
20 Q How many meetings you think you've
21 attended where statistical analysis of Everglades
22 data has been discussed?
23 A I honestly have no idea.
24 Q Hundreds?
25 A I don't know if it would be hundreds. But
139
1 it would be numerous.
2 Q Okay. How about hydrological modeling?
3 A Several of those.
4 Q Okay. Have you met with other scientists
5 about statistical analysis of Everglades data?
6 A Yes.
7 Q Have you met specifically to discuss
8 statistics?
9 A Yes.
10 Q Who have you met with?
11 A Dr., you know, Reckhow, Lettenmaier,
12 Millard, Marin, Richardson, Patrick --
13 MR. FitzGERALD: I'm sorry. Could the
14 witness specify when you use Richardson, which
15 you're referring to --
16 THE WITNESS: Curtis.
17 MR. FitzGERALD: We have two.
18 Q Can you give me an idea of when you --
19 when your first meeting about statistical analysis
20 of Everglades data might have occurred with any of
21 these scientists?
22 A When?
23 Q Yes.
24 A Probably '88, '89.
25 Q Have you met with any other scientists to
140
1 discuss hydrologic modeling in the Everglades?
2 A Yes.
3 Q Who have you met with?
4 A Gherini, Curt Polman. Then, you know,
5 those -- at various meetings, like the SAGE
6 meeting, or things at the District where it was
7 discussed.
8 Q Are you familiar with Dr. Gherini's model?
9 A Not in any depth.
10 Q Okay. What contracts have you presently
11 got with anybody about the Everglades for research
12 or analysis review or any topic?
13 MR. HYDE: Lee, just for purposes of
14 clarifying your question, what do you mean by
15 saying the "Everglades?" Because that's -- can
16 mean a lot of different things.
17 For example, do you intend it to mean the
18 Everglades Protection Area, do you intend it to
19 mean the historic Everglades, the entire
20 Everglades which might even include the,
21 you know, Kissimmee River Basin? So --
22 MR. KILLINGER: Well --
23 MR. HYDE: -- I think it's kind of an
24 ambiguous question in that regard.
25 Q I suppose I will limit my question to
141
1 points south of Lake Okeechobee, and east of
2 Big Cypress.
3 MR. HYDE: Okay.
4 Q If that assists. I don't need to inquire
5 right now about the Kissimmee. I may come back to
6 it, but it's not really where I'm going.
7 MR. HYDE: West of the urban areas?
8 Southeast coast, too?
9 MR. KILLINGER: No. We're talking about
10 urbans. See what --
11 Q So what -- what contracts or proposals
12 have you got presently pending that concern that
13 geographic area?
14 A We have the work with the law firm.
15 Q Which law firm?
16 A Earl, Blank, Kavanaugh & Stotts.
17 Q And what's that related to?
18 A The SWIM litigation.
19 Q Okay. Anything else?
20 A We're doing a little work for I guess
21 Landers & Parsons.
22 Q And what's that related to?
23 A Basically just advice, you know, relative
24 to potential language litig-- and the legislation,
25 that sort of thing.
142
1 We have some work with U.S. Sugar.
2 Q What's that related to?
3 A One is related to the monitoring that
4 we're doing as part of the condition for the Corps
5 permit that we assisted them in obtaining.
6 Q What permit?
7 A It was a Corps permit for some wetland
8 issues related to their southern division ranch.
9 Q Anything else for U.S. Sugar?
10 A We are, you know, looking at some of
11 their, you know, BMP data.
12 Q Anything else?
13 A There might be some, you know, kind of
14 miscellaneous, you know, things that come up,
15 you know, from time to time. Nothing really comes
16 to mind to be honest.
17 Q Okay. Anything else for --
18 A We have a little bit of work we're doing
19 for Flo-Sun. It's more of a miscellaneous,
20 you know, nature.
21 And we're looking at some of their,
22 you know, data for, you know, BMPs, that sort of
23 thing.
24 Q Anybody else?
25 A You're talking about existing work,
143
1 right?
2 Q Yes. At the moment.
3 A I think that's basically it.
4 Q And what about the 298 work?
5 A You said south of Lake Okeechobee.
6 Q Well, they're mostly south of
7 Lake Okeechobee.
8 A Hmm?
9 Q They're mostly south of Lake Okeechobee.
10 A Well, I was thinking about you weren't
11 talking about the work coming in to
12 Lake Okeechobee. But that would be included. The
13 stuff for Parker.
14 Q And that's with the law firm?
15 A Right.
16 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.)
17 A And we were doing some work -- well, no.
18 We're just talking about existing things.
19 Well, I don't know. Some of the Closter,
20 you know, BMPS, we were doing some stuff on that.
21 I don't know whether that's still ongoing or not,
22 we haven't done anything on that for a while. But
23 it's through the Earl firm.
24 Q Have you got anything with the EAA EPD?
25 A Yes. Have that --
144
1 Q What's that?
2 A We were collecting some macroinvertebrate
3 samples in the Duke dosing study channels.
4 Q Is your contract with the EPD on that?
5 A Yes.
6 Q Anything for the -- for the Coop?
7 A No.
8 Q Directly or --
9 A (Shaking head.)
10 Q To Hopping, Boyd?
11 A Not related to this.
12 Q Okay. Anything related to the Everglades?
13 A No.
14 Q Okay. How about to the FFVA?
15 A No.
16 Q Anything for their counsel?
17 A No.
18 Q All right. I guess we'll start off and go
19 backwards.
20 What about the -- tell me about the
21 EAA EPD contract. What is it -- have you produced
22 a copy of that?
23 A Copy of what?
24 Q Do you have a written contract with
25 EAA EPD?
145
1 A I think so. But I'm not sure.
2 Q Have you produced a copy of that?
3 A No.
4 Q Have you got a copy of it?
5 A With me?
6 Q Well, I mean, in your possession, not --
7 not this second.
8 A I mean, there -- if -- if one exists, it's
9 at the office.
10 Q Okay. Do you know why you didn't produce
11 it?
12 A Because I didn't produce any contracts.
13 Q When did the contract come into existence?
14 A Approximately a year ago.
15 Q And what's its duration?
16 A It was about a year long contract. And we
17 have an extension on it, so that's the reason I say
18 it was probably about a year ago. Probably more
19 like 15 to 18 months I guess.
20 Q Under the term of the contract, what are
21 you supposed to be doing for the EPD?
22 A Basically we collected some
23 macroinvertebrate data from some of the Duke dosing
24 channels.
25 Q And what'd you do with it, the data?
146
1 A We analyzed it.
2 (WHEREUPON, MR. NEARHOOS ENTERED THE
3 ROOM.)
4 Q Have you provided that data to us?
5 A Yes.
6 Q Have you provided the analysis?
7 A I think we did. I mean, the analysis is
8 not complete. But we -- we produced what we had
9 done up to, you know, a week ago or whatever.
10 Q When will the analysis be complete?
11 A As soon as I get time to work on it.
12 Q Is the sampling completed?
13 A Yes.
14 Q How long will it take you to finish the
15 analysis?
16 A Probably a week.
17 Q Have you finished most of the analysis?
18 A Yes.
19 Q Can you tell me what your analysis of that
20 data is.
21 A I'm not sure I understand that question.
22 Q How did you analyze it, what did you
23 attempt to analyze it to show, or to reveal, or --
24 A We basically put out, you know,
25 Hester-Dendy samplers, and also took some
147
1 qualitative samples in some other areas adjacent to
2 the site. And we identified, enumerated the
3 organisms in the samplers, put them into -- put
4 that data into the computer program that generated
5 the Shannon-Weaver Diversity Index, the number of
6 taxa, the number of organisms.
7 And then we plotted that data to see if
8 there were, you know, differences between the
9 various treatment channels and, you know, the
10 adjacent areas.
11 Q Were there any differences?
12 A Yes.
13 Q Can you tell me what those differences
14 were?
15 A Basically the channels that were receiving
16 some, you know, nutrients had a higher diversity,
17 and I think generally a, you know, greater number
18 of taxa and number of organisms I think.
19 I'd have to look at the actual data sheets
20 to be more precise.
21 Q But as far as you know, those data sheets
22 have been produced --
23 A Yes.
24 Q -- and the analysis that you've done up to
25 last week has been produced.
148
1 A Yes.
2 Q What does that analysis look like? Is it
3 graphs, is it plots, is it --
4 A They were -- as I recall, they were
5 spreadsheet, and also a couple of kind of bar
6 charts, pictogram. And I believe this was stuff
7 that was produced directly to you, it was sent to
8 Bill Hyde, and I believe he turned it over to you.
9 MR. HYDE: Yeah. I turned it over.
10 THE WITNESS: I thought you did.
11 MR. FitzGERALD: Counsel, would that have
12 been in the box of materials that was produced
13 in Tallahassee?
14 MR. HYDE: Yes.
15 MR. FitzGERALD: Is that what you're
16 saying?
17 Q Just to pursue a little bit generally.
18 You recall that your analysis was that there were
19 some differences in the -- the treated, untreated
20 areas. And that the channels that were getting
21 nutrients were -- had higher diversity, generally
22 greater number of taxon organisms.
23 Can you tell me why?
24 A Not, you know, really. I mean, I -- you
25 can look at the data and see, you know, what the,
149
1 you know, treatment was. We haven't really tried
2 to do any, you know, causative, you know,
3 analysis. We haven't done any statistical
4 treatment to see if what looks like a difference is
5 even statistically a true difference. It may not
6 be. Because, you know, it's not, you know, that
7 great a difference.
8 Q If there is a difference, would you
9 attribute that to the treatment that was in the
10 treatment area, or to some other factor?
11 MR. HYDE: By treatment, do you mean the
12 phosphorus concentrations in the dose
13 channels?
14 MR. KILLINGER: Well, I -- you used the
15 treatment, and I wasn't --
16 MR. HYDE: Okay.
17 MR. KILLINGER: Okay.
18 Q What was the treatment in the treated
19 areas?
20 A I'd have to -- actually go back and look
21 at, you know, the description of the project
22 itself.
23 But, you know, basically the treatments
24 were to look at potential changes at different,
25 you know, phosphorus levels.
150
1 Q Okay. I may come back to this a little
2 bit later.
3 How much is that contract for in dollars?
4 A I honestly don't know.
5 Q Can you give me an estimate?
6 A I'm going to give you an estimate. But
7 that's what it is.
8 I think it's probably between fifteen and
9 thirty maybe.
10 Q Fifteen and thirty --
11 A Thousand.
12 Q -- thousand dollars?
13 Okay. How do you normally -- well, how is
14 this contract set up for billing, is it a fixed
15 amount?
16 A Yes.
17 Well, I believe it's a kind of
18 not-to-exceed amount.
19 Q How do you invoice for it?
20 A Monthly.
21 Q On a monthly basis?
22 A Yes.
23 Q Do you charge on an hourly basis for
24 services, or is it an item --
25 A It's an hourly charge for the -- for the
151
1 labor; and then if there are, you know, non-labor
2 expenses, that's billed at cost.
3 Q What do you charge per hour for labor?
4 A Depends.
5 Q Depends. Okay.
6 Elaborate a little bit. Depends on what?
7 The person doing the work?
8 A The person doing the work.
9 Q What's the range?
10 A For that particular, you know, contract, I
11 don't know. It's probably anywhere from 20 to,
12 say, 150.
13 Q Okay. Would someone like yourself be on
14 the 150 end?
15 A Yes.
16 Q And somebody doing -- slogging through the
17 mud would be on the 20 end perhaps?
18 A Perhaps. Maybe a little higher.
19 Q Okay. Would you consider that contract to
20 be a -- a scope of work?
21 A I mean, it has a scope of work to it, yes.
22 Q Okay. What are the deliverables under the
23 scope of work of the contract?
24 A I believe it's just a report.
25 Q When's that report due?
152
1 A I believe the original contract, it was
2 supposed to be done in -- I don't know. Like the
3 beginning of this year. And we had money left in
4 the budget, so we offered to do an additional
5 sampling, you know, at no additional cost, if they
6 would extend the time on the contract?
7 Q Uh-hum.
8 A They accepted, you know, that option. So
9 it was extended in a -- to allow for that.
10 I believe that extension, you know, called for the
11 report to be produced either at the end of February
12 or this month, one or the other. I mean, it's
13 slightly late.
14 Q It's imminent.
15 A Yes.
16 If I wasn't here, I would be working on
17 that.
18 Q Did you sign any kind of confidentiality
19 agreement about that contract or its terms with
20 anyone?
21 A I don't think so.
22 Q Can you produce a copy of that contract to
23 me together with a scope of work, or any other
24 attachments to it?
25 A I could. I guess. I mean, I need to
153
1 check with someone, but I think it's --
2 Q Who do you need to check with?
3 A The EPD has, you know, some counsel, I
4 need to check with them.
5 Q Did you produce any of the invoices that
6 you've sent regarding that contract?
7 A No.
8 Q Why not?
9 A I didn't really think that was, you know,
10 relevant. I thought it was something between,
11 you know, us and the client. If the client wanted
12 to produce them, that's fine. If they want to tell
13 us to do it, that's fine.
14 Q Well, I think that they're within the
15 scope of my request.
16 MR. KILLINGER: Bill, I don't know if this
17 is something that you have any interface with.
18 If it's an EPD deal --
19 MR. HYDE: I will inquire and see if they
20 have any objection to producing them. Assuming
21 that they don't, it will be produced.
22 MR. FitzGERALD: It seems to me that the
23 EPD is a public body of the State of Florida,
24 and this has come up a few times in the past.
25 And I know people have filed -- I know Sierra
154
1 at one point filed on them a public record
2 Sunshine issue, and got what they wanted,
3 because everybody sort of agreed on that.
4 MR. HYDE: Well, I don't think there will
5 necessarily be any problem here.
6 MR. FitzGERALD: I'm -- I'm not saying
7 that there is. It just seems to me that it's
8 just a matter of making the request. But I --
9 I do concur with counsel for DEP, that once
10 that notice is served, if any basis is asserted
11 for not providing it, that is not -- the notice
12 is not on the issue of the Subpoena DT to do
13 that leg work.
14 MR. HYDE: Okay. I said I would inquire.
15 And I think that in all likelihood there won't
16 be any problem with producing it.
17 MR. FitzGERALD: We might even get it
18 faxed in time to look at it, take care of it
19 during this depo, so we don't have to carry it
20 over.
21 Q What normally is reflected on your
22 invoices to your client?
23 I mean, on this contract. I'll leave the
24 others alone for --
25 A Well, they're all essentially the same,
155
1 just about. But we usually identify the category;
2 sometimes the person actually doing the work;
3 number of hours they charge, and times -- well, I
4 don't think it shows a rate. But it's a number of
5 hours, and then how much it would be for, you know,
6 that person --
7 Q Uh-hum.
8 A -- may show the number of hours, I don't
9 know whether it does. And then whatever non-labor
10 expenses were incurred.
11 Q That EPD contract, did you make a proposal
12 to the EPD, or did the EPD come to you or your firm
13 to request you to do the work?
14 A We responded to an RFP as I recall.
15 MR. HYDE: Lee, I'd just like to note for
16 the record that when I -- I think I discussed
17 with you about the production of documents, you
18 indicated you were primarily interested in
19 things that he would be relying upon for
20 purposes of this final hearing. And final
21 testimony at a final hearing.
22 And obviously, one doesn't typically rely
23 on contracts, invoices for basis of opinions.
24 MR. KILLINGER: No, I understand. I --
25 and I am primarily interested in -- in getting
156
1 to the ultimate opinions he has and the basis
2 for them. But I think that the work that he's
3 doing in the Everglades now and who he's doing
4 it for and -- and the reasoning and how much
5 it's all worth, and all of that sort of factors
6 into the ultimate opinions that -- that he's
7 got and is going to offer. And, you know, if
8 we don't --
9 MR. HYDE: I understand. I'm not barring
10 you from making --
11 MR. KILLINGER: Yeah. I'm just
12 thinking --
13 MR. HYDE: And I --
14 MR. KILLINGER: -- scope of work and
15 things under --
16 MR. HYDE: -- and I --
17 MR. KILLINGER: -- the contract, I think
18 it may be important for sort of analysis of the
19 breadth and scope of his Everglades knowledge.
20 So --
21 MR. HYDE: Okay.
22 MR. KILLINGER: -- I'm not trying to go
23 down rabbit trails.
24 Q Okay. I guess I need to flip back a
25 couple of pages.
157
1 Like to ask you about the contract you've
2 got with -- well, I guess I'll ask you about what
3 you -- what kind of work -- what kind of contracts
4 you have with Earl, Blank.
5 Can you tell me how many contracts you
6 have with Earl, Blank?
7 A I don't know that there -- perhaps a
8 better way of putting it is, you know, we provide
9 separate invoices I guess for I think two or three
10 different aspects of work.
11 Q Have you got a written contract with the
12 firm?
13 A No.
14 Q No written contract.
15 Do you have a scope of work, anything in
16 writing that tells you what you're supposed to be
17 doing?
18 A No.
19 Q How do you know what you're supposed to be
20 doing?
21 A They tell me.
22 Q So you get a call from the lawyer saying
23 we need you to do this?
24 A Either that, or we have a meeting and
25 discuss it, or --
158
1 Q Okay. Are the areas of your work
2 documented in writing by letter?
3 A I'm not sure I understand that question.
4 Q Do you ever document what you've been
5 asked to do, and who you're doing it for?
6 A We send a progress report, you know, with
7 the invoice. There are instances when we have
8 perhaps scoped out a particular, you know, type of
9 work or something, you know, like that, and sent,
10 you know, a little summary down of, you know, what
11 we thought, you know, we ought to do. And,
12 you know, what it might cost.
13 Q Do you normally invoice for the work that
14 you've done on a monthly basis?
15 A Yes.
16 Q Have you produced any of those invoices?
17 A No.
18 Q Have you produced any of the progress
19 reports?
20 A No.
21 Q What two or three --
22 A Well, wait a minute.
23 Q Okay.
24 A Obviously the law firm has all of those.
25 Q Uh-hum.
159
1 A Okay. But, you know, I haven't sent you
2 any of those.
3 Q Well, there -- they were available for the
4 law firm to produce; is that a fair statement?
5 A Yes.
6 Q Okay. You said you have done work -- you
7 provide services for two or three different aspects
8 of the work you're doing. What two or three
9 different aspects would that be?
10 A We had a separate project set up for what
11 we call the entry and access that was the sampling
12 we did in the Loxahatchee and the
13 Everglades National Park.
14 We had a separate invoice for work that
15 was done relative to the mediation.
16 I believe there's a separate invoice for
17 our participation in the DOJ entry into the EAA.
18 There had been a separate invoice for the
19 Closter and EPS stuff.
20 Q Anything else you can think of?
21 A That's all I can recall right now. Over
22 the, you know, period of years, there obviously may
23 have been --
24 Oh, there were obviously separate invoices
25 we did for the City's litigation back when that was
160
1 going on.
2 MR. HYDE: Lee, it was my understanding
3 that those documents, such as invoices, were to
4 be turned over to you in the files that we
5 produced in Miami. I have not reviewed all of
6 those files myself, there are many, many boxes
7 of them.
8 But with the exception of the mediation
9 invoices, which I think the Hearing Officer has
10 basically ruled off limits for reasons we all
11 understand, we will provide those documents if
12 they have not already been provided.
13 MR. KILLINGER: Okay.
14 MR. HYDE: I'm under the understanding
15 that they were provided.
16 MR. KILLINGER: Okay. I have not had the
17 opportunity to get through all the documents
18 yet myself, that's one reason I'm asking so
19 many questions to find out what should be in
20 there.
21 MR. HYDE: It's my understanding, they
22 should be in there; if they are not, they will
23 be provided.
24 MR. KILLINGER: Okay.
25 MR. FitzGERALD: I can't be conclusive on
161
1 that issue yet, because I may be -- I have
2 about a box or so to finish, which I will this
3 afternoon and this evening, but I have not come
4 across them as yet.
5 MR. HYDE: Well, I will telephone the
6 people that actually reviewed them this
7 evening, and ascertain what actually has been
8 produced. If they are not included, they will
9 be promptly available.
10 MR. FitzGERALD: None of your stuff when
11 we got it out of Miami was Bate stamped. So
12 they may have trouble figuring out where they
13 put it and tracking it down.
14 MR. HYDE: Okay. Well, what -- whatever
15 form it is, and wherever it is, I'm sure it's
16 available. And it can be made promptly
17 available.
18 Q To your knowledge, has the Earl, Blank law
19 firm hired you just because they have a lust for
20 knowledge about the Everglades, or have they hired
21 you because they represent a client who they're
22 going to use your information to assist?
23 A I would assume the latter.
24 Q Would you -- to your knowledge, does the
25 law firm include the amounts that you invoice them
162
1 to their ultimate clients?
2 A Yes.
3 MR. HYDE: I can assure you that we don't
4 pay them.
5 MR. FitzGERALD: We assumed it was
6 Mr. Earl anyway.
7 (WHEREUPON, A BRIEF OFF-THE-RECORD
8 DISCUSSION WAS HELD.)
9 Q What kind of arrangement, work
10 arrangement, have you got with Flo-Sun?
11 A What do you mean by "work arrangement?"
12 Q Have you got a written contract with
13 Flo-Sun to do work for them?
14 A No.
15 Q How do you know when they want you to do
16 work?
17 A They let me know.
18 (WHEREUPON, MR. GILBERT EXITED THE ROOM.)
19 Q Does someone call you on the telephone?
20 A Normally.
21 Q Who do you normally get a call from?
22 A Bill Tarr.
23 Q And do you on the telephone discuss what
24 you're to do, and how long it's to take, and -- and
25 how much it'll be billed?
163
1 A We generally, you know, discuss what's
2 going to be done, often they don't ask what it's
3 going to cost. If it's, you know, something that,
4 you know, they have an idea about how long it's
5 going to take and we've been doing work for them
6 for a big while, and I guess they feel like,
7 you know, what we charge them is reasonable for --
8 for product we've always delivered. So --
9 Q Do you -- do you follow-up any phone call
10 that has a request in it for you to do some work,
11 do you follow that up with a letter to document
12 that?
13 A No.
14 Q Do you set up a file at the office for the
15 specific request?
16 A Not necessarily.
17 Q Do you invoice for different requests
18 separately?
19 A No.
20 Q So does Flo-Sun then basically have an
21 account with you, and you just do whatever needs to
22 get done at the time, and you just send them an
23 invoice?
24 A Correct.
25 Q Okay. Have you produced any of those
164
1 invoices?
2 A No.
3 MR. HYDE: Might say, my representation as
4 to the earlier invoices holds true for any of
5 them, with the exception, of course, of the
6 mediation related materials.
7 MR. KILLINGER: Okay.
8 Q Let's talk about U.S. Sugar for a minute.
9 What kind of work arrangements do you have
10 with U.S. Sugar? Do you have any written contracts
11 with them for -- for work?
12 A I'm actually not sure.
13 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
14 A I don't think so.
15 Q How are work arrangements made with
16 U.S. Sugar, do you get a phone call about that,
17 too?
18 A On one of the projects where we talked
19 about the monitoring --
20 Q Uh-hum.
21 A -- for the Corps, there was a, you know,
22 work scope laid out for that that had, you know,
23 identifiable tasks and -- and dollars associated
24 with it. And there was a -- an agreed upon,
25 you know, amount related to that.
165
1 The other stuff is more on the same order
2 we talked about on the other stuff.
3 Q Okay. Have you produced a copy of that
4 scope of work or the contract that went with the
5 monitoring for the Southern Division Ranch?
6 A No.
7 Well, that -- was probably produced to
8 Earl, Blank, that information.
9 Q Okay. What about Landers & Parsons? Have
10 you got any written --
11 A No.
12 Q -- work arrangements with them?
13 A No.
14 Q Do they just pick up the phone and say,
15 figure it out?
16 A More or less.
17 Q And do you bill them directly?
18 A Yes.
19 Q Most of that is related to potential
20 legislative language; is that what you said before?
21 A It is currently, yes.
22 Q Is that all of it, or is that -- it is
23 currently. I mean, is that all the work you're
24 doing for them is that related to legislation?
25 A That I recall, yes.
166
1 Q Okay. Did you do work for them before on
2 other topics?
3 A Yes.
4 Q What other topics?
5 A We worked for them as part of the
6 Lake Okeechobee SWIM planning process.
7 Q Anything else related to this case?
8 A Not directly that I can -- well, let's
9 see. I believe we may have billed them directly
10 for some work that we were doing on the 40E-63
11 rule, the District.
12 Q All right. How much would you estimate
13 you've billed Landers & Parsons in connection with
14 issues involving this case? And if you want to
15 excerpt from that the SWIM Plan and 40E-63, that's
16 fine. I'll let you just qualify what you tell me
17 by what you would include in your answer.
18 A What period of time are we talking about?
19 Q Since, oh, I don't know, 1988.
20 A I honestly don't know. But it could be in
21 the $100,000 range, maybe two hundred. I don't
22 know.
23 Talking about five years or so.
24 Q Sure.
25 What about U.S. Sugar?
167
1 A It's probably in the same ballpark, I
2 don't know.
3 Q What about Flo-Sun?
4 A Probably less. I don't know. Maybe --
5 well, let's see.
6 My guess would be more in the order of
7 fifty.
8 Q And what about Earl, Blank?
9 A More.
10 Probably a couple million.
11 Q I asked you about contracts that you had
12 presently pending before. Can you just sort of
13 quickly -- I don't need a voluminous exposition --
14 but can you tell me what you have had contracts for
15 since, say, '88, that have been completed related
16 to the issues involved in this litigation with the
17 Everglades, and who with?
18 A How are you defining contract?
19 Q Any --
20 A Because we had talked about the fact that
21 a lot of the work didn't have a contract.
22 Q Contract can be oral as well as --
23 A Okay.
24 Q -- as written. Any proposal or request to
25 you or your firm that you do research or data
168
1 gathering or analysis on Everglades related issues?
2 A Now, what was the question?
3 Q I'm trying to find out what -- I think
4 I've asked you what you have presently on your
5 plate with regard to these issues, and --
6 A Well --
7 Q -- you made a mention that --
8 A But the numbers we just talked about over
9 five years --
10 Q I understand that.
11 A -- so that's not --
12 Q That's why I'm making -- asking you about
13 the other things.
14 What other things have you done that would
15 cover -- that expired, for instance, since '88.
16 A Like I said, we did the Lake Okeechobee,
17 you know, SWIM Plan work.
18 We did a little BMP study for U.S. Sugar.
19 We did that Corps permitting work which was
20 actually for Landers & Parsons, but their client
21 was U.S. Sugar.
22 I guess we've completed the entry and
23 access into the Park and Refuge, although I
24 understand we may get to go back in the Refuge,
25 take a couple more samples.
169
1 MR. FitzGERALD: I changed my mind since
2 yesterday.
3 A I mean, you know, there's probably little
4 miscellaneous things. But there's -- I don't
5 really think of any other --
6 Q Yeah. That's fine. I --
7 A -- total.
8 Q -- I'm not looking for, you know,
9 exhaustive exposition.
10 What percentage of your professional life
11 is spent on Everglades issues?
12 A More than I want?
13 MR. FitzGERALD: Off the record for a
14 second?
15 (WHEREUPON, A BRIEF OFF-THE-RECORD
16 DISCUSSION WAS HELD.)
17 A Obviously it, you know, varies from time
18 to time. But on an annual basis, maybe 75. I
19 don't know.
20 Q What percentage of -- well, who else at
21 your firm works on Everglades related issue, how
22 many other people at your firm?
23 A About 25.
24 Q What percentage of your firm is that?
25 A I was talking about there are 25 people
170
1 there.
2 Q There are 25 people. Okay.
3 How many of --
4 A And probably --
5 Q -- those people --
6 A -- all of them have worked on it,
7 you know, at one time or another for some,
8 you know, duration.
9 Q On an annual basis, what would you say
10 that your firm's time percentage is on Everglades
11 issues.
12 A Varies from year-to-year. But probably,
13 you know, 50 percent plus or minus 10. I don't
14 know.
15 MR. KILLINGER: I guess we can mark this
16 3. Is that what we're --
17 COURT REPORTER: Yes sir.
18 (WHEREUPON, EXHIBIT 3 WAS DULY MARKED FOR
19 IDENTIFICATION.)
20 Q I'd like you to look at what's been marked
21 as exhibit 3. And ask if you can identify it.
22 A It appears to be a document prepared by
23 the law firm that's titled Disclosure of Expert and
24 Fact Witnesses of Petitioner's
25 Florida Sugar Cane League, Inc., and the
171
1 United States Sugar Corporation.
2 Q Could you turn to -- well, have you seen
3 it before?
4 A Not that I recall.
5 Q Okay. Can you turn to page 3, please.
6 MR. KILLINGER: Off the record.
7 (WHEREUPON, A BRIEF OFF-THE-RECORD
8 DISCUSSION WAS HELD.)
9 Q On page 3, item number 4, is that an
10 identification of you?
11 A It appears to be.
12 Q Okay. On page 4, at the top of the page,
13 it -- subsection b., and it's Subject Matter of
14 Expected Testimony. Just like to sort of walk
15 through those.
16 Do you recognize this write-up, have you
17 seen this write-up before?
18 A I'm not sure. I've seen something that's
19 I guess similar to this.
20 Q Okay.
21 MR. HYDE: Lee, let me just interject here
22 for a moment. You can, if you want to, go
23 through these specific items by item. And
24 I think that might take a long time doing that.
25 Or we could -- I could outline for you the
172
1 general areas that would be the subject matter
2 of his testimony. And I think it might
3 actually be more useful than actually looking
4 at this document here.
5 MR. KILLINGER: It might be. This is so
6 broad I was going to go through it item by item
7 to try and limit down --
8 MR. HYDE: Okay.
9 MR. KILLINGER: -- where he was going to
10 be testifying.
11 So if you would like to do that for me,
12 then I can perhaps live with it, unless it's --
13 MR. HYDE: Let -- let me just give you
14 some generic categories here.
15 The first would be water quality
16 database. That would include the District's
17 database; Corps data; USGS data, although not
18 much about that; and ES&P's entry and access
19 data.
20 Another general area, levels of phosphorus
21 concentration in perspective. Compliance with
22 what I call the old memo of agreement between
23 Park and the District; violations of the
24 biological integrity standard, alleged
25 violation. Those violations of the dissolved
173
1 oxygen standard; alleged violations of the
2 narrative nutrient, slash, nuisance species
3 standard, particularly as they relate to
4 benthic macroinvertebrates.
5 Limits for the Loxahatchee Refuge, Park
6 limits, Everglades National Park limits. An
7 inundation analysis for WCA-2A.
8 THE WITNESS: And 1.
9 MR. HYDE: And 1. Excuse me. The Refuge
10 and WCA-2A.
11 THE WITNESS: Right.
12 MR. HYDE: U.S. Sugar's BMP data. Load
13 calculations for District and Corps structures.
14 Those are the general areas. And
15 that's --
16 MR. FitzGERALD: Can you repeat just the
17 last one, Counsel?
18 MR. HYDE: Sure. Load -- load
19 calculations for District and Corps structures.
20 And this is the area of his, you know,
21 these are his testimony's -- testimony --
22 strike that.
23 These will be the areas upon which he will
24 offer opinions at a final hearing during our
25 case in chief. Areas obviously could come up
174
1 in the case of your rebuttal which might
2 require his rebuttal. But I can't anticipate
3 what might be said at a final hearing at this
4 point, or the possible eventualities.
5 But this is the area that he's going to
6 testify about in broad terms.
7 MR. KILLINGER: Okay.
8 MR. HYDE: I hope that's helpful to you,
9 and I -- I don't know that going through this
10 is really going to tell you a whole lot.
11 MR. KILLINGER: Well, would you consider
12 that what you've told me should supersede this,
13 to the extent that there are differences? I
14 haven't analyzed it for them yet, but --
15 Sedimentation you didn't mention,
16 for instance.
17 MR. HYDE: You going to talk --
18 THE WITNESS: I wouldn't think so.
19 MR. HYDE: Sedimentation would not be on
20 the -- the list then. Topography and
21 inundation are obviously related to the
22 inundation analysis.
23 Everglades ecology I guess, generically
24 related to the issues we've already identified
25 here.
175
1 So sedimentation I guess would be the only
2 one that you wouldn't specifically be looking
3 at --
4 MR. FitzGERALD: That was certainly a
5 worthwhile exercise, to remove sedimentation
6 from that list.
7 You might as well have gone ahead, Lee.
8 MR. KILLINGER: What about STAs?
9 MR. HYDE: You're not going to be talking
10 about STAs, are you?
11 I guess it really depends on the scope --
12 or the relationship between the limits and the
13 STAs. I guess he would be doing that. I don't
14 think he's going to be giving any civil
15 engineering testimony about STAs --
16 THE WITNESS: Definitely not.
17 MR. HYDE: -- things like that. But
18 obviously to the extent that the limits --
19 discharge limitations and the limits for the
20 Refuge relate to the STAs, I guess there is a
21 connexity there.
22 MR. KILLINGER: All right. All right. I
23 just -- would that nexus be about whether a
24 discharge limitation was practicable from a
25 scientific standpoint, or would that be
176
1 whether -- I mean, just because of the way
2 they're going to work, or would that be whether
3 they're going to work at all, or -- I guess I
4 could explore this in -- let -- further detail
5 later. I'm just trying to --
6 MR. HYDE: I think it --
7 MR. KILLINGER: -- cut some corners.
8 MR. HYDE: -- might be better to ask those
9 specific questions --
10 MR. KILLINGER: Okay. That's fine.
11 MR. HYDE: -- to the person. I just
12 didn't want to hold John out as being our
13 supreme guru on STAs.
14 MR. KILLINGER: Okay. Who would that be?
15 MR. HYDE: There are several gurus.
16 MR. KILLINGER: I don't know what the term
17 of guru is. But -- okay.
18 MR. FitzGERALD: On the other hand --
19 THE WITNESS: I'd like to see if we could
20 take maybe a short break here.
21 (Recess.)
22 MR. HYDE: I just wanted to make a note
23 for the record that concerns the -- my earlier
24 representations as to producing invoices.
25 I want to ascertain what the current
177
1 policy is about the production of invoices.
2 I'm assuming that that policy is now to
3 disclose invoices in all circumstances, they
4 will be done so -- or it will be done. And if
5 not, I will so advise the parties.
6 (WHEREUPON, MR. DUNCAN EXITED THE ROOM.)
7 MR. HYDE: But I just wanted to make that
8 clarification of my earlier comments.
9 I know that we've had some disagreements
10 in the past over the producibility of documents
11 of that nature, and I just want to make sure
12 that I'm being consistent with what the current
13 practice is.
14 (WHEREUPON, A BRIEF OFF-THE-RECORD
15 DISCUSSION WAS HELD.)
16 (WHEREUPON, EXHIBIT 4 WAS DULY MARKED FOR
17 IDENTIFICATION.)
18 Q Like you to look at what's been marked as
19 exhibit 4, and ask if you can -- ask if you
20 recognize it.
21 A No.
22 Q No.
23 Okay. Can you tell me what you think it
24 is.
25 A I can read what's at the bottom of the
178
1 first page.
2 Q Is it Pretrial Disclosure of Issues on
3 Witnesses?
4 A Right.
5 Q You've not seen this document before?
6 A Not to my knowledge.
7 Q Okay.
8 A Or my recollection I guess I should say.
9 (WHEREUPON, MR. DUNCAN ENTERED THE ROOM.)
10 Q Well, would you like a minute to look at
11 it?
12 MR. HYDE: I think that might be a good --
13 A Not necessarily.
14 Q Okay. I guess I'll ask you to turn to
15 page 4.
16 A Okay.
17 Q Item number 3 on page 4 is a statement of
18 an issue together with some witnesses. And I'd
19 like to ask you about that issue.
20 And your name, which is listed underneath
21 it; is it not?
22 A Yes.
23 Q Do you intend at this point to testify
24 regarding the issues set forth as number 3?
25 MR. HYDE: Lee, I think that all of these
179
1 particular issues that are identified in this
2 pretrial disclosure would fall within the
3 context of those generic issues that I
4 identified earlier.
5 MR. KILLINGER: That may be. And this'll
6 serve to go through both the list you just gave
7 me and this.
8 A I've forgotten what the question was.
9 Q Do you intend to testify about the issues
10 set forth in item number 3?
11 A If asked to do so, yes.
12 Q Is the area set forth in the -- number 3
13 an area which you consider yourself to be an
14 expert?
15 A I think the issue basically goes to
16 whether or not there are sources of phosphorus that
17 are entering the EPA or Water Conservation Areas,
18 the Park, that haven't been addressed in the
19 remedies.
20 And I think that my familiarity with the
21 data and -- and the process would allow me to do
22 that.
23 Q Okay. Have you done any work under one or
24 more of your various contract assignments to
25 evaluate whether the SWIM Plan correctly identifies
180
1 all sources of phosphorus loading into the EPA?
2 A Portions of the work that we've done for,
3 you know, various reasons would be used to address
4 this, yes.
5 Q Have you got an opinion about whether the
6 SWIM Plan correctly identifies all sources of
7 phosphorus loading into the EPA?
8 A Yes.
9 Q What is that opinion?
10 A I think that the, you know, SWIM Plan
11 provides probably a reasonable approximation of,
12 you know, phosphorus loadings into the various
13 areas. It doesn't necessarily though then address
14 how all those sources are going to be treated.
15 Q Okay. That was a separate issue we can
16 deal with. I'm not trying to keep you from
17 qualifying or explaining your answer. I'm just --
18 I'm just going to take it in piecemeal so you can
19 make it more clear.
20 A Well, the second part of it is says
21 assigns remedies for --
22 Q I know.
23 A -- all sources. And that's what I was --
24 Q I was breaking the issue down to whether
25 or not, first of all, it identifies all sources of
181
1 phosphorus loading.
2 Do you think it does that?
3 A I think it identifies certainly the
4 majority of them.
5 Q Well, what sources are not identified?
6 A I don't recall offhand without looking
7 whether or not, you know, the SWIM Plan accurately
8 or -- calculates the, you know, phosphorus loading
9 from, for instance, the western basin; whether or
10 not it, you know, accurately, you know, reflects
11 the, you know, current plans for the C-51,
12 you know, basin.
13 Q Well, are the -- are the western basins
14 included in the present SWIM Plan?
15 A I don't think so.
16 Q Okay. Are they a source of phosphorus
17 into the EPA?
18 A Yes.
19 Q Are they identified as a source of
20 phosphorous into the EPA in the SWIM Plan?
21 A I would have to go back and look at the
22 SWIM Plan to see. I mean, this issue came up as
23 part of the mediated plan, which was obviously
24 subsequent to the SWIM Plan. So it's hard for me
25 to, you know, put a lot of these things in specific
182
1 boxes.
2 Q Okay.
3 A And to remember whether, you know, at a
4 particular point in time; i.e., you know, March,
5 you know --
6 Q Uh-hum.
7 A -- whenever -- '92 I guess, the SWIM Plan,
8 whether it was in there at that point in time.
9 My recollection is is that those sources
10 were identified as part of the mediated plan, and
11 there was a desire to incorporate these additional
12 areas into the process so that they could be
13 addressed.
14 Also the SWIM Plan considers the BMP
15 make-up water to bypass from -- from STAs.
16 Q I know. I'm --
17 A -- and the lake released water to be
18 bypassed from the STAs.
19 Q I'm just -- what I'm trying to do is get
20 an estimate of your opinion about whether the
21 SWIM Plan identifies all the potential sources.
22 You said you think --
23 A It may not identify --
24 Q -- you said --
25 A -- all the --
183
1 Q -- the majority. I'm trying to find out
2 which ones --
3 A Yeah.
4 Q -- you think were left out.
5 A I guess my response might be that it -- it
6 probably identifies all the sources and may not --
7 Q Okay.
8 A -- have accurately calculated quantity.
9 Q I understand that.
10 A Okay.
11 Q That may be a different question.
12 Do you have an opinion about whether the
13 SWIM Plan evaluates the impacts of sources of
14 phosphorus loading to the EPA?
15 A I don't think it does, because it didn't
16 address quantitatively all of the sources,
17 you know, coming into it.
18 Q What didn't it address?
19 A Well, like we were just talking about, the
20 loading from the C-51 basin, for instance. The
21 western basins. I think it enumerates, like the
22 loading from S-140 and over in that area.
23 But it doesn't really address the -- the
24 impacts of that on -- on the Water Conservation
25 Area.
184
1 Q Are those sources that you've just talked
2 about, western basin, C-51, the other ones, are
3 they discrete identifiable sources of phosphorus
4 you can tell precisely where they go into the EAA,
5 Everglades Protection Area, I'm sorry.
6 A More or less.
7 Q More or less.
8 Can those impacts be evaluated separately
9 from the impacts, if any, of the phosphorus that
10 comes out of the EAA?
11 A I guess I'm not clear --
12 Q Well, okay. Let me just rephrase it then.
13 You've said that you don't think that the
14 SWIM Plan correctly evaluates the impacts of the
15 sources of phosphorus because it didn't engage in a
16 quantitative analysis of where it comes from; is
17 that your answer? It didn't -- it didn't --
18 A Are we talking --
19 Q -- calculate --
20 A -- about -- are you asking me if I agree
21 with the conclusions of the SWIM Plan?
22 Q No. I'm asking you --
23 A Okay.
24 Q -- whether the SWIM Plan evaluates the
25 impacts of --
185
1 A But --
2 Q -- sources of phosphorus loading.
3 A I guess where I'm having maybe a little
4 bit of difficulty is understanding what you mean
5 by, you know, evaluate the impacts of phosphorus.
6 Q Okay.
7 A Because that goes to me more towards a
8 conclusion than, you know, what causes what.
9 Q Well, we've already -- you said already
10 that the SWIM Plan probably identifies all of the
11 sources.
12 A The sources, right.
13 Q Okay. Would you agree that there is an
14 evaluation of the impacts of phosphorus loading
15 into the EPA. Whether you agree or disagree with
16 the results is my next question.
17 But would you agree that there is an
18 evaluation of the impacts?
19 A Not of all the phosphorus. But --
20 Q Okay.
21 A -- the majority of -- of the phosphorus,
22 the Plan, you know, attempts to address, you know,
23 the loads and concentrations of phosphorus going
24 through certain structures. And it, you know,
25 alleges I guess you would call it impacts from that
186
1 phosphorus.
2 Q Okay. And again, what specific sources
3 were left out of that evaluation in your opinion?
4 A I guess to the extent that the SWIM Plan
5 addresses the total amount of phosphorus, you know,
6 going through the structures, you know, exiting the
7 EAA, they're addressing all of the phosphorus loads
8 that leave the EAA.
9 Okay. So I guess all of it is included
10 from that extent except from the stuff that comes
11 down from S-140 and maybe some of the stuff coming
12 down, I think it's L-3.
13 And then there's a couple of, you know,
14 relatively minor, you know, sources in the
15 Loxahatchee, like the Acme pumps over there --
16 Q Right.
17 A It doesn't -- I don't think the SWIM Plan
18 really addresses that much relative to impacts of
19 some of the pumps that, you know, drain the urban
20 areas over to the east.
21 Q All right. Now, I guess this is the
22 question you've been waiting for: In your opinion,
23 does the SWIM Plan correctly evaluate the impacts
24 of the total load, which is getting into the
25 Everglades Protection Area.
187
1 A No.
2 Q Okay. What in your opinion is the
3 SWIM Plan's evaluation of those impacts?
4 A You want to say that one more time?
5 Q Well, you said that you disagree that the
6 SWIM Plan --
7 A Right.
8 Q -- correctly evaluates the impacts of
9 the -- the phosphorus loading of the EPA.
10 A Right.
11 Q What is your restatement to me of what the
12 SWIM Plan's evaluation is?
13 A I guess basically that phosphorus causes
14 everything that can possibly be wrong with the
15 Everglades.
16 (WHEREUPON, A BRIEF OFF-THE-RECORD
17 DISCUSSION WAS HELD.)
18 MR. KILLINGER: Okay. Put it back.
19 Q I think your last statement was that the
20 District has concluded that phosphorus causes
21 everything wrong in the Everglades.
22 Can you be a little more specific.
23 What's wrong in the Everglades, let's
24 start with that.
25 MR. HYDE: We might be here for the next
188
1 three days on that answer.
2 Q According to the SWIM Plan.
3 A Well, the SWIM Plan does talk about the
4 fact that there are, you know, water shortages;
5 talks a little bit about, you know, hydroperiod
6 impacts; that wildlife populations have been,
7 you know, declining; that, you know, phosphorus has
8 caused community shifts, violations of various
9 water quality standards.
10 Q Okay. Is that sort of the broad brush of
11 it?
12 A I think so.
13 Q What in your opinion is incorrect about
14 the District's evaluation about the effects or the
15 impacts of phosphorus loading into the Everglades?
16 A I think they have put, you know, way too
17 much, you know, emphasis on phosphorus as being
18 the, you know, primary, you know, causative factor
19 in a lot of the alleged problems.
20 Q Okay. What -- has the District identified
21 phosphorus as being the primary causative factor?
22 Yeah. Let's -- I mean, water shortages?
23 A I don't think they've alleged that.
24 Q Okay. Community shifts?
25 A Yes.
189
1 Q Okay. What's wrong with their conclusion
2 about that?
3 A I think they have, you know, failed to,
4 you know, consider a lot of the other causative
5 factors that can essentially cause, you know,
6 shifts in -- in the communities.
7 Q Do you intend to testify at hearing about
8 whether the SWIM Plan correctly evaluates the
9 impacts of the sources -- the phosphorus loading
10 into the EPA?
11 A You said correctly identifies the
12 phosphorus loading to the EPA?
13 Q We can start with that. I didn't start
14 with that. But that's fine. Do you intend to talk
15 about whether or not it correctly identifies the
16 sources of phosphorus?
17 A I think that could be one area, yes.
18 Q Have you done any specific work to reach a
19 specific conclusion about that?
20 A Basically be predicated on the work that's
21 been done by, for instance, Burns & McDonnell,
22 Bill Walker, and other people.
23 Q But do you have an opinion as you sit here
24 today about whether the SWIM Plan correctly
25 identifies all sources of phosphorus loading into
190
1 the EPA? I mean, I know we've gone over this in --
2 A Yeah. I know. And --
3 Q -- part before.
4 A -- I'm -- I may be reading into something
5 other that, you know, you're not intending into the
6 question, I don't know.
7 I don't think that the SWIM Plan has,
8 you know, correctly apportioned, you know, where
9 various, you know, parts of the phosphorus loading
10 comes from.
11 And -- and an example was, the ones we
12 went through, like the western basin, the
13 significant, that sort of thing.
14 For instance, I believe that, you know,
15 there's been, you know, various calculations and
16 recalculations of where the water comes from to go
17 through the S-58 pump, you know, complex. And how
18 you calculate that, because it's a -- kind of a
19 complicated, you know, system.
20 Q Yeah.
21 A And they are -- it's also kind of a
22 dynamic, you know, system in that there's various
23 planning going on all the time related to how they
24 operate these systems.
25 And again, as part of the mediated planned
191
1 process, a lot of these, you know, changes were
2 really examined in more detail, and, you know, new
3 calculations were made. That basically, you know,
4 changed, for lack of a better term, you know,
5 assignment of some of the phosphorus load to
6 various areas.
7 Q Okay.
8 A I'm not trying to avoid your question
9 really, I'm --
10 Q I understand.
11 Do you intend to testify about the
12 correctness of the SWIM Plan's evaluation of
13 impacts of phosphorus loading into the EPA?
14 A To the extent that I would intend to offer
15 testimony relative to, for instance, whether or not
16 the, you know, biological integrity standard was
17 violated, for instance, in a particular area; and
18 then, whether or not, you know, phosphorus would
19 have been responsible for that, yes.
20 But not, you know, in a generic, you know,
21 broad sense.
22 Q Okay. That's what I was trying to get.
23 So with regard to what specific --
24 MR. KILLINGER: And maybe we can refer,
25 Bill, to your list, if that makes life easier.
192
1 Q -- what sp-- with regard to what specific
2 areas would you intend on offering an opinion at
3 trial about the impacts of phosphorus loading into
4 the EPA? I mean, you did mention biological
5 integrity. What else would you --
6 A I guess I don't, you know, view the
7 testimony that I would give so much in terms of is
8 it an impact of, you know, phosphorus per se as
9 much as whether or not, you know, there's a
10 violation of the particular standard.
11 And I would intend to offer testimony,
12 for instance, that would say that, you know, based
13 on the data that we've collected, the biological
14 integrity standard is not, you know, violated. And
15 to the extent it's not violated, there's no reason
16 to discuss, you know, what the cost of that might
17 have been.
18 Does that --
19 Q Okay.
20 A -- help a little bit?
21 Q Okay.
22 A I just haven't thought of my testimony in
23 terms of is it a direct impact of phosphorus
24 loading. Because in -- in several instances, it's
25 not necessary to get to that point.
193
1 Q Okay. And let's move on a little bit to
2 make some progress.
3 In your opinion, does the SWIM Plan
4 correctly assign remedies for all sources of
5 phosphorus loading into the EPA?
6 A No.
7 Q What does it -- what does it leave out,
8 what's wrong about it?
9 A Well, if phosphorus is not really the
10 cause of the problem, then phosphorus doesn't
11 necessarily provide a remedy for that problem.
12 So maybe it's a -- a chicken and egg
13 situation. I don't know.
14 Q Do you know whether it is a legal
15 requirement for the SWIM Plan to include that
16 analysis or identification?
17 A As I recall, the, you know, legislation
18 requires the Water Management District to,
19 you know, look at the, quote, alleged phosphorus
20 problem and -- and presumably decide whether or not
21 it is a problem; and if so, provide a remedy.
22 Q Okay. So is it your statement that
23 phosphorus causes -- or is causing no impacts to
24 the Everglades?
25 A I'm saying that for the areas that,
194
1 you know, I've been asked to provide, you know,
2 testimony on, I don't think that, you know,
3 phosphorus has caused any, you know, significant,
4 you know, impact.
5 Q Well, we've already talked about what
6 areas you're going to testify about. But I'm not
7 sure I still have a clear idea.
8 But what would you call significant
9 impact?
10 A Well, it's obviously not causing any,
11 you know, life and death situations; I don't think
12 it's causing any, you know, human health, you know,
13 problem.
14 I don't think personally that it's causing
15 any decline, you know, per se in -- in wildlife,
16 you know, populations.
17 Although, I don't intend to offer any
18 testimony in this area, I don't think that,
19 you know, it's the primary cause for, you know, the
20 alleged, you know, cattail, you know, monoculture
21 or whatever.
22 I think that, you know, if there were,
23 you know, violations of the water quality,
24 you know, standards, for instance, that would be,
25 you know, a significant, you know, impact.
195
1 Q Do you think that it's causing any
2 community shifts in either taxon or -- any -- well,
3 any community shift. I'll leave it at that. Let
4 you quantify which ones.
5 A Well, I don't, you know, haven't been
6 asked to provide any opinion relative to, you know,
7 macrophyte, you know, shifts, and that sort of
8 thing. So I really haven't spent much time,
9 you know, thinking about that to be honest.
10 The area that, you know, I have been asked
11 to look at was, you know, specifically one of the
12 allegations that, you know, the biological
13 integrity standard was violated. And I don't think
14 that, you know, phosphorus has caused that standard
15 to be violated.
16 Q Do you think it's having an effect on the
17 biological integrity of the region?
18 MR. HYDE: Do you mean in the context of
19 the rule regarding biological integrity?
20 MR. KILLINGER: Yes.
21 MR. HYDE: Because the rule specifies
22 whether there's -- or how to measure whether
23 there is a biological effect in terms of the --
24 that rule.
25 Or do you mean it in a more generic sense.
196
1 Q Is it having an effect that doesn't
2 constitute a violation.
3 A I think, you know, nutrients, you know,
4 have an affect on anything that's living.
5 Q Okay. What effect would you say that
6 nutrients are having -- I'm not sure that answers
7 my question. So I guess I'm going to ask it again.
8 A Okay.
9 Q Given that nutrients have an effect on
10 anything that's living, do you think that there is
11 any effect on any shift that doesn't constitute a
12 violation of -- of biological integrity occurring
13 in the Everglades?
14 A No.
15 Q Do you have an opinion about appropriate
16 remedies for all sources of phosphorus loading into
17 the EPA?
18 A I think so. If I understand your
19 question.
20 Q Okay. Well, what would your opinion be,
21 and we'll see if that answers it.
22 A If you are assuming that you want to
23 reduce the phosphorus --
24 Q Okay.
25 A -- going into the
197
1 Water Conservation Areas, I do not think the
2 SWIM Plan solution to that; i.e., whatever it is,
3 37,000 acres of STAs, is -- has been appropriately
4 done. That's not an area I, you know, anticipate
5 offering testimony on but I don't --
6 Q Okay.
7 A -- think it has been.
8 Q Can you indicate what you think was
9 inappropriate?
10 A The analysis contained in the SWIM Plan,
11 basically in Appendix F, incorrectly calculates
12 settling rate. It assumes that all the BMP makeup
13 water is going to go around the STAs, it assumes
14 all the lake release water is going to go around
15 the STAs.
16 Q Anything else spring to mind?
17 A I think that probably covers it.
18 Q But is it -- you're not going to offer any
19 testimony about those last things that you just
20 ticked off about Appendix F?
21 A I don't think it's been -- that I've been
22 asked to do that.
23 Q Okay. I guess we'll go to page 5.
24 I -- number 5 I believe, which carries
25 over to page 6, also has you listed as a witness
198
1 for that issue.
2 Do you consider yourself an expert in
3 Everglades hydroperiod issues?
4 A I have a pretty good understanding of,
5 you know, what, you know, the hydroperiod consists
6 of, and -- and, you know, some of the work that's
7 been done to describe that.
8 Q Have you performed any work under any of
9 your contracts about what the determination of the
10 natural Everglades hydroperiod is --
11 A No.
12 Q -- or was?
13 A No.
14 Other than I guess perhaps I -- I mean, we
15 haven't done any direct work to, you know, look at
16 what the natural Everglades hydrology was.
17 But I indicated before, we reviewed some
18 of the work that others had done and the
19 South Florida Natural Systems Model, and some of
20 its shortcomings.
21 Q Do you intend to offer any testimony at
22 trial as far as you know about whether the District
23 has properly determined natural Everglades
24 hydroperiod?
25 A I don't believe that's one of the areas
199
1 I've been asked to go in.
2 MR. HYDE: Lee, in a sense, asking
3 questions about these specific issues is a bit
4 unfair to the witness, because what the lawyers
5 meant in writing these issues out and assigning
6 witnesses to them may not be readily apparent
7 to the witness himself.
8 In many instances, a witness may provide
9 information that is a foundation or building
10 block for other witnesses to rely upon. And
11 that may be the case here for some of these
12 issues, too.
13 So I think that's something that needs to
14 be kept in mind.
15 MR. KILLINGER: I think I -- I understand
16 you, Bill. I mean, we've had -- I think we've
17 had virtually this same discussion when I think
18 Russ Frydenborg was deposed because the issue
19 listing for him having --
20 MR. HYDE: Right.
21 MR. KILLINGER: -- he didn't know what he
22 was going to talk about, because he didn't know
23 what he's going to talk about until he's asked
24 at trial. I mean, I understand the
25 witness-lawyer dichotomy that is replete in all
200
1 of these things.
2 MR. FitzGERALD: I don't think anybody's
3 proposing to shoot the witnesses because of
4 what the lawyers did. On the other hand,
5 neither are the lawyers in a position to shield
6 the witness from legitimate inquiry about
7 trying to figure out what in the hell their
8 building blocks are, when the lawyers have not
9 adequately described it and can't block and say
10 they did so. You know, unless the questions
11 are unfair.
12 MR. KILLINGER: Well --
13 MR. FitzGERALD: And I agree, we've had
14 the problem. It's not exclusive to your
15 designations either.
16 MR. HYDE: Well, I wasn't barring anybody
17 from asking questions. I was just trying to
18 put it in context.
19 MR. FitzGERALD: That's what I was --
20 MR. KILLINGER: I mean, I understand, and
21 I appreciate that. Because I think it applies
22 pretty much across the board. And what I --
23 MR. FitzGERALD: Not to my witnesses.
24 MR. KILLINGER: Oh, okay. All right.
25 All right.
201
1 I don't want, you know, to run up against
2 a -- a wall of some deposition question about a
3 wrong witness designation with an ah-hah, and
4 what about this, you know, at hearing.
5 But I'm trying to go into what work the
6 witness has done on these things, and what he
7 knows he's considered, and how much. Because
8 I think that goes to --
9 MR. FitzGERALD: Well, when you --
10 MR. KILLINGER: -- how much he can testify
11 about.
12 MR. HYDE: That's why I articulated those
13 generic issues earlier, to provide a focus for
14 what Dr. Davis will be actually testifying to.
15 MR. FitzGERALD: The only thing, I think
16 it's fair to ask a witness, you know, do you
17 consider yourself an expert on this
18 subject matter. If the answer is no, that gets
19 around a lot of building block material
20 actually, because then any opinion is not an
21 expert opinion in that area, it needs to be
22 treated as such.
23 MR. HYDE: Well, not necessarily.
24 For example, one might ask a witness whether
25 they're a -- an expert in water -- water budget
202
1 analysis, and they may say no.
2 But at the same time, they may have done
3 some essential work --
4 MR. KILLINGER: Then they're a
5 foundational witness, they're not an expert for
6 that purpose.
7 MR. HYDE: Right.
8 MR. FitzGERALD: That's my point. You --
9 you can hone it somewhat and constrain the --
10 the limits of the inquiry.
11 MR. HYDE: Understand. I just wanted to
12 make it clear that merely because one doesn't
13 claim an expertise regarding a given issue or
14 subject matter of a given issue doesn't make
15 one unqualified or unable to testify in a
16 manner that's probative and relevant to that
17 issue. That's all I'm saying.
18 Q Have you got an opinion about whether the
19 District has properly determined the natural
20 Everglades hydroperiod?
21 A Yes.
22 Q And what is that opinion?
23 A That it's -- their analysis is a best
24 guess, that it's pretty preliminary in nature, that
25 it's kind of generic in broad brushes, the
203
1 analysis.
2 Q Do you think it is fundamentally
3 incorrect?
4 A I think that it's based on a lot of
5 assumptions that are essentially impossible to
6 verify or test.
7 Q And what --
8 A That it's impossible to calibrate the
9 model that they use to predict these things.
10 Q Do you think that same critique applies to
11 any model of Everglades hydroperiod?
12 A Yes.
13 Q Then is it a correct restatement of your
14 testimony that what the District has done is not
15 necessarily wrong, it's just that it's fraught with
16 difficulty and -- and not an easy task for anybody
17 to pull it off.
18 A Well, I wouldn't go so far as to say that
19 I think it's right, and by you saying, you know, do
20 I not think it's wrong, if your term then means
21 I think it's right, then the answer is no.
22 I think that, like I said, the analysis is
23 based on a lot of assumptions that are extremely
24 difficult, if not impossible, to verify. And that
25 there's no way to really, you know, calibrate the
204
1 model. So that when the model, you know, predicts
2 that the water levels were X inches for, you know,
3 this duration under this set of conditions, and you
4 can't -- and you don't have data to verify whether
5 that's right or wrong, you don't really know
6 whether the projections of that simulation are
7 correct or not.
8 So I'm not saying that I know that it's
9 wrong. I also don't know that it's right. I think
10 that there are a lot of assumptions that --
11 Q Do you think those assumptions --
12 A -- are questionable.
13 Q Do you think those assumptions are
14 reasonable?
15 A I would, you know, probably presume, that,
16 you know, based on the information that, you know,
17 they had available to them and that sort of thing,
18 that they made their -- their best guess at those
19 assumptions.
20 Q Okay. I think we already discussed that
21 you've had some experience with restoration of
22 ecosystems.
23 Do you have an understanding of what the
24 Everglades restoration goals are?
25 A A general understanding I guess.
205
1 Q What would be that understanding?
2 A I think that a lot of people want to put
3 it back to what their perception of it was
4 100 years ago or whatever. I don't think that's
5 possible.
6 Q Do you think that's what the District
7 wants to do?
8 A I think the District probably wants to
9 please as many people as they can, and get
10 everybody off their back.
11 Q That notwithstanding, do you think that it
12 clearly does-- doesn't -- clearly doesn't please
13 some of your clients from what I can tell.
14 What do you think that restoration goal
15 is?
16 A I think they would really like to restore,
17 you know, hydroperiod in those areas. But they
18 would like to, you know, manage the, you know,
19 water delivery and -- and timing to the various
20 areas better.
21 They obviously state that they want to
22 reduce the phosphorus in the water that they do
23 send south.
24 Q Do you think that the restoration goal of
25 restoring hydroperiod is -- is laudable or
206
1 appropriate?
2 A Yes.
3 Q You think the restoration goal of reducing
4 phosphorus is laudable or appropriate?
5 A I think it's out of perspective in terms
6 of emphasis --
7 Q Okay.
8 A -- that -- I think that --
9 Q I'm going to have to ask it again, I asked
10 you for a yes or no. We can qualify in a minute, I
11 will -- I will -- I'll represent to you that I will
12 give you a chance to qualify your answer.
13 But do you think it's a -- a laudable
14 goal, restoration goal.
15 MR. HYDE: I'm going to object. I don't
16 think the witness is necessarily required to
17 give yes or no answers to questions that he
18 doesn't feel are appropriately answered by a
19 yes or no.
20 MR. KILLINGER: Well, I'm going to request
21 that he give me a yes or no. And if he refuses
22 to so then I guess we'll have to --
23 MR. HYDE: Well if he's able to --
24 MR. KILLINGER: -- see I can live with
25 that. But --
207
1 MR. HYDE: If he's able to do so, he can.
2 But I think it's a rather unfair choice to put
3 to the witness.
4 MR. KILLINGER: I told him I'll give him a
5 chance to qualify. You know, but he didn't
6 give me a yes but, or a no but. He just gave
7 me the qualifications.
8 MR. HYDE: Okay.
9 You may go ahead and answer the question.
10 A I guess if I had to give a yes or no
11 answer, I would have to say that in the context
12 I think about it, the answer would be no.
13 Q Okay. In what context do you think about
14 it?
15 A I think that, you know, the District
16 should have ranked the magnitude of the problems in
17 the, quote, you know, Everglades. And tried to
18 determine the cause of those problems.
19 And that they should have spent -- then
20 determined, you know, how much resources they had
21 to expend on, you know, these various problems.
22 And they should have directed more of the resources
23 towards resolving the hydroperiod issues, and less
24 on the phosphorus issues.
25 Q Okay. Just to back up for a second, there
208
1 was a rather instantaneous yes answer to my
2 question of whether you thought restoration of the
3 hydroperiod was a -- a laudable goal.
4 A Uh-hum.
5 Q Why do you think that's the case?
6 A Because I think that's where the majority
7 of the, you know, impact has been on the
8 Everglades. And I think it also has the most,
9 you know, possibilities relative to, quote,
10 restoration.
11 Q Highest chance of success?
12 A Uh-hum.
13 Q Okay. You said that hydroperiod has been
14 the major cause of impacts in the Everglades.
15 What impacts are you referring to?
16 A If you go back and look at the literature
17 and other, you know, publications that perhaps,
18 you know, didn't get actually into the literature,
19 you see that over the past twenty plus years,
20 everyone has almost constantly pointed out,
21 you know, problems with hydroperiod.
22 You know, not enough water, too much
23 water. They've tried to manage the system the --
24 by delivering, you know, various quantities of
25 water, you know, at, you know, various times.
209
1 If you were to stack up a number of
2 publications that the Everglades National Park has
3 produced addressing problems in the Park, and you
4 measured them with a ruler, the ones laid to
5 hydroperiod and water supply problems, and then
6 measured the ones on -- in the phosphorus problems,
7 and take away the ones that were generated just for
8 this litigation, you know, there would be,
9 you know, probably ten or a hundred times,
10 you know, more publications on, you know,
11 hydroperiod impact.
12 And I -- I don't know if the comparison
13 would be as dramatic with District publications.
14 But I think, you know, the District has also
15 recognized to a certain extent the problem with
16 hydroperiod.
17 Their change in the regulation schedule
18 for, you know, 2-A is a very good example of that.
19 Where they recognize that during, you know, the
20 late '70s, they were drowning all the tree islands
21 in 2-A, so they decided to change the regulation,
22 you know, schedule to, quote, save the tree islands
23 and kind of restore, you know, the communities out
24 there.
25 The Refuge has historically, you know,
210
1 managed water levels in the Refuge to provide,
2 you know, habitat for, you know, snail kites or the
3 duck population or, you know, the fisheries
4 population, whatever.
5 They've always managed, you know, water,
6 you know, level hydroperiod to try to manage
7 various aspects of the communities out there.
8 You know, they've never tried to,
9 you know, regulate the amount of phosphorus that
10 came in. When they want to cause a shift in the
11 usage of the habitat for a particular species, they
12 change the regulation schedule for hydroperiod.
13 And that's the way that they've always
14 done it. And probably, you know, will in the
15 future, for that matter.
16 It affects a bigger area, you know,
17 geographically, number of acres.
18 Q Why is that?
19 A The -- the water from, you know,
20 Lake Okeechobee and, you know, areas north,
21 you know, that flow into it, you know, affect,
22 you know, water levels essentially in all the
23 areas, you know, south of there.
24 The Corps project --
25
211
1 (WHEREUPON, A BRIEF OFF-THE-RECORD
2 DISCUSSION WAS HELD.)
3 Q I guess I didn't really ask the question
4 very clearly.
5 You said the hydroperiod affects a greater
6 area. And that's one reason that perhaps it has
7 a -- ought to be accorded a greater weight in any
8 restoration goal. Is that correct?
9 A Yes.
10 Q Are you saying that nutrients affect,
11 therefore, a lesser area?
12 A Certainly.
13 Q Okay. How much area do nutrients affect,
14 compared to the area effected by hydroperiod?
15 A On a percentage basis --
16 Q That'll do.
17 A -- I don't know. Probably 1, 2,
18 3 percent, something like that maybe. Maybe less.
19 Q Is your -- does the -- what's the total
20 area geographically speaking that you're putting
21 into that statement? Is that all the
22 Water Conservation Area in
23 Everglades National Park?
24 A (Nodding head.)
25 Q What affect do nutrients have in that 1,
212
1 2, 3 percent, whatever it is of the total?
2 A They cause things to grow, more robustly
3 I guess.
4 Q Do they cause different things to grow?
5 A Not necessarily.
6 Q Okay. Do you have any knowledge about the
7 District's present water budget for areas regulated
8 under the SWIM Plan?
9 A Not very extensively.
10 Q What's your knowledge derived from?
11 A Maybe I should go back and seek
12 clarification about the last question.
13 Q Okay.
14 A I was, you know, responding to that in
15 terms of thinking about their water supply
16 planning, you know, process.
17 Q Okay.
18 A I haven't been -- tried to keep up with
19 that, okay.
20 Relative to water budgets for any of the
21 Water Conservation Areas and EAA, and that sort of
22 thing, I do have a pretty good knowledge base on
23 that.
24 Q Okay. Do you know if the District
25 presently has a water budget for those areas?
213
1 A There is one laid out in the SWIM Plan.
2 Q Do you think it is correct?
3 A I think that the, you know, water budgets
4 for the Water Conservation Areas is kind of in the
5 ballpark. But like many, you know, water budgets,
6 they, you know, add up what they can measure going
7 in, and what they can measure going out. And they
8 make up the difference between, you know, rainfall
9 and ET and seepage.
10 So, you know, mathematically, everything
11 balances.
12 Q Okay. Well, I realize it is what it is.
13 A Right. Right.
14 Q Restoration of hydroperiod that we've
15 discussed as being a good restoration goal, how
16 would that effect the present water budget for
17 those areas?
18 A Well, I'm not sure if what we're talking
19 about is, you know, water budget or water
20 allocation. To the extent that they put more water
21 into Water Conservation Areas, it would increase,
22 you know, the amount of water going to that,
23 you know, conservation area.
24 Q Okay.
25 Well, let me ask it a different way I
214
1 suppose. In your opinion, would hydro-- Everglades
2 hydroperiod restoration involve putting more water
3 in the natural areas of the Everglades?
4 Or should it? I guess a maybe more
5 appropriate answer -- question.
6 A It would require, you know, looking at the
7 amount and timing that the water was, you know, put
8 into the area and how long it was allowed to,
9 you know, stay in those areas. It also addressed
10 the method of delivery of that water.
11 Q What do you mean by "method of delivery?"
12 A Well, for instance, the, you know,
13 northern part of 3-A is identified as being
14 over-drained in the SWIM Plan. That's largely
15 because they put water in at the pump stations,
16 there are canals that carry that water away from
17 those pump stations, so a lot of the water is -- is
18 prevented from, you know, flowing over the marsh.
19 If you had a spreader canal, which was one
20 of the things contemplated in the mediated plan
21 anyway, to spread that water across the entire
22 marsh, that would obviously, you know, benefit that
23 hydroperiod of all these areas that are identified
24 in the SWIM Plan as being over-drained due to the
25 Corps project.
215
1 Q So it would take -- correct me if I'm
2 wrong, would it -- it would take more water --
3 A Well, not --
4 Q -- delivered in the --
5 A -- necessarily.
6 Q -- appropriate way?
7 A The solution is not always more. The
8 solution could be in terms of, you know, supplying
9 perhaps the same amount of water in a different
10 way, and over a different time period.
11 I mean, it -- I think part of the analysis
12 for hydroperiod restoration would have to include,
13 does it need more water, and then -- or does it
14 need perhaps the same amount of water just
15 distributed temporally better and spatially
16 better.
17 I mean, part of the water in the past in
18 2-A was too much water. Okay. So it's -- the
19 historic hydroperiod doesn't necessarily mean
20 more. In some instances it could be, you know,
21 less.
22 Q Okay. Well, if -- if the northern part of
23 3-A is presently identified as being over-drained,
24 and you put more water in there, for instance,
25 through a spreader canal --
216
1 A Uh-hum.
2 Q -- and the water was of a phosphorus
3 concentration or provided a phosphorus load
4 equivalent to that in the water that's in the EAA
5 now; i.e., without any treatments, would you
6 expect -- would -- would that in your opinion be a
7 worthwhile restoration project?
8 A Yes.
9 Q Would you expect to see any impacts from
10 that increased and redirected flow into 3-A from
11 that water?
12 A Yes.
13 Q What kind of impact would you expect?
14 A I would expect to see more, for instance,
15 open water, you know, areas, some kind of sloughs
16 in that area since there would be water there to
17 fill in the dry potholes that are out there now.
18 I would expect to see probably more,
19 you know, wetland species there perhaps, a lot of
20 the northern 3-A have got a lot of, you know,
21 willow, and kind of weedy, kind of drier, you know,
22 species in there, I'd expect to see some of those
23 disappear.
24 I expect to see, you know, all of the,
25 you know, the plants in there be a little more,
217
1 you know, robust, and healthier, if that's a good
2 term for plants out there.
3 Q Why would you expect them to be healthier
4 or more robust?
5 A For one thing, they get more water and are
6 less stressed, you know, during drought periods.
7 And I would expect that the -- you know,
8 nutrients and micronutrients in that water would
9 provide them a better diet.
10 Q Would you expect to see any community
11 shifts of, say, macrophytes?
12 MR. HYDE: Simply as --
13 A I doubt --
14 MR. HYDE: -- a result of the additional
15 water?
16 Q With the hypothetical I gave you, more
17 water going into 3-A through the spreader canal
18 scenario that you've talked about, but without any
19 treatment of it in the nature of an STA or
20 something --
21 A Yes.
22 Q -- present concentrations or load.
23 A Yes.
24 Q You would expect to see some community
25 shifts?
218
1 A Yes.
2 Q To what? Or from what to what.
3 A Like I said, I would expect to see some of
4 the species that are adapted to the drier
5 conditions drop out of the area. And, you know,
6 those more -- the wetland species to -- to come in.
7 Q What wetland species might you expect?
8 A Oh, I don't know. Some of those,
9 you know, the -- the rushes and sedges and maybe
10 even grasses. And in the slough areas, probably,
11 you know, a phase of water lillies, things like
12 this. There would probably even be some cattails
13 one day.
14 Q Do you think saw grass would come in?
15 A I think that, you know, there is some
16 saw grass there now, and I think that would do
17 better and expand.
18 Q After the initial I guess -- I don't know
19 if die-off would be an appropriate term -- but
20 die-off of the -- the species that are thriving in
21 the drier conditions now --
22 A Uh-hum.
23 Q -- and an initial shift to wetland
24 species, would you expect any continuing shift as
25 those wetland species compete amongst themselves?
219
1 MR. HYDE: Are you speaking simply in
2 terms of plant species or in general?
3 MR. KILLINGER: Macrophytes. Sorry.
4 MR. HYDE: Okay.
5 A I think, you know, any, you know,
6 ecosystem goes through kind of a, you know,
7 sorting, you know, process that, you know, moves
8 towards some kind of equilibrium that's established
9 for, you know, a brief period of time, and the
10 changes -- conditions change, and then they,
11 you know, have another equilibrium established.
12 So I mean, I think there would be an
13 interplay among those things. I mean, they are --
14 Well, leave it at that.
15 Q So you really can't answer the
16 hypothetical that I've posed to you about what
17 species might become dominant down there.
18 A Oh. No, I wouldn't try to predict that.
19 Q Okay.
20 A I would simply say that you look at
21 species that are there now. And the species that
22 are dominant now that are, you know, true wetland
23 species would probably be dominant then, too.
24 Q What affect do you think the -- you may
25 have already answered this question -- but what
220
1 affect do you think the influx of additional
2 nutrients would have on the wetland species that
3 might establish themselves there?
4 A I think it would act as a fertilizer and,
5 you know, cause them to grow more vigorously if
6 you, you know, want to -- it might increase,
7 for instance, the height of the plant.
8 It might -- probably would increase,
9 you know, their lateral expansion to the extent
10 that there is, you know, room for them to expand,
11 space available.
12 Q Well, you said there -- there's some
13 saw grass there now, and you'd probably expect to
14 see some cattails there. But you --
15 A There is some cattail there now, too.
16 Q Would you be comfortable making any
17 prediction about which might become dominant under
18 that scenario?
19 A I think it depends on, you know, how
20 the -- the water, you know, regulations were
21 you know, maintained in there. You know, how --
22 how deep and how long and things like that.
23 Q So it'd be more related to the regulation
24 of the water than it would be to the nutrient
25 influx?
221
1 A I think so.
2 Q Okay. Can I get you to turn to page 9 of
3 this exhibit, please.
4 A (Witness complying.)
5 (WHEREUPON, A BRIEF OFF-THE-RECORD
6 DISCUSSION WAS HELD.)
7 A Nine?
8 Q Yes.
9 A Okay.
10 Q Item number 11 gives a listing for an
11 issue as the League frames it in the case.
12 Is this an area where you consider
13 yourself to be an expert?
14 A I would not hold myself out as an expert
15 on, like, you know, invertebrates, you know, fauna
16 species or, you know, necessarily, you know,
17 periphyton, you know, species.
18 I think that, you know, I have --
19 obviously have some idea of -- of imbalance which,
20 I guess everybody does.
21 Q Okay. Well --
22 A I think what Bill had indicated earlier,
23 and what I understood, is that I would be offering
24 expert testimony relative to, you know, biological
25 integrity which addresses, you know, the
222
1 macroinvertebrates.
2 And then, you know, probably, you know, in
3 terms of, you know, general ecological concepts
4 relative to these broader classes. But not,
5 you know, specific --
6 Q Okay.
7 A -- taxa, for instance.
8 Q Well, I guess let me ask if you have an
9 opinion about whether any imbalances of natural
10 populations of aquatic flora and fauna exist in the
11 Everglades Protection Area.
12 A Yes.
13 Q Okay. What imbalances would you say
14 exist?
15 A I don't think that any imbalances do
16 exist. And when you look at the, you know, EPA as
17 a whole.
18 Q Okay. You said you don't think any
19 imbalances exist when you look at the EPA as a
20 whole.
21 A Right.
22 Q Is it your interpretation that an
23 imbalance determination should look at the EPA as a
24 whole?
25 A I think it definitely, you know, has a --
223
1 an aerial extent component to it.
2 Q Can you give me your opinion as to how the
3 aerial extent component works into any decision
4 about imbalance?
5 A Well, I think that, you know, when you're,
6 trying to determine if something is in, you know,
7 balance or not, you have to, you know, define,
8 you know, what you're talking about.
9 And, you know, part of that, you know,
10 definition requires that you, you know, define the
11 extent of the area that you're dealing with here.
12 I think that concept is also borne out in
13 some definitions that the District have, you know,
14 come up with to try to deal with this same
15 question.
16 In their research plan, they talk about
17 their, quote, administrative definition of
18 imbalance and -- and there are several places in
19 the research plan, as a matter of fact, they,
20 you know, talk about the fact that you have to look
21 at, you know, aerial extents.
22 I believe Frank's document relative to
23 imbalance talks about having to look at aerial
24 extent.
25 Q What's your understanding of the way the
224
1 Department looks at the aerial extent component of
2 an imbalance determination?
3 A I think that the Department looks at it on
4 a site specific -- or case specific, you know,
5 basis.
6 Q And what's that understanding derived
7 from, where do you get that idea?
8 A Well, I think Frank may have made that
9 statement in his, you know, document, if I'm not
10 mistaken.
11 But quite frankly, I haven't been involved
12 in very many instances where, you know, the
13 Department has actually used this kind of -- of
14 language.
15 I think that it's one of those kind of
16 narrative statements that they, you know, put in
17 the regulations to give the staff, you know,
18 discretion, you know, to, you know, apply when,
19 you know, other things, you know, wouldn't, they
20 want to deny a project or whatever. My personal
21 opinion.
22 But --
23 Q Do you think that a narrative standard is
24 inappropriate?
25 MR. HYDE: Any narrative standard --
225
1 MR. KILLINGER: Yes.
2 MR. HYDE: -- or this one in particular.
3 MR. KILLINGER: Any.
4 A I think that they have an awful lot of
5 problems associated with them, because they allow a
6 lot of subjectivity of the individual applying the
7 standard come into play. To the extent that you
8 can have a numerical standard that everyone can
9 understand, and there is a consistent basis to
10 apply that standard, I think you're much better
11 off.
12 Q Okay. Are there any more localized areas
13 in the Everglades Protection Area that you would
14 say have an imbalance of natural populations of
15 aquatic flora and fauna?
16 A I think that if you define your area small
17 enough, you can find an area that essentially has,
18 you know, one thing in it. And to the extent you
19 do that, I would guess you would argue that it's
20 not balanced because it has all of, you know, one
21 thing.
22 Q Do you think that's been done in the case
23 of the Everglades SWIM planning process?
24 A I don't think that the SWIM Plan really
25 identifies the areas that it alleges the, you know,
226
1 violations occurred. I think they generally say
2 that, you know, imbalances have occurred without
3 any, you know, specific identification as to their,
4 you know, aerial extent.
5 Q Let's press on to page 10, please.
6 I believe that number 12, which starts on
7 page 10 and goes to page 11, I've got your name
8 listed in the litany of potential witnesses. It
9 asks whether this is an area in which you consider
10 yourself to be an expert.
11 (WHEREUPON, A BRIEF OFF-THE-RECORD
12 DISCUSSION WAS HELD.)
13 A I have I guess, you know, dealt with
14 the -- the notion of, you know, nuisance species
15 and, you know, wetland systems, for instance, as
16 part of the Department's evaluation of, you know,
17 dredge and fill permit applications and -- and the
18 reclamation demonstration projects, and this sort
19 of thing.
20 And, you know, have an understanding of,
21 you know, what they, you know, consider to be,
22 you know, nuisance species and -- and, you know,
23 the context that they, you know, consider those
24 species to be, you know, nuisances, quote, in the,
25 you know, wetland systems.
227
1 Q Well, do you have an opinion about
2 whether, where, and to what extent the elements of
3 nuisance species exists within the waters of the
4 Everglades Protection Area?
5 A Yes.
6 Q What is that opinion?
7 A That again, in order to, you know,
8 evaluate, you know, whether a -- a species is,
9 you know, a nuisance goes to the aerial extent and
10 the purpose for which, you know, the area is,
11 you know, designated or, you know, being used.
12 And to the extent that a species,
13 you know, doesn't, say, significantly interfere
14 with, you know, those usages that, you know, it
15 shouldn't be, you know, considered a, you know,
16 nuisance species in that context.
17 And when you, you know, look at the
18 various communities and the, you know, mosaic of
19 the Everglades, that -- you know, there's not
20 anything that really necessarily falls in that
21 category.
22 Q Is there anything which comes close? In
23 your opinion.
24 MR. HYDE: Are we still addressing our
25 question to merely aquatic flora and fauna,
228
1 because there's been some question in my mind
2 and to other people's mind as to whether
3 melaleuca is aquatic flora and fauna.
4 Some people say it is and some people say
5 it isn't.
6 MR. GILBERT: Is there any question as to
7 whether it's a nuisance?
8 MR. HYDE: I think I would be prepared to
9 stipulate that it is a nuisance species. I
10 just want to know the context of the question
11 whether it --
12 MR. KILLINGER: Well, let's --
13 MR. HYDE: -- may need some enlightenment
14 on that phrase.
15 MR. KILLINGER: Well, let's leave
16 melaleuca out of the -- the radius of the
17 question.
18 MR. HYDE: Okay.
19 Q Leave it aquatic.
20 A I think your question was did I consider
21 anything coming close to being a nuisance species?
22 Q (Nodding head.)
23 A You were to -- okay.
24 Based on the way the Department, you know,
25 looks at, you know, nuisance species and their
229
1 conditions related to, you know, reclamation
2 projects of, you know, aquatic wetlands and
3 mitigated wellness, that sort of thing, they,
4 you know, identify, for instance, a -- cattails as
5 a, you know, nuisance species when it occupies,
6 you know, I think generally more than 10 percent of
7 the area.
8 If you, you know, define the area,
9 you know, small enough, you could consider,
10 you know, cattails to be, you know, a nuisance
11 species in that context.
12 But if you look at the percent of
13 cattails, for instance, in the Everglades, it
14 wouldn't be, because you're considering, you know,
15 the mosaic of -- of the area.
16 Q So you're saying the aerial extent is a
17 factor --
18 A Certainly.
19 Q -- in a nuisance species determination.
20 A Yes.
21 Q And in your opinion, in order to assess
22 whether cattails, for instance, re -- are present
23 to such -- in such number that they constitute a
24 nuisance species, you have to look at that in the
25 context of Water Conservation Area 1, 2-A, 2-B,
230
1 3-A, 3-B, and Everglades National Park, to find out
2 what fractions they present as a percentage of that
3 whole?
4 A I'm saying that's one way to do it.
5 Q You think it's the appropriate way to do
6 it?
7 MR. HYDE: I think that's the way that the
8 Rule says you do it. Whether it's appropriate
9 or not --
10 MR. KILLINGER: I'm asking your witness
11 what he thinks.
12 A I think that it's appropriate to -- when
13 you're evaluating, you know, natural areas or,
14 you know, quasi, you know, natural areas that are,
15 you know, part of a system, and everyone talks
16 about the Everglades as a system, which is a large,
17 you know, geographical area, that you, you know,
18 evaluate things in that context.
19 Q So in your opinion, in the context of the
20 whole, there's not a nuisance species --
21 A No.
22 Q -- problem.
23 A (Shaking head.)
24 I don't have that great a dislike for
25 cattails, a lot of people do. I think they provide
231
1 useful functions, too.
2 Q If you could turn to page 12, please.
3 A (Witness complying.)
4 Q Do you consider yourself an expert in the
5 issue which has been framed in number 13?
6 A Yes.
7 Q Okay. Do you have an opinion about
8 whether -- just whether -- the Shannon-Weaver
9 diversity index of benthic macroinvertebrates has
10 been reduced to less than 75 percent of background
11 levels in the EPA?
12 A Yes.
13 Q What is the opinion?
14 A That it's not.
15 Q Is it your opinion that, in fact, the
16 diversity index has gone up?
17 A In some cases.
18 MR. HYDE: I'd just note for the record,
19 that even if it does not go by, it does not
20 indicate a violation of the biointegrity
21 standard.
22 MR. KILLINGER: I think we've discussed
23 this before.
24 Q Can you state your opinion as to whether
25 the Shannon-Weaver diversity index has been reduced
232
1 any, in any areas.
2 A Yes.
3 Q What's the opinion?
4 A That it has been.
5 Q Has been.
6 Can you give me an idea about how much,
7 and where?
8 A We collected some data at several stations
9 in Water Conservation Area 2-A, and also in 3 just
10 west of the S-9 structure. And the, you know, data
11 at those locations when taken as a whole, indicate
12 that the numbers, you know, fluctuate, you know,
13 from, say, sampling period to sampling period.
14 But that when you look at those, you know,
15 over, for instance, a year period or two-year
16 period or whatever, that, you know, depending on,
17 you know, the stage of comparison, it, you know,
18 fluctuates, I don't know, 10, 15, maybe 20 percent
19 from 100 percent -- I think more of it -- maybe
20 10 percent above, 20 percent below, something like
21 that.
22 I mean, they are individual, you know,
23 sampling periods that might even fall below the
24 75 percent number.
25 But again, when you, you know, take the
233
1 date and look at it, you know, over any kind of,
2 you know, any kind of time period, the 75 percent
3 level does not drop below.
4 Q Are those the -- I think you mentioned a
5 couple of spots where you took data where you
6 noticed that fluctuation. Are those the only --
7 was that just two locations?
8 A No. There were -- let's see. Roughly
9 there were one, two, three, four general locations
10 that were sampled. And there were different
11 communities at each of those locations, a sample.
12 Q Have you got any opinions about the causes
13 of that fluctuation?
14 A No.
15 Well, yes, I guess I should answer yes.
16 I think that a lot of it is just,
17 you know, typical; you know, random, you know,
18 fluctuations; seasonal, temporal, accuracy of the
19 method; sampling, you know, variance.
20 Natural, you know, biological cycles.
21 Q Did you do any statistical analysis of the
22 sampling that you said fluctuated?
23 A Not yet.
24 Q Are you going to?
25 A I would hope to have time to do that.
234
1 Q Do you know when you might be able to get
2 that done?
3 A No.
4 Q How long do you think it would take?
5 A Couple days.
6 Q I'm on number 14, I believe you were
7 listed -- starts on page 12 and goes to page 13 --
8 as a testifying witness in regard to that issue.
9 Would you consider yourself to be an
10 expert in that issue?
11 A Yes.
12 Q Okay. Do you have an opinion about
13 whether a DO of less than 5 exists within the EPA?
14 A Yes.
15 Q What's your opinion?
16 A That the dissolved oxygen regularly,
17 you know, falls below 5 at any particular spot you
18 want to pick in the EPA.
19 Q Is that a natural fluctuation?
20 A Yes.
21 Q Have you done any specific work on this
22 issue, any scientific research?
23 A Yes.
24 Q Okay. Go to page 13, please.
25 A (Witness complying.)
235
1 Q Item number 15 has you listed as a
2 witness.
3 Would you consider yourself an expert in
4 that issue?
5 A Yes.
6 Q Have you got an opinion about whether or
7 not 1978, 1979 ambient water quality for the Park
8 and Refuge have been correctly determined?
9 A Yes.
10 Q What's that opinion?
11 A Have not.
12 Q What's wrong with the determination that
13 you know of.
14 A Relative to the, you know, Refuge, the
15 SWIM Plan in Appendix D looks at data which was
16 collected by District personnel back during,
17 you know, that time period.
18 And attempts to develop, you know,
19 correlations of stage, and attempts to develop a,
20 you know, predictive, you know, model or equation
21 that relates concentrations to those stages.
22 I think that the data upon which it was
23 based are questionable; I think the methodology
24 used was questionable; and that, you know, the
25 relationship as determined was -- was not
236
1 appropriate.
2 Relative to the Park, they didn't use the
3 78-79 period. They used I think it was '80 to '84
4 or '85, somewhere like that, period, which
5 presumably was a, you know, ONR Standard -- oh, it
6 doesn't even relate to this.
7 Q You said the "ONR Standard." You mean
8 Outstanding Natural Resource Water Standard --
9 A Right.
10 Q -- or do you mean Outstanding Florida
11 Water Standard, or do you mean --
12 A The ONR is Outstanding Natural Resource
13 water I think.
14 Q Do you know how ambient water quality is
15 determined for Outstanding Florida Water's
16 considerations?
17 MR. HYDE: That's the sixty-four thousand
18 dollar question.
19 A I don't think that there's any established
20 methodology that's been commonly accepted by the
21 Department or anybody else.
22 Q Do you know what -- what criteria the Rule
23 sets forth for that calculation?
24 A I think the Rule basically states that you
25 should consider for OFW, you know, the ambient
237
1 conditions in the OFW from March 1st, February
2 I guess 28th or 29th -- whichever the case may
3 be -- of period I guess it's March 1st, '78,
4 through I guess February 28, '79, unless you can
5 make some showing that, you know, better data
6 exists for some other period.
7 But the Rule doesn't provide any guidance
8 as to how you should go about, you know, analyzing
9 that data.
10 Q Okay.
11 MR. KILLINGER: Can we take another
12 5-minute break?
13 MR. HYDE: Glad to.
14 (Recess.)
15 Q Okay. Just a couple return questions on
16 that number 15.
17 You talked about the Refuge and said that
18 the -- not only was the data questionable, but the
19 methodology was questionable.
20 A Uh-hum.
21 Q What's questionable about the data, sort
22 of a general sense.
23 A Well --
24 Q How much you can pinpoint specifics.
25 MR. HYDE: You were saying for the Refuge,
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1 or the Park?
2 MR. KILLINGER: For the Refuge.
3 THE WITNESS: For the Refuge.
4 MR. KILLINGER: Yeah.
5 MR. HYDE: Okay.
6 A It is my understanding based on, you know,
7 conversations I guess with various folks that the
8 data collected in the Refuge was collected by
9 throwing a bucket out of a helicopter and
10 collecting, you know, the water sample that way.
11 Q Are you suggesting that's not a standard
12 protocol?
13 A I think that's a -- not a standard
14 protocol.
15 Q Okay.
16 A I don't think it would pass DER's quality
17 assurance program that exists today.
18 MR. FitzGERALD: Fortunately we got rid of
19 DER.
20 A And I think it's unclear as to how those
21 samples were processed. So I think there's a lot
22 of, you know, question as to the reliability.
23 There were also no -- apparently no replicate data
24 for those --
25 Q Well, when were these buckets collected?
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1 A The dates are laid out in Appendix E
2 I guess of the SWIM Plan. I don't recall what they
3 are right now.
4 But basically, mid to late '70s, into the
5 early '80s.
6 Q Do you know if there's other data out
7 there that might be more appropriately used to make
8 any kind of determination?
9 A There are the data that we collected over
10 the last year.
11 Q Are the -- the data that you collected
12 over the last year reflective of what the water
13 condi-- water quality was in '78, '79,
14 for instance?
15 A I doubt it.
16 Q Okay.
17 A But there are data that were collected in
18 the perimeter canal during that same period, which
19 was not -- not used.
20 Q Okay.
21 A And the perimeter canal itself is actually
22 perhaps the receiving, you know, water from those
23 pumps anyway. There are several, you know,
24 documents that point out that the Refuge itself is
25 a -- is an apotropaic, you know, system, and that
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1 the, you know, water from the, you know, pumps do
2 not, you know, penetrate any sediment difference
3 into the marsh.
4 So I think there's some question as to
5 whether you should use, you know, data out in that
6 area at all to establish what those conditions
7 are. Or were.
8 Q So, I mean, I -- let me get clear about
9 what you're saying.
10 Do you think it's -- are you suggesting
11 that those data from the perimeter canal should be
12 factored into the data that were used, or that they
13 should be used instead of --
14 A Probably instead of.
15 Q Okay.
16 A One alternative.
17 Q Okay. Do you think those data were
18 collected in a way that is more -- or rather, less
19 questionable? I think that's the word you used for
20 the other data.
21 A I would think that would be the case.
22 Q Do you know?
23 A No.
24 Q Okay. If the data were collected the same
25 way, and processed the same way, would you feel the
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1 same --
2 A I think the data, you know, collected from
3 a bucket thrown out of a helicopter into a,
4 you know, deep water body; i.e., a lake or a canal,
5 is a better sample than water collected in a bucket
6 thrown into a marsh where the water might be
7 3 inches deep, and the mouth of the bucket being
8 10 inches, which means it's obviously on the
9 bottom.
10 Or where the bucket is dropped into the
11 middle of a marsh, where there's vegetation in the
12 water column, and you're, you know, dislodging all
13 kind of things, you know, from that vegetation,
14 that sort of thing.
15 Q Well, it seems pretty clear then, there's
16 a difference in habitat between the canals, and
17 the -- and interior marsh site, if you want to call
18 it that.
19 A Uh-hum.
20 Q Would that have any -- would that
21 difference in habitat you think be significant in
22 base line determinations?
23 A If you're asking if I think the phosphorus
24 levels in the water in the canal would be different
25 than the phosphorus levels out in the marsh,
242
1 I think the answer to that's yes.
2 Q Why is that?
3 A Well, for one thing, the Refuge receives
4 roughly half, maybe over half of its water, from
5 rainfall.
6 Q Uh-hum.
7 A The center of the Refuge probably receives
8 almost all of its water from rainfall.
9 The ambient, you know, rainfall in the,
10 you know, 78-79 time period is going to be
11 obviously lower in concentration than the,
12 you know, waters -- the ambient -- well, the waters
13 in the canals or the waters at the pumps during
14 that same period.
15 So you're starting out with lower
16 phosphorus concentrations out there. You have
17 vegetation and periphyte and other organisms
18 actively competing for all that phosphorus that
19 does come out of the -- the rain out there, and
20 scrounging for the phosphorus it needs to survive,
21 and that sort of thing.
22 So phosphorus concentrations out in the
23 middle of the marsh are going to be a lot lower
24 than they are in, you know, concentrations in,
25 for instance, open water body where you don't have
243
1 all those things tying up the phosphorus and
2 biomass.
3 Q Then why wouldn't it make more sense if
4 you wanted to get a base line for a water body to
5 go to a site which was representative of the
6 background conditions of the water body, as opposed
7 to --
8 A I don't think the OFW Standard says
9 background conditions. What the OFW Standard,
10 I believe, says, that you should -- that the --
11 you know, conditions that existed in that water
12 body at that time.
13 Q Okay. If the --
14 A The canals were obviously a part of the
15 water body.
16 Q Okay.
17 A So -- and at times was the sole, you know,
18 water body when the water level was below the level
19 of the surface --
20 Q Uh-hum.
21 A -- and water stayed in the canals. So,
22 you know, the water that was in that perimeter
23 canal would have been, you know, pertinent --
24 Q Well, would it be appropriate --
25 A -- for analysis.
244
1 Q -- then, based on your view of it, to
2 analyze the -- the canal and the interior water
3 sites as two separate water bodies?
4 A Probably, yes.
5 Q You said that the interior of the marsh
6 was largely rainfall driven. Is that a function of
7 topography?
8 A Yes.
9 Q Because the center of the mouth -- the
10 center of the Refuge is mounded relative to --
11 A Yes, it's --
12 Q -- the mound?
13 A -- the topography, and in combination with
14 the resistance to flow, that vegetation, you know,
15 provides for the water in the canal, and the fact
16 that if you have, you know, water out in the -- in
17 the marsh, and you have water coming over --
18 over -- in over here at the pumps, and they're at
19 basically the same elevation, this water is not
20 going to displace all this water out here, because
21 the water that's out there in the middle of the --
22 the Refuge, you know, exerts pressure --
23 Q Uh-hum.
24 A -- against that water coming in. So it
25 kind of acts as a stopgap I guess.
245
1 Q You talked about dropping a bucket out of
2 a helicopter on a rope. If, in fact, the water was
3 shallow in the area where the bucket was dropped,
4 and if, in fact, the mouth of the bucket rested on
5 the bottom or had to get its way in through
6 vegetation and, like, scrape some things off the
7 vegetation, what effect would you expect that to
8 have on any analysis of phosphorus in that water
9 that was in that bucket?
10 A It depends on how the water sample was
11 processed after it was collected.
12 Q Would you normally expect that to increase
13 the levels of phosphorus you'd find in the water
14 under any analysis?
15 A No.
16 Q Under some analyses?
17 A Yes.
18 Q Okay. Under standard methods of analyses,
19 would you expect the phosphorus level to be
20 increased if it picked up some sediments or scraped
21 off some stuff from the side of the plant that it
22 rested against?
23 A Again, it depends on how you process the
24 sample. If you were to take the sample and the
25 complete sample and acidify it, analyze it, I would
246
1 expect that to increase the phosphorus.
2 If something were done to remove part of
3 the particulate matter, either, you know, filtering
4 it or allowing it to settle or centrifuging it,
5 then it could have lowered the phosphorus.
6 Q Now, would filtering or centrifuging a
7 water sample lower the phosphorus in the water
8 itself?
9 A When you do phosphorus analyses, there is
10 a fractionation process you can go through to
11 partition the various kinds of phosphorus that you
12 have to sample. When you ultimately analyze that
13 sample, you're using, you know, the same method
14 you've -- if you were to collect a sample using a
15 bucket out of a helicopter that had a lot of
16 sediment in it, and you -- as I said, acidified
17 that sample to preserve it, and then later put it
18 through the digestion procedure that you would
19 normal do for puddled phosphorus, you increase the
20 phosphorus level because of the phosphorus
21 dissolved out of the sediment.
22 However, if you were to filter that sample
23 to remove all of that phosphorus, then what you're
24 really analyzing is, depending on the degree of
25 filtration you use, what's terminally called
247
1 dissolved phosphorus. Okay.
2 You remove some of the phosphorus that was
3 in that sample. So -- and if you reported that
4 result as total phosphorus, then you would be
5 misrepresenting, you know, what was actually in
6 the -- the sample.
7 Q Do you know how the samples were handled?
8 A No.
9 Q Do you know whether they were centrifuged?
10 A No.
11 Q Do you know whether they were acidified?
12 A Not for sure.
13 Q Do you know whether they were filtered?
14 A No.
15 Q What about the samples taken in the
16 canals?
17 A My understanding is that at least that the
18 canal samples were connected -- were collected as
19 part of the District's, you know, more standard
20 network of collecting, you know, samples as part of
21 one of their projects.
22 And my speculation is that they would
23 be -- be handled in probably the same manner, which
24 is they go out and, you know, collect a grab sample
25 from the canal and -- and preserve them, and,
248
1 you know, send them to the lab, and they're,
2 you know, analyzed at the appropriate time.
3 This sampling of the Refuge using a
4 helicopter and the bucket was a, you know,
5 separate, you know, project. And my guess is that
6 the samples were handled somewhat differently due
7 to the nature in which they were collected and --
8 Q But you don't know for sure.
9 A No. We've been trying to find that out
10 from the District.
11 Q Do you know that they were, in fact,
12 collected with a bucket from a helicopter?
13 A I've been told that by several people.
14 Q Who's told you that?
15 A I don't recall.
16 MR. HYDE: If you have any better
17 information, we'd sure like to hear about it.
18 MR. KILLINGER: I can --
19 Q Would you ever expect --
20 A Well, I --
21 Q -- a sample, for instance, collected from
22 a helicopter with a bucket in the middle of
23 Loxahatchee to have a lower total phosphorus upon
24 analysis than one collected, for instance, by a
25 different method, or a more, in your mind,
249
1 appropriate means for collection in that same area?
2 A Again, it depends on how they process that
3 sample after they collected it.
4 Q Okay. I think you mentioned some of this
5 before and --
6 A Right.
7 Q -- excuse me for reasking it.
8 A Right.
9 Q Why would -- how -- what processes would
10 result in a lower --
11 A If they --
12 Q -- total phosphorus analysis?
13 A If they went through some procedure to
14 remove, you know, particulates and sediments --
15 Q Uh-hum.
16 A -- from the sample --
17 Q Uh-hum.
18 A -- they could have easily have removed
19 things that you would normally have reported as
20 total phosphorus in the water sample.
21 Q So --
22 A Okay.
23 Q -- let me get -- let me get this
24 straight.
25 If you go out and do a sample in
250
1 Loxahatchee -- from an air boat or on foot or
2 whatever --
3 A Right.
4 Q -- and you take your water, you're going
5 to wind up with some suspended particles that are
6 going to wind up in your sample --
7 A Right.
8 Q -- by normal processes. But if you
9 centrifuge that, and those come out --
10 A Right.
11 Q -- then you're going to wind up with a
12 lower --
13 A No, no, no. If you treated both kinds of
14 samples the same way --
15 Q Uh-hum.
16 A -- then you'd get essentially, you know,
17 the same kind of results.
18 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.)
19 A I mean, if you took a sample from a canal
20 and did the same, you know, filtration, and process
21 and all that sort of thing, you'd get comparable
22 results.
23 I'm just saying that -- I just suspect,
24 having collected samples out there myself, that the
25 people had to have done something or another to
251
1 remove, you know, some of those, you know,
2 particulates.
3 You know, maybe they simply, you know, set
4 the bottle on the shelf, let it sit there for,
5 you know, some period of time and you get it off
6 the top of it, I don't know.
7 But I know from having sampled out there,
8 it's very difficult to, you know, get a sample
9 without, you know, particulate material in it. And
10 that -- that problem would only be exacerbated
11 tremendously when sampling from a helicopter.
12 And the values that they report do not
13 appear to show the kind of effect that I would
14 expect to see in samples that were, you know,
15 collected that way, and then, you know, acidified
16 and digested.
17 Q Okay.
18 A So I suspect that they did something to
19 handle that sediment, you know, problem.
20 Q What -- what kind of effect don't they
21 exhibit, if that makes any sense.
22 A When you get particulate material in your
23 samples, and you do a total phosphorus analyses,
24 you get, you know, spikes, you know, in the data,
25 and higher values, depending on the amount of,
252
1 you know, sediment that you had in the sample.
2 And, you know, a lot of their -- most of
3 their numbers that they report in their appendices
4 are in the, you know, less than ten to -- you know,
5 ten to, you know, maybe fifteen, you know, parts
6 per billion, you know, range.
7 And that I suspect that if you were taking
8 a bucket and throwing it out of a helicopter, that
9 you'd have collected enough sediment in at least
10 some of those samples that you would see the effect
11 of that sediment in the sample, and you don't see
12 it.
13 So my conclusion is that they did
14 something to deal with that problem, and I don't
15 know what it was.
16 Q So basically it's your conclusion that
17 it's -- the samples are so low, you can't believe
18 it. That something must have been done to them to
19 lower them other -- you think they're lower than
20 what they otherwise would have been out there?
21 A Yes, I do.
22 Q Okay. Do you have an idea about how much
23 lower?
24 A I think that if the samples had, you know,
25 the sediment and stuff in it, they could have
253
1 easily been on the order of magnitude -- well,
2 maybe not that much.
3 Say, two to three to five times higher,
4 easily.
5 Q Okay. Do you think that would accurately
6 represent the -- if it were two to three to five
7 times higher, would that accurately represent the
8 total phosphorus in the --
9 A No.
10 Q -- water column, or would that actually
11 represent the -- the sample plus the detritus that
12 got sucked into the mouth of the bucket when you
13 picked it up.
14 A The latter.
15 Q Do you think it's then in-- would it -- is
16 it inappropriate -- would it have been
17 inappropriate for the District to try to get some
18 of that matter out of their sample in some way?
19 A It would have been inappropriate to do
20 that and still report the value as total
21 phosphorus. Because by definition, total
22 phosphorus is the analysis of the complete water
23 sample.
24 Q Okay. And since you don't really know how
25 the samples were collected, or what was done to
254
1 them once they were collected, can you state
2 whether those samples have any relevance to what a
3 properly taken and handled sample would have shown?
4 A Maybe you could restate that one. Maybe I
5 didn't understand exactly.
6 Q Are you saying that the data are
7 worthless?
8 A I think that the data, you know, have some
9 value. I don't think the data are appropriate for
10 establishing limits that you're going to use to
11 compare samples that are taken in more appropriate
12 state of the art methodology.
13 Q Well --
14 A Well, it's like this --
15 Q -- maybe I didn't catch that one.
16 A -- it's like this.
17 If I take a -- a bottle that has been
18 contaminated with something out there, and take a
19 sample and measure it. And then I take another
20 bottle that's been, you know, acid washed and
21 cleansed and everything else, take another sample,
22 and, you know, compare it to that, then those
23 results aren't comparable, are they?
24 And I'm saying that, you know, the way
25 they collected their samples out there and the way
255
1 I suspect that they've been handled make the
2 comparison of that data with data that would be
3 collected now with much care to avoid, you know,
4 the sediments, for instance, and, you know, handled
5 in a certain way and compared to that
6 inappropriately.
7 Q Well, you said you thought they had some
8 relevance. What relevance do you think they have?
9 A I think they, you know, can give some,
10 you know, general, you know, idea of what the,
11 you know, phosphorus levels were out in that area.
12 Because I assume that all of the samples
13 were collected in the same manner; treated,
14 you know, pretty much in the same manner. And
15 that's again an assumption on my part. So that
16 they give, you know, some idea of what it was.
17 Q Okay.
18 MR. KILLINGER: I guess we ought to stop
19 for the day. It's about 5:00.
20 MR. HYDE: That's fine with me.
21 MR. KILLINGER: Let us all go.
22 MR. HYDE: Finished your answer?
23 THE WITNESS: Yeah, I guess.
24 MR. HYDE: Okay.
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1 CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA )
4 COUNTY OF LEON )
5 I, LAURIE L. GILBERT, Registered
6 Professional Reporter, and Notary Public in and for
7 the State of Florida at Large:
8 DO HEREBY CERTIFY that JOHN A. DAVIS,
9 Ph.D., was duly sworn by me.
10 WITNESS MY HAND AND OFFICIAL SEAL THIS
11 21ST DAY OF MARCH, A.D. 1994, IN THE CITY OF
12 TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.
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LAURIE L. GILBERT
17 Notary #CC 000172
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