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 16, 1994
19
TIME: COMMENCED: 9:11 A.M.
20 CONCLUDED: 5:18 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 IV
PAGES 358-531
359
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, ESQUIRE
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
360
1 ALSO PRESENT:
2 Frank Nearhoos
Douglas Gilbert
3
* * * * *
4
INDEX
5 (VOLUME IV)
6 ITEM PAGE
7 DEPOSITION CONTINUED . . . . . . . . . . . . 361
8 CROSS EXAMINATION. . . . . . . . . . . . . . 452
9 DEPOSITION CONTINUED . . . . . . . . . . . . 529
10 CERTIFICATE OF REPORTER. . . . . . . . . . . 531
11
12 * * * * *
13
14
15
16
17
18
19
20
21
22
23
24
25
361
1
2 DIRECT EXAMINATION
(Continued)
3
4 BY MR. KILLINGER:
5 (WHEREUPON, DR. ROSS WAS PRESENT IN THE
6 ROOM, AND MR. NEARHOOS AND MR. GILBERT WERE NOT
7 PRESENT.)
8 Q Okay. Well, was there any work that
9 wasn't done?
10 A Yes.
11 Q What work would that have been?
12 A There were, you know, several things
13 I think that, you know, weren't done. They were --
14 we had originally thought about putting in,
15 you know, Hester-Dendy samplers in the Refuge, and
16 that wasn't done.
17 We thought about putting in, you know,
18 redox probes, which wasn't done, but I wish we had
19 have done it. Quite frankly, I don't remember if
20 we proposed to do lead 210 or not, but if we did,
21 we didn't do that.
22 I'd have to really go back and look at,
23 you know, what the entry order --
24 Q Okay.
25 A -- said, and tell you what we didn't do.
362
1 Q Why didn't you put the Hester-Dendies out?
2 A Because, you know, they require a,
3 you know, 28-day, you know, incubation period. And
4 we figured that given the kind of logistical
5 problems we anticipated relative to scheduling
6 with, you know, District personnel and helicopter
7 and weather and that sort of thing, it would just
8 make it extremely difficult to, you know, maintain
9 that level of regularity with the sampling.
10 Q What were you -- what would you have been
11 looking for with Hester-Dendies if you had put them
12 out?
13 A The biological integrity standard,
14 you know, requires data from Hester-Dendies in
15 order to apply that standard.
16 And we simply wanted to see if the data
17 would, you know, indicate that that standard,
18 you know, was, you know, violated or not.
19 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
20 A When we originally proposed all this work,
21 you know, some of those issues seemed to have more
22 prominence than they did in a later process. But
23 it was really one more logistical constraint is why
24 we didn't do it.
25 Plus the fact, we never could really find
363
1 any place where they really claimed that that was
2 violated out there anyway. I think some of the
3 earlier Terczak stuff had a station in a canal or
4 something or another in -- 1-A, but we felt that --
5 that study was so flawed, it wasn't necessary to
6 sample --
7 Q Okay. Let's talk about --
8 A -- in --
9 Q -- Terczak for a minute, since you've
10 brought it up.
11 I gather you've looked at Terczak's study?
12 A (Nodding head.)
13 Q And you're familiar with it?
14 A Somewhat.
15 Q Have you got any critique or criticism of
16 it?
17 A I think it was a -- an attempt to,
18 you know, perhaps go out and just kind of collect a
19 little, you know, synoptic, you know, data or
20 something like that. I assume that was the
21 purpose.
22 It certainly wasn't conducted in the
23 manner that allowed it to be used to apply the
24 biological integrity standard. It was --
25 Q Why not?
364
1 A -- done back in --
2 Well, like I said, the biological
3 integrity standard specifically states that you
4 use, you know, Hester-Dendies and you incubate them
5 for -- I think it actually says 28 days. It may
6 say four weeks. But anyway, it's a 28-day period.
7 And based on looking at the lab notes or
8 whatever you want to call them, it appears that the
9 samplers were in for more like ten weeks, as
10 opposed to four. So, you know, they weren't done
11 in, you know, accordance, you know, with the Rule.
12 They also didn't really set up, you know,
13 background stations to compare, you know, in an
14 impacted area.
15 The biological integrity standard is
16 designed to be used as a comparison of a -- an area
17 that might potentially be impacted with a -- an
18 unimpacted area. Because the standard is -- says
19 that you can't reduce, you know, the Shannon-Weaver
20 diversity index by more than 75 percent of
21 background.
22 Q Uh-hum.
23 A And I don't think the study really
24 adequately, you know, looked at, you know, what
25 should be background, and making sure that the
365
1 community samples were, you know, comparable and
2 this sort of thing.
3 Plus the fact that, you know, the duration
4 for the incubation period was way off the mark of
5 being in compliance with the standard.
6 Q Do you recall when the Terczak study was
7 performed?
8 A I want to say late '70s. Mid to
9 late '70s.
10 Q What effect might you suggest from having
11 Hester-Dendies incubated for a period of ten weeks
12 as you indicated these might have been?
13 A Well, there's -- you can have, you know,
14 gradation of, you know, one organism or another.
15 Some of the material, you know, you build up a lot
16 of the detritus, you know, material, and that sort
17 of thing. Some of it, you know, sluffs off, that
18 sort of thing.
19 And just, you know, the State in its
20 infinite wisdom has decreed that you use a 28-day
21 period. And presumably had a good reason for
22 that. And --
23 Q You also critiqued the background
24 stations. Were there no background stations set up
25 in the Terczak study?
366
1 A As I recall, you know, they had some kind
2 of slough stations and -- and tried to compare
3 those perhaps with, you know, vegetated communities
4 and that sort of thing.
5 Q Well, how -- what criteria would you use
6 to select background stations for --
7 A Well --
8 Q -- Hester-Dendy type study?
9 A -- I would think that you would want to,
10 you know, compare, you know, like, you know,
11 communities in an unimpacted area. And an
12 impacted --
13 Q How would you find --
14 A -- area.
15 Q -- how would you designate an unimpacted
16 area as being unimpacted?
17 A Well, you would I think determine,
18 you know, what issue you were, you know, looking
19 at. And in this particular case, I guess we're
20 talking about phosphorus. So we would look for an
21 area where, you know, phosphorus was, you know, at,
22 you know -- you know, background levels, and
23 outside of an area that might be influenced by any
24 particular, you know, discharges that you were
25 trying to, you know, evaluate.
367
1 And then that you would, you know, select
2 areas that were, you know, similar in the community
3 structure or whatever.
4 Q Well, if you were looking for an area that
5 was at background levels of phosphorus, what would
6 you look for in the Everglades? What would be some
7 defining characteristics?
8 A Well, I think you would, you know, go to
9 an area that was remote from any obvious, you know,
10 you know, discharges, and look at, you know,
11 phosphorus levels and -- in those areas; compare
12 them to, you know, values that had been reported in
13 the literature; and select it on that basis.
14 Q So you're saying you'd go and do total
15 phosphorus analysis of the water before you put
16 your Hester-Dendy out to determine whether it was a
17 background level?
18 A If I -- if that was the impact I was
19 trying to see if -- if that was having an impact,
20 yes.
21 Q Have you --
22 A I mean, as the control station, yes.
23 Q Right.
24 A Yeah.
25 Q But you would do some water quality
368
1 analysis before you set it up as your control?
2 A I think that you would want to, you know,
3 try to select an area, like I said, that was remote
4 from those areas and -- and do some analysis to see
5 if they were in the range of, you know, accepted
6 ranges for, you know, background conditions.
7 I think to go out and select something
8 without some -- some basis would be a mistake.
9 Q Could you do it visually?
10 A I've never been able to measure phosphorus
11 by looking at the water.
12 Q Could you select a background site
13 visually?
14 A You could, for instance, you know, fly
15 over an area in a helicopter and, you know, look
16 for an area that was, you know, remote from any,
17 you know, discharges, flow paths.
18 As a, you know, guide in where to try to
19 put your samples in, yes.
20 Q Have you put out Hester-Dendies in the
21 Everglades?
22 A Yes.
23 Q In connection with what?
24 A This kind of work.
25 Q How'd you select your background sites?
369
1 A We basically looked at the areas that the,
2 you know, the District and others had called,
3 you know, unimpacted or background areas. And put
4 a set of stations in the area.
5 Q So you used District's, what, water
6 quality analyses to show what background areas were
7 background areas for controls?
8 A Well, what we basically did was looked at
9 the -- the literature, the data -- you know, the
10 data that -- you know, the publications, and
11 recognize that, you know, the District and others
12 had stated that the -- basically the vicinity of
13 the 217 gauge in 2-A was an, you know, unimpacted,
14 you know, background area. And we selected,
15 you know, that as a place to look at.
16 Q Could you describe for me the
17 Hester-Dendies that you use, physical description.
18 A They're just standard, you know,
19 Hester-Dendies that consist of, you know, a series
20 of kind of Masonite disks that are approximately, I
21 don't know, 3 inches in diameter; bolted together;
22 and have spacers between them. Different numbers
23 of spacers to provide different spacing of the
24 disks.
25 And they're identified in, you know,
370
1 supply, you know, catalog or --
2 Q I was going to ask: Where did you get
3 them?
4 A Pardon?
5 Q Do you know where you got them?
6 A I think they were -- some of them were
7 purchased already assembled from, like, Wildco
8 probably, or maybe Parser supply or, you know, one
9 of those places that supply that, you know,
10 material.
11 Then we -- but we also buy the disks in
12 bulk and assemble our own. Because they were
13 basically cheaper that way.
14 Q You use the same eyebolt?
15 A Yeah. Well, I mean, stainless steel
16 eyebolt.
17 Q So do -- let me just get this straight:
18 Do you -- you build your own sometimes?
19 A We, you know, assemble by the -- the disk.
20 Q Right.
21 A Okay. And physically, you know, take the,
22 you know, the disk and put them together in
23 accordance with the description I think in standard
24 methods.
25 Q Right. But do you put -- you buy the
371
1 eyebolt that holds them together and sort of put it
2 together --
3 A Yes.
4 Q -- in a kit, or do you use an eyebolt from
5 prior Hester-Dendies which are no longer functional
6 or something?
7 A We've done both. Because we bring all the
8 Hester-Dendies back in and -- and, you know,
9 disassemble the old Hester-Dendies and -- and clean
10 the bolt and sterilize them, that sort of thing,
11 and then reuse some of the stainless steel bolt.
12 Q Right.
13 What's the surface area of the
14 Hester-Dendies that you use?
15 A Whatever it is that's prescribed in the
16 Rule. I don't remember now. I think it's a third
17 of a meter, something like that comes to mind.
18 Q If the Rule --
19 A Might be a tenth of a meter, whatever.
20 Q I think the Rule describes a range,
21 doesn't it?
22 A Actually I don't recall.
23 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.)
24 Q Well, actually, we can look at it if we
25 want to. It's 17-302. I believe it's --
372
1 MR. HYDE: I think it's five six oh.
2 (WHEREUPON, A BRIEF OFF-THE-RECORD
3 DISCUSSION WAS HELD.)
4 A Here it is, it's on -- right here. Says
5 .1 to .15 square meter.
6 Q So do you know what the surface area of
7 yours is?
8 A Actually, I don't.
9 Q Okay. Is there a standard Hester-Dendy
10 that --
11 A The one that we've always used is the one,
12 like I said, that we, you know, bought from,
13 you know, the supply houses. And they're,
14 you know, all the same.
15 Q Okay.
16 A I mean, all the ones we bought are the
17 same. Put it that way.
18 And the same, you know, type, size, and
19 everything would have been, you know, used at every
20 station.
21 Q Okay. I'm going to come back to this in a
22 minute. I want to go back --
23 A I -- I was going to say, I'll be glad to
24 supply you one if you want to --
25 Q I've seen them. I'm just trying to find
373
1 out what's --
2 I wanted to go back -- we sort of got off
3 the Terczak critique a little bit.
4 Is your primary critique of that Terczak
5 study that background stations weren't
6 appropriately set up, and that the incubation
7 period was in-- inappropriate?
8 A I think so. Those are the main -- main
9 things. I didn't spend a lot of time with it
10 because -- since it didn't meet the criteria in the
11 Rule, I didn't think it was appropriate, it wasn't
12 necessary to spend a lot of time.
13 MR. HYDE: It's also a bit dated.
14 Fifteen years old.
15 Q Do you think that the -- the data that
16 were obtained in the Terczak study have any value?
17 A Not in applying the biological integrity
18 standard, no.
19 Q Did they have any data for any other
20 purposes?
21 A They, you know, provide, you know, some
22 idea of -- of what organisms were, you know, at
23 those locations that point in time.
24 Q Are there any other Hester-Dendy data from
25 that same time period?
374
1 A Not that I'm aware of.
2 Well, let's see. There is some data that
3 was after that where the District took some -- some
4 samples in some of the canals themselves.
5 Q You have --
6 A But I've never --
7 Q -- a sample?
8 A -- I've seen -- I've never seen the
9 District use that data for anything.
10 Q Okay. You said you didn't -- didn't put
11 out redox probes as part of the work that wasn't
12 done for that Loxahatchee sampling.
13 A Uh-hum.
14 Q Why didn't you?
15 A We decided to just simply rely on -- on
16 redox probes and stuff that was put out in the
17 Water Conservation Areas, and didn't want to go
18 through, you know, the additional, you know, hassle
19 of -- of trying to get that done and have the
20 additional time each month to do all that stuff
21 since we were trying to get our work accomplished
22 in, you know, a day or two days at the most. And
23 were trying to not add on additional things that we
24 could get by without.
25 Q I said -- I think you also said you wished
375
1 you had put out redox probes.
2 A Right.
3 Q Why is that?
4 A Because, you know, since then, I've heard,
5 you know, Dr. Jones claim that the, you know,
6 Everglades soils never become anoxic or have
7 reducing conditions, and I think that's -- definite
8 inaccurate statement.
9 And I wish we had the -- some data from
10 Loxahatchee to demonstrate that.
11 Q Why do you think it's inaccurate?
12 A Because I think that in order for,
13 you know, peat soils to, you know, build up, you
14 have to have those kind of conditions for one
15 thing.
16 I think it's established throughout the
17 literature that wetland soils are, you know,
18 anaerobic, and have, you know, reducing conditions.
19 The measurements that we obtained in the
20 stations in 2-A clearly show, you know, reduced
21 conditions.
22 And I've also talked about this with
23 Dr. Reddy, and he, you know, says that there's,
24 you know, there are reducing conditions in the
25 Everglades.
376
1 Talked about it with, you know,
2 Dr. Richardson. He has some redox measurements out
3 there, and he also believes the conditions are
4 reducing.
5 I've talked to Dr. Patrick about it, who
6 also is absolutely convinced there are, you know,
7 reducing conditions in the Everglades.
8 Q Where have you heard Dr. Jones make the
9 statements you attributed to him?
10 A He made the statement during a couple of
11 the trips that we were on jointly taking samples,
12 either in the Park or maybe during the -- their DOJ
13 entry into the EAA.
14 He -- Dr. Richardson, Curtis Richardson,
15 told me that Jones had made that statement to him
16 out -- on a trip that he was with him on in
17 Loxahatchee, and he also stated during his
18 deposition in Miami a couple weeks ago.
19 Q Is he relying on any data that you know
20 of?
21 A He cites a little paper that he and
22 Bachoon I guess --
23 THE WITNESS: B-a-c-h-o-o-n I think?
24 A -- wrote. Based on some work, you know,
25 down in the Park.
377
1 Q Have you reviewed that paper?
2 A Yes.
3 Q You got any critique of that?
4 A Yes.
5 Q What's your critique of it?
6 A That the -- the information on -- on redox
7 is just a part of that, you know, paper. And it's
8 not discussed in any -- any real detail of the
9 table. I think it shows some of the values. But
10 he does discuss how he took the measurements.
11 He also discusses the conditions in the
12 Park under which those, you know, measurements were
13 made. And he admits that the data was taken during
14 a drought period; that the water was, you know,
15 below -- or -- the surface during a portion of
16 those measurements. And which means that the soils
17 were oxygenated, which means, you know, they were
18 reducing.
19 And, you know, his -- his study was a
20 very, you know, limited duration, I don't remember
21 how long, several months. But during that drought
22 period. And that he tried to extrapolate data
23 taken during a drought period over, you know,
24 conditions that are atypical.
25 He even discusses in the paper that where
378
1 he took the samples, it's normally wet, and makes a
2 point that the conditions are atypical when he was
3 doing his measurements.
4 Q Do you intend to offer any testimony at
5 the hearing about redox or reducing conditions in
6 the soil in the Everglades?
7 A Quite frankly, I intend to let people
8 with, you know, more experience in that area,
9 you know, deal with it.
10 Q Okay. Did that Loxahatchee sampling
11 foray -- I assume it provided you with data.
12 A Yes.
13 (WHEREUPON, MR. GILBERT EXITED THE ROOM.)
14 Q Has that data been analyzed?
15 A The data, you know, has been analyzed to a
16 certain extent and, you know, it's still being
17 analyzed.
18 Q How much -- to what extent has it been
19 analyzed?
20 A We put the data in kind of -- you know,
21 tabular format on a monthly basis. And we
22 calculated -- well, we -- we took, you know, three
23 replicate phosphorus samples each time we sampled,
24 we calculated a mean based on those.
25 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
379
1 A We -- after all the, you know, sampling
2 was complete, we combined all that data into,
3 you know, a spreadsheet, and also added the
4 District's data that we had. They did a split
5 sampling I guess in the September I believe it
6 was. We also had the Department of Justice,
7 you know, or Refuge data in there.
8 We, you know, plotted the data by station
9 to, you know, look at, you know, how it varied over
10 time and how the different data sets compared.
11 Q Have you provided all of the calculations
12 and spreadsheets and the plots?
13 A I don't think we provided the plots. We
14 provided the -- the data and the spreadsheets
15 I think.
16 Q Why didn't you provide the plots?
17 A I didn't really think about it. It was
18 just something we did that, you know, plot the data
19 up to -- to look at it. And obviously since you've
20 got the actual data, you can do exactly the same
21 thing.
22 Simple matter of, you know, going in there
23 and highlighting the columns in the spreadsheet,
24 and pushing a couple buttons, and it comes out.
25 Q Have you got copies of the plots?
380
1 A Not with me. I mean, they're probably
2 around the office somewhere.
3 Q Okay. Was any data that was collected
4 excluded from the calculations or the spreadsheet
5 or the plots?
6 A I went through the -- the data, and
7 compared it to our notes in the field notes to see
8 of any values that, you know, looked like they
9 were, you know, high or out of line with all the
10 other data; should be, you know, removed, you know,
11 based on some note we made in the -- in the field
12 notes.
13 And am considering saying that those
14 values need to be, you know, deleted as -- as,
15 you know, an outlier or because of, you know, notes
16 that were made, you know, during the sampling.
17 Q Did you, in fact, exclude any data based
18 on that review?
19 A I didn't exclude any data from the sheet
20 that was turned over to you. Okay. I simply,
21 you know, identified some points I thought might be
22 questionable.
23 For instance, there were a couple of times
24 when there was very little water at a sampling
25 station. And, for instance, we'd have written in
381
1 the field notes that, you know, the water's
2 essentially at the surface, and the sample was
3 taken out of a, you know, a gator trail or a gator
4 hole.
5 Or that it was very difficult to get a
6 good sample and the sample had a lot of detritus in
7 it, for instance. And those are the kind of
8 samples I think that probably should be excluded
9 from an analysis.
10 However, the data gave -- turned over to
11 y'all has all of that in it. Okay. I didn't get
12 rid of, you know, any data. Somebody else can go
13 through and make their own judgments as to whether
14 or not, you know, they would concur with that or
15 wouldn't.
16 Q Is there any standard for determining what
17 should be considered to be some kind of an errant
18 data bit?
19 A There are, you know, statistical
20 procedures which you can go through and, you know,
21 identify, you know, outliers, for instance.
22 I think that, you know, it's, you know,
23 valid and, you know, common practice to, you know,
24 exclude data that you know there's some reason you
25 suspect is bad. Like, for instance, notes taken
382
1 during the time of sampling that says, you know,
2 there's a lot of sediment in this sample.
3 Or that this sample was taken, you know,
4 in a gator hole or -- or whatever.
5 Q Well, what statistical procedures do you
6 use?
7 A Well, you can do use -- use, for instance,
8 a trimmed means, you can go through and do,
9 you know, regression to identify outliers.
10 There's, you know, several different kind of,
11 you know, procedures that are outlined in --
12 Q At what -- what stage of working with your
13 data do you do that?
14 A You know, prior to doing your, you know,
15 final analysis.
16 Q Prior to doing your final analysis?
17 A Or, you know, the first thing you should
18 do is screen the data for, you know, questionable
19 values before you start the analysis.
20 Q How do you do that?
21 A By, you know, going back and -- you know,
22 the procedure I use, let's say, is to,
23 for instance, plot the data and see if there are
24 any points on there that look, you know, out of
25 line with all the rest of them.
383
1 And then see if there's a reason for that
2 point to be out of line, like something that was
3 written in the fields notes.
4 Q Okay.
5 A And if it wasn't, then you can't exclude
6 it on that basis. Then you can run, you know,
7 outlier analysis for whatever you want to do, or
8 decide to use trimmed means or geometric means.
9 You're not excluding -- if you use trimmed
10 means, you're actually excluding some on either end
11 of the data set.
12 If you use something like geometric means
13 or a median, then you're not really excluding those
14 things, but you're changing the emphasis placed on
15 the extreme values on either end.
16 Q Well, do you intend to offer any of the
17 data analysis that you've performed at hearing in
18 this matter to support your testimony?
19 A Actually, I don't --
20 MR. HYDE: We're talking here about the
21 entry and access data on the Refuge?
22 MR. KILLINGER: (Nodding head.)
23 THE WITNESS: Right.
24 MR. HYDE: Okay.
25 A I don't anticipate right now giving
384
1 testimony relative to analysis of that data.
2 Q Do you know if anyone is anticipating
3 giving testimony of analysis of that data?
4 A Yes.
5 Q Who would that be?
6 A Dr. Millard and probably Dr. Lettenmaier.
7 Q Whose analysis are Dr. Millard and
8 Lettenmaier going to testify about?
9 A Theirs.
10 Q Their own?
11 A (Nodding head.)
12 Q Do they use the same procedures as you use
13 for analyzing the data and -- and the outliers that
14 appear?
15 A They intend to use their own procedures.
16 Q Do you know what their procedures are?
17 A Not specifically, no.
18 Q Have you seen any plots or other analysis
19 of that data produced by them?
20 A I've seen a preliminary analysis for,
21 you know, outliers and whether or not the data
22 would comply with the limits as currently proposed
23 in the SWIM Plan.
24 Q What did their preliminary analysis show?
25 A I think one value -- or maybe a couple
385
1 values, were identified as outliers.
2 And the outlier procedure that was used in
3 that particular analysis was the one I believe that
4 was identified in the SWIM Plan as an outlier
5 procedure.
6 Q Did you produce a copy of that preliminary
7 outlier analysis?
8 A I produced it to the attorneys.
9 MR. FitzGERALD: With one box to go,
10 Counsel, I can tell you that it's not in the
11 materials. That's subject to final screening
12 of the last box.
13 MR. HYDE: Is this by Lettenmaier or
14 Millard?
15 THE WITNESS: It was by Millard.
16 A I think the correspondence might not have
17 been -- it might have been directed directly to one
18 of the attorneys. They just showed me a copy.
19 Q What other analysis have you -- have
20 you -- have you performed about this data? You
21 drawn any conclusions from it, as to what it means?
22 A I have, you know, basically concluded
23 that, you know, you have to be extremely careful
24 in, you know, collecting your sample out in the
25 Refuge -- or out in any kind of, you know, marsh
386
1 system.
2 Especially ones like, you know, the Refuge
3 where you have a lot of vegetation, you know,
4 basically throughout the water column.
5 That the variation exhibited among the,
6 you know, replicates at a given station needs to be
7 considered in, you know, any formulation of,
8 you know, limits; that using a, you know, single
9 value or a -- you know, single, you know, sample is
10 not a good way to go, because you don't have any
11 idea of that, you know, variation you have in your
12 sampling procedure.
13 Q Okay. Those are conclusions about
14 analytical methods.
15 A Right.
16 Q What are your conclusions about what the
17 data show?
18 A The data, you know, indicate that there
19 hasn't been -- that -- that the water from the
20 perimeter canals and stuff doesn't penetrate,
21 you know, very far, apparently, you know, into
22 the -- the Refuge.
23 Q What would you say very far means?
24 A Well, you can't tell exactly how far
25 because of the distribution of the stations. So
387
1 you have to use some other ways to -- to try and
2 look at that.
3 Q How do you -- how do you draw the
4 conclusion that the water from the perimeter
5 doesn't penetrate very far into the Refuge?
6 A Well, for one thing, when you're sampling
7 out there, and there's, you know, you know, water
8 out in the canals and that sort of thing, and the
9 pump stations are running, but the stations are dry
10 out in the Refuge, pretty obvious that that water's
11 not moving from the perimeter canal, you know, out
12 to those areas.
13 Q Uh-hum.
14 A Also, you know, when the water is,
15 you know, a, you know, inch or less, you know,
16 deep, you know, in various areas, you have,
17 you know, I guess, you know, on-site verification
18 that those areas are, you know, higher than,
19 you know, other parts of the Refuge, and are not,
20 you know, likely to receive run-off onto those
21 areas.
22 Q Is it a safe topographical statement to
23 say that Loxahatchee Refuge is mounded in the
24 center?
25 A Well, higher in the center, yeah. That --
388
1 Q Would that, therefore, tend to argue in
2 favor of a -- in favor of the center of Loxahatchee
3 being primarily rainfall --
4 A Yes.
5 Q -- driven?
6 A Yes.
7 Q Well, if the water doesn't penetrate very
8 far into the marsh, but there's no real way to tell
9 how far it got in there -- I mean, there were no
10 tracers used to determine how far water was
11 penetrating into the marsh?
12 A No. Our ability to take samples out in
13 the -- the Refuge were severely, you know,
14 restricted, you know, by the specifics of the entry
15 order.
16 Q I understand.
17 A We were not allowed to go out and sample
18 as we might want -- have wanted to in order to,
19 you know, look at the kind of issues you're talking
20 about here now.
21 But, you know, I didn't say that there was
22 no way to determine it. I just said you couldn't
23 determine it from, you know, the distribution of
24 water samples, actually how far it was.
25 Q Could you get an idea of -- that it goes
389
1 to some degree to some -- towards the middle of the
2 Refuge?
3 A Well, to the -- to the extent that you,
4 you know, measured -- I think from the standpoint
5 of the water itself, it would be, you know,
6 difficult to show that simply with the, you know,
7 the phosphorus data.
8 Q Okay. Then I'll go back to my question
9 before: What do you think the data show?
10 A They show, you know, what the, you know,
11 values are at those, you know, particular stations
12 during the time period that we sampled. And the
13 values are -- are the values. They show that,
14 you know, as a general rule that, you know,
15 phosphorus in the Refuge is -- is low.
16 I don't recall offhand, you know, what the
17 averages, you know, at the stations are. I mean,
18 if we want to look at, you know, one of the
19 spreadsheets that we provided, I'll be glad to do
20 that and talk about specific stations and what
21 those values are.
22 But --
23 Q What about phosphorus around the perimeter
24 of the Refuge?
25 A On the canals, it's obviously higher than
390
1 it is in the center. Basically probably on order
2 of magnitude or so.
3 Q Can you give that to me in ppb estimates?
4 A You know, out in the Refuge, I think,
5 you know, the numbers were, let's just say in
6 the -- I don't know -- bracketing it, say 5 to
7 15 range --
8 Q Uh-hum.
9 A -- maybe.
10 In the perimeter canal, it's probably 100
11 to 200.
12 Q But you again don't intend to offer any
13 testimony about the interpretation of that data?
14 You're going to leave that to others, like Millard?
15 A That's correct.
16 Q Okay. Let's go on.
17 What other sampling or study programs have
18 you done? You listed some, and I'm not sure how
19 they divide up. So I'm going to ask you to do it
20 for me as we go through them. I took this as a
21 discrete sampling --
22 A Oh, we didn't talk about the sediment
23 sampling in Loxahatchee, but --
24 Q Okay.
25 A -- I didn't mention --
391
1 Q Let's talk about --
2 A -- that.
3 Q -- that.
4 (WHEREUPON, DR. ROSS EXITED THE ROOM.)
5 A As I indicated earlier, we took some
6 samples at several of the stations in Loxahatchee.
7 We took three or four samples in conjunction with
8 Dr. Curtis Richardson. Then I took, oh, I don't
9 know, 20 samples or so with Dr. Bill Patrick.
10 The, you know, station locations are
11 shown, you know, on one of the maps. They were
12 basically kind of a west to east transect across
13 the center in a --
14 Q Are they shown --
15 I'm sorry, go ahead.
16 A -- south to north transect on the southern
17 end.
18 Q Are they shown on one of the maps that was
19 produced here today?
20 A I'd have to look at them --
21 Q Have a look --
22 A -- and see.
23 Q -- at that, if you would, that would be
24 great.
25 (WHEREUPON, A BRIEF OFF-THE-RECORD
392
1 DISCUSSION WAS HELD.)
2 (WHEREUPON, DR. ROSS ENTERED THE ROOM.)
3 MR. KILLINGER: Okay. Okay. Let's go
4 back on.
5 Q So you took three or four samples with
6 Richardson, and twenty or so with Patrick, and the
7 station locations are on one of your maps.
8 What were you -- what was the purpose of
9 that study?
10 A To look at the amount of -- of phosphorus
11 in the sediments. And --
12 Q What --
13 A -- the accumulation rates.
14 Q Now, what do you mean by "accumulation
15 rates?"
16 A As you're probably no doubt aware,
17 several, you know, investigators have dated their
18 cores using cesium dating, and these cores were
19 treated in the same way.
20 Technique essentially identical to that
21 used by, you know, Dr. Reddy.
22 Q Why would that be useful information?
23 A Well, it allows you to, you know, compare,
24 for instance, how, you know, phosphorus has,
25 you know, accumulated in the Refuge, versus how
393
1 it's accumulated in other parts of the Everglades.
2 And it also is useful in, you know,
3 establishing some, you know, background levels for
4 those particular areas.
5 There's different kinds of peat, you know,
6 throughout the Everglades, different kinds of peat,
7 different kinds of -- of areas have different
8 accumulation rates in it.
9 Q Have you done any analysis of the sediment
10 samples?
11 A No.
12 Q Do you know if anyone has done the
13 analysis of the sediment samples?
14 A Yes.
15 Q Who did that analysis?
16 A The actual, you know, samples were
17 analyzed, you know, by the, you know, laboratory at
18 Duke for the Richardson stations -- or samples.
19 And the laboratory at LSU for the,
20 you know, Patrick samples. Each one of those
21 individuals, you know, tabulated the data, and
22 calculated accumulation rates. And presumably are
23 in the process of, you know, analyzing that data.
24 Q Have you seen any of the data that were
25 generated from that?
394
1 A Yes.
2 Q Have you seen any of the analyses?
3 A When I say I've seen the data, what I'm
4 talking about is the result of -- the results of
5 the analyses, you know, like, for instance, so many
6 grams, you know, of phosphorus.
7 But I don't really understand your
8 question --
9 Q Okay.
10 A -- your differentiation between the two
11 I guess.
12 Q Have you seen any data analysis?
13 A I've seen plots of the phosphorus contents
14 with distance from the canals, and actually we may
15 have actually generated some of those.
16 Q Have you produced those plots?
17 A I'm sure they were produced to the
18 attorneys.
19 Q Okay. Do you know what those plots
20 showed?
21 A They showed, you know, the phosphorus and
22 the sediments being, you know, higher right
23 adjacent to -- or at the station closest to the
24 canal, and then dropping off rapidly, almost
25 instantaneously, to basically background levels.
395
1 Q As you went which direction, away from the
2 canal?
3 A Away from the canal. In one case, going
4 east; in the other case, going north.
5 But we're not through with that analysis,
6 that's the reason we wanted to go back and take
7 some additional samples in the Refuge in order to
8 better define that relationship. As I understand
9 it, we're supposed to do that on March the 28th.
10 Q What were the levels of phosphorus in the
11 sediment adjacent to the canals?
12 A I don't recall exactly what the values
13 were. I mean --
14 Q Do you recall the range?
15 A -- the data's here somewhere, we could
16 look at it.
17 Q Do you recall a range?
18 A I think it -- it was -- this is a range.
19 Q Uh-hum.
20 A But maybe 700 to 1500 maybe, something
21 like that. I mean, it was, say, 1,000, plus or
22 minus a couple hundred I think.
23 Q And do you recall what the -- the
24 background that it dropped off to was?
25 A I think it was in the range of three to
396
1 five hundred. I mean, the plots were pretty
2 dramatic. There was basically a high point next to
3 it, it dropped down immediately to this level, and
4 then it was a straight line for the rest of the
5 graph.
6 Q Are you able to draw any conclusions from
7 the data or the analysis of that data?
8 A I believe it, you know, shows that,
9 you know, the phosphorus is higher for, you know,
10 whatever reason in the station, you know, closest
11 to the canal. And then, you know, immediately
12 drops off.
13 On one of our transects, we want to take a
14 station closer to the canal, and the other one
15 between the first one and the second station.
16 Q Are you able to generate any opinions
17 about the ecosystem implications of the data or the
18 analysis of it?
19 A I haven't been asked to do that. I
20 haven't really given it much thought.
21 Q Do you know if anyone is -- is working on
22 that issue?
23 A It's my understanding that, you know,
24 Dr. Patrick has been, you know, charged with,
25 you know, interpreting these sediment data that's
397
1 collected in the Loxahatchee.
2 Q You indicated that the -- the water
3 quality data analysis and the sediment analysis
4 hasn't been completed yet. Is that correct?
5 A Well, I'm saying -- I'm not working on
6 it --
7 Q I understand.
8 A -- okay, so I don't know what stage these
9 other people are. I know that, for instance, the
10 sediment analysis isn't complete since we don't
11 have all the data yet.
12 I also know that the analysis of the
13 Loxahatchee water data isn't complete yet, because
14 we haven't been able to obtain the replicate data
15 that Dr. Jones took.
16 And the people wanting to work on that
17 want to have all the data together in order to,
18 you know, do the complete analysis at one time.
19 MR. FitzGERALD: For the record, that data
20 was turned over last week.
21 THE WITNESS: Maybe -- I don't know if we
22 want to talk about this here and now, or what,
23 but we couldn't read hardly any of that.
24 And I asked the attorneys to contact y'all
25 and see if there was a way of either getting a
398
1 look at the originals or better copy.
2 MR. FitzGERALD: Oh, you mean the Xeroxes
3 were bad?
4 MR. HYDE: Right.
5 THE WITNESS: I don't know if it's the
6 Xeroxes -- I don't know if it's the fault of
7 the Xerox, or the fact that the original was
8 such a poor copy.
9 Because obviously the sheets are from a --
10 like a dot matrix or thermal printer off of
11 instrumentation. And the values are extremely
12 difficult at best to read.
13 And I would challenge anybody to go down
14 and read them. I mean, there's hundreds of
15 numbers there, and you'd be guessing at a high
16 percentage of them, 30, 40 percent, maybe
17 50 percent of them.
18 MR. KILLINGER: Outliers.
19 THE WITNESS: No. No. I mean, just --
20 you can't read the number. You don't know what
21 it is.
22 MR. FitzGERALD: By some numbers it says
23 BPJ all those places.
24 Who's -- who's handling that, Bill?
25 MR. HYDE: Do you know to whom you sent
399
1 them?
2 MR. FitzGERALD: It was hand delivered to
3 Mark.
4 MR. HYDE: Mark? I presume Mark has
5 them. I'll ask him about it.
6 MR. FitzGERALD: It's -- I spent the last
7 week up here, so I don't know if anybody has
8 even heard there was a problem yet. When I'm
9 on the phone with him, I'll ask if anyone's
10 aware.
11 THE WITNESS: I think -- I don't know if
12 we want to do this on the record or not. But I
13 think --
14 MR. KILLINGER: Might as well.
15 THE WITNESS: You know, the easiest way
16 to -- to deal with it is if we could get the
17 originals for, like, 24 hours or something like
18 that to just, you know, enter them in and,
19 you know, make the best copy we could.
20 MR. FitzGERALD: Like your attorneys, you
21 never give them your originals, we never give
22 our originals. I mean, just --
23 THE WITNESS: I have no problem if --
24 MR. FitzGERALD: I'm sure we don't have
25 the original.
400
1 THE WITNESS: -- if you want to, you know,
2 get a decent copy we can read, or we can have
3 Dr. Jones attempt to read from the Xerox copy
4 into the record. But I think it's going to be
5 just like we tried to read the stuff before,
6 he's not going to be able to read it either.
7 So we can send, you know, somebody down to
8 sit down with him if that's acceptable, and,
9 you know, go through the numbers and try to get
10 them and put them into a spreadsheet that are
11 readable.
12 MR. FitzGERALD: Acceptable or not doesn't
13 sound very efficient. There ought to be a
14 better way to do it.
15 MR. HYDE: I -- I think --
16 MR. FitzGERALD: We'll look into it.
17 MR. HYDE: -- we need to examine this
18 issue by trying to come up with a good adequate
19 copy of the replicate data.
20 MR. FitzGERALD: I think that's the easy
21 way.
22 MR. HYDE: And if that can be done in a
23 very simple fashion perhaps by just adjusting
24 the copy machine, maybe that's all that's
25 necessary. If -- if it isn't because of the
401
1 nature of the material being copied, then maybe
2 some additional steps will have to be
3 undertaken, such as those suggested by
4 Dr. Davis. But --
5 MR. GILBERT: Just give him a disc.
6 MR. FitzGERALD: It's not on a disc. This
7 is a read-out from --
8 MR. GILBERT: So the information's never
9 been entered into a computer in any format?
10 THE WITNESS: Allegedly not.
11 MR. HYDE: Dr. Jones seems to be one of
12 the few people in the scientific community that
13 doesn't like to use his computers very much.
14 Q I guess the best way to sort of continue
15 on with this is to -- just to do it sort of area by
16 area down there. Trying to have a hard time
17 getting around where you've done things, and how
18 far that expands.
19 Does that represent -- the discussion
20 we've just had about the soil and water samples,
21 does that represent all of the scientific study or
22 research that you've conducted or been a part of in
23 Loxahatchee?
24 A During a couple of the trips,
25 Dr. Mike Dennis went along on the trip, and took
402
1 notes relative to the vegetative communities.
2 Q He took notes?
3 A Yes.
4 Q Maybe it's so obvious I don't see, but
5 what -- is that -- you mean literally notes on a
6 clipboard or something about what he saw?
7 A Yes.
8 Q Okay.
9 A He had a form that he followed to try to
10 make his collection of data, you know, uniform at
11 all the stations, and, you know, he was basically
12 there to characterize the communities around,
13 you know, the sampling stations and --
14 Q So what -- do you know what his purpose in
15 doing that was? Was it to characterize the
16 communities around the sampling points?
17 A Right.
18 Q Okay.
19 A And to get a better understanding of -- of
20 what the communities were in the Refuge. I think
21 you need to ask him what his total purpose was.
22 But --
23 Q I understand.
24 Was that a project you were working with
25 him on, or was he simply accompanying you on your
403
1 trip, and --
2 A He was there with me. While I collected
3 the water sample, he collected his notes, and took
4 some photographs.
5 Q Do you have a copy of his notes?
6 A Yes.
7 Q Have you --
8 MR. HYDE: Dr. Dennis is being deposed
9 today by someone from your firm.
10 MR. KILLINGER: I'm sure he is.
11 MR. HYDE: He'll have the same
12 documents --
13 MR. KILLINGER: Sure is --
14 MR. HYDE: -- since it is there.
15 MR. KILLINGER: That's -- I'm just trying
16 to see how far afield the --
17 THE WITNESS: Okay.
18 MR. KILLINGER: -- they go.
19 Q Have you looked at those notes?
20 A Briefly.
21 Q Are they in your documents as far as
22 you know?
23 A Yes.
24 Q Do you know whether there's been any
25 analysis or any compilation of those notes into any
404
1 kind of a report or summary?
2 A We extracted out of the field notes
3 some -- some information on, like, water depth, and
4 I think on one of the trips at least he took some
5 of the in situ measurements.
6 And so we extracted, you know, that part
7 of it out. I don't know what he's done with,
8 you know, the vegetation data per se.
9 (WHEREUPON, MR. NEARHOOS ENTERED THE
10 ROOM.)
11 Q When you say he took some of the in situ
12 measurements, what are you referring to?
13 A I mean he took the DO meter and took a
14 probe in the water column and read the DO value off
15 of the meter.
16 Q Is that a technical term?
17 Do you have that DO data?
18 A Yes.
19 Q Was that part of your --
20 A We incorporated it --
21 Q -- study program?
22 A -- into our spreadsheet --
23 Q Okay.
24 A -- for the water quality data.
25 I mean, basically it was a situation where
405
1 normally myself and another member of my staff went
2 down and took the data, and we divided the task
3 where I would, you know, collect the water sample,
4 and he would collect the in situ measurements.
5 When Dr. Dennis or someone else went, we
6 had to leave the person that normally assisted me
7 at home, or back at the vehicle, because there's
8 limited space in the helicopter. So that person
9 kind of assumed some of the responsibility for
10 taking the in situ measurements.
11 Q Have you analyzed that DO data
12 independently of the other data in the spreadsheet?
13 A No.
14 Q Okay. Anything else, have you done
15 anything else in Loxahatchee?
16 A We took some photographs.
17 Q Are those the photos that were produced to
18 us?
19 A Yes.
20 Q Okay.
21 MR. KILLINGER: Which we do have.
22 MR. HYDE: Twice.
23 A Also I guess I one time went on a trip
24 with the attorneys in Loxahatchee where we put a,
25 you know, standard kind of motorboat, you know,
406
1 with an outboard motor in the canal, and tried to
2 go down the canal to see, you know, whatever you
3 could see from -- from the canal itself. That was
4 prior to being able to obtain actual entry.
5 We didn't collect any samples or --
6 basically a --
7 Q Field trip?
8 A -- field trip. Visual tour.
9 Q Simply took --
10 A We took photographs. Took photographs.
11 MR. GILBERT: A windshield --
12 THE WITNESS: Pardon?
13 MR. GILBERT: A windshield survey.
14 THE WITNESS: A windshield survey.
15 Q Okay. What did --
16 THE WITNESS: We didn't get very far. The
17 canal was choked with water hyacinth.
18 Q Choked with water hyacinth.
19 A And water lettuce.
20 Q Have you done any work in 2-A?
21 A Yes.
22 Q What have you done in 2-A?
23 A I've indicated earlier, we took some,
24 you know, water samples -- there wasn't any
25 long-term program for that. Just, you know, took
407
1 some here and there to kind of get a feel for what
2 the values were, various locations.
3 We established a -- a group of stations in
4 2-A where we collected macroinvertebrate data; some
5 DO dye was collected at those stations; you know,
6 water levels; and we installed a couple of water
7 level monitors at a couple of those stations.
8 Q Okay. You established a group of stations
9 to collect macroinvertebrate data.
10 What kind of stations did you install?
11 A Well, I mean, basically what we did is
12 back at the beginning of the project, Dr. Dennis,
13 myself -- I'd have to go back and look at the field
14 notes to see who else was there, there were a
15 couple other people -- Rus Rader may have been
16 along on one of them, I can't remember actually.
17 We went out and -- and tried to locate a
18 set of stations, kind of what we called paired
19 stations, in some various zones of -- of 2-A. And
20 also down in 3-A near the S-5 structures.
21 Q What do you mean by "paired stations?"
22 A We tried to select a cattail community and
23 a saw grass community, and where sloughs or kind of
24 open water areas were present, a kind of slough
25 station in each one of the areas.
408
1 Q And what kind of station did you set up in
2 each of those areas?
3 A I don't know if -- if set up is the right
4 term. We, you know, marked the station with a PVC
5 or bicycle flag, flagging, that sort of thing;
6 attained, you know, GPS coordinates for that
7 station.
8 As I recall, we took some kind of in situ
9 measurements, and some phosphorus values for
10 that -- samples for phosphorus analysis at those
11 stations.
12 And what we were doing was establishing,
13 you know, these station locations so that we'd come
14 back in the future, and, you know, collect data on
15 those stations on macroinvertebrates. And someone
16 else collected some DO values at those stations.
17 I believe Dr. Dennis's group used some of
18 those stations, collect some periphyte data, but
19 you'd have to check with him on that.
20 And we also took some sediment cores at
21 those stations.
22 Q That kind of ran the gamut.
23 A I guess --
24 Q Did you go -- I'm sorry. Go ahead.
25 A Near some of those stations, we also
409
1 installed some of the redox probes later, but not
2 at that particular time. It's probably easier to
3 talk about those in a separate discussion.
4 Q Okay. Did you go back and do some
5 macroinvert sampling?
6 A Yes.
7 Q When did you -- what'd you do? How did
8 you do that, did you put out Hester-Dendies?
9 A When we originally established the
10 stations, I had, you know, one of the people that
11 went with us was one of our, you know, field
12 technicians. And while we were at the station, we
13 selected, you know, individual, you know, spots at
14 those stations to install, you know, the actual
15 Hester-Dendies. And to collect kind of timed
16 qualitative samples.
17 We did not try to put out the samplers at
18 the same time we were establishing all the
19 stations --
20 Q Okay.
21 A -- because it would take, you know, so
22 long to get done, and we had -- as Bill Hyde said,
23 a gaggle of people there. So --
24 Q What about -- I'm sorry.
25 A I'm sorry.
410
1 No, I was simply saying, we identified the
2 stations and --
3 Q Okay. Back --
4 A -- discussed the stations among us. And
5 then I basically sent a technician back to,
6 you know, put the Hester-Dendies.
7 Q Okay. Did -- so I mean, is it -- you had
8 three basic kinds of sites --
9 A Yes.
10 Q -- you had open water sites, you had
11 cattail sites, and saw grass sites.
12 A Correct.
13 Q Was the vegetation type the sort of
14 discriminate in selecting the site? Was that the
15 main --
16 A Our --
17 Q -- selecting criteria?
18 A At the time, you know, those stations were
19 started, there was -- were a lot of allegations
20 that, you know, you know, cattail communities were
21 just, you know, a biological desert I guess.
22 They were just, you know, the worst thing
23 in the world, that they caused when those came in,
24 you know, everything just, you know, went to
25 whatever --
411
1 Q Peat.
2 A And, you know, part of our, you know, goal
3 was to, you know, see if there was any difference
4 in macroinvertebrate communities, for instance, and
5 a cattail community adjacent to a saw grass
6 community that would be subject to, you know, the
7 same, you know, hydroperiods and conditions.
8 Q Uh-hum.
9 A One of the purposes of having Dr. Dennis
10 there, his speciality is, you know, vegetation,
11 botany, and the plant ecology was to try to select
12 sites that had similar stem counts, densities, so
13 that, you know, as many of the physical features of
14 the sites were similar.
15 Q Can we just take a quick segue?
16 In the photographs that you produced --
17 I don't have them with me, and I think the Xeroxes
18 aren't very readable -- there is a photograph of a
19 gentleman standing next to a piece of rebar with
20 some wire that were --
21 A That was the redox stations.
22 Q Okay. Never mind. We'll talk about that
23 later. I wasn't sure what that was about.
24 Well, did you do -- you said you took some
25 phosphorus samples. Were the phosphorus samples --
412
1 are the analyses from that used in site selection
2 at all?
3 A No.
4 Q Okay.
5 A I mean, we took the samples at the time we
6 established the sites --
7 Q So could you --
8 A -- and we'd like to have them analyzed.
9 Q Right. Well, that's what I thought.
10 A So they weren't used to establish -- we
11 just wanted to see, you know, what the phosphorus
12 values were.
13 MR. HYDE: They were an after the fact
14 confirmation of what the site appeared to be.
15 MR. KILLINGER: Thank you, Mr. Hyde.
16 MR. FitzGERALD: Wait. Can we go back and
17 get him sworn in for that --
18 MR. HYDE: I was just restating the
19 answer.
20 MR. KILLINGER: Is that sworn in or sworn
21 out?
22 MR. HYDE: As an officer of the Court, I
23 am bound to respond honorably and accurately.
24 MR. KILLINGER: I think we'll move on
25 quickly.
413
1 (WHEREUPON, A BRIEF OFF-THE-RECORD
2 DISCUSSION WAS HELD.)
3 Q Let me see. So I guess someone did go
4 back and put out Hester-Dendies.
5 A Correct.
6 Q You said --
7 A And they did that approximately every
8 two months.
9 Q Every two months.
10 A For approximately two years.
11 Q And that was not you. You did not do that
12 yourself?
13 A I don't think I actually ever put any of
14 those samples out, no.
15 Q Okay. Every two months you -- did you go
16 and switch them out, put a new one in?
17 A No. What we did was we -- as I said
18 before, you know, they were -- the biological
19 integrity rule requires that they incubate for
20 28 days.
21 So every 28 days, we went and collected
22 the samplers that had been installed the month
23 before. We would not put out new samplers then, we
24 would wait, you know, approximately a month or so,
25 and go out and put in another set.
414
1 So you ended up with six samples per year,
2 but you visited the site, you know, every month.
3 Q Why would you not put out new ones there?
4 I mean --
5 A Well, because it costs a fair amount of
6 money to process those samplers once you get them
7 back to the lab.
8 Q Okay.
9 A And it was an economic decision. You're
10 just doubling your costs to do it every month, as
11 opposed to every other month.
12 Q Okay. Did you have any control sites?
13 A Well, you know, part of the -- the goal
14 was to see if there was any difference between
15 cattails and saw grass --
16 Q Right.
17 A -- in a given location. So you could look
18 at the saw grass -- you know, one of the
19 allegations were that cattails was causing,
20 you know, the biological integrity standard to be
21 violated.
22 So we would take the saw grass site and
23 let it serve as a control for, you know, the
24 cattail site in the same vicinity at that given
25 location. Okay.
415
1 Q And then --
2 A So that -- that was one set of analyses.
3 Q Okay. So you were sort of assuming that
4 the saw grass marsh was the natural status quo?
5 A No. No. No. We were assuming -- see,
6 our, you know, you know, question was: Are the two
7 sites different?
8 Okay. So what you're testing is: Is the
9 cattail -- are the macroinvertebrates in a cattail
10 community at this location different from a
11 saw grass community at that location. That
12 doesn't --
13 Q Right.
14 A -- necessarily assume that either one of
15 them is better than the other, or, you know,
16 natural and the other one unnatural. They could
17 both be, you know, natural communities.
18 Q Okay.
19 A They could both be unnatural communities.
20 All we're doing is saying, if you were to
21 compare these two communities at a given location,
22 are they different. Do you see what I'm saying?
23 Q Yes. I think I do.
24 A Now --
25 Q I'm sorry. Go ahead.
416
1 A As I said earlier, we established,
2 you know, stations in, you know, different zones
3 within the conservation area.
4 Okay. We established one set of the
5 stations, I don't know, within a half a mile or so
6 of the 10-C structure. Okay. Then we established
7 another set of paired stations down about,
8 you know, 3 or 4 miles below that. I guess what
9 people might consider the transition zone from
10 the -- what people have termed -- incorrectly I
11 think -- the cattail monoculture.
12 And then we established another set of
13 stations down around the 217 gauge where people
14 have alleged the, you know, unenriched, you know,
15 background, you know, type station.
16 But we were, you know, comparing,
17 you know, the communities at each one of those
18 locations.
19 Then we also looked at, well, is there a
20 difference between a cattail community at the
21 background station, for instance, and a cattail
22 community up at the 10-C location. And then also
23 at the intermediate location.
24 Then we compared, you know, the saw grass
25 at each one of those communities also.
417
1 So there was a, you know, two-way,
2 you know, comparison. Going there, comparing
3 different communities each location, and then
4 comparing the same kind of communities at different
5 locations.
6 Q Okay. So you had sort of three categories
7 of sites, and then within each category of site,
8 you had sort of three community --
9 A Right. If the three communities --
10 Q -- pairs.
11 A -- were there. Like, if the -- the sites
12 closest to the 10 structure, there was no slough
13 site, no open water site. So we weren't able to
14 take a site there.
15 And at the middle station, there was a
16 site, it was kind of characterized as a slough.
17 But it was really just kind of a place where the
18 airboats had made a little bit of open water, and I
19 wouldn't really characterize it as a slough
20 station. But we just went ahead since we were
21 there, and just, you know, put samplers out there.
22 Q Were you able to -- would you consider
23 that area -- was it 10-C, is that what you said?
24 A Right south of 10-C.
25 Q Would that be an area that you would
418
1 consider to be phosphorus enriched?
2 A Yes.
3 Q Did you have any difficulty finding a
4 saw grass community out there to place the samples
5 in?
6 A I don't recall it being particularly
7 difficult. I mean, we established all the stations
8 I think in a single day. So -- we might have spent
9 two days on it, I can't remember. But I mean -- we
10 didn't spend a day looking for it if that's what
11 you mean.
12 Q Who actually deployed the Hester-Dendies?
13 A Various people that work for us. Or the
14 individuals would be identified in the field notes.
15 Q Are the people who deployed them
16 experienced in deploying Hester-Dendies?
17 A Oh, yes.
18 Q How were they deployed?
19 A They were basically attached to a
20 Styrofoam float, and, you know, anchored either by,
21 you know, blocks or tied to, you know, some kind of
22 vegetation.
23 If -- if there was any, you know,
24 possibility of them, you know, floating away or
25 blowing -- getting blown away or there was likely
419
1 to be any flow through the area.
2 Q How big are the floats that you used to
3 float your Hester-Dendies?
4 A Probably 6 inches square, something like
5 that maybe. Sometimes they're larger.
6 Q So they're not all the same size?
7 A I think probably on -- on this one, they
8 were all in the -- in the 6-inch -- 6-inch range.
9 But those large ones I'm thinking about are -- are
10 I think some that were used on -- on a
11 Suwannee River project one time.
12 Q How many Hester-Dendies did you suspend --
13 Is it correct they were suspended?
14 A Yes.
15 Q -- from each float? Did you suspend one
16 per float, or --
17 A Yes.
18 Q How many replicates did you --
19 A Three.
20 Q -- deploy?
21 Can you sort of explain to me how this
22 physically worked. If you had the saw grass
23 community you're putting the Hester-Dendies in, did
24 you put three in that saw grass community --
25 A Yes.
420
1 Q -- each with the floats?
2 A Yes. But they would be within maybe a --
3 a radius of, you know, a couple meters. There are
4 photographs I think of the -- of the sampling sites
5 in -- in several of the things.
6 Q Where in the water column were they
7 suspended?
8 A Essentially, you know, more or less right
9 at the surface in all the locations where,
10 you know, the water depths were, you know,
11 fluctuating and likely to go to zero because we
12 didn't want the samplers to end up laying -- or
13 lying on the bottom, if we could help it.
14 Sometimes you couldn't do that.
15 And when that happens, there was notes
16 made in the field notes that the samplers were,
17 you know, found lying on the bottom, or -- or
18 whatever. In some cases where the water wasn't
19 deep enough when they were installed, there were
20 notes put in the field notes that said, you know,
21 the samplers are -- are, you know, lying on the
22 bottom, or the bottom of it is touching the
23 bottom.
24 I mean, I -- ideally you don't want those
25 things to occur. But, you know, it's better to,
421
1 you know, put the sampler out there and get
2 something than just not get it.
3 Q Did you have a --
4 A I guess I should say, too, that there was
5 a -- I think I mentioned, there was a timed
6 qualitative sample taken at each one of the
7 locations.
8 Q Explain that to me a little bit.
9 A Basically they, you know, go out and --
10 and collect organisms from as many different,
11 you know, habitats as they can in a, you know,
12 specified, you know, time interval.
13 Q How was that done?
14 A They use, you know, a dip net and forceps,
15 and --
16 We also take a core sample as part of
17 that, and --
18 Q Did any of the sites change vegetatively
19 over the course of the study?
20 A No.
21 Q Are there any sort of standard protocols
22 for Hester-Dendy deployment and use, about whether
23 things lie on the bottom, or anything like that?
24 A I think that, you know, most studies I'm
25 familiar with, you know, end up suspending the
422
1 Hester-Dendies, you know, from floats. There are
2 some studies where they try to set them, you know,
3 a set distance above the bottom of the -- of the
4 water column.
5 Q Do you think one method is preferable over
6 the other?
7 A I personally think that, you know, having
8 them, you know, suspended is -- is probably better,
9 because especially in, you know, deeper areas, you
10 can put them right above, you know, the bottom,
11 you know, they're more subject to increased
12 sedimentation, that sort of thing.
13 Q Do you know of any differences in the
14 results you get from Hester-Dendy deployment where
15 they're suspended from a float as opposed to
16 supported from below?
17 A I think there are differences.
18 Q What would those differences be?
19 A You can get just a, you know, different
20 kind of species composition.
21 Q Is it dependent upon where in the water
22 column they're suspended.
23 A That can have an effect on it, when you're
24 dealing with a lot of drift organisms, and that
25 sort of thing.
423
1 Q Is the shading-out of the Hester-Dendy by
2 a float a potential factor in what you might wind
3 up with?
4 A I think you have to, you know, consider,
5 you know, the shading factor when you're doing
6 these kind of analyses and that sort of thing.
7 I think that in, you know, these
8 particular areas, it wasn't as much of a factor
9 because you're putting them in kind of dense,
10 you know, vegetation anyway that is creating its
11 own, you know, shade.
12 So you've got that additional factor to
13 contend with. But I think that when you use the
14 exact same method in two areas you're trying to
15 compare, but that effect cancels itself out.
16 Kind of like if I weighed you and Frank
17 and had both of you holding 25 pound weights,
18 you know, your relative weights would still be the
19 same, because you're both holding the same weight.
20 You use the same, you know, technique of
21 suspending things in both, you know, communities.
22 Then those effects cancel each other out.
23 MR. HYDE: I'd like to just note for the
24 record that the Rule itself does not specify
25 whether one is to suspend or to use a different
424
1 method of deploying the Hester-Dendies --
2 MR. KILLINGER: I'm not suggesting that it
3 does.
4 A I mean, I could add that, you know, the
5 method we use is a method that was, you know,
6 worked out and approved in conjunction with EPA on
7 several studies we did in conjunction with them.
8 Q It leads me back to a question that sticks
9 in my mind because of the photographs you produced.
10 As I recall, the floats from which you
11 suspended the Hester-Dendies were not uniformly
12 shaped and not uniformly sized.
13 Do you have any data that show exactly
14 what sizes or shapes they were?
15 A No.
16 Q The -- I guess you called it a timed
17 qualitative sample at each station that y'all --
18 A Right.
19 Q -- took? Did you use any standard methods
20 for taking those samples?
21 A We used the same method that we had,
22 you know, worked out with, you know, EPA on,
23 you know, a project that we did in conjunction with
24 them. The method is specifically stated in our
25 I guess generic QA/QC, you know, comp plan that's
425
1 been approved by DER.
2 Q Generically stated. You talked about
3 using a dip net. Do you know what size mesh?
4 A It would be I think it's -- I want to say
5 30 mesh. I believe is what it is. Whatever the --
6 I think it's half a millimeter size --
7 Q Okay.
8 A -- just the standard ones that are
9 specified for defining, you know,
10 macroinvertebrates. I think it might even say in
11 the Rule that you use a number --
12 Q U.S. --
13 A -- 30 sieve --
14 Q Yes.
15 A -- or something or another?
16 Q It does.
17 A And it -- and that's the size mesh screen
18 that was used.
19 Q How many sweeps did you take?
20 A I don't think there was a set number.
21 I think they basically, you know, go in and
22 collect, like I said, for a specific, you know,
23 period of time at each one of the stations.
24 It's at best, you know, a semi--
25 semi-quantitative method. It's not the method that
426
1 we used to evaluate, you know, whether the
2 biological integrity rule was violated or not.
3 There's always a criticism that
4 Hester-Dendy samplers don't, you know, adequately
5 collect, you know, the species or representing at a
6 given station. And we simply took those samples
7 since we were there in addition to, you know, the
8 Hester-Dendy samples.
9 Q How -- how do you do sweeps in heavily
10 vegetated area?
11 A You basically have to use a -- you know, a
12 dip net, and these things have little meshes on
13 them, little nets with a handle, and you just --
14 THE WITNESS: Well, I guess you can't --
15 MR. FitzGERALD: That's going to be hard
16 to get on to --
17 THE WITNESS: I --
18 MR. FitzGERALD: -- the record.
19 THE WITNESS: I was going to say --
20 MR. FitzGERALD: Let the record reflect
21 the witness has made a uniform -- a nonuniform
22 series of jerky motions with his hands,
23 simulating the presence of a stick. Or
24 something of that nature.
25 MR. HYDE: Counsel is just being facetious
427
1 in that comment.
2 MR. FitzGERALD: I saw the witness shaking
3 his head yes. That's sort of what he was
4 doing.
5 A I mean, basically, you know, you go in
6 there and, you know, take the net and -- and move
7 it around in between the vegetation, and attempt
8 to, you know, scrape off, dislodge, you know, any
9 organisms that are adjacent to -- or attached to
10 the stems of vegetation there.
11 I mean, it's kind of a -- an aggressive,
12 you know, effort to, you know, collect whatever
13 organisms are there. Like I say, it's at best
14 semi-quantitative --
15 Q Uh-hum.
16 A -- because you're doing it for a specified
17 amount of time at each location.
18 Q Well --
19 A It's just additional information. It's
20 not information that we used to determine
21 compliance with the biological integrity standard.
22 Q How big are these nets?
23 A I think they use a little kind of hand net
24 for -- for part of it when they can. And that's
25 what they would use at these stations.
428
1 Q What would be, like, the mouth opening
2 diameter of a net like that?
3 A I think the ones that were used on this
4 were in the neighborhood of 6 inches or so,
5 something like that.
6 Q Okay. Where do you get such a standard
7 net as --
8 A They were ordered from one of the
9 biological supply houses or whatever.
10 Q Do you reuse the nets?
11 A Certainly.
12 Q Okay.
13 A And make sure they're cleaned in between
14 uses, they were used. I don't know any
15 macroinvertebrate collector that uses a new net
16 every time he collects a station.
17 Q I wasn't trying to imply that was
18 necessary. I was just asking the question.
19 Is current a factor in colonization of
20 Hester-Dendies?
21 A Yes.
22 (WHEREUPON, DR. ROSS EXITED THE ROOM.)
23 Q What role does it play?
24 A It obviously brings drift organisms to
25 Hester-Dendies if organisms, you know, drift. It
429
1 can also provide, you know, detritus and that sort
2 of thing to Hester-Dendies.
3 If it's too strong, you know, it might,
4 you know, preclude anything from attaching on it.
5 I don't think current, you know, at these
6 particular stations, would affect Hester-Dendies in
7 that manner. But it could.
8 Q Was current a site selection criteria?
9 A No.
10 Q Did you take any current data or
11 calculations from the sites that you actually
12 selected?
13 A No.
14 Q Do you know if any of the Hester-Dendies
15 dried out?
16 A Yes.
17 Q Did any dry out?
18 A Yes.
19 MR. KILLINGER: Nothing is easy.
20 Q Did any -- I guess you said some were
21 touching the bottom I guess when deployed.
22 A Yes.
23 Q Do you know -- do you have any reliable
24 data that would show what the -- sort of -- I don't
25 know if we'd call it microhabitat, but the specific
430
1 location where the Hester-Dendies were was like in
2 the period when people weren't there looking at it?
3 A No.
4 Q Do you have any -- did you deploy any
5 meters or samplers that would show whether the
6 water level fluctuated or went up or went down or
7 dried out?
8 A At some of the stations.
9 Q At some of the stations. But not all of
10 them.
11 A Actually, I think there was one at each
12 one of the -- at generally -- at -- you know, these
13 stations were relatively close together.
14 Q Uh-hum.
15 A And my recollection is that we had a water
16 level recorder, continuous water level recorder at
17 each set of paired stations.
18 Q I don't think --
19 Back up a second. Do we have the data
20 from the timed qualitative samples that you took?
21 A Yes.
22 Q Was that provided in the context of the
23 documents that you gave us?
24 A I don't remember if we provided you hard
25 copy or just electronic copies. There may just be
431
1 electronic copies of it. But they're in
2 spreadsheet format, standard, you know, XL
3 format --
4 Q Okay.
5 A -- you just go to XL, print them out.
6 Q What was your reason for doing that?
7 A Doing what?
8 Q Those timed qualitative sampling.
9 A Just to have the data in case, you know,
10 we ran up into, you know, arguments that the
11 Hester-Dendies weren't appropriate, and that you
12 should have looked at it this other way also.
13 Q Okay. I guess back to where --
14 A Excessive caution.
15 Q -- back to where I was?
16 MR. HYDE: You may recall that the
17 United States seemed to be thinking that
18 non-new methodologies were better with the
19 biological integrity standard reflected.
20 MR. KILLINGER: Oh, far be it from me to
21 cast any aspersions on Hester-Dendy
22 methodology.
23 MR. HYDE: We stand behind the
24 Hester-Dendies. As does the Department --
25 MR. KILLINGER: I -- you know --
432
1 MR. HYDE: -- and Dr. Ross.
2 MR. KILLINGER: -- you know, I don't --
3 I'm not trying to make any value judgments here
4 about what's better or not.
5 MR. FitzGERALD: Time out.
6 (WHEREUPON, A BRIEF OFF-THE-RECORD
7 DISCUSSION WAS HELD.)
8 MR. KILLINGER: I'm not trying to get at
9 any, you know, value judgment about what's
10 better or not, I'm just trying to find out what
11 we did.
12 THE WITNESS: Can we go off the record
13 just for a second?
14 THE WITNESS: Yeah.
15 (WHEREUPON, A BRIEF OFF-THE-RECORD
16 DISCUSSION WAS HELD.)
17 (Recess.)
18 (WHEREUPON, MR. NEARHOOS WAS NOT PRESENT
19 IN THE ROOM.)
20 MR. KILLINGER: Okay. I guess we're back
21 on.
22 Q I keep coming back to the timed
23 qualitative sample. I guess I don't understand
24 that very well.
25 Can you explain to me what that is and how
433
1 it's done? What the timed element of it is? I --
2 A They collect for a specified period of
3 time. Let's just say they collect for one hour.
4 Q What does mean though, they collect for
5 1 hour?
6 A They collect -- if there's two people,
7 they both may collect for 30 minutes so that you
8 have a total of a 1-hour collection effort --
9 Q I see.
10 A -- at that location.
11 Q So that is why you told me that you
12 couldn't give me a set number of sweeps.
13 A Right.
14 Q Okay.
15 A Because they're -- it was more set to the
16 time, you know, period.
17 Q Okay.
18 A And, like I said, it's a semi--
19 semi-qualitative, you know, estimate at best.
20 Q So if --
21 MR. HYDE: I think you used the word
22 qualitative, you meant quantitative?
23 THE WITNESS: Semi-quantitative.
24 A I mean it is a qualitative method. That's
25 the reason we call them qualitative samples.
434
1 I'm saying it's semi-quantitative, because
2 you do try to expend the same relative amounts of
3 efforts --
4 Q Just --
5 A -- at each place so that you're better
6 able to compare the data.
7 Q But if you have a relatively open slough
8 site, for instance, aren't you going to wind up
9 with a much easier --
10 A Yes.
11 Q -- time, and more sweeps than you are at a
12 highly vegetative site.
13 (WHEREUPON, MR. FRYDENBORG ENTERED THE
14 ROOM.)
15 A Absolutely. I mean, I don't think they
16 are as good in comparing different kinds of -- of
17 sites as they are, you know, similar kind.
18 And like I said, the --
19 Q So -- I'm sorry. Go ahead.
20 A I was going to say, the -- the methodology
21 and, you know, equipment used and that sort of
22 thing are explicitly laid out in our approved QA/QC
23 plan.
24 Q So what value do you get from timed
25 qualitative analysis if the number of sweeps isn't
435
1 predictable and, therefore, I assume the number of
2 organisms that you collect is not the same
3 relatively sampling session to sampling session
4 or --
5 A Well --
6 Q -- site to site.
7 A -- you can, you know, pick up species
8 that, you know, you might not pick up on
9 Hester-Dendies. And again, we just did it mainly
10 as a fall-back --
11 Q Uh-hum.
12 A -- given what we, you know, anticipated
13 as, you know, arguments from other people that,
14 you know, you should use, you know, Hester-Dendies
15 in these kind of systems.
16 Q Well, what can you use the data for to
17 tell, what, relative abundances of organisms or --
18 I mean, is that an appropriate thing or --
19 A Well, I mean, you can calculate, you know,
20 diversity, you know, on these. There's some of the
21 diversity indices that are, you know, claimed to
22 be, you know, sample size independent.
23 Q Okay.
24 A So if you use, you know, indices that are,
25 you know, sample size, you know, independent, then
436
1 you can, you know, calculate diversities from those
2 things.
3 I believe Shannon-Weaver diversity,
4 that's, you know, one of the things they, you know,
5 claim for that.
6 Q Did -- what'd you do with the -- the stuff
7 you got in your sweeps, did you analyze it?
8 A Sure.
9 Q How was it analyzed?
10 A I mean, we basically collect, you know,
11 all the organisms in the field, put them in a
12 bottle, preserve them; take them back to the lab
13 where we have a technician that, you know, pours
14 them out of the bottle and enumerates them.
15 Well, wait a minute. We have a -- a
16 technician takes the material that's in the bottle,
17 which is also going to have some detrital material
18 in it and stuff since you're using the sweep
19 method, and that sort of thing.
20 And picks the organisms from the detritus,
21 and puts it in another little vial. And then we
22 have those samples, you know, identified. Then we
23 take the name of the organism, the number of
24 individuals that were found in that organism, put
25 them into a computer program that generates a -- a
437
1 printed table of, you know, the genus and species;
2 the taxa, whatever; the number of organisms; the
3 percent, frequency that that organism appeared;
4 calculates the Shannon-Weaver diversity; tabulates
5 the number of taxa, the number of organisms. And
6 I think it also calculates an equitability index.
7 Q What's an equitability index?
8 A Just another one of the indices that,
9 you know, EPA was promoting at one time and we were
10 doing some work for EPA, so we included that index
11 in a computer program.
12 Q When you get the samples analyzed, they
13 sample -- I mean, identified every organism, or
14 just representative?
15 A We attempt to analyze, you know, the
16 entire sample. On occasions, you know, if there's
17 just so much, you know, material in a sample that
18 it's, you know, impractical to do that, they,
19 you know, subset, you know, the sample using the
20 procedures that are laid out in the QA/QC plan.
21 Q Did you calculate from the data that you
22 got any measures of -- of community health?
23 A No. Well, other than --
24 Q Is that metrics?
25 A -- other than, you know, the diversity
438
1 indices --
2 Q Okay.
3 A -- and I would assume you would consider
4 that to be a measure of community health. I'm not
5 really familiar with the term community health.
6 Q What's -- does the data that you have on
7 this -- you said that the computer printed out a
8 number of different things.
9 A Uh-hum.
10 Q Did you give us all those printouts?
11 A Yes.
12 Q Okay.
13 A Well -- well, I didn't give you hard copy,
14 they're electronic file.
15 Q Okay.
16 A And they're just text files --
17 Q Okay.
18 A -- any text out of a printer. Because
19 there's, you know, I don't know, this much of them
20 probably, a foot of them. I just didn't see any
21 reason to kill that many more trees.
22 MR. FitzGERALD: Off the record for a
23 second?
24 MR. KILLINGER: Off the record.
25 (WHEREUPON, A BRIEF OFF-THE-RECORD
439
1 DISCUSSION WAS HELD.)
2 MR. KILLINGER: Back on the record
3 I guess.
4 Q Does the either electronic or hard copy
5 printout that we have give any record of how many
6 sweeps you were able to do in your timed period?
7 A No.
8 Q Was any record of that kept that you know
9 of?
10 A You'd have to check the field notes and
11 see.
12 Q That normally a practice, to keep a record
13 of that?
14 A I'm not sure that that would have been
15 recorded, the actual number. They record,
16 you know, the time that was spent doing it. But I
17 don't think they record, you know, the number of
18 sweeps or the number of -- of, you know, things
19 they looked at to try to, you know, pick organisms
20 off.
21 Q Is a timed qualitative analysis a standard
22 method for this type of organism collection?
23 A It's used by other people, you know, how
24 standardized it is, I don't know.
25 Well, we basically came up with it on a
440
1 project we had in conjunction with EPA as a way of
2 collecting, you know, additional data --
3 Q Right. Right.
4 A -- to be used, you know, in conjunction
5 with, or whatever, you know, looking at the
6 Hester-Dendy data.
7 Q How do you know, for instance, if the sort
8 of -- if you don't know the number of sweeps that
9 you took, how do you have any assurance that the
10 relative area that you sampled from one spot to the
11 next was even remotely close.
12 A You don't.
13 Q Okay.
14 A I'm not saying this is a quantitative
15 method --
16 Q I understand.
17 A -- I've said it three or four times, it's
18 not.
19 Q I'm just trying --
20 A You can't do --
21 Q -- to get a feel --
22 A -- those things.
23 Q Okay. And the only thing you did with
24 this data, as I understand it, was just to do
25 Shannon-Weaver?
441
1 A We basically just fit it into the same
2 program used for the Hester-Dendy data. All the
3 same things are spit out, because that's an easy
4 way to get, you know, printed, you know, names of
5 all the organisms and --
6 Q Right.
7 A -- you know, the number you found, and all
8 these other things. So we just treat both sets of
9 data the same way as far as computer program.
10 Q Did you with regard to those samples, or
11 your Hester-Dendies, do any analysis of -- of
12 species or taxa composition?
13 A Not really. I did just briefly look at
14 when I was reviewing I believe it was
15 Frank Nearhoos' little report where he discusses
16 I guess the Department's, you know, basis for
17 assuming that the biological integrity standard
18 was, you know, violated -- or -- or maybe it was in
19 the balance part. And he mentioned a couple of
20 species that I guess Terczak had decided were,
21 you know, indicative of, you know, enrichment or --
22 or whatever.
23 And I just took the same species that
24 were, you know, looked at in those, and looked at
25 our data briefly to see if we came up with similar
442
1 results, and they weren't.
2 Q Okay.
3 But that's the extent of looking at
4 individual species.
5 Q Okay. I guess I left off on something
6 that I need to go back to.
7 We talked before about some of the
8 Hester-Dendies perhaps touching the bottom or lying
9 on their sides or drying out at some point during
10 the process.
11 A Uh-hum.
12 Q What effect does contact of the
13 Hester-Dendy with substrate or anything else have
14 on the results that you get from it?
15 A Well, I think it'll distinctly change the
16 type and, you know, number of organisms that you
17 get on the sample.
18 Q Does it invalidate it if the Hester-Dendy
19 dries out?
20 A I think so.
21 Q Okay. What about if it's touching the
22 bottom?
23 A I don't know if it necessarily, you know,
24 invalidate it. But I think that clearly you need
25 to consider that in your analysis. That's the
443
1 reason when those kind of conditions occurred, they
2 always make notes to that effect in the field
3 notes.
4 So that, you know, someone looking at the
5 data can consider that and -- and make their
6 judgment of whether or not they'd rather, you know,
7 just do away with the whole thing and not consider
8 it, or go ahead and, you know, consider it with the
9 recognition that that occurred.
10 MR. HYDE: Short of guaranteeing that the
11 water levels would stay at such a level that
12 they wouldn't touch the bottom, I don't know
13 any other way to do it.
14 Q Well, in the -- have you provided us just
15 the data, or have you provided us any breakdown or
16 the analysis of -- of what the data mean? Have you
17 provided us plots or anything, or --
18 A I believe that there were summary,
19 you know, spreadsheets of the macroinvertebrate
20 data, you know, provided.
21 I don't recall if there were any plots
22 provided or not. I -- I just don't remember. It
23 was all, you know, sent to the attorneys. So --
24 Q Uh-hum.
25 A -- you know --
444
1 Q Have you given any --
2 MR. HYDE: Was that the stuff sent to me?
3 THE WITNESS: Some of it was. But --
4 Q Would those printouts or electronic media,
5 whichever they be, would they indicate what taxa
6 were representative of the benthic community in
7 each site?
8 A They list the taxa that were found at each
9 site.
10 Q Okay. Who did your identification?
11 A Dr. Epler.
12 Q And where is he?
13 A Out in the middle of the woods south of
14 Tallahassee here.
15 (WHEREUPON, A BRIEF OFF-THE-RECORD
16 DISCUSSION WAS HELD.)
17 Q Do you know what literature was used for
18 identification?
19 A It's all listed, as I recall, in the QA/QC
20 plan, or somewhere else. But if you have trouble
21 finding it, we can get -- get you a list of all the
22 references.
23 I think the Department uses him to
24 identify samples, and a lot of other people. So I
25 don't think there would be much dispute on his
445
1 identifications.
2 Q Well, if he's, quote, out in the woods and
3 gets business, then people must search him out.
4 A I could also say that we had him accompany
5 our people that were doing, you know, the sampling,
6 and the timed qualitative sample, you know, out to
7 the Everglades and, you know, observe their,
8 you know, techniques and that sort of thing and,
9 you know, independent confirmation that, you know,
10 they knew what they were doing and doing a good
11 job.
12 Q You said that part of your point for doing
13 this was to compare sites in similar areas to
14 assess differences between, for instance, cattail
15 and more open water and the saw grass site.
16 Have you analyzed the results that you
17 derive from your Hester-Dendy sampling to come to a
18 conclusion about those relative habitats?
19 A I, you know, looked at the data to compare
20 the, you know, cattail and saw grass, you know,
21 communities at each site.
22 Q And -- and what does your data show?
23 A It shows that in general, the -- you know,
24 the biological integrity standard is not violated.
25 Q So then was the context of your review
446
1 solely within the biological integrity rule to
2 analyze the Shannon-Weaver diversity index?
3 A Essentially, yes.
4 Q Okay.
5 A Now, we also looked at comparing, as I
6 indicated before, for instance, the cattail site up
7 here -- at -- well, not up here -- close to the
8 10 structures in the alleged enriched area --
9 I guess the enriched area -- with the, you know,
10 background site down around the 216 gauge. So we
11 compared it on that basis also.
12 And on that basis, the standard was not
13 violated either.
14 Q So you compared it sort of horizontally
15 and vertically?
16 A Correct. Good chronology.
17 MR. HYDE: Lee, just to make the -- a
18 legal point here, it's our position that if you
19 have demonstrated compliance with the
20 biological integrity standard, that wouldn't be
21 presumptive, if not conclusive, as to whether
22 that is indicative of any of the violation of
23 the narrative as well.
24 In other words, that's the prescribed
25 methodology in the Department's rules for
447
1 measuring macroinvertebrate communities.
2 I just wanted to make that note on the
3 record. To the extent that you're trying to
4 say that something else about those -- that
5 those same measurements can somehow demonstrate
6 a violation of a different standard, I would
7 disagree.
8 MR. KILLINGER: Well, I think that,
9 you know, the data show what they show --
10 MR. HYDE: Uh-hum.
11 MR. KILLINGER: -- and I think they can be
12 used to show any number of things, depending on
13 how the analysis was performed and whether the
14 data was appropriately collected for the
15 results -- I mean, the analysis you want to
16 do.
17 I think, for instance, it's a pretty fair
18 bet that you can analyze the taxa to determine
19 whether some are more pollution tolerant than
20 others, and indicate species shifts,
21 for instance. And I'm not necessarily sure
22 that would constitute a biological integrity
23 violation necessarily. But it might be
24 indicative of some other problem.
25 MR. HYDE: It might be indicative of a
448
1 problem. But to my mind and my interpretation,
2 not indicative of a violation.
3 MR. KILLINGER: Well, that may be. We're
4 not I guess here to argue the law. So --
5 you know, position noted.
6 Q You indicated that you didn't think that
7 biological integrity was being violated based on
8 the samples you've got from 2-A.
9 A Correct.
10 Q Was it ever violated in any of the samples
11 you did?
12 A Yes.
13 Q Okay. What percentage of your samples?
14 A Well, let me back up. I don't know that I
15 should say the standard was violated, okay.
16 Because I don't think the standard was.
17 But there were instances where the,
18 let's say, diversity at, let's say, a cattail site,
19 compared with the saw grass site during a single
20 sampling period fell below 75 percent. I mean,
21 there were instances where that occurred. Okay?
22 But I don't think you can, you know,
23 really apply the standard, you know, to just,
24 you know, individual, you know, samples when you've
25 got, you know, two years, you know, worth of data
449
1 there, and that you have to look at, you know, the
2 group of data as a -- as a whole. And the time
3 that it happened.
4 I mean, it was -- we'd have to look at the
5 summary sheet which we provided to y'all, but, it
6 was, like, you know, one or two or three times,
7 you know, out of, you know, all the times sampled.
8 Q Well, does the -- the rule state that you
9 in the long-term average biological integrity
10 sampling program to determine a violation?
11 A No. It doesn't state that you use a
12 single sample either.
13 MR. KILLINGER: Well, I'm kind of at a
14 point where I wouldn't mind going and looking
15 at some more of my notes to see which direction
16 I want to go next.
17 MR. HYDE: You want to take a break?
18 MR. KILLINGER: Well, yeah. Wouldn't
19 mind.
20 And maybe, Doug, the two of you could try
21 and work on whatever you need. Or I can segue
22 and let Mr. FitzGerald ask a few questions, and
23 I can regroup here.
24 With the reservation that I can come back
25 in tomorrow if that's -- if that's not a
450
1 problem, Bill.
2 MR. HYDE: Well, I think there's been
3 routine objections throughout these depositions
4 to what are called, quote, tag team type
5 questioning.
6 I guess I won't object to that. I think
7 it might be appropriate to take just a brief
8 break. Then if we're going to switch to
9 someone else, then that's what your pleasure
10 is -- I mean, both your and Tom's.
11 But if you want to just take this as a
12 moment to have John discuss with Doug Gilbert
13 the issues that were addressed earlier, that
14 might also be a good thing to do at this time.
15 MR. KILLINGER: Well, I'm not finished
16 with the full gamut of questions that I've
17 got. What I would like to do, and I,
18 you know -- realize you may have a tag team
19 objection to that -- is to go back and cull
20 some of the things I think I may have already
21 covered from my list of questions. But I
22 wouldn't mind coming back and asking some
23 questions, for instance, in the morning.
24 I don't want to just say, okay, I'm going
25 to, you know, call it off for today and start
451
1 over tomorrow, because I'm worried that I'll
2 wind up being accused of not using the full
3 alloted time and not being able to get,
4 you know, any time in the future.
5 MR. HYDE: No. I understand what you're
6 saying. I'm just wondering at this point
7 whether it would be better to -- if you have
8 just a short amount of time to do that, or if
9 you think it's going to take some additional
10 time, we can just switch gears and go to
11 another questioner.
12 If it's going to be a relatively short
13 period of time, perhaps it's better utilized by
14 having John and Doug discuss the documents.
15 MR. KILLINGER: Well, how long you think
16 it'll --
17 MR. HYDE: It's your choice.
18 MR. KILLINGER: -- take y'all to discuss
19 the documents that --
20 MR. GILBERT: What was indicated to me was
21 that the hydro lab sample deployment and
22 potentially data collection analysis was
23 handled by Paul Larsen and not ESP, although
24 the sites were identified by ESP station
25 numbers.
452
1 So Mr. Davis -- Dr. Davis isn't exactly
2 familiar with where some of those sites may
3 have actually been. Relative area, certainly,
4 but not exact locations. Indicated we should
5 see Paul Larsen for that.
6 MR. KILLINGER: We can just go off the
7 record on this whole spiel.
8 (WHEREUPON, A BRIEF OFF-THE-RECORD
9 DISCUSSION WAS HELD.)
10 (Recess.)
11 (WHEREUPON, MR. KILLINGER WAS NOT PRESENT
12 IN THE ROOM, MS. DONNA LaPLANTE WAS PRESENT IN THE
13 ROOM.)
14 CROSS EXAMINATION
15 BY MR. FitzGERALD:
16 Q Okay. Dr. Davis, I'm
17 Thomas Watts FitzGerald representing the
18 United States in this matter.
19 What I plan to do, as we said off the
20 record, is go back and kind of fill in a little bit
21 from questions asked by Mr. Killinger so that when
22 we get to the end of the useful expenditure of time
23 on your deposition in this phase, we will have
24 closed some areas out completely.
25 And then when we bring you back, or we
453
1 reprise your role as witness, we can focus on final
2 opinions and -- and some of the more narrow areas
3 that will reflect hopefully what we by then will
4 understand to be your role in the -- in the
5 hearing.
6 MR. HYDE: Assuming it's necessary to
7 bring him back, of course.
8 MR. FitzGERALD: It -- it will be
9 necessary, Counsel.
10 MR. HYDE: I see.
11 MR. FitzGERALD: And I will -- you know,
12 give you some advanced warning, if it affects
13 anybody's schedules, I don't realistically see,
14 given the volume of data and the time in which
15 we got the disks, and -- and even the printed
16 materials, because of its volume, that we'll go
17 much beyond tomorrow afternoon.
18 I see no useful purpose in sitting and --
19 and shucking and jibing through all this
20 material when there has been an inadequate
21 opportunity to review it.
22 MR. HYDE: Well --
23 MR. FitzGERALD: And -- and I understand
24 your position on that, and you understand
25 ours. And there's always Mr. Menton if we
454
1 can't reach a meeting of the minds on this.
2 MR. HYDE: Okay. Just since you made your
3 little statement for the record, I'll make
4 mine.
5 I think the evidence was provided to you
6 in a sufficiently timely fashion, that much of
7 the delay was occasioned by factors beyond our
8 control. The production was certainly as
9 timely as much -- many of the productions for
10 other people, and I think it would be a waste
11 of everyone's time if we were to just blow off
12 the fourth day of this scheduled period
13 Friday. And I hope that that will not be
14 done.
15 We have agreed to produce Dr. Davis for
16 another day, much like the U.S. has agreed to
17 produce Dr. Jones for another day --
18 MR. FitzGERALD: Uh-hum.
19 MR. HYDE: -- when we feel that he needs a
20 good bit more time just to identify what the
21 heck his data is in the first place.
22 MR. FitzGERALD: Well, let's be clear.
23 You did already have Dr. Jones for four days.
24 MR. HYDE: That's right.
25 MR. FitzGERALD: You had only noticed him
455
1 for five. I'm not suggesting that we would
2 want Dr. Davis for longer than the five days
3 originally contemplated. It's the spacing of
4 those days that's at issue.
5 I think you will concede that on Friday, a
6 lot of data disks were provided, which I think
7 Dr. Davis has referenced in some of his earlier
8 testimony today, and were provided only in
9 Tallahassee. They were not produced to the
10 United States, we didn't have the opportunity
11 to try and look at them over the weekend. So
12 that severely limited the possibility of having
13 gotten through it.
14 I have not even had the opportunity to
15 have my macroinvertebrate people look at those
16 materials.
17 So, you know, as I say --
18 MR. HYDE: Well, I can tell you at this
19 point, Tom, we're going to make him available
20 for one other day. I know that for a fact.
21 That's just sort of a quid pro quo for what has
22 occurred in the Ron Jones --
23 MR. FitzGERALD: No.
24 MR. HYDE: -- situation, too.
25 MR. FitzGERALD: We had produced
456
1 Dr. Jones --
2 MR. HYDE: Let me -- may I just finish?
3 MR. FitzGERALD: -- three days, I would
4 agree.
5 MR. HYDE: Let me -- let me finish.
6 I would also note that I think that this
7 data was provided to Mr. Killinger, because he
8 advised me that he would be the primary or lead
9 attorney in this regard.
10 The fact that you guys may not have
11 communicated with each other is really not my
12 problem. But I did try to call your office,
13 and I think if you would go back to your phone
14 records, you would see several messages from me
15 in which I tried to tell you about this very
16 thing that I was doing.
17 It is obviously an enormous document
18 production, we tried to respond in good faith.
19 MR. FitzGERALD: I was in my office on
20 Friday, and I received no phone calls --
21 MR. HYDE: This -- this was a fax --
22 This was a week ago Monday.
23 MR. FitzGERALD: A week ago Monday, the
24 only phone message I got from you concerned the
25 movement of the deposition. And that was --
457
1 MR. HYDE: More than that.
2 MR. FitzGERALD: -- subject to
3 correspondence. Ms. Ponzoli spoke to you, and
4 the fact that there was going to be
5 supplemental production in Tallahassee on
6 Friday was never mentioned.
7 MR. HYDE: I don't recall -- I don't --
8 MR. FitzGERALD: Mr. Killinger advised --
9 MR. HYDE: -- think talking to --
10 MR. FitzGERALD: -- me that you only told
11 him about this stuff Thursday afternoon.
12 MR. HYDE: I provided him with some
13 documents on Friday, that is true. But we're
14 wasting --
15 MR. FitzGERALD: And -- and the --
16 MR. HYDE: -- our time here.
17 MR. FitzGERALD: -- disks. I mean, the
18 data disks he got on Friday. Not all of them,
19 but some of them.
20 MR. HYDE: I understand. It's going to
21 have been arranged at a mutually convenient
22 time. We've agreed to give him to you for
23 another day. I hope that we can work together
24 and try to resolve this in an amicable way.
25 MR. FitzGERALD: I think that's what I
458
1 said.
2 MR. HYDE: Why don't you go ahead and make
3 your questioning --
4 MR. FitzGERALD: And to be clear on one
5 thing, I was not suggesting that the production
6 of all the paper materials, receiving it so
7 late, was your problem. I mean, we harassed
8 Black's liberally in Miami trying to move it
9 along as quickly as possible. It's just -- it
10 was a lot of material. It's --
11 Q Dr. Davis, you testified yesterday
12 regarding your work-up of materials for purposes of
13 the -- the deposition.
14 Were you also provided a copy of the
15 Notice of Deposition Duces Tecum directed to you
16 from the United States?
17 A I received a -- a copy of that, you know,
18 via fax one day --
19 Q To --
20 A -- I think it was the day or two after
21 y'all filed it on them I think. Just based on the
22 fax --
23 Q Okay.
24 A -- indication at the top of the page.
25 Q Did you review that to determine,
459
1 you know, the extent to which it varied from the
2 Notice provided and Duces Tecum by the
3 Department of Environmental Protection?
4 A You know, not really. The -- couple of
5 the attorneys from the law firm were in the office
6 at that time, and they said they would, you know,
7 take the lead in, you know, looking at the
8 differences, decide what we need to do about it.
9 Q So you yourself never personally reviewed
10 the items called for in the Notice?
11 A I, you know, read over them. And for the
12 most part, they seemed to be similar. But I didn't
13 go by -- one by one and -- and try to compare them.
14 Q Well, what assurance do you have that,
15 in fact, the documents called for in the
16 United States Notice were, in fact, made available
17 even to the law firm to screen if you didn't go
18 through to determine what additional was required?
19 A Because they looked at all of our files.
20 Q And who were the attorneys that were there
21 on the occasion of the arrival of the deposition
22 notice, who took that matter in hand?
23 A Bill Hyde was there and Rick Burgess.
24 Q And did they provide you some assurance
25 that everything had been taken care of with regard
460
1 to the items called for?
2 A Either had been or would be.
3 Q You don't know of your own knowledge
4 whether that, in fact, occurred.
5 A As I told you before, I do not really know
6 what they sent to you.
7 Q As I understood your testimony yesterday,
8 and correct me if I'm wrong, you had made a
9 production notice through efforts by Jody Powell
10 from Earl, Blank some nine or ten months back in
11 anticipation of your earlier scheduled deposition,
12 and that had been segregated earlier to Miami?
13 A I don't know about the time frame.
14 Q Uh-hum.
15 A All I said was that, you know, prior to,
16 you know, the first notice, they had come up and
17 looked at the files, and we had copied all the
18 things that they had identified, and sent them to
19 them.
20 I don't really remember when that was,
21 just that it was prior to the previous notice.
22 Q And that was prior to the stay and the
23 extended mediation efforts that you were involved
24 in?
25 A Right.
461
1 Q Okay. So all your references to things
2 having been provided in response to Mr. Killinger's
3 questions over the last day-and-a-half, you --
4 that's limited by the caveat provided to the law
5 firm, not necessarily provided directly to any of
6 the deposing parties, except to the extent that
7 you've seen some of the things here.
8 A I think that's what I've stated --
9 Q Okay.
10 A -- earlier.
11 MR. HYDE: Tom, I think that's not the
12 least bit unusual, given all the other parties
13 having their attorneys review documents before
14 they turn them over. I think everybody's in
15 the same position.
16 MR. FitzGERALD: That may be.
17 Q Did you ever review a proposed privilege
18 list with respect to your documents?
19 A Not really. I saw a -- you know, a draft
20 list that, you know, somebody, you know, sent up
21 like a day or so before I came up here. But I
22 didn't have a chance to go through it, because I
23 was busy trying to get the documents together that
24 was rather large.
25 Q The proposed privilege list is large?
462
1 A (Nodding head.)
2 Q Approximately how many pages?
3 A Half inch. I didn't count them.
4 Q I don't blame you.
5 And what attorney provided that to you?
6 A It came via the mail.
7 Q No -- no cover sheet, no nothing?
8 A I don't recall seeing one. I mean, it
9 came in a Federal Express package.
10 Q During the -- the period from 1988 roughly
11 when you first became involved in the -- the
12 Everglades matters on behalf of your -- your
13 current employer and their clients, what was the
14 size of your company at the outset of that?
15 A Essentially the same size it is now.
16 Q Okay. And did I understand you to say
17 it's about 25 employees?
18 A Something like that, yes.
19 Q Is that exclusive of you and your own
20 partner?
21 A That includes.
22 Q Okay. Do you have any silent partners,
23 you know, investors --
24 A No.
25 Q -- limited partners, that sort of thing?
463
1 And I'm not sure Mr. Killinger asked this
2 in quite this way. If he did, maybe you can
3 indulge me.
4 But overall, over that entire period, what
5 percentage of the work with your firm has actually
6 been for your agricultural interests located --
7 directly or indirectly, through your law firm you
8 understand -- located within the EAA?
9 A I'd -- like I said before, it's probably
10 50 percent, I think plus or minus 10. But I really
11 don't think it's 60 percent. I think it's less
12 than that. I think it's more like 30 to 50.
13 Q Has that percentage increased over the
14 years since '88 through '93?
15 A Not -- not really. I think it's been
16 pretty level.
17 Q Do the employees other than you and your
18 partner share in the profits of the firm?
19 A We have a qualified, you know, profit
20 sharing plan, you know, approved by the IRS.
21 Q After Mr. Killinger questioned you
22 yesterday about the extent of billings to the
23 various entities on the various projects, I recall
24 you responding with regard to Earl, Blank on the
25 matters really concerning the -- the current
464
1 administrative proceedings that you said the
2 billings on the order of a couple of million.
3 Could you define that a little more
4 accurately than a couple million? I mean,
5 Senator Dirksen said a million here, a million
6 there, pretty soon it's real money.
7 So if that qualifies as real money, we
8 need a better sense of the amount, if you can
9 provide it.
10 MR. HYDE: Tom, does your question just
11 mean in preparation for this particular
12 proceeding, or in other proceedings, or just
13 anything that's associated with our firm?
14 MR. FitzGERALD: Well, Dr. Davis had
15 delineated different categories, and assigned
16 values or ranges for several of them, one of
17 which was your firm, it was the one hundred to
18 two hundred thousand range, there were two of
19 those.
20 And then his final comment was, a couple
21 of million.
22 And I think that's the one that I'm sort
23 of focusing on.
24 Q You understand the projects that that
25 related to.
465
1 A I would say it's, you know, you know, more
2 than two, less than four. I don't know. I mean, I
3 understood Bill to say he was going to turn over
4 the invoices, y'all can go add them up. I haven't
5 done that. And I don't really know what the number
6 is.
7 But if you get all the invoices, you go
8 add them up, see what it is.
9 Q Okay. And -- and I understood that
10 overall, the billings sort of match -- or are
11 proportional to the time that your employees and
12 you spend on these matters that --
13 A Well, the labor, certainly, yes.
14 Q Uh-hum.
15 A But there are also, you know, unlabor
16 dollars that are not proportional to time.
17 Q Would non-labor dollars be a pass-through
18 expense for lab analysis, that sort of --
19 A Yeah.
20 Q -- thing?
21 Do you ever do what some law firms I
22 understand do, and put surcharges on for speedy
23 work or, special projects, that sort of thing.
24 A We never have -- well, we -- we have not
25 on this project.
466
1 Q Okay.
2 A I'm not going to say we never have done it
3 in the past. But if we do, we identify that,
4 you know, to the client up front. We've never put,
5 you know, charges on, you know, time.
6 Occasionally, you know, some client has
7 wanted their lab analyses, you know, right away,
8 and we just simply, say, well, that might be
9 possible. But the lab's going to charge you more.
10 Call up the lab and say, you know, these
11 guys are anxious to see the results, they want it
12 in three days. You know, how much would you charge
13 to go ahead and get it done. And we just pass that
14 right along on a one-for-one basis.
15 Q Are you and your -- I'm sorry, what's your
16 partner's name?
17 A Bruce Lower.
18 Q Lower. I'll write that down.
19 Are you equal partners in the firm?
20 A No.
21 Q Who is the senior partner?
22 MR. HYDE: I'm going to object on the
23 grounds of relevance. I don't even think it's
24 likely to lead to relevant information.
25 I'm not going to preclude the witness from
467
1 answering. But I just think it's --
2 MR. FitzGERALD: I understand.
3 MR. HYDE: -- a harassing fishing
4 expedition.
5 Q Who is the senior partner?
6 A He's older than I am, I have more stock.
7 Q Okay. Well, allow me to remove the
8 vagueness from the question for you.
9 What is the extent of your financial
10 interest in the firm of ES&P?
11 MR. HYDE: Same objection.
12 MR. FitzGERALD: I understand.
13 Q I --
14 A I'm not sure how to answer that question.
15 Q Okay. How many shares of outstanding
16 stock and of what classes have been issued by ES&P?
17 A There's only one class. And I own the
18 majority of the stock.
19 Q What percentage?
20 A I'd rather not answer that. Y'all can go,
21 you know, get that from whoever the
22 State Department is. But I just don't care to have
23 that in documents that are transmitted around the
24 agencies, and that sort of thing.
25 Q Well, I understand your concern,
468
1 Dr. Davis. But I think your attorney'll tell you
2 that this is a legitimate line of inquiry for a
3 number of reasons. And if it's a public record, I
4 fail to see why it's a problem telling us.
5 You certainly are not in a position to
6 dictate to a party that they must go somewhere else
7 to get an answer to a question you can answer.
8 MR. HYDE: Well, I think it's pretty well
9 settled though, Tom, that if that information
10 being requested is easily available from
11 another source, then that party should probably
12 exhaust that possible remedy before insisting
13 on the production of the objected to evidence.
14 MR. FitzGERALD: I'm not asking him to
15 produce anything. And I think the standard you
16 are articulating goes to documentary and
17 exhibitory evidence, not oral evidence from
18 a -- from a witness.
19 So, I would request that you either
20 instruct him to not answer, in which case we'll
21 set up a hearing; or explain to him that,
22 in fact, I've accurately relayed his
23 obligation.
24 MR. HYDE: Let's talk this over for a
25 moment.
469
1 MR. FitzGERALD: Certainly.
2 MR. HYDE: You want to step outside for --
3 MR. FitzGERALD: I -- I would point out
4 while we're still on the record that every
5 other witness in this case has managed to
6 answer that question.
7 MR. HYDE: Well --
8 MR. FitzGERALD: At least the depos I've
9 been at.
10 MR. HYDE: I just note for the record,
11 too, the distinction between documentary and
12 oral evidence I think is meaningless.
13 MR. FitzGERALD: Okay. Noted.
14 (Recess.)
15 MR. HYDE: Go ahead and ask your question
16 again.
17 Q In terms of your ownership in ES&P,
18 Dr. Davis, what is the extent of your financial
19 interest?
20 A Are you defining financial interest as
21 percentage of the stock?
22 Q We'll start with that.
23 A It's roughly 82 percent.
24 Q Do you participate in the profits of the
25 firm in that ratio, or is there some separate
470
1 agreement in the partnership for participation in
2 profits?
3 Let me just say income. That's probably
4 an easier --
5 A It varies.
6 Q Does your partnership agreement specify --
7 A No.
8 Q -- who determines compensation?
9 A I do.
10 MR. HYDE: The presidents of many
11 corporations do.
12 MR. FitzGERALD: Thank you for that
13 enlightening insight.
14 Q In reviewing your CV, which I think is
15 exhibit 2, I didn't note anything on there
16 indicating any particular background or experience
17 in laboratory QA/QC training or procedures.
18 Have you had anything other than the
19 typical postgraduate courses in laboratory
20 procedures to qualify you as an expert in that
21 area?
22 A When I was working on my, you know,
23 Master's degree, I did a lot of, you know,
24 laboratory analysis myself.
25 Q Uh-hum.
471
1 A When I was doing my dissertation, Ph.D.
2 work, I did a lot of analytical, you know,
3 laboratory, you know, analysis myself, and in
4 conjunction with the other people in the lab.
5 I also took courses related to --
6 specifically related to doing, you know, analysis
7 on environmental water samples, in addition to,
8 you know, the courses that I had in chemistry for
9 my major in chemistry.
10 Q As a GA, did you ever teach courses in lab
11 QA/QC procedures?
12 A At the time I was in school, that term
13 wasn't really in vogue, so there -- there weren't,
14 you know, courses directly related to that. I did
15 teach, you know, labs related to, you know, how to,
16 you know, analyze samples and do, you know,
17 laboratory procedures.
18 Q Okay. Have you ever published anything in
19 a peer review journal or the equivalent on the
20 issue of laboratory QA/QC procedures --
21 A Nope.
22 Q -- for environmental data?
23 A Nope.
24 Q Have you had any specific training --
25 advanced training -- in sampling methodology, other
472
1 than as you described yesterday, sort of a
2 hands-on, and the work you did for your Master's
3 and -- and doctoral thesis?
4 I'm trying not to repeat what we
5 already --
6 A I don't think there would be anything
7 beyond what we talked about yesterday and what we
8 just talked about immediately preceding this
9 discussion.
10 Q Okay. Other than the portion of your
11 doctoral thesis, which you believe was excerpted or
12 published in -- in the one journal you -- you
13 referred to, have you published any other articles
14 in the field of environmental assessment,
15 environmental methodology, data collection,
16 anything in the broadest concept of
17 environmental services in peer review journals or
18 the equivalent?
19 A No. We had a -- I did a publication on
20 the duckweed bioassay stop for EPA, they published,
21 you know, that. But that wasn't in a journal.
22 You know, how they -- how EPA produces --
23 Q Like a technical --
24 A -- technical --
25 Q -- report?
473
1 A -- reports.
2 Q Other than the duckweed report.
3 A No.
4 Q You stated that you contracted out from
5 your firm the laboratory analysis of -- of your
6 sampling.
7 Do you -- you do that by competitive bid?
8 A As I explained yesterday I think, we,
9 you know, look at the labs and make sure that the
10 labs are qualified to do the work, and then we do
11 it by competitive bid.
12 Q Okay. In your opinion, does the use of
13 multiple labs to analyze the same type of sample
14 for a particular data set analysis introduce
15 additional uncertainty and potential error?
16 MR. HYDE: Are you talking generally
17 speaking, or --
18 MR. FitzGERALD: Talking generally
19 speaking. You've -- you've presented Dr. Davis
20 as a QA/QC data --
21 THE WITNESS: Fine.
22 A I think that as long as you use, you know,
23 laboratories that, you know, use, you know, the
24 same methods, and, you know, the part of a,
25 you know, approved QA/QC, you know, program, that
474
1 you're going to get comparable results.
2 However, I do think that there are,
3 you know, slight, you know, variances from one lab
4 to another. I think there are variances between
5 one technician and another --
6 Q Uh-hum.
7 A -- one piece of equipment and another.
8 So to the extent that a particular,
9 you know, individual and a particular piece of
10 equipment is not used to, you know, analyze,
11 you know, every sample, then there is a little
12 additional measurement error, for instance, that,
13 you know, could be addressed by, you know,
14 statistician, people like that to --
15 Q Uh-hum.
16 A -- kind of partition out all the potential
17 kinds of error that can be in a sample.
18 Q Did that -- I'm sorry. Had you finished?
19 A I was just going to say that for the,
20 you know, the water samples that were done on,
21 you know, this particular project of litigation,
22 I believe all of them were done by a single lab in
23 Gainesville that we use.
24 It -- and that lab also does work for the
25 Water Management District analyzing exactly the
475
1 same kind of samples, and they use exactly the same
2 procedures and --
3 Q Now, you're saying that's with respect to
4 the water samples for phosphorus?
5 A Uh-hum.
6 Q But you testified earlier today that the
7 soil core work, for example, was done at a minimum
8 of two labs.
9 A Oh, right. Correct.
10 MR. HYDE: I think his answer was the
11 water samples.
12 MR. FitzGERALD: I know. I'm just -- I'm
13 looking at what we've been given. I understood
14 that.
15 Q What do you know about the comparability
16 of technique and equipment at Duke and LSU?
17 A I don't.
18 Q But you don't intend to offer testimony
19 based on that data, correct?
20 A Not really.
21 Q But just as a generalized designated
22 expert in data basis in QA/QC, would you not expect
23 there to be some percentaged sampling error induced
24 by the fact that you are using different setups.
25 A I think there would be a little bit. Just
476
1 like there's, you know, differences with, you know,
2 Reddy's analyses, and analyses that are done at the
3 Districts and all the District's contract labs, and
4 USGS and --
5 Q So your experience --
6 A -- EPA lab.
7 Q I'm sorry.
8 So in your experience, combining data in
9 that way from not really separate data sets, but
10 separate sources, for example, it -- it happens and
11 it's done.
12 A It happens and it's done. And, you know,
13 if you're trying to identify all the sources of
14 error, you can, you know, look at those and try to
15 break those out.
16 Q Uh-hum.
17 A I think that it normally doesn't make that
18 much difference, you know, in the numbers, and that
19 it's not something to be overly concerned about, as
20 long as all the labs are doing things and using
21 similar procedures, and have --
22 Q In fact, in --
23 A -- you know, the QA/QC, you know,
24 programs.
25 Q Do you know if the Duke lab is certified?
477
1 A I believe they are. But I'm not sure.
2 Q Same thing with LSU?
3 A I don't know if they are or not.
4 Q Environmental data bases, a data base
5 based on environmental analysis. Are they
6 typically fairly noisy?
7 A Yes.
8 Q And that can be from a whole host of
9 sources, among them the kinds of things you've
10 talked about in the lab.
11 A (Nodding head.)
12 (WHEREUPON, A BRIEF OFF-THE-RECORD
13 DISCUSSION WAS HELD.)
14 Q In fact, in terms of evaluating systemic
15 changes, even if there's a constant skew or bias in
16 the data built in because of equipment drift or the
17 technician's procedure, or whatever in the lab, if
18 you use the same lab consistently, you will --
19 while you still may have a certain percentage
20 error, you should see relatively speaking a valid
21 result in terms of analyzing trends; is that fair?
22 MR. HYDE: Is that a question or an
23 observation?
24 MR. FitzGERALD: Well, it's -- it's a
25 little bit of both. Now I'm going to make a
478
1 question out of it. The record won't show it,
2 but my voice went up at the end. That made it
3 a question.
4 Q Is that a fair statement?
5 A I'm not sure I followed all of your,
6 you know, assumptions --
7 Q Okay.
8 A -- in the question --
9 Q Let me make it a little more concrete, it
10 might be easier.
11 The entry and access data for Loxahatchee,
12 for the water -- just on the water -- analysis was
13 done by someone on behalf of ES&P. Analysis was
14 done by people at the research center at FIU for --
15 A Uh-hum.
16 Q -- the United States, and at least one set
17 of samples was collected late in that yearly
18 process by the Water Management District.
19 A Uh-hum.
20 Q Except for perhaps one or two sampling
21 dates, the data is pretty consistent between those
22 three sources. The water management's probably not
23 a good example, because they were altogether once,
24 that was one of the problem dates.
25 But on the other dates, there was a
479
1 relatively minimal difference in the phosphorus
2 analysis, even though different labs had done it,
3 and different technicians has collected the
4 samples.
5 Is that fair -- a fair statement?
6 MR. HYDE: I assume that was a
7 hypothetical question, because it otherwise
8 assumes an awful lot of facts that aren't in
9 evidence.
10 Q You've seen that data, right?
11 A I've seen the mean values --
12 Q Uh-hum.
13 A -- from that data. But I have not seen
14 anything that I recall that specifies the
15 methodology that's actually used to analyze the
16 samples that Dr. Jones did.
17 Q What methodology was used by the lab hired
18 by your firm?
19 A It's the, you know, standard, you know,
20 sulfate, you know, digestion that's outlined in,
21 you know, standard methods. And it's the same
22 sample -- the same methodology that's used on the
23 District samples.
24 Q Okay.
25 A And you're aware that -- that the FIU lab
480
1 is under contract to the District to do phosphorus
2 sampling in other places for them and is a
3 certified lab in the State of Florida; are you not?
4 A I don't think that lab is certified. I --
5 I believe I heard Dr. Jones say that he felt like
6 his lab didn't need to have QA/QC procedures, and
7 that he had never obtained a, you know,
8 certification from the State.
9 Q Is certification the same thing as having
10 a QA/QC procedure?
11 A Basically it's -- it's my understanding
12 that, you know, what DEP is doing now and what
13 they've been doing for several years, is requiring
14 labs that want to be certified to submit a QA/QC
15 plan --
16 Q Uh-hum.
17 A -- for the laboratory that contains a lot
18 of, you know, data on precision of their -- their
19 measurements --
20 Q Uh-hum.
21 A -- and then they approved that QA/QC plan
22 and, you know, certified, you know, the lab to do
23 that work --
24 Q So you --
25 A And I -- my recollection was that
481
1 Dr. Jones said that he did not go through that
2 process.
3 Q So, as I understand your explanation,
4 you're not suggesting a lab doesn't have QA/QC
5 procedures just because they're not certified. You
6 could have them, and not have gone through
7 certification. But certification assures that at
8 some level, whatever standards apply, your QA/QC
9 matches that -- that standard.
10 A Right.
11 Q Okay.
12 A And without that, you don't know what
13 those levels -- that level of QA/Q-- QA/QC
14 procedures are --
15 Q Okay.
16 A -- and whether or not they would meet
17 those minimum criteria or not.
18 Q Okay. Procedures aside, whatever
19 methodology was used, are the reported values of
20 phosphorus for the Loxahatchee sampling on the same
21 dates done on behalf -- that your firm did on
22 behalf of your client, and which were done on
23 behalf of the United States, with the exception of
24 those two dates that were -- we both smile about --
25 is -- in your view, as a QA/QC database data
482
1 management specialist, which is the way you
2 described yourself yesterday, do they vary
3 significantly?
4 A I would want to withhold judgment on that
5 until I see the replicate, you know, values from
6 that lab.
7 Q Uh-hum.
8 A Because I noticed on a couple of the
9 values I could read, for instance, a wide
10 fluctuation between the numbers.
11 So a lot of variation can be hidden when
12 you only provide the mean.
13 Q Uh-hum.
14 A For instance, if a value -- if you have a
15 value of, you know, zero and 100 --
16 Q Sure. I understand.
17 A -- and you report the mean of 50, that
18 doesn't say anything --
19 Q Uh-hum.
20 A -- about how good your analyses are.
21 So you really need to see that replicate
22 data in order to answer the question I think you're
23 proposing. And I'm not prepared to do that,
24 because I don't have the data.
25 Q On the individual sampling, is it -- in
483
1 terms of the quality and the ultimate result, also
2 highly dependent on the skill of the sampler?
3 A Absolutely.
4 Q Did you accompany your samplers every
5 month, or did you personally do the sampling
6 perhaps every month for Loxahatchee?
7 A I did the sampling myself for the first
8 ten months --
9 Q Uh-hum.
10 A -- for the last two months, I had
11 conflicts, had to send someone else.
12 Q Who did you send?
13 A Gus Olmos, who is a person that
14 accompanied me on all the other sampling trips.
15 Q So you presumably trained him and told
16 him, do it like I do it.
17 A Yes. Plus he's been doing, you know, the
18 same kind of sampling for several years, you know,
19 for some other, you know, projects we have.
20 Q Okay. This may have been subsumed on an
21 earlier question, but have you done any publishing
22 other than the one document, your Ph.D. thesis, on
23 limnology or ecology specifically keyed to the
24 Everglades ecosystem?
25 A No.
484
1 Q The work you did in Alabama back as part
2 of the -- your academic credentials, were those on
3 peat soils?
4 A No.
5 Q Okay. Were they in emergent wetlands?
6 A Which work are you talking about in
7 Alabama?
8 Q Didn't you do some work with fish?
9 A Right.
10 Q Well, there are --
11 A Those were --
12 Q -- fish in --
13 A -- those were from lakes. Those were from
14 lakes.
15 Q Okay. That's -- it was not totally clear
16 to me. There are fish in emergent --
17 A Ponds.
18 Q -- lakes --
19 A Right. Pond and lakes.
20 Q Did you do any work as part of your
21 academic experience in emergent wetlands?
22 A I've taken, like, some, you know,
23 macroinvertebrate samples, and had -- did work
24 in -- like, aquatic plant identification, aquatic
25 botany --
485
1 Q Uh-hum.
2 A -- that sort of thing.
3 Q In your role in selecting labs to perform
4 analysis for your firm, do you rely on their
5 certification for their QA/QC capabilities, or do
6 you acquire their QA/QC plan and individually
7 review it?
8 A Both.
9 Q What did you do with respect to the labs
10 employed for the analysis reflected in the data
11 you've turned over in this case?
12 A Both.
13 Q Okay. Were there any of the labs that you
14 did not review the QA/QC plan individually?
15 A Certainly. Not -- I mean, if we're
16 talking about on this project --
17 Q Yes.
18 A -- like I said, we only used, you know,
19 one lab to do, you know, our analyses.
20 Q Okay. I'm --
21 A So --
22 Q -- I'm using the term a little more
23 broadly. So --
24 A I mean, on other projects that, you know,
25 I'm not particularly involved in, you know, other
486
1 people do that. And I don't personally do it.
2 Q Is it fair to assume you do not review the
3 QA/QC for Duke or LSU.
4 A That's fair to say.
5 Q Okay. There are analyses reflected in the
6 materials, and I'll -- I'll get to -- I pulled out
7 a representative sheet of it -- of a lab in Miami
8 in this matter. I presume it's in this matter, you
9 gave it to us in response.
10 What analyses was that lab performing?
11 A Was that McGinnis?
12 Q Doesn't sound like the right name. It was
13 an abstract name.
14 I can find it later if you want.
15 A Maybe that'd be better.
16 Q We'll come back to it.
17 Prior to your work with the Hester-Dendies
18 on this macroinvertebrate area that you're going to
19 testify upon, have you done any floral or fauna
20 surveys in the Everglades ecosystem?
21 A I'm having a little bit of trouble hearing
22 you --
23 Q Oh, I'm sorry.
24 A If you could speak up, I didn't catch the
25 first part of the question.
487
1 Q Prior to your work in 2-A with the
2 Hester-Dendies --
3 A Uh-hum.
4 Q -- that you've described for
5 Mr. Killinger, had you done any other Hester-Dendy
6 surveys in the Everglades ecosystem?
7 A No.
8 Q Have you done any surveys involving fauna
9 or flora of any type in the Everglades ecosystem
10 prior to that?
11 A I had, you know, participated in,
12 you know, field visits and -- and, you know,
13 over-flights and -- and this sort of thing within
14 the Everglades.
15 Q Uh-hum.
16 A I don't recall quite frankly, if we'd have
17 taken -- I'm pretty sure we've taken some water
18 samples before then.
19 But certainly no faunal surveys.
20 Q The water samples you took, they were not
21 analyzed for biota, were they?
22 A No. No. No.
23 Q Okay.
24 A I mean, if you're saying -- I thought you
25 kind of expanded that question to cover other
488
1 areas.
2 Q No.
3 A But I asked you before when you said any
4 more, you know, macroinvertebrates, I said no. And
5 then you asked another question after --
6 Q I went to flora --
7 A -- that which would involve --
8 Q -- and fauna.
9 A Right. And -- and what I'm saying is: No
10 other faunal, you know, surveys. But, you know, we
11 were involved in, you know, flying over the area
12 and, you know, visually surveying I guess,
13 you know, kind of what was there to get familiar
14 with the area, and that sort of thing.
15 Q You indicated yesterday that your firm
16 does no consulting for purely structural types of
17 work and activities. And I -- I had a little
18 trouble following, and maybe you can expand for me
19 on it.
20 What then is the expert basis for whatever
21 testimony you anticipate with regard to STA design
22 or operation?
23 A I think it would be more along the line of
24 what we talked about with Mr. Killinger yesterday
25 in terms of whether or not all of the, you know,
489
1 flows and phosphorus loads were considered that
2 should have been considered --
3 Q Okay.
4 A -- reporting to them. It has nothing to
5 do whatsoever with the physical structure, and I
6 don't intend to, you know, offer any testimony
7 relative to the phosphorus uptake rate.
8 Q Okay.
9 A So it --
10 Q You don't?
11 A -- it would be more I guess in terms of
12 what might come into them.
13 Q When you say flows then, am I correct in
14 understanding, you don't mean flows in the sense a
15 hydrologist would use it or a civil engineer?
16 A I meant quantity of water.
17 Q So just gross quantities, not how it's
18 rooted, not detention times, nothing that -- well,
19 I guess calling it under the rubric of hydrology
20 may be a little bit too vague in terms of authority
21 you're approaching with it.
22 You don't --
23 A I don't in term -- intend to provide
24 testimony on hydraulics, which I think is what you
25 may be getting at.
490
1 Q No, I -- I was using hydrology in a
2 broader sense --
3 A Okay.
4 Q -- than mere hydrology.
5 A I don't intend to provide testimony on
6 retention times. Simply, you know, enumerating how
7 much water would need to be treated by an STA if
8 you assume you wanted to treat all of the water,
9 for instance. How much.
10 Q Well, isn't that dependent on detention
11 time of the water that flows into an STA?
12 A No. I mean, that doesn't have anything to
13 do with how much you want to treat. How long it
14 stays in there is a function of how big it is. And
15 how much freeboard there is, and all that sort of
16 thing. I don't intend to get into that part of it.
17 All I'm saying is is that I would provide
18 testimony on how much -- assume for a minute that
19 the STAs had not been built. Or we weren't even
20 talking about STAs.
21 And we wanted to know how much water would
22 need to be treated by a system, whatever that
23 system is. Then I intend to provide some testimony
24 that says, this is how much water you would need to
25 design a system to treat. And then let somebody
491
1 else discuss the design of that system.
2 Q And it is your opinion -- or is it your
3 opinion then that the system should be designed to
4 treat the flows as currently envisioned in the
5 SWIM Plan, plus whatever bypass would result from
6 Lake Okeechobee bypass -- and make up volumes for
7 the BMP flow reductions from historical levels?
8 A Not my opinion that you build STAs,
9 period. But if it is the goal to treat all of the
10 water, then the facility, be it an STA or whatever,
11 needs to be designed to treat all of the water and
12 not part of the water.
13 Q Is it your understanding that the goal of
14 the SWIM Plan is to treat all of the water?
15 A It's my understanding that the early
16 settlement agreement between I guess the Federal
17 Government and the States required all the water to
18 be treated. It's my -- also my understanding that
19 the SWIM Plan did not size the STAs to do that.
20 Q Now --
21 A And it's my understanding that most of the
22 parties out there want all of the water treated.
23 Otherwise the -- the whole concept is flawed
24 because they're saying that, you know, we want to
25 produce a quality of X, maybe 50 parts per billion,
492
1 if you're bypassing half the water, and only
2 treating half of it, then you're not doing that.
3 Unless you're treating it much lower, and then
4 blending it so that you get that concentration.
5 Q I -- I appreciate the breadth of your
6 answer, but we'll get through this a lot easier if
7 you answer the one I asked.
8 So let me ask it again and --
9 A Okay.
10 Q -- because it was considerably narrower
11 than that.
12 Is it your understanding that the
13 SWIM Plan adopted by the Board of the
14 Water Management District in 1992, at issue in this
15 case, requires or contemplates the treatment of all
16 flow from the EAA.
17 A I believe that the planning document
18 implies that that is a goal. I also believe that
19 the appendices that is a basis for the sizing of
20 the STAs did not do that. So there is potentially
21 a conflict within the document on that issue.
22 Q And that's an implication in the planning
23 document, or an express statement?
24 A I'd have to go back and, you know, review
25 the document to see. But --
493
1 Q Do you plan to do that before testifying?
2 A Yes.
3 Q And the appendices in your view do not,
4 in fact, attempt to articulate a plan that would
5 do -- do that, treat the 100 percent.
6 A I think it states explicitly in the
7 appendicis -- and if you want to pull one out,
8 I think I can show it to you -- where it says the
9 bypass water was not included, period.
10 I've had those same discussions with
11 Tom Fontaine, and he admitted that they were not --
12 he did not consider that, and that it wasn't
13 inconsistent with what the earlier settlement
14 agreement between the Government and the States
15 implied. And that that was a problem that needed
16 to be dealt with.
17 Q You described for us yesterday -- I think
18 it was yesterday -- a system where EPA -- somebody
19 came in and stood on a levy and said that the
20 cattail were operating as a phosphorus sink when,
21 in fact, they were acting in your view as a
22 phosphorus pump.
23 Is that more or less the upshot of what
24 you were discussing?
25 MR. HYDE: I believe he was discussing
494
1 Hooker's Prairie at the time.
2 A I don't think I said necessarily the
3 cattails. I think the wetland --
4 Q Okay. The --
5 A -- is what we were talking about.
6 Q -- wetland.
7 At the time that whomever from EPA decided
8 that was the way of things, what data was available
9 in terms of analysis of the water and soils and
10 biota within that wetland?
11 A They were data available, I don't
12 remember, you know, what the magnitude of it was.
13 Q So it's my understanding that you were
14 saying yesterday that they made the statement
15 without the data to back it up, that there was no
16 data. Once the testing was done, in fact, you --
17 A That person -- that person had not looked
18 at any of that data.
19 Q Oh, okay.
20 You -- you also stated -- or described for
21 us the -- the seeding of plants in that -- that
22 wetland -- you know, the 18-inch tube being put out
23 there, and I think you said it grew to 4 to 5 feet
24 in approximately nine months.
25 Would that be about right?
495
1 A How many feet?
2 Q Four to five.
3 A Depending on the time of year it was
4 planted, within nine months to two years,
5 you know. I may have been -- if I said
6 nine months, I might have been, you know, a little
7 shy on the time period.
8 But within, you know, one to two growing
9 seasons, it would be that --
10 Q What would be the growth rate of saw grass
11 in an oligotrophic area?
12 A Never have tried to measure it, I don't
13 know.
14 Q So you have no sense of whether that was
15 rapid growth in part induced by the high phosphorus
16 levels in that wetland?
17 A I would think that, you know, the growth
18 in that particular area was enhanced by the
19 phosphorus in the system.
20 Q Okay. What is your opinion of the proper
21 point at which to draw the oligotrophic line in a
22 wetland?
23 A I think there's, you know, a range of,
24 you know, values that might go anywhere from,
25 you know, 20 to 50, 70, 80 parts per billion,
496
1 something like that maybe.
2 Q Does that view in -- do you believe that
3 view squares with the general scientific consensus
4 and what is, you know, an oligotrophic system?
5 MR. HYDE: I'd just like to object, I
6 don't think we're trying to hold Dr. Davis out
7 as an expert in oligotrophic systems, what the
8 values are, I don't think that's any of the
9 areas of his express testimony.
10 If he has an opinion on it, he can offer
11 it. But it seems to me that you're trying to
12 impeach a man on something that he's not being
13 offered as an expert on anyway.
14 MR. FitzGERALD: I don't think anybody's
15 trying to impeach him at this point.
16 Q But if you can answer.
17 A I think that there are, you know, a range
18 of values out there in the literature that talk
19 about oligotrophic systems in, you know, lakes and
20 wetlands and that sort of thing.
21 And I think that there is not a number
22 that you would necessarily get, you know, a wide
23 group of people to, you know, agree on. But
24 there's a range.
25 And I think that it's, you know,
497
1 somewhere, let's say, you know, 40 plus or minus
2 30. Or 20. So that gets you to, you know, 10 to
3 70, somewhere like that.
4 Q Okay. You were discussing cattail
5 propagation yesterday by seed and how that factored
6 into the way the treatment area was constructed.
7 Do cattail propagate in the Everglades by
8 seeding in a similar fashion to what you described?
9 A I've not done any, you know, particular
10 study on how cattails propagate in the -- in the
11 Everglades. But I would suggest that if there's,
12 you know, bare ground, you know, in particular
13 areas, and there are cattails around, that they're
14 going to produce seed; and those seeds, you know,
15 land in those areas that are -- are moist during
16 the growing season, that cattail are going to come
17 up there.
18 Q Do you --
19 A I think they also produce by, you know,
20 breaking up and floating in various areas, by,
21 you know, rhizomes and vegetative propagation.
22 Q Do you anticipate offering any testimony
23 in this matter regarding propagation of species in
24 the Everglades, not just cattails.
25 A No.
498
1 Q You identified yesterday a number of
2 sources of hydraulic models with respect to the
3 Everglades ecosystem that you have reviewed. And
4 I believe you included Corps of Engineers,
5 National Park, Water Management System, Tetra Tech,
6 and something that Dr. Polman had done.
7 I'm not sure -- that may be tied in --
8 A I thought -- I thought it was Carl Walters
9 or something --
10 Q Yeah, you mentioned --
11 A -- like that. I'm not --
12 Q You mentioned Carl Walters as well.
13 And -- and those --
14 A I don't remember mentioning Corps.
15 Q You don't?
16 Have you reviewed Corps models?
17 A It's my understanding they use, you know,
18 a version of the District's, you know, water
19 management model. But I haven't looked at any
20 Corps documentation on the model or anything like
21 that.
22 Q I -- I would suggest to you that in your
23 materials, there are several copies, identical
24 copies, of a document reflected in the joint
25 presentation by the Corps and the
499
1 Water Management District on hydrology modeling in
2 the Everglades.
3 A Right.
4 Q Referring to some modeling I think you've
5 done. You're suggesting you're not producing
6 anything specifically done by the Corps.
7 A I don't recall spending any time looking
8 at anything with the Corps exception or any of
9 that.
10 Q Okay. What was the scope of the Walters
11 model that you reviewed?
12 A It's basically a little model that will
13 run on a PC that predicts, you know, water levels
14 in, you know, various, you know, portions of the
15 Everglades on a -- I think it's a 4 kilometer grid.
16 Q Have you ever examined a similar predicted
17 model for Loxahatchee National Wildlife Refuge?
18 A I haven't, you know, had the opportunity
19 to do that in any detail. We were just involved,
20 as a matter of fact, last week in obtaining some of
21 the information from Dr. Kitchens. And I would
22 hope to have time to look at that.
23 Q So you have not as yet reviewed any work
24 by the work order 32 group and their model of
25 WCA-1.
500
1 A Well, I wouldn't say anything. I mean,
2 there -- the results from that are presented in the
3 1990 synthesis report --
4 Q Uh-hum.
5 A -- I believe it's also discussed to a
6 certain extent in the Pope thesis that was
7 generated on stuff done in the parks. So I mean, I
8 have reviewed, you know, those documents related to
9 that. But I haven't, you know, looked at the code
10 of the model itself or been able to run the model
11 itself.
12 Q I didn't see the work order 32
13 documentation in your records. Have you had that
14 available to you?
15 A I've had --
16 Q It may be on your list.
17 A I'm pretty sure the census report -- I'm
18 almost positive it's on there. If it's not, it
19 should have been on there --
20 Q It -- it may well be. I just --
21 A As a matter of fact, some of these plots
22 are directly out of that, and that was part of
23 the --
24 Q There --
25 A -- testimony entry and access stuff. So
501
1 clearly it should have been on there if it wasn't.
2 Q Based on your current understanding from
3 the summaries and -- and the deposition -- did you
4 attend Dr. Kitchen's deposition?
5 A No.
6 Q Have you read the transcript?
7 A As far as I know, it hasn't been produced
8 yet. It was done last week.
9 Q Very efficient court reporters.
10 Based then on your review of the published
11 information available to you, do you have any
12 criticisms of the model for WCA-1 produced by the
13 cooperative service?
14 A I really need to look at the specific
15 information that the model, you know, generated --
16 Q Uh-hum.
17 A -- because they took, as I understand it,
18 Dr., you know, Walter's model, and reduced the grid
19 size from 4 kilometers to 3,000 meters.
20 Q Uh-hum.
21 A They changed some of the factors applied
22 to manage coefficient in there to account for the
23 reduction in the grid size. And then they plotted
24 that information and compared it to some
25 measurements that they had had at some of the
502
1 gauging stations out there.
2 And I haven't, you know, seen any of that
3 information, because, like I said, we were just
4 getting -- getting that information -- maybe it
5 wasn't last week, it might have been the week
6 before last -- whenever the Kitchens deposition was
7 and document production was.
8 Q Uh-hum.
9 A And we're not even sure that we have that
10 yet, because he had all this stuff on a old 9-track
11 tape backup system that had hardware specific
12 backup software on it. So in order to get that, we
13 actually had to go over to his lab, use their
14 hardware, their software, convert the files into a
15 form that we could read.
16 Q Uh-hum.
17 A And I haven't had a chance to go through
18 all that material.
19 Q With whom have you discussed that model?
20 A We haven't really discussed that model at
21 length, other than people asking, you know, do you
22 have the model, have you looked at it, saying, no.
23 That's about the extent of the discussion so far.
24 Q You've never discussed it with
25 Dr. Millard?
503
1 A Not any more than I just told you. The
2 fact that everybody would like to know, you know,
3 how it works and what it does and -- always the
4 answer's been we've asked for it, we've asked for
5 it, but they won't turn it over. The attorneys are
6 supposed to be getting it, as soon as we do, we'll
7 let you know.
8 MR. FitzGERALD: That's a hard one to let
9 pass by.
10 THE WITNESS: True.
11 Q Have you ever constructed yourself a model
12 of -- attempting to reflect the hydrodynamics of
13 the Everglades ecosystem, or any portion thereof?
14 A Not a model per se, no.
15 Q What have you done that is not a model
16 per se, but it's close enough that it gave you
17 pause?
18 A What we did was --
19 Q When you say -- just -- you say we a lot,
20 Doctor. And do you mean you -- okay. If it's we,
21 please supply the names, and that'll save us
22 another question.
23 A When I say, you know, "we," I'm talking
24 about me and -- and people at my firm.
25 Q Okay. So we means your firm.
504
1 A Your firm. Right. If I am referring to
2 somebody outside of the firm, I'll be glad to tell
3 you -- or specifically try to tell you.
4 Q That just makes it easier. I was going to
5 ask Lee to do that yesterday, it slipped my mind.
6 A Well, even yesterday when I was saying
7 we --
8 Q That's how you meant.
9 A -- I was talking to myself or people that
10 work for me at my firm.
11 Q Okay.
12 A What we did was con-- look at available
13 topographic information and construct a topographic
14 map, surface elevation, you know, map, of the
15 Loxahatchee -- well, actually we used the one in
16 the work order 32 report, in that instance.
17 Took that topography, then we took the
18 staff gauge information at the various staff gauges
19 inside the Water Conservation Area, and constructed
20 a water plane, you know, the surface water
21 elevation. And then had the computer go in and
22 subtract the difference between the two on a daily
23 basis. Based on, you know, historical record to
24 calculate the, you know, water depth at various
25 portions within the Refuge.
505
1 Then we -- for Water Conservation Area
2 2-A, we took data that was supplied by Paul Larsen
3 from a survey that he contracted for. And provided
4 that information to Dr. Lettenmaier who
5 instructed -- went through the krigging process,
6 and some other stuff that you can ask him about --
7 Q I did.
8 A -- to generate a, you know, surface
9 elevation map --
10 Q Uh-hum.
11 A -- or two. And we did the same thing.
12 Q Okay. Why -- why did you use the
13 work order 32 elevation data for the hard bottom in
14 Loxahatchee for your model?
15 A Because that was the only information
16 available, and we didn't figure that you would
17 allow us to go in there and cut survey lines and
18 survey the elevations in that area.
19 Q Safe bet.
20 Did you, through your firm, conduct any
21 search or effort to determine if additional
22 elevation data was available?
23 A In the Refuge?
24 Q Yes.
25 A You know, we looked at, you know,
506
1 whatever, you know, data were available, and that
2 was the most detailed set of information that came
3 up. And based on the statements in the document
4 about how it was done; i.e., holding, you know, the
5 water plane level and going out and measuring --
6 Q Uh-hum.
7 A -- depths at all the locations, we felt
8 that was a reasonable way of doing that, and it
9 would give you a, you know, reasonable --
10 Q Did you do any type of error analysis on
11 that to try and figure out what you might be
12 looking at in the way of error?
13 A Interesting you should ask.
14 We have been wanting to do that. But we
15 never could do that, because we never could get the
16 raw data from Dr. Kitchens' group to allow us to do
17 that. So that is in the process of -- of being
18 done.
19 Q What did you do, digitize their -- their
20 map --
21 A Yes.
22 Q -- out of their report?
23 A Yes.
24 Q Doesn't that itself induce a fair amount
25 of error? That's not the greatest scale --
507
1 A I don't think so.
2 Q It's not --
3 A Hmm?
4 Q It's not a great scaled map in that
5 report.
6 A No. But I don't think that would have,
7 you know, generated, you know, that much error --
8 Q Okay.
9 A -- when you're talking about, you know,
10 the size of the area. No matter how much actual
11 data you get, it's still on some grid --
12 Q Uh-hum.
13 A -- and you have to, you know, extrapolate,
14 you know, through krigging or whatever to,
15 you know, make your topo map anyway.
16 Q You describe that as a model. But --
17 A No, I -- I don't think I did.
18 Q Okay.
19 A You asked me if I said model --
20 Q You said --
21 A -- and I said no.
22 Q And is your reason for not describing it
23 as a model the fact that it really doesn't predict
24 anything, it just tells you water depth.
25 Assuming --
508
1 A That's exactly right.
2 Q -- the assumptions underlying are correct.
3 A That's correct. It's more of an imperical
4 determination of what it is.
5 Q That's the word.
6 A As opposed to a model --
7 Q Model.
8 A -- which predicts, you know, based on,
9 you know, rainfall or inflows or whatever.
10 Q Or mass balances like the Gherini model?
11 Isn't the Gherini model mass balance driven?
12 A Well, more or less.
13 Q How less?
14 A I mean, basically what he does is -- is
15 takes the water that comes into each cell,
16 calculates the little rain difference in the ET and
17 rainfall in that cell, and then moves it on to the
18 next cell. So it's basically a --
19 Q A very --
20 A -- an accounting --
21 Q -- nice balance.
22 A Right. It's an accounting method.
23 Q Does that have all the inherit limitations
24 of mass balance that you described yesterday?
25 A Yes.
509
1 Q Do you believe the Everglades ecosystem
2 is --
3 A Well, now, now. Not necessarily. I mean,
4 I believe -- I've never looked at his model very
5 closely. I've just been in a couple meetings where
6 he presented his model?
7 Q Uh-hum.
8 A So my understanding of it, I think I told
9 you yesterday, was, you know, somewhat limited.
10 Q You've seen the correspondence from
11 Dr. Walker to Dr. Gherini providing some
12 constructive criticism of the model?
13 A Yes.
14 Q Did you find those criticisms
15 well-founded, at that time. Recognizing the model
16 may have changed, that was almost a year ago.
17 A I'm not sure that I had as good an
18 understanding of the model that, you know, Bill may
19 or may not have had. I don't know.
20 Q Okay.
21 A I've never met with Gherini, spent a day,
22 you know, going over the model specifically how it
23 worked. So I don't really know whether, you know,
24 Bill's comments were, you know, valid or not.
25 Q Do you consider yourself an expert on
510
1 hydraulic modeling?
2 A Not an expert in terms of, you know,
3 developing models and -- and, you know, using them
4 on a daily basis. I've used models in, you know,
5 various projects I've worked on.
6 We don't have, you know, what I would
7 consider to be, you know, a good general
8 understanding of -- of the models and how they
9 work. But not expert in terms of, you know,
10 developing, you know, the code for models, and that
11 sort of thing.
12 Q Okay. You described yesterday -- or you
13 identified a number of people who were doing
14 statistical work based on data sets that you either
15 generated through some of your direct work, or
16 acquired as part of the horrendously repetitive
17 correspondence between your company and the
18 District to try and get data.
19 MR. FitzGERALD: Which, for the record I
20 will note, far exceeds the effort to get data
21 from the United States.
22 Q You identified Drs. Marin, Reckhow,
23 Millard, C.J. Richardson, and Lettenmaier.
24 Were you aware that the District in the
25 SWIM Plan had actually krigged the data for certain
511
1 purposes in the SWIM Plan?
2 A Which data are you talking about?
3 Q When you served the depo notice, I
4 answered.
5 Were you aware -- or are you aware of
6 whether or not the District used the krigging
7 techniques in the SWIM Plan.
8 MR. HYDE: For any data?
9 Q For any data. Let's start there.
10 A As I recall, they claimed that they,
11 you know, may have krigged on some of the rainfall
12 data. But that's the only data I recall them
13 claiming that they did any krigging on. I'm not
14 even sure that in the SWIM Plan itself where they
15 may have claimed that.
16 Q When you say "claimed," I get this aroma
17 of disbelief. Do you have some reason to believe
18 they didn't do it, as stated.
19 A I don't remember that they did it -- that
20 they even claimed they did. I'm just saying -- I
21 seem to recall --
22 Q Okay.
23 A -- you know, based on some conversations
24 that there was a discussion that the -- that the
25 District -- I think it's around page 162 of the
512
1 supporting information document -- where they were
2 retaining some of their, you know, rainfall data.
3 And I thought I remembered seeing
4 something about the fact that they had, you know,
5 maybe krigged the rainfall data. I'm not,
6 you know, going to be testifying about rainfall
7 data. So it's something that I read in passing,
8 and, you know, went on.
9 I don't recall any statements in the
10 SWIM Plan about them krigging any other kinds of
11 data --
12 Q Okay. The krigging was done by
13 Dr. Lettenmaier in the statistical analysis for
14 WCA-2A and part of 3-A.
15 A Yeah.
16 Q That was based on the Keith & Schnars done
17 directly by Ms. Warrens?
18 A Correct.
19 MR. HYDE: Is that a question?
20 MR. FitzGERALD: Yes.
21 A Correct.
22 Q Okay. I just want to make sure that was
23 the data set we were -- that you were referring
24 to.
25 And with respect to the krigging work done
513
1 by Dr. Lettenmaier and his subcontractor, are you
2 relying on that work in any way for any of the
3 testimony you anticipate giving in this matter?
4 A For the information related to the
5 imperical determination of, you know, water depth
6 that we talked about a while ago, that part of it.
7 Q The water depths in 2-A and the northern
8 portion of 3-A?
9 A In -- in 2-A. Right.
10 Q Are you going to testify with regard to
11 the small area of Water Conservation Area 3 that
12 was created?
13 A No.
14 Well, I mean I -- I hadn't planned on it
15 at this point in time, put it -- I don't know
16 what --
17 Q And to what specific use will you put the
18 water depth data provided through the krigging
19 method by Dr. Lettenmaier?
20 A It would basically just be to provide a,
21 you know, foundation of -- for other people to use
22 in their correlation of, you know, hydroperiod --
23 Q I --
24 A -- and water depth with other factors.
25 Q Okay. I -- I guess the problem I have is
514
1 I don't understand your role in that.
2 If Keith & Schnars did the survey through
3 Paul Larsen, and the data was krigged by
4 Dr. Lettenmaier, not -- you were not directly
5 involved in any of that.
6 A That's correct.
7 Q Dr. Lettenmaier's isopleths indicate the
8 water depths --
9 A No.
10 Q -- well, his -- his krigging plots,
11 they're for water depth, aren't they --
12 A No.
13 Q -- isn't that what you said?
14 A No. No. He did the -- the surface
15 elevations of the sediments --
16 Q Okay.
17 A -- the topography.
18 Q Are you taking the -- so he did the
19 hard -- hard bottom.
20 A Correct.
21 Q Are you running the same model that you
22 described -- model in quotes -- for Loxahatchee
23 down in 2-A to generate --
24 A Yes.
25 Q -- the water depth.
515
1 A Yes. Yes.
2 Q And that's your sole role with respect to
3 Dr. Lettenmaier's krigging work and your sole
4 reliance on it?
5 A Yes.
6 MR. FitzGERALD: We got through that.
7 MR. HYDE: Tom, when do you intend to go
8 to tonight?
9 MR. FitzGERALD: I figured knock off at
10 5:15 or so. Do you need to --
11 MR. HYDE: No. I just wanted to know.
12 Because if we're going to go long, I'd like to
13 take a short break. If not, we're --
14 MR. FitzGERALD: No. I -- I thought I'd
15 just get through this part and then -- then
16 stop.
17 MR. HYDE: Okay.
18 Q What of Dr. Millard's work do you
19 anticipate relying upon in formulating your
20 testimony in this case?
21 A Some of the information or the results
22 that he may generate relative to the, you know,
23 Loxahatchee access and entry, you know, analyses,
24 that sort of thing. You know, I may use, I don't
25 know.
516
1 Q So at this point, you do not know to what
2 extent or how you may rely on Dr. Reckhow's work.
3 A Reckhow.
4 Q Didn't I say Reckhow?
5 A I thought that's what -- for some reason I
6 thought -- that's what I heard. You meant
7 Millard? Or maybe you said Millard.
8 MS. LaPLANTE: He said Millard.
9 MR. GILBERT: She can read it back --
10 Q We'll go -- we'll get to Reckhow next,
11 we'll go back and do Millard.
12 A Okay.
13 Q I just looked at the wrong --
14 A I don't know why I even thought about --
15 Q Put a check mark to --
16 MR. HYDE: Let's start over.
17 MR. FitzGERALD: Okay.
18 MR. HYDE: Let's talk about --
19 Q With Dr. Millard.
20 A Yes.
21 Q You do not know at this juncture how or to
22 what extent you may rely on whatever work you
23 can --
24 A Well, the only thing I can foresee right
25 now is, you know, he is, you know, looking at some
517
1 outlier, you know, analyses for our data stuff.
2 For instance, he's also going to look at, you know,
3 Dr. Jones' stuff when we get it.
4 And, you know, if I were, you know,
5 you know, asked to -- like you had earlier asked me
6 about, you know, how comparable I thought our data
7 sets were, that I might rely on that information.
8 But that would be basically the extent of it.
9 Q Hasn't Dr. Millard already done that?
10 A No. Because he hasn't gotten the
11 replicate information from, you know, Dr. Jones to
12 do that.
13 Q Were you aware that he had run the Federal
14 numbers against the appendices test --
15 A Yes, I am.
16 Q -- without that?
17 A Yes, I am.
18 Q Are you aware of the results?
19 A Yes.
20 Q What's your understanding of the results
21 of that?
22 A It showed that on a couple of occasions,
23 he would not have, you know, met the -- the limits
24 as they're presently stated.
25 Q Were you aware that he had run the same
518
1 test using the data generated by your firm's
2 effort?
3 A Yes.
4 Q Are you aware of the results of that test?
5 A Yes.
6 Q What's the results of that test --
7 A Kind of similar.
8 Q So under either test, whichever set of
9 data, at this juncture, you get similar results.
10 Doesn't that statistically imply something with
11 regard to my earlier question about the lack of
12 significant variation between the two data sets?
13 A No.
14 Q Not at all.
15 A No.
16 Q Interesting.
17 When do you expect Dr. Millard's going to
18 complete this work?
19 A I expect it'll be done pretty shortly
20 after we get the replicate data from Dr. Jones.
21 Q And once he completes that work, how long
22 will you need to absorb his results and found your
23 testimony upon it?
24 A A day or two.
25 Q So at this juncture, you don't have your
519
1 final opinions in that area.
2 A No.
3 MR. HYDE: I would say that he doesn't
4 have his final opinions in that area because
5 those final opinion are dependent upon delivery
6 of the information from the United States.
7 MR. FitzGERALD: I think -- that I
8 understand. But --
9 MR. HYDE: Okay.
10 MR. FitzGERALD: -- it's not finalized.
11 Q Now let's move to Dr. Reckhow. Pillar of
12 good --
13 What work of Dr. Reckhow's do you
14 anticipate relying upon in forming your opinion
15 testimony in this matter?
16 A No.
17 Q Then why did you list him yesterday?
18 A Because I thought the question yesterday
19 was who you had discussed, you know, some aspect of
20 something with, and I had discussed that with him
21 in the past.
22 Q What is your understanding of the work
23 that Dr. Reckhow has done in connection with this
24 matter?
25 A I understand that, you know, he's been a
520
1 consultant to the coop on some aspects of this.
2 But I really don't know what.
3 My discussions with him were -- in fact,
4 we were dealing with the Lake Okeechobee SWIM Plan,
5 and he did some early review of some of
6 Dr. Walter's work, and I talked to him about that.
7 But I haven't actually spoken to
8 Dr. Reckhow in probably two years.
9 Q Dr. -- Dr. Reckhow is a member of the
10 Monitoring and Testing Subcommittee of the TOC; is
11 he not?
12 A Right.
13 Q Do you believe he's qualified to assist in
14 that type of operation?
15 A Very. Very bright man.
16 Q To what extent do you anticipate relying
17 on work performed by Curtis Richardson in
18 formulating your testimony in this matter?
19 A I don't think that, you know,
20 Dr. Richardson's work would be that much of a,
21 you know, basis for any of my testimony.
22 I mean, I -- to the extent that there's
23 data that he's, you know, published in some of his
24 annual reports or something like that, might,
25 you know, refer to that. But it's certainly not a
521
1 cornerstone or anything like that.
2 Q Well, what data in the annual Duke reports
3 to the EPD would interweave with your areas of
4 expected testimony?
5 A One of his post-docs, Dr. Rader collected
6 some, you know, macroinvertebrate data, and,
7 you know, the areas northern 2-A I guess, and also
8 I think some down in 2-B.
9 Q Have you incorporated that data into the
10 analysis --
11 A No.
12 Q -- of --
13 Do you plan to do that?
14 A It's not likely. But it's possible.
15 MR. HYDE: I think that Dr. Rader's study
16 was listed on one of those lists -- or amended
17 those lists to something that he might be
18 relying on.
19 MR. FitzGERALD: I know.
20 MR. HYDE: I know.
21 MR. FitzGERALD: I want to know -- you can
22 list 500 documents. I want to know what he's
23 going to rely on in detail, that's all.
24 MR. HYDE: Fine. Okay.
25 A I don't, you know, right now have a,
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1 you know, specific reliance on, you know --
2 you know, Dr. Rader's work at all.
3 Q How did he collect his data?
4 A It was more of a qualitative type sample.
5 Q Are we talking about a 6-inch dip net and
6 swinging it around in the swamp, or what.
7 A I think it was a bigger dip net. And he
8 may have done some actual bottom sediments with
9 core --
10 Q Okay.
11 A -- tube core also.
12 His data were not done with Hester-Dendies
13 and could not be used to determine compliance with
14 the biological integrity standard.
15 Q So it's not a data set that you could
16 merge with your current work.
17 A No.
18 Q Dr. Marin. You mentioned having consulted
19 with him or -- or met and discussed things with
20 him. Is any of the work currently being performed
21 or having been performed by Dr. Marin related to
22 the areas of your testimony?
23 A No.
24 Q So you don't expect or anticipate any
25 reliance on Dr. Marin's work.
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1 A No.
2 Q What is your understanding of what
3 Dr. Marin is doing?
4 A He is examining the various sources of
5 uncertainty in Dr. Walter's phosphorus uptake
6 analyses model.
7 Q Wouldn't it make more sense for him to
8 analyze the uncertainty of the SWIM Plan that's
9 being challenged in this case?
10 A I guess that's not my choice, my
11 decision. I think that's something the attorneys
12 would want to give him direction, not me.
13 Q Okay. Have you provided data to
14 Dr. Marin?
15 A Yes.
16 Q What?
17 A Provided him data that we'd obtained from
18 the District on the flows, concentrations of loads
19 through structures, data that we had obtained from
20 the District on concentrations at the, you know,
21 marsh stations in northern 2-A.
22 Copies of files which we had that
23 Dr. Walker had provided at various times.
24 Maps of where the stations were located
25 relative to those data. We may have provided
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1 distances from the structures to those stations.
2 Q Okay. Was your firm involved in the
3 production of a series of graphs done on a monthly
4 basis of Loxahatchee with also an averaging over
5 the first ten months of the entry and access
6 program reflecting isopleths for phosphorus in
7 Loxahatchee?
8 If it would help, Dr. Millard had them,
9 and he didn't produce them. Okay.
10 A It sounds like something that we may have
11 produced for one of the meetings that we had.
12 Q What was the purpose in producing those
13 isopleth contour maps?
14 A Basically people wanted to see kind of a,
15 you know, quick and dirty depiction of how the,
16 you know, phosphorus isopleths might look,
17 you know, based on that data.
18 Q And that was surface water data?
19 A Yes.
20 Q Don't they, in fact, reflect that 5-A and
21 6 are the source of major loading of phosphorus to
22 the surface waters of the Loxahatchee?
23 A I don't know that they reflect that, no.
24 Q Do you consider yourself competent to read
25 a hydraulic isopleth contour map?
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1 A I think I understand those, yes.
2 Q Okay. And --
3 Are any of the statisticians we've just
4 discussed, the five --
5 A I'm having trouble hearing you again.
6 Q Have -- are or have any of the five
7 statisticians, and I'm throwing Dr. Richardson in
8 there because you listed him that way as having
9 consulted on statistical work -- made any effort to
10 your knowledge to find a correlation between the
11 inflows to Loxahatchee through 5-A and 6 and the
12 internal marsh concentrations at the clean 3
13 stations?
14 A Yes.
15 Q Have any of them succeeded?
16 A Not to my knowledge.
17 Q What correlation factor have they used or
18 predicted variability have they used other than
19 those used in the SWIM Plan?
20 A I don't know.
21 Q Do you know if they've tried anything
22 other than phosphorus?
23 A No.
24 Q Has your firm?
25 A No.
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1 Q Have you ever tried to draw a correlation
2 with chloride data on Loxahatchee?
3 A No.
4 Q You took chloride measurements. Or you
5 analyzed for your chlorides in your -- your
6 program, didn't you?
7 A Don't think so.
8 Q You didn't. I thought you said you were
9 going to do that.
10 A We did want to do that, but we, you know,
11 ended up not doing it.
12 Q There was --
13 A What we analyzed for is on the sheet that
14 we turned over to you every month, and my
15 recollection is it was phosphorus, iron, aluminum,
16 calcium.
17 Q There was no sampling barred to your
18 analyzing for that parameter, was there?
19 A I don't think so.
20 Q Okay. Do you understand what I mean when
21 I say a conservative water quality parameter?
22 A Yes.
23 Q Has any effort been made by your firm or
24 you to draw a correlation between those flows I
25 mentioned earlier and the interior marsh water
527
1 quality in Loxahatchee based on a conservative
2 parameter?
3 A No.
4 Q Would you agree that phosphorus is
5 non-conservative in the Everglades ecosystem?
6 A Yes.
7 Q And would it make sense to do it based on
8 its conservative parameter?
9 A If you were trying to, you know, regulate
10 phosphorus, it doesn't make any sense to correlate
11 it with chloride or -- or, you know, some
12 relationship that exists between, you know, other
13 parameters.
14 Q You showed a great interest during one
15 phase of SAGE's deliberations in receiving such
16 chloride analysis.
17 A Uh-hum.
18 Q Are you saying now that that would imply
19 nothing for the trans-- transport mechanisms
20 related to phosphorus and its sources in
21 Loxahatchee?
22 A The reason I was interested in the
23 chloride balance during the SAGE, you know,
24 deliberation was that, you know, Bill Walker had
25 said that he'd used a chloride balance in order to
528
1 provide justification for his flow weighting of
2 phosphorus concentration of marsh stations.
3 I didn't believe that you could adequately
4 do that kind of, you know, justification, and I
5 wanted to see how he was able to do that, because I
6 didn't believe that the, you know, data would
7 support that.
8 Q Which water --
9 A And I --
10 Q I'm sorry. Go ahead.
11 A That was the reason I was interested in
12 getting that.
13 Q Which Water Conservation Area analysis was
14 Dr. Walter referring to --
15 A 2-A.
16 Q So it didn't relate to Loxahatchee.
17 A No. You were the one that asked me why I
18 was interested in -- in that proceeding.
19 Q Wouldn't it be equally interesting to have
20 that for Loxahatchee now?
21 A Well, I mean, all that data's interesting,
22 yes.
23 Q Spoken like a data manager.
24 MR. FitzGERALD: And I went 4 or 5 minutes
25 long. Why don't we knock off now.
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1 (WHEREUPON, THE PROCEEDINGS WERE CONTINUED
2 AT 5:18 P.M.)
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1 CERTIFICATE OF REPORTER
2 STATE OF FLORIDA )
COUNTY OF LEON )
3
4 I, LAURIE L. GILBERT, Registered
5 Professional Reporter, and Notary Public in and for
6 the State of Florida at Large:
7 DO HEREBY CERTIFY that JOHN A. DAVIS,
8 Ph.D., was duly sworn by me.
9 WITNESS MY HAND AND OFFICIAL SEAL THIS
10 21ST DAY OF MARCH, A.D., 1994, IN THE CITY OF
11 TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.
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LAURIE L. GILBERT
16 Notary #CC 000172
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