1

1 DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE )

OF FLORIDA; ROTH FARMS, INC.; )

4 and WEDGWORTH FARMS, )

Petitioners, )

5 V ) DOAH Case No. 92-3038

SOUTH FLORIDA WATER MANAGEMENT )

6 DISTRICT, an agency of the State)

of Florida, et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.;)

8 UNITED STATES SUGAR CORPORATION;)

and NEW HOPE SOUTH, INC., )

9 Petitioners, ) DOAH Case No. 92-3039

V )

10 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State)

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W. E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, ) DOAH Case No. 92-3040

V )

15 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State)

16 of Florida, et al., )

Respondents. )

VOLUMEI

18 Deposition of Steven M. Davis

Taken before Marianne Martini Holmes,

20 Registered Professional Reporter and Notary Public in

and for the State of Florida at large, pursuant to

21 notice of taking deposition filed by the Petitioners

in the above cause.

22 - - -

23 Monday, March 2, 1993

319 Clematis Street

24 West Palm Beach, Florida 33401

9:05 - 5:40 p.m.

1 APPEARANCES:

2 On behalf of the Petitioners Florida Sugar Cane League,

3 Inc., United States Sugar Corporation, and New Hope

4 South, Inc.:

5 Peeples, Earl & Blank, P.A.

6 One Biscayne Tower

7 Suite 3636

8 Two South Biscayne Boulevard

9 Miami, Florida 33131

10 By: MARK T. KOBELINSKI, ESQUIRE

11 WILLIAM L. HYDE, ESQUIRE

13 On behalf of the Petitioners Sugar Cane Growers

14 Cooperative of Florida, Roth Farms, Inc., and

15 Wedgworth Farms, Inc.:

16 Hopping, Boyd, Green & Sams

17 123 South Calhoun Street

18 Tallahassee, Florida 32314

19 By: WILLIAM H. GREEN, ESQUIRE

1 APPEARANCES: (Continued)

2 On behalf of the Respondent SFWMD:

3 Popham, Haik, Schnobrich & Kaufman, Ltd.

4 4100 One Centrust Financial Center

5 100 Southeast Second Street

6 Miami, Florida 33131

7 By: PAUL L. NETTLETON, ESQUIRE

9 On behalf of the Intervenor, United States of America:

10 Department of Justice

11 601 Pennsylvania Avenue, N.W.

12 Fifth Floor, Room 5613

13 Washington, D.C. 20004

14 By: STEPHEN G. BARTELL, ESQUIRE

15 DAVID WILLIAM GEHLERT, ESQUIRE

18 Also Present: W. Michael Dennis, Ph.D.

19 Courtney T. Hackney, Ph.D.

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Steven M. Davis

By Mr. Kobelinski 5

10 - - -

11 E X H I B I T S

12 - - -

14 NUMBER PAGE NO. DESCRIPTION

15 DAVIS EXHIBIT 1 7 Resume'

16 DAVIS EXHIBIT 2 107 "Phosphorus Inputs And

Vegetation Sensitivity In

17 The Everglades"

INDEXED QUESTION/ANSWER PAGE NO. LINE NO.

19 71 19

72 1

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Steven M. Davis,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT (Steven M. Davis)

9 BY MR. KOBELINSKI:

10 Q. Good morning, Mr. Davis. My name is Mark

11 Kobelinski.

12 If you could state your name and address

13 for the record, please.

14 A. Steve Davis, 8358 Sunup Trail, S-u-n-u-p.

15 Q. Mr. Davis, have you ever been deposed

16 before?

17 A. Yes.

18 Q. About how many times?

19 A. Once.

20 Q. And that would be the deposition during the

21 federal litigation of the United States versus South

22 Florida Water Management District?

23 A. That's correct.

24 Q. Okay. My name is Mark Kobelinski, and I

25 represent United States Sugar Corporation, Florida

1 Sugar Cane League and New Hope South, Incorporated.

2 We are petitioners in an administrative challenge

3 dealing with the Everglades SWIM Challenge, SWIM

4 Plan. I think you've aware of that.

5 I'll be asking you questions today

6 regarding facts that you may have that deal with the

7 issues in this action and also with regard to any

8 opinions you may have as to the subject or issues in

9 the case.

10 If at any time you don't understand a

11 question, please stop me and ask me to rephrase it

12 and I'll attempt to do so.

13 A. Um-hum.

14 Q. If you don't know the answer to a question

15 or don't remember, "I don't know" and "I don't

16 remember" are the best answers.

17 On the other hand, if you have any

18 recollection as to facts, please state so and then

19 you can qualify it in any manner you so wish, all

20 right?

21 A. Okay.

22 Q. Okay. Are you aware that you are listed as

23 an expert witness for the District?

24 A. Yes.

25 Q. Okay. The listed areas for your expertise

1 are biology and wetland ecology; is that correct, to

2 your knowledge?

3 A. To my knowledge the listed areas were

4 cattail expansion and the effects of nutrients.

5 Q. That would be the subject of your opinions,

6 and we'll be getting into that.

7 But as far as the areas of your expertise,

8 the District has listed biology and wetland ecology,

9 is that accurate?

10 A. Right, yes.

11 MR. KOBELINSKI: Go ahead and mark that.

12 (The document was marked

13 Davis Exhibit Number 1.)

14 BY MR. KOBELINSKI:

15 Q. Mr. Davis, I'm showing you what's been

16 marked as Exhibit 1 to your deposition. It is a

17 multiple-page document which on the top states

18 "Resume' Steven M. Davis" and bears Bates Numbers

19 0959632 through 0959636.

20 Could take a look at that document and see

21 if you can identify it for us?

22 A. Yes, it's my resume'.

23 Q. Is that the most recent copy of your

24 resume'?

25 A. Yes.

1 Q. And if given the opportunity, is there any

2 type of update --

3 (Thereupon, Mr. Green entered the room.)

4 (Discussion held off the record.)

5 BY MR. KOBELINSKI:

6 Q. I'll go ahead and restate my last question

7 which was if given the opportunity, would there be

8 any updates to this resume'?

9 A. No.

10 Q. All right.

11 A. Oh, yes there is. Excuse me.

12 Q. Okay. And what would that be?

13 A. The senior professional, I had forgot to

14 change that. It's still supervising professional in

15 the 8/92 to present.

16 Q. Is there a difference between the two?

17 A. It's the same salary grade. It's just

18 senior professional doesn't have any supervisory

19 responsibility.

20 Q. Okay. Could you very briefly tell us what

21 your education is starting at your undergraduate

22 degree and the areas of concentration?

23 A. My undergraduate degree is a bachelor of

24 science in zoology from University of Illinois. My

25 graduate degree is a master of science in resource

1 management and aquatic biology from University of

2 Georgia.

3 MR. KOBELINSKI: Could you read back that

4 last part? Thank you.

5 (Thereupon, a portion of the record

6 was read by the reporter.)

7 BY MR. KOBELINSKI:

8 Q. The master's degree, is that essentially

9 one program, or since you have listed resource

10 management and aquatic biology, is that two separate

11 programs?

12 A. It's one program. The University of

13 Georgia has an Institute of Ecology that you can take

14 interdisciplinary courses for your degree.

15 Q. What was your master's thesis on?

16 A. It was on the effects of a reservoir on the

17 ecology of a small stream.

18 Q. And where was that located?

19 A. In North Georgia.

20 Q. Okay. Post master's degree at Georgia,

21 have you haBRITISH additional educational courses or

22 experience?

23 A. No.

24 Q. Okay. The resume' essentially then covers

25 the educational background that we've discussed; is

1 that correct?

2 A. Yes.

3 Q. All right. On the third page of this

4 resume' at Bates 0959634 of Exhibit 1 it's entitled

5 at the top "Publications" which goes on for the

6 following page and a half.

7 Are there any additional publications that

8 are not included on this resume' that would be added

9 if the resume' was updated today?

10 A. (Witness reviewing the document).

11 Yes, I'm co-author of a paper authored by

12 Nancy Urban and with the third author Nick Aumen on

13 cattail and sawgrass dynamics in Conservation Area 2A

14 that's been accepted since this resume' was prepared.

15 Q. Okay. That is yet to be published; is that

16 correct?

17 A. It's been accepted. It hasn't been

18 published.

19 Q. Are there any additional publications other

20 than the Nancy Urban cattail/sawgrass paper?

21 A. No, not that I can think of.

22 Q. Okay. Are there any papers or publications

23 that are still in the process or still in the

24 drafting stage that are not listed in this Exhibit 1?

25 A. I'm working on a book, co-editor of a book

1 with a John Ogden from Everglades National Park on

2 the Everglades that would be published this summer.

3 Q. Has it been accepted for publication?

4 A. It's not a journal article, so it's not a

5 matter of acceptance.

6 We have a publisher, yes.

7 Q. Okay. Who is the publisher of the

8 cattail/sawgrass paper by Nancy Urban and yourself

9 and Dr. Aumen?

10 A. Aquatic Botany.

11 Q. Do you have a deadline as to when that

12 paper is to be submitted to Aquatic Botany?

13 A. It's already been submitted. It's been

14 accepted.

15 Nancy Urban is making minor revisions in

16 the paper as recommended by the referees. I don't

17 know if she has a deadline.

18 Q. Do you know --

19 A. As junior author I'm not involved in those

20 revisions, so...

21 Q. Have you been reviewing the revisions as

22 they take place?

23 A. I looked at the referee comments. I have

24 not reviewed the revisions.

25 Q. With regard to the book on the Everglades,

1 who is the publisher?

2 A. St. Lucie Press in Delray Beach.

3 Q. You mentioned that it's anticipated that

4 this book will be published in the summer.

5 Is there again a deadline or a specified

6 date that it is intended to be published?

7 A. The publisher has put out an announcement

8 it will be coming out in June. I think that may be

9 optimistic, but...

10 Q. Has the publisher given any deadlines as

11 far as the submission of a final draft or final

12 drafts of various chapters for the book?

13 A. We've agreed on a production schedule of

14 three to five chapters a week at this point to the

15 publisher.

16 Q. When did that schedule commence?

17 A. Oh, about three weeks ago.

18 Q. Okay. How many chapters then have been

19 submitted to the publisher as yet thus far?

20 A. Excuse me. I'd say four weeks ago.

21 We're close to 25. I'd have to -- I don't

22 recall the exact number.

23 Q. How many chapters will the book have?

24 What's the anticipated number?

25 A. Approximately 33.

1 Q. When is it anticipated that the

2 approximately eight additional chapters will be

3 submitted to the publisher?

4 A. Sometime in April. By, I'd say by mid

5 April.

6 Q. Okay. With regard to the eight additional

7 chapters that are yet to be submitted, who are the

8 authors of those chapters?

9 A. There are two hydrology chapters that are,

10 that Bob Johnson is senior author on. There's two

11 chapters authored by Marty Fleming --

12 Q. Would that be --

13 A. -- one on alligator and one -- well, three

14 chapters by Marty Fleming: one on alligator, one on

15 white-tailed deer and one on waiting birds, and three

16 synthesis chapters.

17 Q. Who are the primary authors of the

18 synthesis chapters?

19 A. One is C. S. Holling, H-o-l-l-i-n-g, one is

20 Carl Walters, and one will be myself and John Ogden.

21 Q. Will those three synthesis chapters cover

22 different areas?

23 A. Yes, they, Holling's chapter looks at the

24 entire Everglades system at different scales,

25 different spacial scales starting with the very small

1 scale and going up to a global scale and examines

2 issues involved at each scale.

3 The chapter by John and myself simply

4 inventories and summarizes the restoration, ecosystem

5 restoration implications from each of the other

6 chapters in the book.

7 And Carl Walters' chapter uses a model that

8 he developed to make broad generalizations and

9 evaluations about opportunities for ecological

10 restorations in terms of water policy.

11 Q. The model that you referred to that was

12 developed by -- is it Mr. Walters or Dr. Walters?

13 A. Doctor.

14 Q. Dr. Walters.

15 -- is that a water or a hydrology model?

16 A. Yes.

17 Q. Is that related in any way to the South

18 Florida Water Management model?

19 A. He utilizes the same data base but

20 developed his own model.

21 Q. Okay. Is it related at all to the

22 District's natural system model?

23 A. Same thing.

24 Q. Oh, it's the NSM model?

25 A. It's both. It utilizes -- he has a current

1 model and a natural system model just as the District

2 does and compares the two.

3 Q. By whom is Dr. Walters employed?

4 A. University of British Columbia.

5 Q. Are you familiar at all with the South

6 Florida Water Management model?

7 A. I'm not a modeler, so only generally.

8 Q. Okay. Have you ever used it for any of

9 your studies?

10 A. No.

11 Q. Are you familiar at all with the natural

12 system model, the District's natural system model?

13 A. Generally.

14 Q. And from time to time I may refer to that

15 as the NSM model, and that's --

16 A. Okay.

17 Q. -- typical; is that correct?

18 A. Um-hum.

19 Q. Do you know how the Walters model will

20 differ from the South Florida Water Management model?

21 A. It only differs in the, its scale of

22 resolution. It's a coarser scale model and it's much

23 more user friendly than the South Florida Water

24 Management model, so anyone with the instruction

25 manual sits down for a half a day can learn how to

1 use it and you can make modeling runs very quickly in

2 a matter of hours where it might take weeks with the

3 South Florida Water Management model.

4 Q. Does it differ then from the natural system

5 model in the same fashion?

6 A. Yes.

7 Q. Any other difference between the Walters

8 model and the natural system model?

9 A. Well, they are vastly different in the way

10 that they were put together, but they both show the

11 same thing. They both indicate the same results or

12 simulations.

13 Q. When you say that the Walters model was put

14 together differently than the NSM, natural system

15 model, the Walters model does use the natural system

16 model's data base; is that correct?

17 A. Yes.

18 Q. Uses the same topography?

19 A. Walters put in, put in the, in his version

20 of the natural system model, he did put topography

21 back in where he felt there had been soil loss, but I

22 don't know if it's the same, exactly the same amount

23 that was put in for the natural system model.

24 Q. With regard to historic rainfall, does the

25 Walters model use the same data base as the natural

1 system model?

2 A. Yes.

3 Q. Okay. What about estimated ET values for

4 the historic Everglades? Does the Walters model have

5 the same values as the natural system model?

6 A. They are similar. I don't know if they are

7 identical.

8 Q. Will there be a chapter of the book on the

9 South Florida Water Management model?

10 A. Yes, it's one of the chapters authored by

11 Bob Johnson, as I mentioned, with a number of

12 co-authors who have worked on it over the years.

13 Q. That's one of the two chapters that he has

14 yet to submit to the publisher?

15 A. That's correct.

16 Q. Is there a chapter of the book that deals

17 with the natural system model?

18 A. It's the same chapter. He compares the

19 two.

20 Q. All right. With regard to the chapters of

21 the book that have already been submitted, the

22 approximate 25 chapters, have those chapters already

23 gone through peer review?

24 A. Yes.

25 Q. Just briefly if you could walk me through

1 the peer review process.

2 You are one of the co-editors of the book;

3 is that correct?

4 A. That's correct.

5 Q. How were the peer referees selected for the

6 various chapters of the book?

7 A. We have an Editorial Board for the book

8 that met -- the Editorial Board was the same group of

9 individuals that was the Steering Committee for the

10 symposium that resulted in this book.

11 And after the symposium the Editorial Board

12 met and came up with a list of potential referees for

13 papers in various areas of expertise.

14 John and I took that list and solicited

15 reviews from referees. We attempted to find one

16 referee who had not only expert knowledge in the

17 field but also is familiar with the Everglades and

18 one referee who was an expert in the field but not

19 directly connected with Everglades issues.

20 The papers were submitted to the referees

21 with a form where they could find anything from

22 acceptable to unacceptable and major and minor

23 revision in between.

24 When we received the form and the referee

25 comments back, we submitted that back to the authors

1 for revisions.

2 And as we're submitting the papers to the

3 editor in our final editing, we're examining the

4 manuscripts to assure that the authors have taken the

5 referee comments, suggestions.

6 Q. Was the publisher involved in that referee

7 process as all?

8 A. No.

9 Q. Did the publisher receive copies of the

10 referees' comments?

11 A. No.

12 Q. Were the authors told the names of their

13 referees, peer referees?

14 A. The referees are confidential unless they

15 choose to waive that. In most cases they remained

16 confidential.

17 Q. With regard to the Editorial Board which I

18 believe you stated was the same as the Steering

19 Committee for the Everglades symposium -- first of

20 all, when was the Everglades symposium?

21 A. October 1989.

22 Q. Who are the members of the Editorial Board?

23 A. Myself and John Ogden as co-chairmen,

24 C. S. Holling, Carl Walters, Don DeAngelis, that's

25 D-e-A-n-g-e-l-i-s, Peter White, Bill Robertson, Bill

1 Loftus, Marty Fleming, Tom Bancroft. I'm missing

2 some. There's about 15.

3 Q. Are those the ones that you recall at this

4 point in time?

5 A. That's all that comes to mind right now.

6 Q. Okay.

7 A. There were more, but...

8 Q. With regard to this Editorial Board, were

9 some of the members that you just mentioned more

10 active than others?

11 A. The ones that were local in South Florida

12 would attend more meetings. The ones that were out

13 of state would tend to provide written comments on

14 issues. But I think they were all active in the

15 process.

16 Q. I would assume as co-chairs, you and John

17 Ogden were the most active?

18 A. Not necessarily.

19 Q. Okay. Could you just very quickly go

20 through in the names that you've provided and tell me

21 their affiliation or employment?

22 John Ogden I know is with the Park.

23 C. S. Holling?

24 A. University of Florida.

25 Q. Carl Walters?

1 A. University of British Columbia.

2 Q. Don DeAngelis?

3 A. Oak Ridge National Laboratory.

4 Q. Peter White?

5 A. University of North Carolina.

6 Q. Bill Robertson?

7 A. Everglades National Park.

8 One additional board member was Tom

9 MacVicar, Editorial Board member.

10 Q. Bill Loftus?

11 A. Everglades National Park.

12 Q. Marty Fleming?

13 A. Everglades National Park.

14 Q. Is he still with the Park?

15 A. Yes.

16 Q. Tom Bancroft?

17 A. National Audubon Society.

18 Q. Tom MacVicar?

19 A. Water Management.

20 Q. With regard to the Everglades symposium,

21 how did that particular symposium come about? Is

22 that a district-sponsored event?

23 A. It was co-sponsored by the District and

24 Everglades National Park.

25 Q. Approximately how many papers were

1 presented at the symposium?

2 A. I'd say about 40.

3 Q. And how were the individuals who presented

4 the paper selected?

5 A. We invited people who were actively doing

6 research in the Everglades system and asked them to

7 work as groups in integrating their papers and

8 developing concepts concerning the Everglades.

9 Q. Was Bob Johnson on the Editorial Board?

10 A. No.

11 Q. Okay. Was there a list of invitees? And

12 by invitees, I'm referring to individuals invited to

13 produce or participate in the production of papers

14 for the Everglades symposium.

15 A. We have the symposium program which has the

16 paper titles and authors. There were some other

17 authors that were invited that declined.

18 Q. With regard to the individuals that were

19 offered the opportunity to participate and declined,

20 do you recall any particular individuals?

21 A. We invited Jim Kushlan to prepare a paper,

22 and he declined. And his name slips my mind, but we

23 invited an Everglades kite -- oh, I know, Steve

24 Beissenger.

25 Q. Could you spell that?

1 A. I believe it's B-e-i-s-s-e-n-g-e-r.

2 Invited him to work with another kite

3 expert in putting together a paper, and he declined

4 unless he could have his own paper.

5 Q. Who was who was the other kite expert?

6 A. Robert Bennetts.

7 Q. Did Mr. Bennetts ultimately produce a

8 paper?

9 A. Dr. Bennetts.

10 Q. Dr. Bennetts. Excuse me.

11 A. Yes.

12 Q. And Steve Beissenger, what is his

13 affiliation or who was he employed by?

14 A. He's with a university of New York. I

15 forget which university. Cornell comes to mind, but

16 I'm not sure.

17 Q. And Mr. Kushlan -- or is it Dr. Kushlan?

18 A. Dr. Kushlan.

19 Q. -- is affiliated with?

20 A. It's either Mississippi State or University

21 of Mississippi. Again, I've lost track of which one.

22 Q. Any other authors or individuals that you

23 can recall who were invited to participate in the

24 symposium that declined?

25 A. Not that I can recall at this time.

1 Q. Okay. Is there any type of document that

2 you would have that would have those authors or all

3 of the individuals that were invited to participate

4 in the symposium?

5 A. I don't believe I have that anymore.

6 Q. Okay.

7 A. I cleared my files after the symposium.

8 Q. Did you retain any type of letters or

9 communications with individuals inviting them to

10 participate in the symposium?

11 A. I believe I have some. I don't have them

12 all.

13 Q. Have you retained the responses to your

14 letters of invitation?

15 A. Some, but not all.

16 Q. I believe you stated that approximately 40

17 papers were presented at the symposium, and I note

18 that you stated approximately 33 chapters will be in

19 the book, three of those are, you referred to as

20 synthesis chapters.

21 Were there synthesis papers of an

22 equivalent type as the three synthesis chapters

23 presented at the symposium?

24 A. Yes.

25 Q. Would that be in the same three areas?

1 A. It's not exact. We regrouped a number of

2 papers after the symposium. But it was a general,

3 the same general organization. After each section of

4 the symposium there was a synthesis chapter. At the

5 very end there were two or three -- synthesis talk,

6 and at the very end there were two or three

7 overviewing the entire symposium.

8 Q. Did Dr. Walters do an overview of the

9 system at the symposium?

10 A. Yes.

11 Q. And did -- is it Dr. Holling?

12 A. Yes.

13 Q. Did Dr. Holling look at the entire

14 Everglades and --

15 A. Yes.

16 Q. -- again similar to what he's doing for a

17 synthesis chapter?

18 A. Yes.

19 Q. Are there specifically seven or so papers

20 that were presented that have not been included as

21 chapters to the book?

22 A. Yes.

23 Q. Do you recall why?

24 A. We had a problem with one symposium session

25 on planning I believe it was the third day of the

1 four days of the symposium. The organization of that

2 section by the, or that session by the session

3 chairman was not as good as the other sessions and

4 the papers were, did not address the questions that

5 we were trying to address at the symposium and were

6 generally weak.

7 Q. Would that cover all of the approximate

8 seven papers that were presented that are not

9 included in the book?

10 A. We had one paper on the influence of the

11 Everglades on Florida Bay where the author because of

12 other commitments couldn't write the paper.

13 Q. Who was that author?

14 A. Tom Smith, Dr. Tom Smith.

15 Q. Okay. And does that cover all the

16 approximately seven papers that were presented at the

17 symposium that have not been included as chapters to

18 the book?

19 A. As far as I can remember. It was four

20 years ago. You have to excuse my memory.

21 Q. That's quite all right and understandable.

22 You had mentioned a few moments ago that in

23 relation to your comments on the planning section

24 that they had not quite addressed the, I believe you

25 stated, purposes of the symposium.

1 A. Um-hum.

2 Q. What were those purposes, if you could

3 describe them?

4 A. The central theme of the symposium was

5 examining patterns of the physical driving forces,

6 vegetation and wildlife and how they interact to

7 develop guidelines for ecological restoration in the

8 Everglades.

9 The planning section was from the beginning

10 outside the central theme, but we had hoped to look

11 at the very -- at the various problems and

12 opportunities to accomplish the restoration

13 guidelines that the other sessions were coming up

14 with from the standpoint of urban issues,

15 agricultural issues, water quality issues, water

16 management issues, population issues.

17 Q. What you just referred to as the various

18 issues, was that supposed to be included in the

19 planning section?

20 A. Yes.

21 Q. Okay. Who was primarily responsible for

22 the planning section?

23 A. Dr. Larry Harris.

24 Q. What is Dr. Harris' affiliation?

25 A. University of Florida.

1 Q. By the way, did the Army Corps of Engineers

2 participate at all in the symposium or any

3 representatives from it?

4 A. They attended. I don't believe they

5 authoreBRITISH papers because they didn't meet our

6 criteria of actively doing research in the system.

7 Q. Going back for a moment to the purpose of

8 the symposium which, just to summarize what you had

9 stated, was the examination of patterns of vegetation

10 and wildlife ecosystems to produce guidelines for

11 ecological restoration, were there any additional

12 purposes to the symposium?

13 A. We had, we attempted to develop these

14 themes in a, in a way that would be understandable to

15 decision-makers, not just the scientific community.

16 Q. Okay. Was that more of a format purpose as

17 opposed to what you had previously described as a

18 purpose of the symposium?

19 A. No, I'd say it was part of the central

20 purpose.

21 Q. Okay. And you referred to I believe it was

22 the decision-makers related to the system.

23 Who would those be? Who was that target

24 group?

25 A. Oh, everything from Water Management

1 District and National Park Service management to

2 local planners.

3 Q. When you say local planners, are you

4 getting down to the county and city level?

5 A. Yes. We were simply trying to produce

6 something that was understandable by people not in

7 the scientific field.

8 Q. Okay. With regard to this target group of

9 decision-makers, would that include the Army Corps of

10 Engineers?

11 A. Yes.

12 Q. Did it include any private industry

13 leaders?

14 A. Did what?

15 Q. This target group of decision-makers.

16 A. Certainly. It would include anyone who's

17 not a, specifically a scientist working in the field.

18 Q. Okay. Who was invited to the symposium?

19 A. There was no invitation list. We

20 distributed a brochure on the symposium and a number

21 of functions before the, the year before the

22 symposium. It was open to everybody.

23 Q. Okay. Did you in particular invite this

24 target group of decision-makers you were referring

25 to?

1 A. As far as I'm aware, they were all aware of

2 it.

3 As I say, we didn't invite anybody. We had

4 about 400 people show up, but we didn't invite

5 anybody. We just passed out notices about it.

6 Q. In your opinion did you have a successful

7 turnout of the target decision-makers group?

8 A. It seemed that we did.

9 Q. Okay. Did Dr. Harris or the planning

10 section propose a particular planning process to

11 address the Everglades?

12 A. No.

13 Q. By the way, any time you want to take a

14 break also, you just let us know.

15 A. Okay.

16 Q. With regard to the planning section, you'd

17 referred to the papers as weak.

18 Is that a symptom of the fact that it was

19 difficult for that area to address the primary

20 purpose of the symposium or was it just literally the

21 work product presented by those authors?

22 A. I think it was Dr. Harris, because he had

23 so many other commitments, didn't give the attention

24 to working with his authors in developing the topic

25 for his session as much as the other session chairmen

1 did.

2 Q. Who were the authors of the planning

3 section papers?

4 A. There was a paper on urban concerns by

5 Douglas Yoder. There was a -- this is four years ago

6 and I'm confused on which sessions some of the papers

7 were in.

8 There was an agricultural paper by George

9 Snyder. There was a water quality paper by Curtis

10 Richardson. Larry Harris attempted to do a synthesis

11 of planning concerns. There was a paper on the

12 relationship of Everglades water issues to Florida

13 Bay.

14 I'm listing papers with planning topics.

15 I'm not sure they were all in the planning session.

16 That was a long time ago, as I said.

17 That's what I can recall at this time.

18 Q. The water quality paper by Dr. Richardson,

19 was that in the planning section, to the best of your

20 recollection?

21 A. Yes.

22 Q. And did his paper fall into the category of

23 papers that were either weak or were not of the same

24 quality as the other papers presented at the

25 symposium?

1 A. Yes.

2 Q. You'd mentioned that Dr. Harris was the

3 organizer, is that the term, for the planning

4 section?

5 A. Yes.

6 Q. Who were the other organizers for the

7 various sections?

8 A. I organized the first day on physical

9 driving forces in the system. John Ogden organized

10 the second day on -- excuse me. I'm sorry. Don

11 DeAngelis organized the first day on physical driving

12 forces. I organized the second day on vegetation.

13 John Ogden organized the third day on wildlife, as I

14 recall. Larry Harris organized the session on

15 planning. And there was really no organizer for the

16 final half day of synthesis papers. It was just

17 synthesis authors.

18 Q. There were essentially four sections: the

19 physical driving forces, vegetation and wildlife?

20 A. Planning and the synthesis.

21 Q. I'm sorry. Planning.

22 A. So five.

23 Q. Five.

24 With regard to the section on vegetation,

25 were all papers that were presented at the symposium

1 going to be included as chapters in the book?

2 A. Yes, but with different authorship on at

3 least one.

4 Q. With regard to the vegetation section, what

5 were the papers to the best of your recollection that

6 were presented at the symposium along with the

7 authors of those papers?

8 A. There was a paper on the determinants of

9 vegetation community composition. There was a paper

10 on vegetation change at the landscape level, large

11 scale level. There was paper on sensitivity of

12 vegetation to phosphorus inputs. There was a paper

13 on spread of melaleuca. There was a synthesis paper

14 by Peter White.

15 As I recall, those were the five vegetation

16 papers.

17 Q. Do you recall whether or not any of the

18 planning papers from the planning section dealt with

19 planning impacts on vegetation?

20 A. Curtis Richardson's paper touched on that,

21 but that wasn't the main topic of his paper.

22 Q. DiBRITISH of the five papers you have

23 referenced in relation to the vegetation section deal

24 with in any aspect the planning impacts upon

25 vegetation changes?

1 A. Well --

2 MR. NETTLETON: Object to form.

3 THE WITNESS: They all did in one way or

4 another because every paper was looking at

5 management implications and changes in, the

6 results of changes in the system as a result of

7 management and planning. So every paper in the

8 symposium did in one way or another.

9 BY MR. KOBELINSKI:

10 Q. Okay. If we could just briefly run through

11 the five papers you've mentioned and if you could

12 provide me with the author or authors of the paper.

13 The first one mentioned was determinants of

14 vegetative community composition.

15 A. Lance Gunderson.

16 Q. Was he the sole author of that paper?

17 A. Yes.

18 Q. Vegetation change on large scale?

19 A. There were five authors: Myself, Lance

20 Gunderson, Winnie Park, John Richardson and Jennifer

21 Mattson.

22 Q. Sensitivity of vegetation to phosphorus

23 inputs?

24 A. That was myself.

25 Q. Any co-authors?

1 A. No.

2 Q. The study of melaleuca?

3 A. Ronald Hoffstetter.

4 Q. And I believe you had stated that the

5 synthesis paper was done by Peter White; is that

6 correct?

7 A. Yes.

8 Q. Okay. With regard to the wildlife section,

9 if you could go through to the best of your

10 recollection the papers that were presented in that

11 section.

12 A. There was a paper on the ecology of small

13 fish populations, a paper on snail kite, on the

14 white-tailed deer, on the Florida panther and about

15 five waiting bird papers on various aspects of

16 feeding and nesting and population trends of waiting

17 birds.

18 Q. What about alligators?

19 A. And alligators.

20 Q. Was that a separate paper?

21 A. Yes.

22 I'm sure I'm missing some. Again, I don't

23 have the list in front of me and this was four years

24 ago.

25 Q. That's fine.

1 If you could, as you did for vegetation, go

2 through and provide to the best of your recollection

3 the authors.

4 The snail kite?

5 A. Robert Bennetts.

6 Q. The ecology of small fish?

7 A. Bill Loftus, L-o-f-t-u-s.

8 Q. White-tailed deer?

9 A. Marty Fleming.

10 I'm giving senior authors. Some of these

11 papers have several authors.

12 Q. Okay. Did Mr. Fleming also do the

13 alligator paper?

14 A. Yes.

15 Q. Florida panther?

16 A. Sonny Bass.

17 Q. And I believe the five waiting birds

18 Mr. Ogden has discussed in his deposition.

19 MR. KOBELINSKI: Why don't we take just a

20 quick break.

21 (Thereupon, a recess was taken from

22 10:00 a.m., until 10:10 a.m.)

23 BY MR. KOBELINSKI:

24 Q. Mr. Davis, with regard to the Everglades

25 symposium and the guidelines or the production of

1 guidelines for ecological restoration, diBRITISH

2 papers in the symposium that were presented at the

3 symposium deal with an attempt to characterize or

4 describe the natural Everglades prior to any

5 man-induced impacts on the system?

6 A. The paper on the hydrology model does that

7 from a hydrologic standpoint, the natural system

8 model.

9 Q. Would --

10 A. John Ogden's waiting bird paper looks at

11 estimates of past waiting bird populations.

12 My landscape paper looks at the extent of

13 the wetlands system before drainage and development

14 began and how it may have been divided into major

15 landscape types.

16 My paper on vegetation sensitivity to

17 phosphorus estimates very generally what phosphorus

18 inputs to the system may have been before

19 development.

20 That's all I can think of. There may have

21 been more, but...

22 Q. Okay. With regard to Dr. Walters, did his

23 paper also address the natural system hydrology?

24 A. Yes, excuse me.

25 Q. And who did the paper on the District's NSM

1 model?

2 A. At that time Tom MacVicar was senior

3 author.

4 The authorship at this point is up in the

5 air. They haven't -- there's no, there's no conflict

6 about it, but it just hasn't been decided yet whether

7 it'll be Bob Johnson or Tom MacViar.

8 Q. Have you retained a copy of the 25,

9 approximately 25 chapters that have been submitted to

10 the publisher?

11 A. Yes.

12 Q. Do you also have a copy of the peer reviews

13 on the 25 chapters that have already been submitted?

14 A. Yes.

15 Q. Would the peer review copies that you have,

16 would you be able to identify the peer referee?

17 A. Yes.

18 Q. With regard to the seven or eight papers

19 that have yet to be submitted, do you already have

20 the peer reviews on those papers?

21 A. We do have peer reviews on the two

22 hydrology papers from more than a year ago. We have

23 peer reviews on Marty Fleming's papers. And for

24 synthesis papers, the Editorial Board is acting as

25 reviewer, and they are reviewing two of those papers

1 at this time. Haven't received all the comments

2 back. And there's two yet to be submitted.

3 Q. Are these papers and peer reviews, are

4 these District documents?

5 A. No.

6 Q. Are they your private papers?

7 A. Yes.

8 Q. Looking back at your resume' for a moment,

9 as the initial entry for August of 1992 to present it

10 states, "Senior," which I believe you've corrected to

11 supervising professional, "ecologist, Planning

12 Department, South Florida Water Management District.

13 My primary responsibility for six months is senior

14 editor of the Everglades book as a basis of

15 understanding our ecosystem restoration and

16 management."

17 Is your work as editor part of your

18 employment responsibilities at the District?

19 A. I was assigned this project for six months,

20 yes.

21 Q. All right. Where do you retain the copies

22 of the prior chapters that had been submitted and the

23 peer reviews of those chapters physically?

24 A. I believe they are at my home.

25 Q. Okay. Are you aware who else has copies of

1 those chapters and peer reviews?

2 A. John Ogden has some of them.

3 Q. Okay. To your knowledge, are you the only

4 individual that has all of them?

5 A. Yes.

6 Q. Do you consider those chapters and peer

7 reviews of those chapters confidential in any

8 fashion?

9 MR. NETTLETON: Object to the form.

10 Compound question.

11 You can answer.

12 THE WITNESS: Yes.

13 BY MR. KOBELINSKI:

14 Q. Do you consider the copies of the chapters

15 that have been submitted to the publisher as

16 confidential?

17 A. We've already submitted those in the

18 production process for the litigation. But other

19 than that, they are confidential. We don't have the

20 authorization of authors to distribute those before

21 publication.

22 Q. Okay.

23 A. Most of the authors are not employees of

24 either the Park or the District.

25 Q. And when you say you've produced those in

1 the litigation, I believe you're talking about these

2 administrative proceedings?

3 A. I think so.

4 Q. Okay. And are you referring to all 33

5 chapters that have been submitted in final form to

6 the publisher?

7 A. Whatever state they were in at the time the

8 production was made.

9 Q. And are you referring to the original

10 production made last year?

11 A. I think so.

12 Q. Okay. I believe you had stated that you

13 had started submitting the final papers or chapters

14 to the publisher approximately three or four weeks

15 ago; is that correct?

16 A. Yes.

17 Q. Do you recall what state the chapters of

18 the book were at the time of the District's

19 production in the administrative proceedings?

20 A. It varied from chapter to chapter. Some

21 were, some have changed very little. Some have had

22 major revision after, after the referee reviews.

23 Just -- and then there's a final editing that I go

24 through just the day or so before they go to the

25 publisher. So it would be in all states.

1 A year ago they were mostly nonrevised.

2 Q. When did the papers start going through the

3 peer review process?

4 A. Oh, they started maybe two years ago. It's

5 taken a long time for some of them. It's hard to get

6 reviews back.

7 Q. With regard to the production of documents

8 that was made by the District that you referred to,

9 were the peer reviews for all the various chapters

10 that you had at the time produced?

11 A. No.

12 Q. Okay. Do you consider peer reviews

13 confidential?

14 A. Yes, because they would identify the

15 reviewers which I consider confidential.

16 Q. Okay. Are the review comments themselves

17 confidential or is it just the confidentiality of the

18 identity of the reviewer?

19 A. Well, we don't have authorization of the

20 reviewers to distribute their comments. And that's,

21 to my knowledge that's never done in the scientific

22 field in journals or anything. Reviewers and their

23 comments remain confidential. They only go to the

24 authors and editors. That's general scientific

25 practice.

1 Q. What's the purpose of not disclosing the

2 name of a peer referee to the author?

3 A. It allows the referee to be as rigorous as

4 he can be without any possible repercussions from the

5 author.

6 Science people in the same field often know

7 each other, work together, have to continue working

8 together.

9 It allows people to comment on papers of

10 people who they collaborate with without destroying

11 or damaging their professional relationship.

12 Q. Okay. Would disclosure of the comments

13 without disclosure of the name of the peer referee

14 have any impact upon that process?

15 A. I don't know.

16 Q. Okay. Are you generally familiar with the

17 witnesses who are listed by the District in this

18 administrative proceeding?

19 A. I haven't seen the list.

20 Q. Okay. Are you familiar with the witnesses

21 that are listed by the United States in this

22 proceeding?

23 A. I haven't seen any, any expert witness

24 list.

25 Q. Okay. Are you aware whether or not any of

1 the peer referees for the papers or the chapters in

2 the book that you're putting together are also

3 witnesses or expert witnesses?

4 A. Since I haven't seen the list, no.

5 Q. Are you familiar with all the peer referees

6 for the various papers?

7 A. What do you mean?

8 Q. In other words, if I brought a list of the

9 experts that have been listed by the parties and went

10 through that list, would you be able to identify

11 whether they are a referee or not?

12 A. I don't know the names of all the referees

13 or I don't have them in my memory. I have some.

14 Q. Okay. Who are the referees that you are

15 currently aware?

16 MR. NETTLETON: I'll object and instruct

17 him he does not need to answer that question as

18 he's already testified that's considered

19 confidential information.

20 BY MR. KOBELINSKI:

21 Q. Do you consider the pool of referees used

22 without identifying what papers were reviewed as

23 confidential information?

24 A. Yes.

25 Q. Do you recall whether or not any of the

1 referees were employees of a federal department,

2 agency or otherwise affiliated with the federal

3 government?

4 MR. NETTLETON: I'm going to object to this

5 line of questioning in that your questioning is

6 obviously trying to narrow the pool, if you

7 will, of who the referees are and he's already

8 testified that their identity is considered

9 confidential, and on that grounds I'll instruct

10 him that he does not need to answer.

11 MR. KOBELINSKI: Your instruction not to

12 answer as to whether or not any of them are

13 federal employees which is narrowing it down to

14 probably several million people?

15 MR. NETTLETON: Well, he can answer if he

16 feels it will not affect the confidentiality.

17 I'll leave it at that.

18 THE WITNESS: There were some referees who

19 worked for the government, yes.

20 BY MR. KOBELINSKI:

21 Q. Were there any referees that worked for the

22 state, Florida state government or any of its

23 agencies, districts or departments?

24 A. Yes.

25 Q. Will the referees be listed in the

1 publication?

2 A. We're still discussing that with the

3 publisher as to whether we should do that or not.

4 Q. Is that a normal practice?

5 A. I wouldn't say it's normal. It's sometimes

6 done and sometimes not done.

7 If we were to do it, I'd want to get the

8 individual permission of all referees before we did

9 it.

10 Q. Do you know who the referee was for your

11 two vegetative papers?

12 A. Yes.

13 Q. Okay. And who were those referees?

14 MR. NETTLETON: I'll object again and

15 instruct him he need not answer unless he feels

16 that that would not be revealing the

17 confidentiality.

18 THE WITNESS: I don't have a problem with

19 that 'cause they both let me know who they were

20 at the time.

21 For the phosphorus paper, Dr. James Grace

22 and Dr. Kerry Steward.

23 For the landscape paper, Dr. Taylor

24 Alexander and Dr. Dan Austin.

25 I think those were the ones that submitted

1 comments back.

2 BY MR. KOBELINSKI:

3 Q. Okay. Don't scientific journals typically

4 list referees each year?

5 A. Most of them do -- or some do, but it's a

6 very long list that would be very difficult for an

7 author to pick out the referee that reviewed his

8 paper.

9 In this case because we're only dealing

10 with 35 papers, it would be, it would be much easier

11 for an author knowing the people who had expertise in

12 his field to, to figure out who the referee was.

13 That's why if we do publish a list, it would only be

14 with the referees' permission.

15 Q. Approximately how many referees were used?

16 A. Well, two to three a paper, at least two

17 and usually three per paper, often three per paper.

18 So it would be about -- there were some that refereed

19 more than one paper. So probably 60, 70. I don't

20 know for sure.

21 Q. Have you produced the referees' comments on

22 your two papers?

23 A. No.

24 Q. Do you still consider those confidential?

25 A. I don't consider the referees' names

1 confidential because I've told you those. But as far

2 as their comments, I don't believe I have the

3 authority from them to distribute their comments

4 without their permission.

5 Q. Did you seek or ask their permission as to

6 whether or not you could disclose their comments?

7 A. No.

8 Q. Did you seek permission from the authors of

9 the papers prior to your producing the drafts that

10 were produced by the District in the original

11 production?

12 A. We discussed it and voted on it at an

13 Editorial Board meeting, and based on that -- the

14 Editorial Board has contact with virtually all the

15 authors on a working basis -- and went back and

16 verbally notified them what we were doing before we

17 did the distribution, so...

18 MR. KOBELINSKI: Could you read back that

19 last portion of that? I didn't catch that.

20 (Thereupon, a portion of the record

21 was read by the reporter.)

22 BY MR. KOBELINSKI:

23 Q. Were all the authors then contacted prior

24 to the distribution?

25 A. I believe so.

1 Q. Would this book be considered a research

2 journal?

3 A. No.

4 Q. Would it be considered a secondary source?

5 A. I don't know what that means.

6 Q. Okay. Why wouldn't it be considered a

7 research journal?

8 A. Well, a journal's a periodical that comes

9 out from year to year and a number of issues per

10 year.

11 This is a one-, a one-time project.

12 Q. Are the chapters overall a discussion or

13 summary of research that was undertaken for the

14 purpose of the book?

15 A. The research was not undertaken for the

16 purpose of the book.

17 Q. Are the papers essentially dealing with,

18 you know, a report as to research or are they more in

19 the fashion of, for instance, a literature search?

20 A. They are both. Each paper summarizes

21 existing information in its field and then adds new

22 unpublished information.

23 Q. That the authors themselves have tested and

24 reviewed?

25 A. Yes.

1 MR. KOBELINSKI: Paul, are you claiming the

2 peer review comments on Mr. Davis' phosphorus

3 paper and landscape paper as confidential?

4 MR. NETTLETON: Well, if he says they are

5 not confidential, then they are not. I'm not

6 claiming --

7 MR. KOBELINSKI: They haven't been produced

8 to us.

9 MR. NETTLETON: Well, if they are called

10 for in the requests -- I don't have the notice

11 in front of me. If you want to point out where

12 they would fall under and if they are called for

13 in that, if you'd just send me a note to remind

14 me after the deposition, we'll produce them.

15 I believe he testified he did not consider

16 them confidential.

17 Is that right?

18 THE WITNESS: I said the names were, I

19 didn't feel the names were confidential --

20 MR. NETTLETON: But the comments might be?

21 THE WITNESS: -- but I would want to

22 contact the reviewers and let them know I was

23 using their comments for something other than

24 what they intended them to be used for.

25 MR. NETTLETON: All right. From that then,

1 my understanding is he does still consider them

2 confidential, so we would object to their

3 production on that ground absent permission from

4 the reviewers themselves.

5 MR. KOBELINSKI: And what would be the

6 legal basis for your claim of confidentiality or

7 privilege other than the witness' belief that

8 they are confidential?

9 MR. NETTLETON: Academic privilege as well

10 as any potentially -- I don't know if there's

11 copyrights involved or anything if these are

12 specific comments of specific authors or other

13 reviewers who are looking at it who consider

14 their comments their own work product who would

15 not want them released.

16 The same objections that we've heard from

17 some of your people.

18 BY MR. KOBELINSKI:

19 Q. Is this an academic -- are these chapters

20 put out by universities?

21 A. Some of the contributors, many of the

22 contributors are with universities, yes.

23 Q. Are they being put out as a product by the

24 university?

25 A. No.

1 Q. Are these rather then just personal

2 projects or papers presented by individuals, some of

3 which happen to be affiliated with universities?

4 A. Well, that's the way most university

5 publications -- publications by university faculty,

6 they submit them to journals or symposia.

7 I don't understand your question.

8 Q. Were any of the papers funded through the

9 university or by the university, to your knowledge?

10 A. No.

11 Q. With regard to the documents that were

12 produced related to your research, you have produced

13 peer review comments on some of your papers that you

14 have done in the past.

15 Were those confidential?

16 MR. NETTLETON: I'd object to the form.

17 THE WITNESS: I don't know in that case

18 'cause I don't know the journal policies toward,

19 of individual journals toward confidentiality of

20 reviewers. I know their names aren't given out.

21 In fact, I don't even have the names of the

22 reviewers of those papers.

23 In reality, that was, you know, when they

24 came and took file drawer after file drawer, I

25 didn't even know they were in there, so...

1 BY MR. KOBELINSKI:

2 Q. Did you contact any of the peer reviewers

3 or the journal to seek any type of permission to

4 produce those peer comments?

5 MR. NETTLETON: Object to the form.

6 THE WITNESS: No. As I said, I wasn't even

7 aware they were in the file being produced.

8 BY MR. KOBELINSKI:

9 Q. Do you still consider them confidential?

10 MR. NETTLETON: Object to the form.

11 THE WITNESS: I don't know. As I said, it

12 would depend on the policy of the particular

13 journal, which I don't know.

14 BY MR. KOBELINSKI:

15 Q. When you say it's determined by the policy

16 of the journal, is the policy of confidentiality

17 you're referring to with regard to the chapters of

18 this Everglades book being specified by the St. Lucie

19 Press?

20 A. No.

21 Q. Okay. Who is setting up this policy of

22 confidentiality?

23 A. The Editorial Board and John Ogden and

24 myself. In our letters to referees requesting their

25 comments we specified they would be kept

1 confidential.

2 Q. Do you know whether or not Mark Maffei is a

3 peer reviewer for any of the papers?

4 A. I don't believe he is, not that I can

5 recall.

6 Q. Okay.

7 A. Again, I don't remember all, all the

8 reviewers, not that -- I can't think of a paper that

9 he reviewed.

10 Q. Mr. Davis, do you recall if you've ever

11 been qualified as an expert witness before?

12 MR. NETTLETON: Object to the form of the

13 question.

14 THE WITNESS: I don't think so.

15 BY MR. KOBELINSKI:

16 Q. Okay. You'd stated you'd only been deposed

17 once previously.

18 Have you ever testified other than at a

19 deposition?

20 A. No.

21 Q. Have you ever testified at all in any type

22 of administrative hearing?

23 A. No.

24 Q. Mr. Davis, the District specified as the

25 subject matter for your expected expert testimony

1 historical trends in distribution of cattail in

2 WCA's, response of cattail to nutrient enrichment,

3 and shifts in composition of cattail and sawgrass

4 communities.

5 To the best of your knowledge is that going

6 to be the subject matter of your expert testimony?

7 A. I guess so.

8 Q. Have you ever discussed with anyone at the

9 District what your expert testimony will be?

10 A. I've been told that they listed those three

11 areas.

12 Q. Do you know if there are any additional

13 areas you'll be providing expert testimony on?

14 A. I don't know.

15 Q. Have they discussed with you any additional

16 areas other than those three that we just mentioned?

17 MR. NETTLETON: Object to the form.

18 THE WITNESS: We've discussed my general

19 involvement in all sort of Everglades issues,

20 but no one's told me that I've been listed to

21 testify in areas other than the three that you

22 mentioned.

23 MR. KOBELINSKI: Can we take a five-minute

24 break?

25 THE WITNESS: Sure.

1 (Thereupon, a recess was taken from

2 10:40 a.m., until 10:45 a.m.)

3 BY MR. KOBELINSKI:

4 Q. Mr. Davis, going back for a moment, who

5 made the decision not to include the Richardson paper

6 in the final book?

7 A. All the referees for that paper indicated

8 that his conclusions weren't supported by his data,

9 and on that basis I as editor, I wrote the response

10 saying, "This paper was not accepted."

11 Q. Was he initially then invited to submit a

12 paper as a chapter for the book?

13 A. Yes.

14 Q. And at what point was it determined that

15 his paper would not be included as a chapter?

16 A. After referee review.

17 Q. Approximately what time?

18 A. Gee, I don't remember. Sometime at least a

19 year ago.

20 Q. Sometime during 1992?

21 A. I'm not really sure. '91, '92.

22 Q. Who were the peer referees for the

23 Richardson paper?

24 A. I view that as confidential.

25 Q. Okay. Were they disclosed to Curtis

1 Richardson?

2 A. No.

3 Q. Okay. Were the peer comments disclosed to

4 Dr. Richardson?

5 A. Yes.

6 Q. Did you discuss the peer comments with

7 Dr. Richardson?

8 A. Only in the letter that I sent him.

9 Q. What results of Dr. Richardson's paper were

10 not supported by data?

11 A. He drew conclusions on water quality in the

12 conservation areas based on -- again, this is a

13 couple years ago -- as I recall, only one or two

14 sample dates which doesn't give you any indication of

15 water quality in the conservation areas.

16 There's a lot of variability. You have to

17 sample for long time periods to get an indication of

18 water quality.

19 He attempted to run a transect from the top

20 of Conservation Area 1 down to the bottom of

21 Conservation Area 3 in terms of looking at gradients

22 of water quality without accounting for inputs along

23 the way from various pump stations.

24 His soil data was based on only one

25 sampling date which again doesn't take into account

1 temporal variability or variability over time.

2 I'm just remembering from a year or so ago.

3 I haven't reviewed this in a long time.

4 Then I had one problem in that when we had,

5 in addition to the reviewers, when we'd asked Curt to

6 submit a paper both at the symposium and for the

7 volume, we'd asked him to review, specifically to

8 review the technology for nutrient removal systems

9 and to comment on their applicability or

10 nonapplicability to the Everglades problem, and he

11 didn't do that at all. He didn't even address that.

12 And so -- and we did this with everyone.

13 We asked, everyone we invited to participate, we

14 asked them to write on a topic.

15 Some of the people who did not participate

16 did so because they didn't want to write on that

17 topic or -- but Curt participated but didn't write on

18 the topic we asked him to.

19 Q. After the symposium was he invited to

20 present a paper for possible inclusion as a chapter

21 in the book?

22 A. Yes, that's what we've been talking about

23 in terms of the referee process.

24 Q. At that time did you have a discussion with

25 him and notify him that his presentation at the

1 symposium did not cover the areas that would be

2 required to be covered in his chapter of the book?

3 A. I had a verbal conversation with Curt

4 saying that we needed him to focus his paper on what

5 we felt we needed in the book. I felt he was very

6 qualified to do that. And he said that he would, but

7 then he didn't.

8 But even so, we sent his paper out for peer

9 review at that point, and the reviewers rejected it

10 based on the paper that he submitted, not on what I

11 wanted.

12 Q. Were any of the reviewers of

13 Dr. Richardson's papers ever government or state

14 employees as we've described before?

15 A. I feel because of the confidentiality of,

16 the request of the reviewers in this case to remain

17 confidential, that I would view, I would view that as

18 confidential.

19 Q. The fact that they are an employee of the

20 government?

21 MR. NETTLETON: Object to the form.

22 THE WITNESS: Or not.

23 BY MR. KOBELINSKI:

24 Q. Without disclosing names, you don't feel

25 comfortable identifying whether any of the peer

1 reviewers were an employee of the federal government.

2 A. I don't feel comfortable with that in this

3 case because I know for certain that the reviewers

4 asked to remain confidential.

5 Q. Who selected the reviewers for the

6 Richardson paper?

7 A. The same process we used for other papers.

8 We had an Editorial Board meeting shortly after the

9 symposium. We listed a number of reviewers for all

10 the various possible subject matters in the

11 symposium, and the names that we used were the names

12 that came from that meeting.

13 Q. With regard to Dr. Richardson's paper, who

14 made the determination of who from that list would

15 provide the review?

16 A. There were only a couple on that list

17 that -- I mean, we went, at the Editorial Board

18 meeting we went down the list of papers and suggested

19 reviewers for papers, and so there were only a couple

20 that were appropriate for his paper from that list.

21 Q. Did Curtis Richardson provide any peer

22 reviews for any of the chapters of the book?

23 A. I don't believe so.

24 Q. Okay. Was Louis Ajamil a peer review

25 referee for -- excuse me, a peer referee for any of

1 the chapters in the book?

2 A. I think that would breach the

3 confidentiality I feel I have to have towards

4 reviewers.

5 Q. Let me do this. I'm going to list for you

6 all of the witnesses that have been listed by the

7 District. I'll read them out to you at the end of

8 which I'm going to go ahead and ask whether any of

9 them, without identifying who of the approximate 43

10 witnesses, whether any of them were peer referees,

11 all right?

12 MR. NETTLETON: I don't know if we can

13 speed this process along, since we're going to

14 object and he's going to claim it's

15 confidential, if you just want to identify the

16 witness list and the record will be supported by

17 it at this point.

18 BY MR. KOBELINSKI:

19 Q. Would you have a problem answering the

20 question whether any of these, and, again, not with

21 answering specifically as to whether one or the other

22 or more than one, would you have a problem with

23 testifying as to whether any of these were peer

24 referees?

25 A. I need to think about that for a minute.

1 Can I take a break?

2 Q. Sure.

3 (Thereupon, a recess was taken from

4 10:55 a.m., until 10:56 a.m.)

5 THE WITNESS: What I suggest is that if you

6 read me the list and I don't feel that it's

7 breaching a confidentiality, I'll be happy to

8 answer your question.

9 BY MR. KOBELINSKI:

10 Q. All right. These are witnesses listed by

11 the South Florida Water Management District on

12 October 26th, 1992. I will not even differentiate

13 between fact or expert witnesses for you.

14 Louis Ajamil, Ronald Bearzotti, Robert

15 Brown, Anthony Federico, Archie Grant, Guy Germain,

16 Gary Goforth, J. B. Jackson, Zan Kugler, Alexander

17 Perez, Peter Rhoads, Paul Whalen, Wossenu Abtew,

18 Nicholas Aumen, Arthur Benke, Adelbert Bottcher,

19 Steve Davis, Bill Dendy, Eric Flaig, Thomas Fontaine,

20 Zack Fuller, Donald Gatz, Wendell Gilliam, Herbert

21 Grimshaw, John Jensen, Grace Johns, Lawrence Keith,

22 Nagendra Khanal, Marguerite Koch, Joseph Koebel,

23 Thomas MacVicar, Irving Mendelssohn, Galen Miller,

24 Ronald Mireau, Jayantha Obeysekera, K. R. Reddy,

25 Douglas Robson, Morris Rosen, George Shih, Dave

1 Swift, Jose Vidal, Robert Wetzel, Carl Woehlcke. And

2 I'm not sure if I had the pronunciation

3 exactly correct on all of those.

4 My question to you, sir, would be whether

5 or not any of those individuals that I had just

6 listed served as peer referees for any of the papers

7 or chapters of the book?

8 A. Yes.

9 Q. Okay. And just for the sake of

10 clarification, I would exclude your name from that

11 list and ask the same question so this way you're not

12 referring to yourself.

13 A. Yes.

14 Q. I'm going to do the same. I'll be reading

15 you a list of witnesses, and this list is by the

16 United States Government. I will just again rapidly

17 go through and read off this list and be posing the

18 same question to you.

19 Richard Bonner, John Burt, Martin Fleming,

20 Delbert Hicks, Lewis Hornung, Robert Johnson, Lonnie

21 Jones, Ronald Jones, Robert Kadlec, Ronald Lacewell,

22 Guy Lanza, David Lean, Mark Maffei, Burkett Neely,

23 Teofilo Ozuna, Paul Parks, Ronald Raschke, Dick Ring,

24 Dan Scheidt, Ronald Smola, Mike Soukup, James Vearil,

25 William Walker.

1 I believe that is the list, but I would add

2 to that the following names: Lonnie Jones, Ronald

3 Lacewell, Teofilo Ozuna, William Boggess, Daniel

4 Bromely, Bruce Gardner, and that would complete the

5 list.

6 Were any of those individuals, diBRITISH of

7 them serve as peer referees for any of the chapters

8 of the book?

9 A. Yes.

10 Q. Finally, sir, I will read off a list of

11 witnesses that were designated by the Department of

12 Environmental Regulation of Florida. Barton Bibler --

13 MR. KOBELINSKI: One moment. Take a quick

14 break.

15 (Discussion held off the record.)

16 BY MR. KOBELINSKI:

17 Q. Let me go through this list very quickly.

18 Barton Bibler, Doug Fry, Russel Frydenborg, Richard

19 Harvey, Wayne Magley, Peggy Mathews, Frank Nearhoof,

20 Landon Ross, Marlene Stern, Tom Swihart.

21 DiBRITISH of those individuals serve as

22 peer referees for any of the chapters of the book?

23 A. Not that I recall.

24 Q. Okay. And, finally, a list of witnesses

25 that were listed by the Florida Audubon Society,

1 Sierra Club and Florida Wildlife Federation.

2 Paul Parks, Charles Lee, James Webb, Craig

3 Diamond, Manley Fuller, Thomas Weis, Nat Reed.

4 DiBRITISH of those individuals serve as

5 peer referees for any of the chapters of the book?

6 A. No.

7 Q. In making determinations as to who would

8 serve as a referee for the various chapters of the

9 book, did the Editorial Board take into consideration

10 the fact that some of these witnesses were being paid

11 as experts with regard to the very issues they were

12 reviewing in the papers?

13 MR. NETTLETON: Object to the form.

14 THE WITNESS: Back when this list was made

15 we didn't have any idea who the expert witnesses

16 were. I don't even think they'd been

17 designated.

18 BY MR. KOBELINSKI:

19 Q. Okay. Did the Editorial Board take into

20 consideration that any of these witnesses -- excuse

21 me, not witnesses -- peer referees had already been

22 retained as expert consultants on the --

23 A. I don't even believe --

24 Q. -- very issues?

25 A. -- they had at that time, not to my

1 knowledge. If they did, if they were, no one knew

2 it.

3 Q. If you would, a lot of times the question

4 midway through is fairly obvious and you start

5 responding.

6 A. I'm sorry.

7 Q. She has great difficulty --

8 A. Oh.

9 Q. -- because she has to take down both mine

10 and yours.

11 To keep the transcript a little clearer, if

12 you could just wait.

13 A. Okay.

14 Q. And I appreciate sometimes it's obvious

15 where the question is heading.

16 A. Okay.

17 Q. Are you aware whether any of the peer

18 referees were designated as experts in the federal

19 litigation between the United States and the South

20 Florida Water Management District?

21 A. Yes.

22 Q. Was that taken into consideration in

23 deciding whether a referee should review a particular

24 issue upon which he had been retained as an expert?

25 A. No, because, as I said before, the same

1 thing applies, we did not know those lists or if they

2 had been made up when we made a referee list.

3 Q. When the referee decisions were made for

4 the various chapters as opposed to just the original

5 list of potential peer referees, did you have

6 knowledge as to who the expert witnesses were in the

7 federal litigation?

8 A. No.

9 Q. Okay. Was that taken into consideration at

10 all in deciding who should be a referee?

11 A. No.

12 Q. Likewise, when referees were decided for

13 the various chapters of the book in the past year --

14 well, let me withdraw that.

15 Have any determinations or decisions as to

16 peer referees been made within the last year?

17 A. I believe so for late papers.

18 Q. Okay. And in making the determination as

19 to who the referees for those late papers would be,

20 did the Editorial Board take into consideration the

21 fact that there already were experts who were

22 retained and designated for the Everglades SWIM

23 Challenge proceedings?

24 MR. NETTLETON: Object to the form.

25 THE WITNESS: No.

1 BY MR. KOBELINSKI:

2 Q. Okay. Did the Editorial Board ever review

3 the peer process at any time once it had been

4 determined that some of the peer referees were

5 retained as experts on the very issues they were

6 providing peer reviews on?

7 MR. NETTLETON: Object to form.

8 THE WITNESS: The Editorial Board reviewed

9 the peer process where we had real problems with

10 certain papers where they were borderline

11 rejection or acceptance in terms of whether we

12 were going to accept or reject a paper, but none

13 of that was in consideration of any of the

14 expert witnesses or the process that you've been

15 talking about concerning expert witness lists.

16 BY MR. KOBELINSKI:

17 Q. When was the Richardson paper declined?

18 A. Probably sometime in 1991. I'm not really

19 sure. Might have been 1990.

20 Q. Were any of the peer referees for the

21 Richardson paper included in the various lists I just

22 read out?

23 A. I feel that would be breaching their

24 confidentiality.

25 Q. By the way, when did you want to break for

1 lunch? Was there a particular time or is --

2 A. No, no, just any particular time that's

3 good for you.

4 Oh, from now till perhaps five.

5 Q. I'm sure that will be seconded by others.

6 With whom have you discussed your expert

7 testimony?

8 A. Well, with you (indicating Mr. Nettleton)

9 and with Jackie Waters.

10 Q. Okay. The "you" that you initially

11 referred to, would that be Paul Nettleton?

12 A. Yes, yes.

13 THE WITNESS: Excuse me, Paul.

14 BY MR. KOBELINSKI:

15 Q. Have you discussed your expert testimony

16 with anyone else?

17 A. Jim Grimshaw, Morris Rosen and there's one

18 other attorney present. I don't know -- I forget his

19 name. I guess he was an attorney.

20 MR. NETTLETON: Um-hum.

21 THE WITNESS: But I don't remember his

22 name.

23 BY MR. KOBELINSKI:

24 Q. So you referred to "his." I assume it's a

25 man.

1 A. Yes.

2 MR. NETTLETON: His name was Patrick

3 Cousins, if you'd like that.

4 MR. KOBELINSKI: Neither like or dislike.

5 I don't know that I've met him.

6 BY MR. KOBELINSKI:

7 Q. Do you recall when you had your discussions

8 about your expert testimony with -- is it Mr. or

9 Dr. Grimshaw?

10 A. Dr.

11 Q. -- with Dr. Grimshaw?

12 A. I had two meetings. One was a couple of

13 months ago, I don't remember the date, and one was

14 last week.

15 Q. And was it Dr. or Mr. Rosen?

16 A. Mr.

17 Q. When have you discussed your expert

18 testimony with Mr. Rosen?

19 A. At the meeting last week.

20 Q. Who attended the meeting last week?

21 A. I believe Morris Rosen was there. I'm

22 thinking back. I think Morris was there, Jim

23 Grimshaw was there, Paul was there, and the attorney

24 that he mentioned was there.

25 Q. With regard to the meeting you had with

1 Dr. Grimshaw a couple of months ago, who was present

2 at that meeting?

3 A. Paul and Jim Grimshaw. I honestly don't

4 remember if there was anyone else there or not. I

5 know the two of them were there. I think it was just

6 the two of them.

7 Q. Have you ever discussed your testimony with

8 any of the attorneys for the United States or the

9 Department of Justice?

10 A. No.

11 Q. Have you ever discussed your testimony with

12 any of the attorneys for the Department of

13 Environmental Regulation?

14 A. No.

15 Q. Have you ever discussed your testimony with

16 any other individuals other than Mr. Rosen and

17 Dr. Grimshaw, other than the attorneys?

18 A. No.

19 ...............INDEXED-QUESTION.....

20 Q. Okay. Mr. Davis, I'm going to repeat my

21 prior question with regard to whether any of the

22 witnesses I had previously listed for you by the

23 District, United States and the DER and the other

24 intervenors, whether any of them were the peer review

25 referees for Dr. Richardson's paper.

1 ...............INDEXED ANSWER.....

2 A. I feel that would be breaching the

3 confidentiality of the reviewers.

4 MR. KOBELINSKI: Okay. Are you instructing

5 your witness not to respond to that question?

6 MR. NETTLETON: I'm instructing him he need

7 not respond to it.

8 MR. KOBELINSKI: And the basis for that

9 instruction is?

10 MR. NETTLETON: Same as what we discussed

11 before.

12 MR. KOBELINSKI: Academic?

13 MR. NETTLETON: It's already in the record.

14 I'm not going to debate it here.

15 MR. KOBELINSKI: Okay. Do you have a basis

16 for an academic objection?

17 MR. NETTLETON: I'm not going to discuss it

18 with you, Mark. You can raise it in front of

19 the hearing officer.

20 MR. KOBELINSKI: I have to make my record,

21 so I have to understand what your privilege is.

22 MR. NETTLETON: It was discussed previously

23 on the record.

24 MR. KOBELINSKI: We didn't have a

25 discussion as to this particular one witness.

1 MR. NETTLETON: It's the same objection.

2 MR. KOBELINSKI: And that would include

3 then the academic privilege.

4 MR. NETTLETON: Sorry. I didn't understand

5 your question to me.

6 MR. KOBELINSKI: That's quite all right.

7 You're not under oath.

8 MR. GREEN: Excuse me. Would you certify

9 that question, please, and answer?

10 THE COURT REPORTER: Yes, sir.

11 MR. NETTLETON: I don't think that's

12 necessary.

13 MR. GREEN: It sounds formal.

14 Just mark it, please.

15 THE COURT REPORTER: Yes, sir.

16 BY MR. KOBELINSKI:

17 Q. Mr. Davis, have you reached your final

18 expert opinions on the three areas we've discussed

19 previously?

20 A. I believe so.

21 Q. Are you currently conducting any type of

22 research in the areas of your expert testimony?

23 A. No.

24 Q. Is anyone underneath you, and by that I

25 mean anyone within your department, conducting any

1 research in the areas of your expert testimony?

2 A. No.

3 Q. Do you intend to rely upon any ongoing

4 research at this point in time as a basis for your

5 expert testimony?

6 A. I guess I need to know what you mean by

7 "ongoing."

8 Q. Well, is there any research that is

9 currently ongoing at this time or is planned and has

10 not yet been completed or the data has already been

11 collected but has not as yet been analyzed and

12 processed, anything along those lines that you intend

13 to rely upon?

14 MR. NETTLETON: That he's aware of is what

15 you're asking.

16 MR. KOBELINSKI: Yes.

17 THE WITNESS: Not that I'm aware of.

18 BY MR. KOBELINSKI:

19 Q. Okay. And would your response change if I

20 said whether or not there's any ongoing research that

21 you may rely upon?

22 A. No, it wouldn't change.

23 Q. All right. With the first subject matter

24 that is listed by the District, the historical trends

25 in distribution of cattail in water conservation

1 areas, I believe you have stated you have reached a

2 final opinion, expert opinion as to that; is that

3 correct?

4 A. Yes, that's correct.

5 Q. Okay. Is there a document that accurately

6 reflects your expert opinion as to that subject?

7 A. Probably the best document would be the

8 paper on vegetation sensitivity to phosphorus in the

9 symposium volume that we've been discussing, although

10 a lot of my information on the subject is from

11 personal observation over a number of years. That's

12 not published anyplace.

13 Q. Is that one of the chapters that's already

14 been submitted to the editor?

15 A. Yes.

16 Q. And the exact title of that document would

17 be?

18 A. "Phosphorus Inputs And Vegetation

19 Sensitivity In The Everglades."

20 Q. Okay. What is your expert opinion as to

21 the historical trends in distribution of cattails in

22 water conservation areas?

23 A. Are you putting that in the past sense

24 entirely in terms of historical trends and historical

25 distribution and changes, is that how you're --

1 Q. Well --

2 A. -- or currently what's there in 1993?

3 Q. Let me put it this way. I'll once again

4 read to you the three areas that you're designated,

5 and you can perhaps explain, and I'll go through with

6 them with you, whether or not they are an adequate or

7 accurate description of your areas of expert

8 testimony.

9 A. You'll have to rephrase.

10 Q. The first is historical trends in

11 distribution of cattail in WCA's, the second is

12 response of cattail to nutrient enrichment, the third

13 is shifts in composition of cattail and sawgrass

14 communities.

15 A. So you want to know my opinion in each of

16 these categories, summary of my opinion?

17 Q. Yes.

18 A. Okay.

19 Q. Would those three, essentially those three

20 descriptions, would you agree that those are accurate

21 descriptions of the three subject matters or areas of

22 your testimony?

23 A. Yes.

24 Q. Okay. With regard to the first area,

25 historical trends in distribution of cattails in

1 WCA's, what is your opinion as to the historical

2 trends?

3 A. In the 1970s -- well, first of all, let me

4 say that my observations are mostly limited to

5 Conservation Area 2A.

6 In the 1970s the cattail distribution in 2A

7 extended about one mile below the northern border of

8 that area and very closely corresponded to the

9 airboat trail that we commonly called the north

10 trail, ending at that trail, a fairly sharp line of

11 cattails to the north of there and the normal

12 sawgrass marsh that you find in the Everglades to the

13 south.

14 Beginning in 1979 or early 1980 I began to

15 observe cattails south of that line in an area

16 extending approximately four miles south into the

17 marsh. Up into the mid Eighties could visually see

18 an increase in density in this area, although it

19 still remains a mixture of sawgrass and cattail.

20 Q. You said was that 1980s?

21 A. Into the mid 1980s. That's when I

22 essentially stopped my regular work, field research

23 in the conservation areas. And --

24 Q. And before you go on for a moment,

25 Mr. Davis, you said you saw an increase, general

1 increase in this area, and you have now described

2 essentially two areas, one being one mile south of

3 the S-10s which I believe you stated and the

4 north-south airboat trail and then a change where it

5 extends out to approximately four miles.

6 Were you referring to that entire four

7 miles or any particular segment of it?

8 A. Most of it.

9 We were out there at least every other

10 week, often every week either by airboat or

11 helicopter, so we could key the distribution into

12 airboat trails and fish camps in terms of our airboat

13 trips and then from the helicopter we get a broader

14 overview of the areas.

15 At that time it wasn't anything really

16 intentional we were looking for. It just became

17 obvious that there was a change occurring, being out

18 there weekly.

19 Q. Okay. Anything after the Eighties?

20 A. The only thing I've done since then was in

21 19-, I believe 1992 did an aerial reconnaissance of

22 cattail distribution for two days by helicopter in

23 the water conservation areas and the north end of the

24 park and produced a map of very generalized cattail

25 distributions in that area.

1 That map is in that paper that I referred

2 to, vegetation sensitivity to phosphorus.

3 MR. KOBELINSKI: Could you read that back

4 for a moment?

5 (Thereupon, a portion of the record

6 was read by the reporter.)

7 BY MR. KOBELINSKI:

8 Q. You mentioned the WCA's, and was that and

9 the north end of the park? I didn't quite understand

10 the distinction you were making.

11 A. Yes. From Water Conservation Area 1, 2

12 and 3 and then specifically the only place I looked

13 in the park was down the L-67 extension.

14 Q. Did you observe the area south of the S-12

15 structures?

16 A. No. Essentially stayed out of the park.

17 Looked along L-67 extension from outside the park.

18 That's the park boundary at that point. Because of

19 sensitivities at that time, I used my better

20 discretion.

21 Q. Who else was on you in that aerial

22 reconnaissance flight -- with you? Excuse me.

23 A. Ken Rutchey, one of our technicians Winnie

24 Park on one of the trips, and the pilot.

25 Q. What sensitivities were you referring to in

1 relation to the park?

2 A. The lawsuit.

3 Q. Are you referring to the federal lawsuit or

4 to the SWIM Challenge proceedings?

5 A. It was the federal lawsuit back then.

6 Q. Okay. When exactly was the aerial

7 reconnaissance?

8 A. I'd have to look in the paper. Again, that

9 was a couple of years ago. It was probably in 1991.

10 I believe it states in the paper when it was.

11 Q. And what specific areas were covered in the

12 aerial reconnaissance?

13 A. Conservation Areas 1, 2, 3 and the eastern

14 border of the park next to L-67 extension.

15 Q. And when you refer to Conservation Area 2,

16 is that 2 A and B?

17 A. Yes. And 3 is 3 A and B.

18 Q. Okay. Were a hundred percent of the

19 conservation areas covered?

20 A. Yes, we traversed the areas essentially on

21 a zigzag pattern, and where we did find major cattail

22 stands, then we timed distances to the borders of

23 those stands from known levees or pump stations using

24 the navigational equipment of the helicopter.

25 Q. You had stated that Ken Rutchey

1 participated in the aerial reconnaissance.

2 Did he participate in both days?

3 A. Yes.

4 Q. About how much time did you spend each day

5 in the helicopter up in the air?

6 A. Probably six hours.

7 Q. So a total of twelve hours?

8 A. Probably.

9 Q. Approximately?

10 A. Um-hum. As I said, it's a very generalized

11 map. We didn't try to hit every tiny cattail stand

12 in the conservation area.

13 Q. Had Ken Rutchey already done any type of

14 reconnaissance or otherwise been familiar with the

15 areas of cattail?

16 A. I believe at that time he was in the

17 initial stages of producing the vegetation map for

18 Conservation Area 2A.

19 Q. What about the other conservation areas?

20 A. I don't believe he was mapping those at

21 that time.

22 Q. What type of navigational equipment did the

23 helicopter have that you were using to time

24 distances?

25 A. We were using the coordinates for pump

1 stations which are in the helicopter's computer and

2 using compass directions from those coordinates and

3 timing distances using the helicopter's air speed and

4 a watch.

5 Q. Did the helicopter have a loran system?

6 A. Yes.

7 Q. Did you obtain loran coordinates for any of

8 the sites?

9 A. We just obtained loran coordinates for our

10 base points of structures and pump stations and

11 levees. We didn't obtain loran coordinates for the

12 borders out in the marsh of the cattail areas. To my

13 knowledge, loran's not that sophisticated.

14 It was a pretty simple procedure. It

15 wasn't very complex.

16 Q. Have you ever done any prior aerial

17 reconnaissance for vegetative mapping purposes?

18 A. In the other paper in the symposium volume

19 on landscapes we mapped vegetation in 25 one square

20 mile plots throughout the conservation areas in the

21 park that had been previously established and mapped

22 by Dr. Taylor Alexander back in the Sixties, and we

23 remapped his plots to look at vegetation change.

24 Q. Was that done through aerial

25 reconnaissance?

1 A. Yes.

2 Q. Okay. What type helicopter?

3 A. The same helicopter.

4 Q. Was it done during the same approximate

5 period?

6 A. That was done earlier, probably 1989.

7 Q. What purpose did you have of doing the

8 aerial reconnaissance of cattail spread in 1991?

9 A. It was strictly for this paper I was

10 working on for the symposium volume.

11 Q. Okay. Were any of the results from your

12 reconnaissance included in the SWIM Plan?

13 A. Not to my knowledge.

14 Q. I believe you stated that Ken Rutchey had

15 been doing some vegetative mapping.

16 A. Um-hum.

17 Q. Did he produce a separate cattail expansion

18 map or vegetative map?

19 A. He's produced a vegetation map of

20 Conservation Area 2A.

21 Q. Does it match the one that's included in

22 your paper that you've referred to that you prepared

23 as a result of the aerial reconnaissance?

24 A. Yes.

25 Q. Okay. With regard to the aerial

1 reconnaissance you did of the Alexander plots -- is

2 that correct?

3 A. Um-hum.

4 Q. -- how did you go about doing that

5 reconnaissance?

6 A. We had aerial photography of the areas

7 including these plots which through visual landmarks

8 of tree islands and sloughs we could find the plot

9 boundaries on the more recent aerial photographs

10 which were 1980-, between 1985 and 1989 more recent

11 photography, and then we went to each of these sites,

12 located the boundaries from the air, and simply noted

13 on an overlay, a plastic overlay over the aerial

14 photograph what the communities were at this time,

15 spending perhaps as much as a couple of hours on a

16 square mile plot to look at every cluster of

17 vegetation and identify it from the air in terms of

18 community.

19 Q. Approximately what height were you doing

20 aerial reconnaissance?

21 A. Whatever height we needed to to identify

22 the communities. Sometimes we'd have to go down to

23 the ground. Sometimes we could identify it as a

24 sawgrass stand from a hundred feet. It was a much

25 finer scale mapping than the entire conservation area

1 or the map that I indicated in the other publication.

2 Q. When you say you went down to the ground,

3 would you actually land the helicopter in your review

4 of the Alexander plots?

5 A. No, that wasn't necessary because you could

6 see the community type without landing the

7 helicopter.

8 Q. In that particular mapping did you include

9 mapping of the periphyton community?

10 A. No.

11 Q. Did you have any difficulty locating the

12 Alexander plots?

13 A. No. We had coordinates for them, so we

14 could get the helicopter pretty close to them and

15 then it was just looking for visual landmarks such as

16 major tree islands and zeroing in on them.

17 Q. Did you do any groundtruthing of the

18 vegetative makeup of the Alexander plots?

19 A. Well, that's considered to be

20 groundtruthing even if it's by helicopter. It's

21 going out, on-site verification.

22 Q. Do you do any other type of on-site

23 verification?

24 A. No.

25 Q. And you compared those to what photos?

1 A. Taylor Alexander and his co-author's name

2 was Crook, I forget his first name now, had produced

3 a report in the early Seventies on vegetation maps of

4 these plots made during the Sixties, during the mid

5 Sixties, so we had about a 20-year interval from the

6 mid to late Sixties to the mid to late Eighties that

7 would look at change.

8 Q. Did you review all the Alexander plots?

9 A. Pardon?

10 Q. Did you review all the Alexander plots?

11 A. We reviewed all the Alexander plots that

12 were in the Everglades as we defined them in the

13 symposium.

14 Q. Which would be what area?

15 A. They were all in the conservation areas of

16 the park. I don't think there were any outside the

17 conservation areas of the park. I'd have to look

18 back. There were 25 all together.

19 All together Taylor Alexander mapped nearly

20 a hundred plots, nearly a hundred plots in South

21 Florida, but some were in Big Cypress, some were

22 outside the boundaries of the Everglades.

23 Q. Did you find all of the plots, Alexander

24 plots that were located within the Everglades as you

25 defined it?

1 A. Yes.

2 Q. Was the surface water quality measured

3 within the plots?

4 A. No.

5 Q. How did your reconnaissance of the

6 Alexander plots differ, if it did at all, from your

7 reconnaissance of the cattail distribution that took

8 place in approximately 1991?

9 A. Much more detailed. We were looking at

10 clusters of vegetation in the Alexander plots within

11 a resolution of 10 meters, about 30 feet, while for

12 the overview of all the conservation areas we were

13 looking at only the distribution of major stands of

14 cattails, we were looking only at the distribution of

15 major stands of cattails and were not recording the

16 small stands of cattails in that range of 10 meters

17 or that occur naturally in the conservation areas.

18 Q. How would you define then a major stand of

19 cattail or how would you define it as part of your

20 reconnaissance trip in 1991?

21 A. Continuous areas of cattail as opposed to

22 small patches.

23 Q. You're familiar with cattail early

24 colonization of post burn or at burn sites; is that

25 correct?

1 A. Yes.

2 Q. Okay. Being familiar with that, would you

3 have in your aerial reconnaissance of cattail that

4 took place in 1991, would those type of cattail

5 stands have been included in your reconnaissance?

6 A. Yes.

7 MR. KOBELINSKI: I need to take a break.

8 (Thereupon, a recess was taken from

9 11:35 a.m., until 11:38 a.m.)

10 BY MR. KOBELINSKI:

11 Q. Mr. Davis, you had mentioned that you had

12 also done aerial reconnaissance or mapping,

13 vegetative mapping with regard to the Alexander

14 plots.

15 Were there any other vegetative mapping or

16 reconnaissance you've done in the past?

17 A. Well, not unless you go back to the early

18 Seventies on the St. Johns River which I don't think

19 is relevant to this --

20 Q. What type of --

21 A. -- issue.

22 Q. What type of vegetative mapping did you do

23 at St. Johns River?

24 A. Produced a vegetation map of the upper

25 St. Johns River floodplain.

1 Q. Was that likewise with a helicopter?

2 A. We didn't have a helicopter, the use of a

3 helicopter back then. It was mainly groundtruthing

4 aerial photography from the ground.

5 Q. Did you review any type of aerial

6 photography or satellite photography with relation to

7 your aerial reconnaissance in 1991 for the spread of

8 cattail?

9 A. I don't understand your question.

10 Q. Did you in conjunction with your helicopter

11 overflights also look at any type of aerial

12 photography or satellite imagery?

13 MR. NETTLETON: For?

14 THE WITNESS: We looked at satellite

15 imagery before the flight to make sure that we

16 were covering obvious areas of cattails in

17 addition to those that we found that were less

18 obvious, areas that stood out clearly on aerial

19 photography.

20 BY MR. KOBELINSKI:

21 Q. And do you have any opinion as to what the

22 post 1991 distribution of cattails are in the WCA's?

23 A. No.

24 Q. Did you do any water quality sampling in

25 conjunction with this reconnaissance in 1991?

1 A. No.

2 Q. Where have you done water quality sampling

3 in the WCA's in the park?

4 A. I've done none in the park.

5 My water quality sampling is limited to

6 Water Conservation Area 2A during the years of

7 vegetation research from about 1975 to the mid

8 Eighties.

9 Q. Did at that point in time you stop doing

10 any type of field work?

11 A. Yes.

12 Q. Is there a particular reason for that?

13 A. Taking on more supervisory

14 responsibilities.

15 Q. Okay. Do you have any opinion as to what

16 the distribution of cattail were prior to the 1970s?

17 A. I've looked at aerial photography from the

18 mid to late Sixties, and the cattail stand that I

19 referred to north of the north airboat trail was very

20 apparent on that photography in the late Sixties.

21 Q. What aerial photography would that be?

22 A. That was just black and white Mark Hurds

23 back then.

24 Q. I didn't understand the last.

25 A. Black and white Mark, it's called Mark

1 Hurds.

2 Mark Hurd was the company that routinely

3 flew aerial photography of the conservation areas.

4 Q. And did you or anyone else groundtruth the

5 aerial photography of the late Sixties?

6 A. No, I didn't.

7 Q. What experience do you have in aerial

8 photography, in interpretation of aerial photography?

9 A. Just what I told you.

10 Q. Who within the District would be the person

11 with the most knowledge about the post 1991

12 distribution of cattails in the WCA's?

13 MR. NETTLETON: Object to form.

14 THE WITNESS: Probably Ken Rutchey.

15 BY MR. KOBELINSKI:

16 Q. Do you know whether or not Mr. Rutchey --

17 is it Mr. or Dr. Rutchey?

18 A. Mr.

19 Q. -- whether Mr. Rutchey has determined the

20 cattail distributions in Water Conservation Area 1

21 after the 1991 aerial reconnaissance he did with you?

22 A. I don't know.

23 Q. Have you ever spoken with him about any

24 additional vegetative mapping?

25 A. Not recently.

1 I left the Research Department more than a

2 year ago and haven't been working with these people

3 for more than a year, so...

4 Q. Will you be offering an expert opinion as

5 to what the historic distribution of cattails were in

6 the Everglades prior to the development of the

7 federal project?

8 A. Will I be offering?

9 Q. Do you expect to give an expert opinion as

10 to what the distribution of cattails were prior to

11 the diking off and development of the federal

12 project?

13 A. If asked.

14 Q. Okay. Well, have you been asked to do so

15 thus far?

16 A. No.

17 Q. Do you intend to give an expert opinion as

18 to that matter?

19 A. I don't know.

20 Q. Well, at this point in time do you intend

21 to do so?

22 A. If they ask me.

23 Q. If they ask you.

24 All right. Do you have any additional

25 expert opinions as to the historical trends in

1 distribution of cattails in the WCA's?

2 A. Well, there's historical reports that

3 indicate cattails in the WCA's prior to the project,

4 and that would be the only basis of my opinion.

5 Q. But I thought a few moments ago you stated

6 that at this point in time you had not been asked to

7 offer an opinion as to pre-project distribution of

8 cattails.

9 A. That's true.

10 Q. Okay. What is your knowledge of

11 pre-project distribution of cattails?

12 A. Accounts particularly in "The Natural

13 Features of South Florida" by John Henry Davis in the

14 1940s of scattered cattail stands in what are now the

15 water conservation areas.

16 Q. Anything else?

17 A. No.

18 Q. As part of this area of your expert

19 testimony on the historical trends in distribution of

20 cattails in water conservation areas, are you

21 offering any type of expert opinion as to the cause

22 for the distribution of cattails?

23 A. For historical distribution of cattail?

24 Q. Yes.

25 A. Are you talking pre project or --

1 Q. I'm talking --

2 A. Would you be more specific?

3 Q. I believe in your description of your

4 expert opinion as to the historical distribution of

5 cattails you commenced in the 1970s and took us

6 through an aerial reconnaissance in approximately

7 1991.

8 As part of this area of your expert

9 testimony do you intend to provide opinions as to the

10 cause for that distribution or change in distribution

11 of cattails?

12 A. Yes.

13 Q. Okay. Prior to going into that opinion,

14 Mr. Davis, you refer to the aerial reconnaissance of

15 1991 covering the Water Conservation Areas 1, 2, 3

16 and the western boundary of --

17 A. Eastern.

18 Q. Excuse me.

19 -- the eastern boundary of the park along

20 the L-67 extension.

21 Did you review the same area during your

22 observations from 1970 through the mid Eighties?

23 A. No.

24 Q. Okay. What were your observations? Was

25 there geographic limitations on those observations?

1 A. During the Seventies to mid Eighties, Water

2 Conservation Area 2A.

3 Q. Okay. Do you have any idea what the

4 cattail distribution was in Water Conservation Area 1

5 from the 1970s through the 1980s?

6 A. No.

7 Q. Will you be offering an expert opinion at

8 the hearing as to what the distribution of cattail

9 was in Water Conservation Area 1 from the 1970s

10 through the mid Eighties?

11 A. No.

12 Q. Or, actually, I believe I should say up to

13 1991.

14 Does that change your answer at all?

15 A. No, it doesn't change my answer.

16 Q. Okay. Will you be offering an expert

17 opinion at the final hearing as to the distribution

18 of cattails in Water Conservation Area 2B from the

19 1970s through 1991?

20 A. No.

21 Q. Up to 1991, excuse me?

22 A. No.

23 Q. Will you be giving, offering an expert

24 opinion as to the distribution of cattails in Water

25 Conservation Area 3A from the 1970s up to 1991?

1 A. No.

2 I might qualify that, that the only opinion

3 I could offer would be observations of simply driving

4 an airboat through the marsh of the presence of small

5 stands of cattail in the marsh. That's the only

6 thing I could directly testify to.

7 Q. This would be the marsh of 3A?

8 A. All the conservation areas.

9 Q. Okay. And do you recall, was this done as

10 part of a vegetative study?

11 A. No.

12 Q. Would --

13 A. It was not part of a vegetation study.

14 Q. From those trips that you're referring to

15 through the marsh would you be able to go ahead and

16 describe the areas of cattail distribution within the

17 water conservation areas other than that of 2A during

18 the period 1970s through 1991?

19 A. No.

20 Q. I've missed one, so let me go ahead and ask

21 that.

22 Do you intend to offer at the final hearing

23 an expert opinion as to the distribution of cattail

24 from the 1970s through 19, or up to 1991 for Water

25 Conservation Area 3B?

1 A. No.

2 Q. Okay. And the same question for the park?

3 A. No.

4 Q. Okay. As part of this area of your expert

5 testimony do you intend to offer an opinion as to

6 whether or not the cattails are currently expanding

7 in the water conservation areas of the park?

8 A. No.

9 Q. Will you be offering -- I limited that by

10 stating as to whether this portion of your expert

11 testimony.

12 Will you be offering an opinion, expert

13 opinion at the final hearing as to whether or not the

14 areal distribution of cattails are currently

15 expanding in the water conservation areas of the

16 park?

17 A. Isn't that the question you just asked me?

18 Q. I asked it in relation to this area of your

19 expert testimony, so I'm just trying to broaden it to

20 just generally will you be offering an expert opinion

21 as to that?

22 A. No.

23 Q. With regard to your statement that you will

24 be offering an expert opinion as to the causation of

25 the expansion of cattails, is that expert opinion

1 limited to the expansion of cattails within Water

2 Conservation Area 2A?

3 A. No.

4 Q. Will you be offering -- well, for what

5 areas of distribution of cattails will you be

6 offering an expert opinion as to causation?

7 A. From the standpoint of causation, I would

8 feel it's valid that the factors affecting cattail

9 dynamics could apply to any of the water conservation

10 areas even though most of the data was gathered in

11 Conservation Area 2A.

12 MR. KOBELINSKI: We might as well break for

13 lunch now because the causation is a whole area.

14 It doesn't make sense to go ahead and spend five

15 minutes and then break.

16 MR. NETTLETON: Okay.

17 from 11:55 a.m., until 1:38 p.m.)

1 A F T E R N O O N S E S S I O N

2 - - -

3 CONTINUED DIRECT (Steven M. Davis)

4 BY MR. KOBELINSKI:

5 Q. All right. Mr. Davis, we're going to

6 continue on with the deposition then. We'll follow

7 the same format we did this morning. I'll be asking

8 you questions under oath, and just if you'd provide

9 me with the facts and opinions you have on the

10 different matters discussed.

11 Where we left off prior to the break for

12 deposition was your providing an opinion as to the

13 causation for the cattail distribution within water

14 conservation areas.

15 Would that also include causation of any

16 cattails within the park?

17 A. In the peatland areas of the park, yes,

18 peat soil areas of the park perhaps.

19 Q. And what specific areas would those be of

20 the park?

21 A. The Shark River slough region, the regions

22 below the eastern two or three S-12 structures. The

23 fourth S-12 structure to the west is in a marl soil

24 region.

100

1 (Thereupon, Dr. Hackney entered the room.)

2 Q. All right. And what is your opinion as to

3 the cause of the change in cattail distribution

4 within the Everglades area -- or for the time being

5 let's go ahead and narrow that down to Water

6 Conservation Area 2A which I believe you stated you

7 have the most knowledge about; is that correct?

8 A. Yes.

9 Q. All right. As a matter of fact, have you

10 done any studies outside of Water Conservation

11 Area 2A related to cattail other than the vegetative

12 mapping you've discussed?

13 A. No.

14 Q. Okay. Have you done any research of any

15 type outside of Water Conservation Area 2A other than

16 the vegetative mapping you've discussed?

17 A. I've assisted on a number of research

18 projects but haven't done any of my own research

19 outside of Conservation Area 2A.

20 Q. If you could just very briefly describe

21 what those research projects you have assisted on

22 outside the confines of Water Conservation Area 2A.

23 A. I've assisted in vegetation and

24 invertebrate sampling in Conservation Area 3 and I've

25 assisted in vegetation analysis of floating peat

101

1 islands in Conservation Area 1 and fish sampling in

2 Conservation Area 3.

3 Q. The two studies you referred to for

4 Conservation Area 3, would that be 3A?

5 A. Yes.

6 Q. And the first one, I didn't quite catch

7 exactly what it was. It was a vegetative study?

8 A. Vegetation and invertebrate sampling.

9 Q. When was that?

10 A. Through the Seventies.

11 Q. And you referred to vegetation.

12 Was there any particular type of vegetation

13 you were studying?

14 A. We were mainly sampling wet prairie areas

15 in Conservation Area 3A.

16 Q. What vegetative types did you find in those

17 wet prairie areas?

18 A. Sedges, grasses, for the most part,

19 rhynchospora.

20 Do you want me to go into scientific names?

21 Q. If you'd like.

22 A. Generally sedges and grasses.

23 Q. DiBRITISH part of that vegetative study in

24 3A include a study of cattails in the area?

25 A. No.

102

1 Q. Okay. And when was the peat island study

2 in Water Conservation Area 1?

3 A. In the Seventies.

4 Q. And, likewise, when was the fish study in

5 Water Conservation Area 3A?

6 A. Throughout the Seventies.

7 Q. All right. Going back then to the prior

8 question, what is your opinion as to the cause of the

9 changes in distribution of cattail in Water

10 Conservation Area 2A from the Seventies up to the

11 1991 aerial reconnaissance that you conducted?

12 A. All the evidence I've seen would indicate

13 that nutrient loading or nutrient supply's the major

14 factor affecting the spread of cattails in

15 Conservation Area 2A.

16 MR. KOBELINSKI: Could you read the first

17 part of that back?

18 (Thereupon, a portion of the record

19 was read by the reporter.)

20 BY MR. KOBELINSKI:

21 Q. And the evidence that you have seen, how

22 would you broadly describe that evidence? Are there

23 particular data sets, for instance, that you're

24 relying upon?

25 A. (Witness nodding head up and down) There's

103

1 the work I did for about ten years in Conservation

2 Area 2A comparing the production and nutrient cycling

3 characteristics of sawgrass and cattail along a

4 gradient of surface water nutrient concentrations.

5 Q. And do you have a technical publication

6 with regard to that study?

7 A. Several.

8 Q. Okay.

9 A. There's an article in "Aquatic Botany"

10 either '91 or '92. I'd have to look back. There's

11 an article the year before in a symposium in a book

12 called "Fresh Water Wetlands And Wildlife." And then

13 there were several interim reports in technical

14 publications and articles before that.

15 Q. Are you relying on any of those technical

16 publications or the article in "Aquatic Botany" as a

17 basis or partial basis for this opinion?

18 A. Yes.

19 Q. Okay. Could you go ahead and designate

20 specifically which ones?

21 A. The article in "Fresh Water Wetlands And

22 Wildlife" was called --

23 Q. Well --

24 A. Oh, do you want --

25 Q. Before you start that, would they all be

104

1 listed in this resume' which has been listed as

2 Exhibit 1? You have it right in front of you there.

3 A. (Witness reviewing the document).

4 Yes, one is at the bottom of the first page

5 on Publications.

6 Q. Which I believe is Bates Number 0959634 of

7 Davis Exhibit Number 1.

8 A. Yes.

9 Q. Please go ahead, sir.

10 A. "Sawgrass and cattail production in

11 relation to nutrient supply in the Everglades."

12 Q. Is that the --

13 A. That's the title.

14 Q. -- Davis, S. M. 1990?

15 A. Yes, that's the one I was referring to.

16 Q. The final publication on that page?

17 A. Yes.

18 Q. All right.

19 A. And then going on to the next page, the

20 second publication down, Davis, 1991.

21 Q. Which I believe is entitled "Growth,

22 decomposition, and nutrient retention of Cladium

23 jamaicense Crantz and Typha domingensis." Is that

24 the entire title or is that --

25 A. "In the Florida Everglades." That's the

105

1 entire title.

2 Q. All right. And that would be on Bates page

3 0959635, Exhibit 1?

4 A. Yes.

5 Q. Any other?

6 A. I probably referred to the third

7 publication on that page which is no longer in

8 review; it's in press, "Phosphorus inputs and

9 vegetation sensitivity." That title's been shortened

10 somewhat. It's just "in the Everglades" rather than

11 "in an oligotrophic Everglades ecosystem."

12 Q. Okay. So the title of the paper as finally

13 published would be "Phosphorus inputs and vegetation

14 sensitivity in the Everglades"?

15 A. Yes.

16 Q. Is that a journal, a book or what exactly

17 is that?

18 A. This is a symposium volume that we talked

19 about earlier.

20 Q. And would that be all the reports or

21 publications you'd be relying upon?

22 A. I'd be also using Ken Rutchey's vegetation

23 map of Conservation Area 2A, Marguerite Koch's soil

24 phosphorus maps of Conservation Area 2A.

25 Q. Anything else?

106

1 A. Essentially everything I would be using is

2 referred to in the paper "Phosphorus inputs and

3 vegetation sensitivity in the Everglades."

4 Q. Are there any other reports that you have

5 generated that you would be relying upon or authored

6 or co-authored?

7 A. The paper I mentioned earlier with Nancy

8 Urban as senior author on the dynamics of sawgrass

9 and cattail over a six-year period, but that's also

10 referred to in the summary paper, the "Phosphorus

11 inputs and vegetation sensitivity" paper.

12 Q. When you make reference to the "Phosphorus

13 inputs and vegetation sensitivity" paper, would it be

14 best to go through that paper -- does that paper have

15 a bibliography or a list of references?

16 A. Yes.

17 Q. Would it be best to go through that paper

18 to determine which of the references you're relying

19 upon for your expert opinion?

20 A. That would be fine with me.

21 Q. All right. Is that a good way of doing it

22 in your opinion?

23 A. Yes, that would be a start.

24 Q. Well, let's start.

107

1 (The document was marked

2 Davis Exhibit Number 2.)

3 BY MR. KOBELINSKI:

4 Q. Mr. Davis, I'm showing you what's been

5 marked as Davis Exhibit Number 2 to this deposition,

6 and at the top of the page is, the first page, is

7 stamped a large "draft" and underneath that is a

8 title "Phosphorus Inputs And Vegetation Sensitivity

9 In The Everglades" and it bears Bates Numbers 1084687

10 through 1084716, and I ask if you can identify this

11 document?

12 A. This is the manuscript that I have

13 submitted to the publisher for publication, the book,

14 "The Everglades Ecosystem And Its Restoration."

15 Q. And is the most recent draft of the

16 manuscript?

17 A. The only more recent draft would be one

18 that's come back from the publisher that has the

19 tables inserted in the text, but there's no change in

20 the text or the data presented. It's exactly as it

21 is here.

22 Q. All right. And I will draw you to what is

23 marked as page 17 in the upper left-hand corner of

24 Davis Exhibit Number 2 which also bears Bates Number

25 1084703 and is entitled "Literature Cited."

108

1 As described by that title, are these the

2 references made throughout the manuscript?

3 A. Yes.

4 Q. Okay. Which if any of these studies or

5 papers are you relying upon in coming to your expert

6 opinion?

7 A. Let me clarify. Is this expert opinion

8 only concerning the distribution and spread of

9 cattails, is that all we're talking about, or are we

10 talking about the effects of nutrient enrichment?

11 Q. We're talking about at this point in time

12 the cause of the distribution of, change in

13 distribution of cattail --

14 A. Okay.

15 Q. -- which I believe you've stated is

16 nutrient-related.

17 A. Okay.

18 Q. Okay.

19 A. (Witness reviewing the document).

20 You want me to list the authors in terms of

21 these references?

22 Q. Well, which of these references are you

23 relying upon for that opinion?

24 A. Chapin, 1980. That's C-h-a-p-i-n.

25 Davis, 1943.

109

1 Q. That would be J. H. Davis?

2 A. Yes.

3 Davis, 1982, S. M. Davis.

4 Davis, 1989.

5 Davis, 1991.

6 Davis, et al., in the Everglades book

7 volume.

8 Q. Are you referring to the second reference

9 that is listed on what is marked as page 18 in the

10 upper left-hand corner and is Bates Number 1084704?

11 A. Yes.

12 Q. Okay.

13 A. Forthman, 1973.

14 Grace, 1988.

15 Grace, 1989.

16 Grime, 1977.

17 Loveless, 1959.

18 MacVicar, et al., in the Everglades book.

19 Q. And you're referring to the third reference

20 on page 19, Bates number 1084705?

21 A. Yes.

22 Q. All right.

23 A. Parker, 1974.

24 Reddy, DeBusk, Wang, DeLaune and Koch,

25 1991.

110

1 Snyder and Gunderson in the Everglades

2 book. By the way, that's now Gunderson and Snyder.

3 South Florida Water Management District,

4 1992.

5 Steward and Ornes, 1975a.

6 Steward and Ornes, 1975b.

7 Steward and Ornes, 1983.

8 Urban, Davis and Aumen in press.

9 Volk, Schemnitz, Gamble, and Sartain, 1975.

10 Walker, Flora, Rice and Scheidt in prep.

11 That citation has been changed to the National Park

12 Service report rather than in prep.

13 Those would be the references in the

14 Literature Cited section I would use.

15 Ken Rutchey's vegetation map isn't cited

16 here, but I would also use that.

17 Q. You had mentioned Marguerite Koch's soil

18 phosphorus maps in WCA-2A.

19 Would the maps you're referring to be

20 included in the report that you have cited to --

21 A. They would be in the report of Reddy,

22 DeBusk, Wang and DeLaune and Koch 1991.

23 Q. Okay. Are there any other reports or data

24 or research then that you are relying upon other than

25 the references you have made and the other documents

111

1 you have listed from your resume' Exhibit 1 and Ken

2 Rutchey's vegetative map?

3 A. I'd use a vegetation map of Conservation

4 Area 1 prepared by John Richardson.

5 Q. Anything else?

6 A. That's all that comes to mind. There may

7 be some other things, but that's all I can think of

8 right now.

9 Q. All right. Is that all you've relied upon

10 thus far in coming to your opinion?

11 A. These are most of the things. Like I say,

12 I may have missed something, but this is most of it.

13 Q. Okay. With regard to Ken Rutchey's

14 vegetative map, are you specifying one particular map

15 or is there a series of maps?

16 A. To my knowledge, he has produced a final

17 product of a vegetation map of Conservation Area 2A

18 that he's submitting to a journal.

19 Q. Okay. And that vegetative map is for what

20 time period or what date?

21 A. It's for the early Nineties. I forget the

22 exact year that he groundtruthed it to. '91

23 probably.

24 Q. Okay. With regard to John Richardson's

25 vegetative map of WCA-1, is there a particular date

112

1 or time period for that vegetative map?

2 A. It's the late Eighties.

3 Q. With regard to the references that you have

4 cited, just so you understand, I'm going to go

5 through these, and perhaps we can do these relatively

6 quickly, to see whether or not you've done something

7 other than reviewed the document or the paper as

8 opposed to, for instance, reviewing the paper and

9 actually reviewing the underlying data that was

10 collected in the study.

11 And then starting at page 17 of Exhibit 2,

12 Bates Number 1084703, the first reference you had

13 cited to was Chapin, F. S., 1980, "The mineral

14 nutrition of wild plants."

15 Have you read that document?

16 A. Yes.

17 Q. Okay. Did you have any personal

18 discussions with Mr. Chapin as to the findings

19 therein?

20 A. No.

21 Q. All right. Did you do anything other than

22 review the document?

23 A. No.

24 Q. Okay.

25 A. I should add, excuse me, I should add the

113

1 first reference under that literature cited,

2 Alexander and Crook, 1973. They do refer to cattail.

3 Q. Okay. Well, then I'll back up a bit and

4 ask you with regard to that publication by Alexander

5 and Crook, did you review that document?

6 A. Yes.

7 Q. Did you do anything other than review that

8 document?

9 A. Yes.

10 Q. Okay. What did you do?

11 A. I examined the aerial photography which was

12 used in that document for the 25 plots that we mapped

13 in the conservation areas and discussed the methods

14 of plant community identification based on what was

15 on that photography.

16 Q. When you say you discussed it, who did you

17 discuss it with?

18 A. I've discussed it with Taylor Alexander and

19 with Ronald Hoffstetter who worked very closely with

20 them in that process.

21 Q. And with regard to those discussions, are

22 you relying in any part upon those discussions in

23 coming to your opinion that nutrients are the primary

24 factor impacting the distribution of cattails in

25 WCA-2A from the period of the 1907s to 1991?

114

1 A. Yes.

2 Q. We'll go into those a little bit later.

3 Let me just get through this list.

4 With Davis, J. H., 1943, did you do

5 anything other than to review that document?

6 A. No.

7 Q. With regard to the next two -- excuse me,

8 three publications that you referenced, those are

9 your own publications or at least publications where

10 you were the primary author, so I assume you did more

11 than just read the document.

12 A. That's correct.

13 Q. All right. I note, however, that in

14 listing the references you were relying upon, you did

15 skip one of your publications which is Davis, S. M.,

16 1984, "Cattail leaf production, mortality, and

17 nutrient flux."

18 Is there a particular reason as to why that

19 document was not included in your...

20 A. For the same reason I skipped the Davis and

21 Harris publication on the next page. They were

22 interim reports based on the incomplete data set, and

23 the reports I have indicated are more up to date and

24 include the data that are in those reports.

25 Q. Okay. With reference to the page 18,

115

1 following page, Bates page 1084704, you are the

2 primary author on the Davis, S. M., Gunderson, Park,

3 Richardson, Mattson document?

4 A. Yes.

5 Q. This document that is referenced there, the

6 "Landscape dimension, composition," is that the

7 second chapter of the book that you have authored?

8 A. Yes.

9 Q. Okay. The following reference, Forthman,

10 C. A., 1973, have you done anything other than read

11 that document?

12 A. No, I have not.

13 Q. Grace, J. B., 1988, have you done anything

14 other than read that document?

15 A. I've discussed the results with Jim Grace.

16 Q. Are you relying upon those discussions with

17 Jim Grace in coming to your expert opinion as to

18 nutrients being the primary factor impacting the

19 change in distribution of cattails in Water

20 Conservation Area 2A?

21 A. They are contributing to that opinion, yes.

22 Q. The following publication Grace, J. B.,

23 1989, have you done anything other than read that

24 document?

25 A. I've talked to Jim Grace about the results

116

1 of that paper, and that's contributed to my opinion.

2 Q. Okay. The following document, Grime,

3 J. P., 1977, have you done anything other than read

4 that document?

5 A. No.

6 Q. Going on to the following page -- have I

7 covered all the references that you are relying upon

8 on that page?

9 A. I believe so.

10 Q. Okay. Going on to the following page then,

11 page 19 which is Bates page 1084705 of Exhibit 2,

12 Loveless, C. M., 1959, have you done anything other

13 than read that document?

14 A. I've talked with Charles Loveless on his

15 vegetation descriptions in Conservation Area 2A.

16 Q. And are you relying upon those

17 conversations as supporting or -- excuse me. Let me

18 withdraw that.

19 Are you relying upon those conversations

20 with Mr. Loveless in coming to your opinion that

21 nutrients are the primary factor impacting cattail

22 distribution in Water Conservation Area 2A from the

23 1970s through 1991?

24 A. Yes.

25 I want to -- I think there's been a change

117

1 in the wording as to what I said. I said I think

2 that nutrients are the primary factor explaining the

3 spread of cattail in Conservation Area 2A. That's

4 different than explaining the distribution of cattail

5 which in itself is a natural species in the marsh

6 under historic conditions.

7 Q. All right.

8 A. Many of these papers we've been talking

9 about on the previous page are in terms of

10 distribution under historic conditions, so...

11 Q. Just so I understand what you're telling

12 me, Mr. Davis, do you have an opinion as to whether

13 or not nutrients are a factor as to the distribution

14 of cattails in the historic conditions of the

15 Everglades?

16 A. Yes.

17 Q. Okay. And what is that opinion?

18 A. The opinion is that cattails were

19 nutrient-limited in the historic system and occurred

20 in small stands but were not persistent or did not

21 spread through the system.

22 Q. When you use the term historic Everglades,

23 what do you mean by historic?

24 A. Before the central and southern Florida

25 project in this case.

118

1 Q. Would that be approximately prior to the

2 1950s?

3 A. About 1960, late Fifties or 1960.

4 Q. A few moments ago we had gone through the

5 list of literature that was cited in what is marked

6 as Exhibit 2 to the deposition and also the list of

7 literature in your resume'.

8 Would that list of literature that you are

9 relying upon or reports you're relying upon change in

10 any way given the fact that we have to a certain

11 extent expanded upon your prior opinion as to the

12 nutrient's role in both the distribution and the

13 spread of cattail?

14 A. (No response).

15 Q. Do you understand my question?

16 A. No. Could you repeat the question?

17 Q. Sure.

18 We went through a few minutes ago and

19 marked out which of these literature references you

20 have relied upon and we've used your resume' and also

21 what is marked as Exhibit 2, your draft "Phosphorus

22 Inputs And Vegetation Sensitivity In The Everglades"

23 paper.

24 A. Yes.

25 Q. Okay. Given the fact that we've now become

119

1 a bit more specific as to the nutrient's role in the

2 distribution of cattails in the historic Everglades,

3 would you include any additional references other

4 than those we've already discussed?

5 A. No.

6 Q. Okay. Going back then to where we left off

7 which is at page 19, Bates number 1084705 of

8 Exhibit 2, the following literature cited is

9 MacVicar, Johnson, Perkins and Fennema.

10 Have you done anything other than read that

11 document?

12 A. I've talked with the authors concerning the

13 simulations from the natural system model.

14 Q. And are you relying upon those

15 conversations as a basis or partial basis for your

16 expert opinion that we've been discussing?

17 A. Yes.

18 Q. The following reference is to Parker,

19 G. G., 1974.

20 Have you done anything other than read that

21 document?

22 A. No.

23 Q. Do you understand when I'm asking the

24 question of have you done anything other than read

25 that document --

120

1 A. Um-hum.

2 Q. -- I would mean, for instance, have you

3 gone and reviewed the underlying data? That would be

4 more than reading.

5 A. I understand.

6 Q. Okay. The following reference is to Reddy,

7 DeBusk, Wang, DeLaune and Koch.

8 Have you done anything other than read that

9 document?

10 A. Yes. I've discussed the methodologies and

11 the data with the authors.

12 Q. When you say you have discussed the data,

13 have you actually reviewed the underlying data

14 yourself?

15 A. Some of it. This study was done under my

16 direction also, so --

17 Q. Okay.

18 A. -- I was involved in its conception and

19 design.

20 Q. And I believe that covers all the

21 references that you have stated are on page 19, is

22 that correct, that you're relying upon?

23 A. Yes.

24 Q. Going on to the following page then, the

25 Snyder, Gunderson or what is currently the Gunderson,

121

1 Snyder paper, have you done anything other than read

2 that document?

3 A. I've discussed the data and conclusions

4 with the authors.

5 Q. When you say that you discussed the data,

6 did you review the underlying data?

7 A. No.

8 Q. Following document, is that a reference to

9 the SWIM Plan?

10 A. Yes.

11 Q. Everglades SWIM Plan?

12 And there's a specific reference there to

13 the supporting information document?

14 A. Yes.

15 Q. Is there any particular portion of that

16 supporting information document that you're relying

17 upon?

18 A. Many parts of it. The --

19 Q. That's sufficient. We can go on to...

20 A. Okay.

21 Q. Have you done anything other than read that

22 supporting information document?

23 A. I've contributed to some of it and I've

24 talked over the conclusions and results with many of

25 the contributors.

122

1 Q. Okay. Following document is Steward and

2 Ornes, 1975a and then there's Steward and Ornes --

3 well, let's take one at a time.

4 Steward and Ornes, 1975a. Have you done

5 anything other than read that document?

6 A. Yes. I've discussed the results and

7 conclusions with Kerry Steward.

8 Q. Have you revieweBRITISH of his underlying

9 data?

10 A. No.

11 Q. Okay. The following document is Steward

12 and Ornes, 1975b.

13 Have you done anything other than read that

14 document?

15 A. All three of the Steward and Ornes

16 documents would have the same comments I gave you

17 about the first one.

18 Q. Okay. And are you relying upon those

19 discussions with, was it with both authors?

20 A. No, just Steward.

21 Q. Okay. Are you relying upon those

22 conversations with Mr. Steward as support for your

23 opinion as to the nutrient impacts?

24 A. Yes. That's Dr. Steward.

25 Q. Dr. Steward? Thank you.

123

1 I believe that takes care of all the

2 references on this page that you're relying upon; is

3 that correct, sir?

4 A. That's correct.

5 Q. Okay. Going on to the --

6 MR. GREEN: Excuse me. May I ask one

7 clarifying question just to save time?

8 You didn't ask whether he was relying on

9 discussions with Reddy, et al., or Snyder, et

10 al. I assume you meant to. If you don't, I

11 would ask it tomorrow. Might as well do it

12 while we're here.

13 THE WITNESS: Yes and yes.

14 MR. KOBELINSKI: Would that be on the prior

15 page?

16 MR. GREEN: The one you were just

17 finishing.

18 THE WITNESS: I think you asked me about

19 Snyder, et al., which is now Gunderson and

20 Snyder rather than Snyder and Gunderson.

21 MR. GREEN: And Reddy?

22 THE WITNESS: Same applies to Reddy, et

23 al. I've discussed data with them.

24 MR. HYDE: I thought you had, but...

25 MR. NETTLETON: Well, he answered it again

124

1 if he hadn't.

2 MR. KOBELINSKI: No objection asked and

3 answered?

4 BY MR. KOBELINSKI:

5 Q. Going on to the following page 21 which is

6 at Bates Number 1084707, the first reference there is

7 a document that you are involved in as an author; is

8 that correct?

9 A. That's correct.

10 Q. Obviously you've done other than just read

11 the document.

12 A. That is correct.

13 Q. The following document is Volk, Schemnitz,

14 Gamble and Sartain.

15 Have you done anything other than just read

16 that document?

17 A. No.

18 Q. The following and final document from this

19 exhibit is Walker, Flora, Rice and Scheidt.

20 Have you done anything other than read that

21 document?

22 A. Yes, I've discussed the methods and results

23 with Mark Flora and Dan Scheidt.

24 Q. Have you revieweBRITISH of the underlying

25 data?

125

1 A. Yes.

2 Q. Are you relying upon the conversations you

3 had with Flora and Scheidt in support of your opinion

4 as to the impacts of nutrients?

5 A. Yes.

6 Q. Okay.

7 Now, with regard to Ken Rutchey's

8 vegetative map, have you discussed that vegetative

9 map with Mr. Rutchey?

10 A. Yes.

11 Q. Is that Mr. or Dr. Rutchey?

12 A. Mr.

13 Q. Thank you.

14 And are you relying upon those

15 conversations with Mr. Rutchey in support of your

16 opinion that nutrients have an impact upon cattails?

17 A. Yes.

18 Q. With regard to the Richardson Water

19 Conservation Area 1 vegetative map, have you done

20 anything other than review that map?

21 A. I utilized some of the data from that map

22 in the paper on landscape change that we've referred

23 to in the Everglades book for the square mile plots

24 in Conservation Area 1 where John Richardson

25 contributed to the -- he was one of the authors of

126

1 that paper, and he utilized the data from that map in

2 preparing his maps of the square mile plots.

3 Q. Okay. With regard to the data then that

4 you utilized, is -- let me withdraw that.

5 Are you referring then to your second

6 paper?

7 A. That's correct.

8 Q. All right. I don't recall whether or not

9 you specified that paper as also being used or you're

10 relying upon that paper in support of your opinion as

11 to nutrient impacts.

12 A. Yes.

13 Q. And the paper you're referring to is at

14 Davis Exhibit 1, Bates page 0959635, the final

15 publication cited there; is that correct?

16 MR. NETTLETON: The other exhibit,

17 Exhibit 1.

18 BY MR. KOBELINSKI:

19 Q. Exhibit 1.

20 A. (Witness reviewing the document).

21 Yes.

22 Q. Mr. Davis, going back to Exhibit 2, page 17

23 at Bates Number 1084703, do you have notes as to the

24 conversations you had with Alexander and Crook?

25 A. Would you repeat your question, please?

127

1 Q. Do you have notes with regard to the

2 conversation you had with Alexander and Crook?

3 A. No.

4 Q. All right. Do you have a copy of that

5 document?

6 A. Yes.

7 Q. With regard to -- well, before we go on,

8 did you produce that in the documents you recently

9 produced in response to the notice of this

10 deposition?

11 A. No. That's just in our reference center.

12 Q. Okay. With regard to Chapin, do you have a

13 copy of that document?

14 A. Yes.

15 Q. Okay. Is that also a document that you did

16 not produce?

17 A. No, I didn't. I didn't produce my reprint

18 file.

19 Q. The Davis, J. H., 1943 study, do you have a

20 copy of that document?

21 A. Yes.

22 Q. Okay. Has that been produced?

23 A. I didn't produce any reprints in the, from

24 my reprint file for the production.

25 Q. When you say reprint, what do you mean by

128

1 reprint?

2 A. These would all be reprints, copies of

3 other people's reports that have already been

4 published.

5 Q. Do you have any memos or notes on your

6 conversations with Grace, J. B. with regard to his

7 paper or the conclusions of that paper in the

8 reference?

9 A. As I mentioned earlier, Jim Grace turned

10 out to be a referee of my paper, my phosphorus and

11 vegetation sensitivity paper and, as such, I have his

12 referee comments where he discusses the relevance of

13 my data in relation to his.

14 Q. Okay. And you did not produce those

15 comments, though; is that correct?

16 A. No, because I feel that that's breaching

17 the confidentiality until I clear that with him since

18 he did not do that for that purpose.

19 Q. Okay. Other than those, his referee peer

20 review notes, do you have any other documentation of

21 your conversations with...

22 A. No.

23 Q. Going on to page 19, Bates page 1084705 of

24 Exhibit 2, do you have any notes of your conversation

25 with Loveless?

129

1 A. No.

2 Q. Same question as to your conversations with

3 MacVicar, Johnson, Perkins and Fennema?

4 A. No.

5 Q. Same questions as to your conversations

6 with Reddy, DeBusk, Wang, DeLaune and Koch?

7 A. No.

8 Q. Going on to the following page 20, 1084706

9 is the Bates number, do you have any notes of your

10 conversations with either Snyder or Gunderson?

11 A. No.

12 Q. Same question as to Dr. Steward?

13 A. This also applies to the comments I made

14 about Jim Grace. Kerry Steward turned out to be a

15 reviewer of the phosphorus and vegetation sensitivity

16 paper, and he discussed the results of his work in

17 relation to what I'm doing in that review.

18 Q. And you didn't produce those.

19 A. No.

20 Q. Okay. Do you have any memo or any

21 documentation of conversations with Dr. Steward other

22 than those referee notes?

23 A. No.

24 Q. And turning then to the final page 21,

25 Bates Number 1084707, do you have any notes or

130

1 documentation of your conversations with Flora or

2 Scheidt?

3 A. Documentations of conversations with

4 Scheidt are included in the phosphorus and vegetation

5 sensitivity paper referenced as personal

6 communication.

7 Q. Okay. Anything other than that? Those

8 comments -- when you're talking about the paper,

9 you're actually referring to Exhibit 2 which we're

10 reviewing right now; is that correct?

11 A. That's correct.

12 Q. Anything, any other memo or documentation

13 of those conversations?

14 A. No.

15 Q. Okay. You also stated that you reviewed

16 underlying data with regard to this particular paper.

17 Do you still have the underlying data that

18 you reviewed?

19 A. In that case my review was personally

20 watching the site over the last several years

21 periodically every time I got a chance and drawing my

22 own conclusions from what I saw in vegetation

23 patterns.

24 Q. Did you review any of their data?

25 A. No, other than that presented in the report

131

1 which...

2 Q. Right.

3 A. Can we take a five-minute break?

4 Q. I have two questions.

5 A. Okay.

6 Q. I do want -- let's just finish off the

7 area.

8 A. Yeah, if you can finish the subject.

9 Q. Do you have a copy of John Richardson's WCA

10 vegetative map that you've referred to?

11 A. I don't know.

12 Q. Okay. Do you have a copy of Ken Rutchey's

13 vegetative map?

14 A. No.

15 Q. All right. I assume then you did not

16 produce either of those in the documents.

17 A. No.

18 MR. KOBELINSKI: Why don't we take a break

19 then.

20 (Thereupon, a recess was taken from

21 2:30 p.m., until 2:39 p.m.)

22 BY MR. KOBELINSKI:

23 Q. All right. Back on.

24 As I understand your opinion, Mr. Davis, is

25 that nutrients are the primary cause of the spread of

132

1 cattail in Water Conservation Area 2A from 1970

2 through 1991; is that correct?

3 A. Yes.

4 Q. Okay. What are the other causes, if there

5 are any?

6 A. Hydrology, fire and disturbance.

7 Q. With regard to these three additional

8 causes that you have just stated: hydrology, fire

9 and disturbance, are those in any particular order of

10 importance?

11 A. No.

12 Q. What order of importance would they be?

13 A. I don't know.

14 Q. Okay. You were able, however, to determine

15 that nutrients are of greater importance than the

16 other three; is that correct?

17 A. Yes.

18 Q. When you say nutrients, are you talking

19 about water, concentration of nutrients in surface

20 water or in what format are you referring to?

21 A. I'm referring to surface water as the main

22 source of nutrient inputs into the conservation areas

23 or, in this case, into Water Conservation Area 2A.

24 Q. Is it the concentration of nutrients within

25 the surface water that is the primary cause of

133

1 cattail expansion?

2 A. The concentration in surface water is a

3 correlate of nutrient supply and, as such, it is an

4 indication of -- it is related to the spread of

5 cattail, yes, in that the higher the concentration in

6 the surface water, the greater the supply.

7 Q. There are various ways of studying or

8 considering inputs of nutrients into the system,

9 aren't there?

10 A. I suppose.

11 Q. Okay. For instance, you can look at just

12 surface water concentrations as compared to

13 phosphorus loading?

14 A. I don't really think you can separate them.

15 I think that surface water concentrations are

16 correlated with phosphorus loading and in reality are

17 what's causing the phosphorus loading. If there was

18 a loading of low concentration water, there would be

19 a low loading of phosphorus into the system. A

20 loading of, the same hydraulic loading of high

21 nutrient concentration water gives you a high

22 nutrient loading in the system. So I don't think you

23 can really separate the two. I don't.

24 Q. In your studies have you looked at soil

25 nutrient concentration's impact upon the spread of

134

1 cattail?

2 A. I collected soil samples during my

3 vegetation research. They were not analyzed in

4 detail nearly as much as the work by Reddy, et al.,

5 that I've identified in the literature cited.

6 Q. In your research have you attempted to

7 determine what correlation there is between soil

8 phosphorus concentration and the spread of cattail?

9 A. No.

10 Q. Do you have an opinion as to whether or not

11 there is a relationship between soil phosphorus

12 concentrations and the spread of cattail?

13 A. Yes.

14 Q. What is that opinion?

15 A. The very strong correlation between the

16 distribution of soil phosphorus concentrations and

17 the distribution of cattail in Water Conservation

18 Area 2A to me indicates that this is, this is one

19 piece of evidence supporting the relationship between

20 soil phosphorus and cattails.

21 Q. And how did you establish that correlation?

22 A. Simply overlay the two and visually they

23 line up perfectly.

24 Q. Okay. And when you say overlay the two,

25 what two are you referring to?

135

1 A. A soil phosphorus map and the cattail map.

2 Q. What soil phosphorus map?

3 A. The map -- we can use any number of

4 phosphorus parameters. But, for example, the map of

5 total phosphorus concentrations in interstitial water

6 in Water Conservation Area 2A, the data from Reddy,

7 et al.

8 Q. Okay. As I understand it, you overlaid

9 Reddy's soil phosphorus map with a cattail

10 distribution map?

11 A. Um-hum.

12 Q. What cattail distribution map?

13 A. The one produced by Rutchey.

14 Q. I believe you stated that the Rutchey

15 vegetative map was in reference to the early Nineties

16 sometime; is that correct?

17 A. Yes.

18 Q. And what about Reddy's soil phosphorus map?

19 A. Early Nineties.

20 Q. Same time period?

21 A. Yes.

22 Q. Is the soil phosphorus map that you're

23 referring to part of the Reddy publication that you

24 referred to earlier?

25 A. Yes.

136

1 Q. Did you at one time have a copy of Ken

2 Rutchey's vegetation map?

3 A. I don't believe I've ever had a copy.

4 Q. How did you go about overlaying the

5 vegetation map with Reddy's soil phosphorus map?

6 A. Marguerite Koch did that, and I simply

7 looked at it.

8 Q. Have you done anything else or is there any

9 other basis for your correlation between soil

10 phosphorus concentrations and cattail spread?

11 A. No.

12 Q. Okay. Did Marguerite Koch's overlaying the

13 Reddy soil phosphorus map with the Rutchey vegetative

14 map, is that sufficient to prove causation or is that

15 merely sufficient to prove correlation?

16 A. Correlation.

17 Q. Okay. By overlaying the vegetative map

18 with the soil phosphorus map, is there any way to

19 determine whether or not there are any other factors

20 impacting that correlation?

21 A. No.

22 Q. Okay. Have you done anything else to

23 determine whether or not there are other factors

24 impacting that correlation?

25 A. No.

137

1 Q. Is it your opinion that soil phosphorus

2 concentrations --

3 A. Let me go back to that last question.

4 We're talking strictly in terms of cattail

5 distribution and the correlation of cattail

6 distribution to soil phosphorus, is that the, that's

7 what you're asking me about?

8 Q. Essentially the spread of cattail or

9 cattail distribution and soil phosphorus, yes.

10 Does that change your answer any?

11 A. In what -- you're only asking the question

12 in relation to soil phosphorus.

13 Q. Yes.

14 A. Okay. My answer stands then.

15 Q. Okay. Have you either conducted a study or

16 research or revieweBRITISH papers which analyze a

17 correlation between phosphorus loading and the spread

18 of cattails in Water Conservation Area 2A?

19 A. In a number of studies we've used surface

20 water phosphorus concentrations as correlates of

21 phosphorus loading and then examined relationships of

22 vegetation response to concentrations with the

23 surface water being the main source of phosphorus

24 loading.

25 Q. What studies would you be referring to?

138

1 A. I'd be referring to Davis, 1990.

2 Q. That would be the bottom publication on

3 Exhibit 1, Bates page 0959634?

4 A. That's correct.

5 Q. All right.

6 A. Davis, 1991.

7 MR. BARTELL: Mark, for the record, that's

8 Exhibit 2, I believe.

9 MR. KOBELINSKI: No, it's Exhibit 1.

10 THE WITNESS: And --

11 BY MR. KOBELINSKI:

12 Q. I didn't hear the last part, I'm sorry.

13 Did you mention another one on this Bates

14 page 0959635?

15 A. Yes, Davis, 1991.

16 Q. Okay.

17 A. And Urban, Davis and Aumen in press.

18 Q. Now, with regard to Davis, 1990 which is in

19 Exhibit 1, Bates page 0959634, the final document

20 there, were loading factors calculated for the

21 different sites that you studied in that paper?

22 A. No. Surface water quality, surface water

23 phosphorus concentrations were used as correlates for

24 loading. It's very difficult to calculate loading in

25 any particular point in the marsh.

139

1 Q. And the like question for the following

2 page, Davis, 1991?

3 A. Same thing.

4 Q. How would you go about calculating loading

5 for a particular point in the marsh?

6 A. I don't know. I've never seen it done in

7 the conservation areas. You'd have to know the

8 volume of water flow past any, past a particular

9 point in the marsh where you wanted the loading rate

10 and then know the phosphorus concentration of that

11 water.

12 Q. Is there a means of determining what the

13 water flow is through a particular portion of the

14 marsh?

15 A. It's extremely difficult. It's quite

16 variable. It varies with any number of factors:

17 discharges from the structures, stages, rainfall.

18 There's not uniform overland flow. It would be very

19 difficult to calculate.

20 Q. If the overland flow is not uniform, how

21 accurate is surface water concentration as an

22 estimate of loading in a particular area?

23 MR. NETTLETON: Object to the form.

24 THE WITNESS: Because loading is directly

25 related to concentration in terms of the --

140

1 varies directly with, varies directly with two

2 things: concentration and flow, so there is a

3 correlation between loading and concentration.

4 BY MR. KOBELINSKI:

5 Q. Would you be able to calculate loading,

6 though, without knowing what the flow is?

7 A. No, and I've never attempted to.

8 Q. Is there any way for you to determine then

9 whether or not your research, which I believe you

10 stated correlates water, surface water concentrations

11 with loading, is valid?

12 MR. NETTLETON: Object to the form.

13 THE WITNESS: All I can say is I believe

14 that it's the best correlate we have to loading

15 and it's been, we've stated that we've used

16 concentration as a correlate for loading in our

17 refereed papers that have been accepted in

18 journals and symposia volumes and referees have

19 accepted this.

20 BY MR. KOBELINSKI:

21 Q. DiBRITISH of the referees or peer reviewers

22 of your papers raise a question as to the use of

23 surface water concentration as a correlative of

24 loading?

25 A. No.

141

1 Q. By studying the -- put it this way, by

2 collecting surface water concentrations and then

3 studying impacts upon cattail distribution, isn't

4 that actually just studying a correlation between

5 surface water concentrations and cattail distribution

6 as opposed to loading and cattail distribution?

7 MR. NETTLETON: Object to the form.

8 THE WITNESS: No. I feel that

9 concentrations the way we used them, and I'll go

10 into that if you'd like, do provide a good

11 comparison of sites in terms of nutrient

12 loading.

13 No, we don't have the exact nutrient

14 loading at the sites, as I've stated before, but

15 as far as comparison between sites, I think we

16 have good indications of high versus moderate

17 versus low nutrient loading based on

18 concentrations.

19 BY MR. KOBELINSKI:

20 Q. In your studies have you attempted to

21 determine whether there's a correlation between

22 surface water concentration and the spread of

23 cattail?

24 A. In the Urban, Davis and Aumen report we

25 examined that, but this was not the movement of

142

1 cattail across the marsh; this was the spread of

2 cattail into plots, into sawgrass plots that were ten

3 square meters apiece.

4 There's a very good correlation between the

5 spacial distribution of surface water concentrations

6 in Water Conservation Area 2A and cattail

7 distribution just as there is of soil phosphorus

8 concentrations and cattail distribution.

9 Q. Did you find a correlation between surface

10 water concentrations and cattail distribution?

11 A. In terms of the same spacial distribution?

12 Yes.

13 Q. I'm sorry. I didn't hear you.

14 A. In terms that -- or from the standpoint

15 that the distribution of surface water phosphorus in

16 Water Conservation Area 2A very closely overlays the

17 distribution of cattails, yes.

18 Q. And in this case I believe you're talking

19 about distribution of cattails.

20 Did the study attempt to analyze the spread

21 of cattails?

22 A. That was analyzed in the Urban, Davis and

23 Aumen report.

24 Q. Okay. Was there a correlation in that

25 report or in that study between surface water

143

1 concentrations and the spread of cattails?

2 A. Yes.

3 Q. And what was that correlation?

4 A. The increases in cattail density relative

5 to that of sawgrass were higher at the sites with

6 higher surface water phosphorus concentrations.

7 Q. As I understand your testimony then, the

8 higher the surface water concentration, the greater

9 the spread of sawgrass --

10 A. Cat- --

11 Q. Excuse me.

12 -- cattail?

13 A. Yes.

14 Q. And in that report did you come to the

15 conclusion that nutrients were the primary cause of

16 the spread of cattail?

17 A. Yes.

18 Q. Would the loading of nutrients in a

19 particular area have a greater impact on the spread

20 of cattail than the surface water concentrations?

21 A. Not in the way we used concentrations which

22 are annual averages at a site compared with annual

23 averages at other sites. I think that that's the

24 best indication we can have of loading. So the two,

25 I'd expect an equal correlation between the two.

144

1 Certainly loading is -- or supply is what's

2 influencing the plants. But I'm saying that the way

3 we use concentration, I feel it's a valid indicator

4 of supply, not an estimate of supply but a correlate

5 of supply.

6 Q. In your cattail/sawgrass, the Urban study,

7 was anything done to determine whether or not the

8 flows at the various sites were essentially equal?

9 A. The only thing that we did in that regard

10 would be indirect. Then when we selected the sites

11 at the beginning we selected areas of similar

12 vegetation cover to start the study, and so there

13 would be similar resistance to water movement.

14 We purposely kept the sites away from areas

15 that would channel water such as open water slough

16 areas or airboat trails.

17 So any water reaching our sites had to go

18 essentially across dense sawgrass stands for the most

19 part or cattail closer to the levee.

20 Q. Are you aware of any studies that have

21 essentially researched or analyzed the issue of

22 whether surface water concentrations are correlated

23 or indicative of loading? I'm referring to nutrients

24 there, surface water concentrations of nutrients are

25 indicative of nutrient loading.

145

1 A. I could come up with dozens of, many dozens

2 of studies that use it in that regard. I don't --

3 and have for two or three decades. I don't --

4 because it's very difficult to estimate supply or

5 loading in the middle of the marsh, I don't think I

6 know of any that have directly measured it.

7 Q. Do the ground elevations or topography have

8 any bearing upon whether surface water concentrations

9 are a good indicator of loading?

10 A. They could depending upon the situation.

11 Q. Did you consider that at any of the sites

12 in the Urban cattail study?

13 A. That's why we selected sites of similar

14 vegetation type which indicates that we were not

15 selecting sites in either depressions or ridges. We

16 selected sites in fairly uniform sawgrass with a few

17 cattails invading.

18 If we had selected sites in sloughs, we'd

19 have a different ground contour and, in that case, a

20 lower ground contour, and you'd expect more of a

21 channeling of water through the sloughs.

22 And, of course, if we selected higher sites

23 on ridges, we would have, I would think we'd have

24 less flow and supply.

25 So that our attempt at starting off with

146

1 relatively uniform conditions in terms of vegetation

2 in a way at least put our sites not in depressions or

3 ridges in Conservation Area 2A.

4 Q. In your answer there you're referring to

5 differences between sloughs and essentially marsh

6 communities; is that correct?

7 A. Well, they are all really marsh

8 communities, but sloughs are a deeper water marsh

9 community.

10 Q. Are there differences in topography that

11 can impact loading in other than comparing a slough

12 to, for instance, a sawgrass marsh?

13 A. Well, the big factor in the conservation

14 areas would be whether there's canals running

15 through. Obviously water would be channeled down

16 canals. We don't have that situation in Conservation

17 Area 2A.

18 In Conservation Area 1 there's higher

19 elevation ground in the middle of the refuge compared

20 to the perimeters which is why -- plus, there's a

21 canal around the perimeter. For both those reasons,

22 we see less penetration of phosphorus and water into

23 the interior. So, yes, topography can have an

24 effect.

25 Q. Were there differences in water levels --

147

1 you measured water levels at the Urban cattail sites?

2 A. Yes.

3 Q. Were there differences in water levels?

4 A. Minor.

5 Q. All right.

6 A. A few centimeters.

7 Q. All right. Did you use the water depth in

8 any fashion in determining what the load was?

9 A. No.

10 Q. Would the depth of the water have any

11 bearing upon the load?

12 A. I would only expect it to have a major

13 bearing on load if we were talking about much deeper

14 water at one site in relation to another and the one

15 site was in a flow channel compared to the, the

16 shallow water site, and we didn't have that situation

17 in any of our sites.

18 Q. With regard to the Urban cattail study,

19 what other factors, if any, were positively related

20 to the density of cattail?

21 A. Fire and hydrology.

22 Q. And both of those factors had a lesser

23 correlation than nutrients?

24 A. Yes.

25 Q. How is it that nutrients causes the spread

148

1 of cattail?

2 A. The research that I conducted indicated

3 that the growth in nutrient uptake characteristics of

4 cattail fit very well into a competitive strategy

5 which would, which would allow cattail to outcompete

6 other species under high levels of nutrient

7 enrichment but would make cattail nutrient-limited

8 and noncompetitive under low levels of nutrient

9 enrichment.

10 Sawgrass showed just the opposite traits.

11 The Urban, Davis and Aumen report confirmed

12 this but looked at a number of factors including

13 hydrology and fire and showed the interaction of

14 nutrients with hydrology and fire and gave us some

15 more information in regard to how these variables

16 interact.

17 Q. Okay.

18 MR. KOBELINSKI: I'm sorry. I know we took

19 one recently, but I'll need a short break.

20 Excuse me.

21 THE WITNESS: Me, too.

22 (Thereupon, a recess was taken from

23 3:15 p.m., until 3:23 p.m.)

24 BY MR. KOBELINSKI:

25 Q. As part of your cattail/sawgrass study with

149

1 Nancy Urban, in the data that you collected from the

2 six different sites was there a relative inverse

3 correlation between water depth and surface water --

4 or phosphorus surface water concentrations?

5 A. In the first place, I didn't do that study.

6 You said -- I didn't collect any of that data. It

7 was Nancy's study.

8 Q. You have reviewed the data, though, haven't

9 you?

10 A. Yes, yes.

11 I just wanted to clarify that. You said --

12 Q. I understand that.

13 In reviewing that data essentially when the

14 water was deep, were the surface water phosphorus

15 concentrations lower than when the water was

16 shallower?

17 A. I haven't looked at that in particular. I

18 did very little of the data analysis in that study.

19 Q. Have you reviewed the data analysis in

20 coming to your opinion as to the impacts of

21 nutrients?

22 A. Yes.

23 Q. Okay. Are you aware whether or not there's

24 any type of a dilution effect as to the concentration

25 of nutrients when the depth of the water rises?

150

1 A. That would depend on whether it rose as a

2 result of rainfall or opening the S-10 gates.

3 A heavy local rainfall would cause a

4 dilution effect, but opening the S-10 gates which

5 would also result in a rise in water level would tend

6 to have the opposite effect.

7 Q. Are the loads at the -- there were six

8 sites at the Nancy Urban study?

9 A. Yes.

10 Q. Was there any correlation between the site

11 closest to the S-10 -- I guess S-10D, the closest

12 site would have been D1.6; is that correct?

13 A. I think so.

14 Q. Okay. Did you find whether there was any

15 type of correlation between the loads coming out of

16 the S-10 structures and the loads, nutrient load at

17 D1.6?

18 A. I don't recall.

19 Q. Given your opinion that surface water

20 concentrations are a good correlation or indicator as

21 to the load at a particular site, would you

22 anticipate then that the mean surface water

23 concentration would be correlated with the load at

24 the site?

25 A. I'd prefer to use the word supply or

151

1 availability to load at a site.

2 Q. Is there a distinction you're attempting to

3 make?

4 A. Yes.

5 Q. And what is that distinction?

6 A. The load would be the, during any

7 particular time period the amount of phosphorus

8 coming in from either the S-10 structures or

9 rainfall, an external loading. The load would

10 certainly affect the supply at the site.

11 Supply is a longer term, in my mind, a

12 longer term characteristic of the site that involves

13 surface water soil regeneration of phosphorus as well

14 as the loading.

15 It all results from loading, but it -- from

16 loading over a period of time which is why surface

17 water concentrations in the supply of phosphorus at

18 the site does not necessarily jump up and down with

19 opening and closing the S-10 gates.

20 The soil phosphorus data in area 2A would

21 indicate that higher soil phosphorus levels near the

22 S-10 structures are probably a result of loading from

23 the structures via surface water, but once that site

24 becomes eutrophic, then it's characterized as a

25 eutrophic site or a high nutrient supply site and its

152

1 concentrations don't necessarily, the surface water

2 concentrations don't necessarily vary with opening

3 and closing S-10 gates or with the rainfall. It's

4 more or less a constant supply of phosphorus.

5 That's why I -- loading results in supply

6 or availability but it's not quite the same thing.

7 Loading's usually calculated over a week or

8 a day or a year.

9 Nutrient availability is usually described

10 more in terms of a eutrophic or oligotrophic site.

11 The two are certainly related but they are not quite

12 the same thing in my mind.

13 Q. Okay. The Urban, Davis cattail study, in

14 that study, though, you were looking at surface water

15 concentrations, not soil phosphorus concentrations;

16 is that correct?

17 A. That's correct.

18 Q. So your conclusions from that would be

19 drawing correlations between surface water

20 concentrations and not soil concentrations.

21 A. That's correct.

22 Q. Okay.

23 A. But I was, my point was that surface water

24 concentrations don't necessarily fluctuate with daily

25 or weekly or monthly changes in loading.

153

1 Q. In your testimony before the break you had

2 attempted to distinguish between correlations merely

3 based upon surface water concentrations, rather you

4 had said that surface water concentrations were

5 indicative or comparable to loading of a particular

6 area.

7 A. That's why I would like to requalify that

8 and use the word supply or availability rather than

9 loading --

10 Q. Okay.

11 A. -- for that entire conversation.

12 Q. Okay. And with regard to the supply of

13 nutrients as to a particular area, what factors come

14 into play in determining what that supply is?

15 A. Well, originally the supply has to be

16 loading through surface water. But once it, once a

17 pool of phosphorus builds up in a eutrophic area,

18 which is the definition of what a eutrophic area is,

19 then the supply can be internal as well as, internal

20 regeneration as well as external loading.

21 Q. And did the Urban, Davis report research or

22 study internal regeneration, is that what you said?

23 A. No, but we used surface water

24 concentrations as an index or a correlate to nutrient

25 availability in that particular marsh site as opposed

154

1 to loading.

2 I would like to get away from the word

3 loading.

4 Q. Well, when you look at then perhaps using

5 your term supply --

6 A. Supply to the plants, availability to the

7 plants.

8 Q. Okay.

9 -- does flow factor into determining what

10 the supply to the plants is?

11 A. Yes.

12 Q. How so?

13 A. If you have water of a given phosphorus

14 concentration, at least up to a certain point, as

15 flow increases, more of that phosphorus in that water

16 would pass by the plant and its roots and would be

17 available for uptake. But no one knows that

18 relationship.

19 So the way we got around that was averaging

20 surface water concentrations at each site over an

21 entire year which would take in a whole range of

22 flows.

23 Q. Okay. Would then a high surface water

24 concentration correlate with a high supply of

25 nutrients?

155

1 A. To the plants?

2 Q. Yes.

3 A. That's the way we used the data, yes.

4 Q. Okay.

5 A. And I believe that's a valid use.

6 Q. All right. And then, likewise, then a low

7 surface water concentration would correlate with a

8 low supply of nutrients for the plants.

9 A. That's the way we, that's the assumption,

10 the stated assumption we made in the report, yes.

11 Q. How would you define a eutrophic site?

12 A. I think the words eutrophic and

13 oligotrophic are all relative depending on the system

14 you're working in, so it has to be by comparison.

15 But a eutrophic site is a site with a high

16 availability of -- it doesn't have to be phosphorus.

17 In this particular case it looks like it's

18 phosphorus -- a high availability of nutrients

19 relative to other sites which have a low availability

20 of nutrients. This availability could either come

21 through external loading or through a buildup of a

22 nutrient pool at the site causing an internal loading

23 or internal recycling.

24 Q. And in what situation would have the latter

25 example of a buildup of an internal pool?

156

1 A. I would think this would be in the areas of

2 high soil phosphorus as indicated in the Reddy,

3 et al. report.

4 Q. Just so I understand what you just stated,

5 as soon as you have high soil phosphorus, you

6 automatically get into an internal pool?

7 A. It's very likely some of that soil

8 phosphorus in the interstitial water's available for

9 exchange with surface water at that point and

10 available for plant nutrition, yes.

11 Q. Okay. Once a site is eutrophic will it

12 always be eutrophic?

13 A. I don't know.

14 Q. Okay. Site D1.6, would you classify that

15 as a eutrophic site?

16 A. Yes.

17 Q. What scenario or what factors would have to

18 come into play to change that back to an oligotrophic

19 site?

20 A. The external loading of phosphorus would

21 have to drop and the internal pool of phosphorus at

22 the site would have to be depleted and gradually --

23 the only way it could really be depleted is to be

24 flushed downstream.

25 Q. When you say flushed downstream, that in

157

1 essence requires a flow of water across the site?

2 A. Yes.

3 Q. And from your earlier comment of cutting

4 out the external loading, I assume you mean then you

5 have to have a flow of low-nutrient, whatever low

6 might happen to be, water going across the site; is

7 that correct?

8 A. I believe that would be the case at that

9 particular site, yes.

10 Q. Okay. Do you know how low nutrient

11 concentration would be required to convert D1.6 back

12 to an oligotrophic site?

13 A. I already said I didn't know if it would

14 convert back.

15 Q. Okay. From your earlier testimony I

16 believe you stated that essentially a high nutrient

17 supply was favorable to cattail and unfavorable to

18 sawgrass; is that correct?

19 A. Sawgrass isn't directly damaged by a high

20 nutrient supply. It simply doesn't increase its

21 growth in relation to it, while cattail does. And so

22 cattail's able to outcompete it.

23 So it's indirectly unfavorably influenced

24 by high nutrients in that it shifts a competitive

25 advantage to another species, to cattail.

158

1 But high nutrient concentrations are not

2 toxic to sawgrass, at least at the levels we're

3 seeing here.

4 Q. You used the term outcompetes or

5 competitive.

6 What do you mean by that?

7 A. It means that cattail can produce new

8 plants, biomass, at a more rapid rate than sawgrass

9 and gradually fill in an area that is sawgrass once

10 the cattail becomes established.

11 Q. In any of your studies have you seen

12 sawgrass actually invade a dense -- excuse me,

13 cattail actually invade a dense sawgrass stand?

14 A. Cattail invade a dense sawgrass stand?

15 Q. Yes.

16 A. Are you including the Urban and Davis study

17 in my study?

18 Q. In any of your research, yes.

19 A. Yes, in all of them.

20 Q. At what sites specifically?

21 A. In my research at the site that's referred

22 to in the Urban report as D1.6, more recently the

23 site that's referred to in the Urban report as D6.4.

24 In the Urban study we had many instances

25 over the six-year period at the six sites of invasion

159

1 or colonization of sawgrass areas by cattail in our

2 plots.

3 Q. Throughout the various drafts of the Urban

4 cattail reports there are various names for the

5 stations or sites, but they are essentially the same

6 six sites throughout, right?

7 A. Yes.

8 Q. And if I recall correctly, what is most

9 currently referred to as D1.6 -- which I believe is

10 indicative that it is 1.6 kilometers from the S-10D

11 structure; is that correct?

12 A. That's correct.

13 I never liked these designations. I wish

14 they'd get off this numbering system, but...

15 Q. If I'm correct, D1.6 is also known as in

16 various drafts D1.8 and site B; is that correct?

17 A. It was labeled site B in my studies in the

18 Davis, 1990 and Davis, 1991 which we cited

19 previously.

20 Q. And that's the same as site D1.8 and D1.6?

21 A. I have no idea. I haven't heard of D1.8.

22 I don't know where that came from or where that is.

23 Q. All right. And is site D6.4 the same as

24 site D6.7?

25 A. I have no idea.

160

1 Q. Okay.

2 A. I would guess it is.

3 Q. Okay. Does cattail outcompete sawgrass in

4 high nutrient surface water conditions at all water

5 levels?

6 A. No.

7 Q. In what water levels would cattail not

8 outcompete sawgrass in high nutrient conditions?

9 A. We observed the die-back of cattail in

10 sawgrass stands during the major drought of 1989 to

11 '90, but upon reflooding it came back.

12 Q. So is drought the only water level that

13 would change the competitive advantage that cattail

14 has over sawgrass in high nutrient conditions,

15 surface water conditions?

16 A. The primary species of cattail in

17 conservation areas is Typha domingensis. That is a

18 species that is more competitive under deep water

19 conditions than shallow water conditions.

20 Q. Is there a particular water level below

21 which cattail loses its competitive advantage over

22 sawgrass in a high nutrient surface water site?

23 A. I don't know.

24 Q. DiBRITISH of your studies analyze this

25 issue or question?

161

1 A. No.

2 A. Only that we know that under drought, under

3 conditions of marsh drying, the cattail will die

4 back.

5 Q. Would your study results and opinion be

6 limited to a determination that nutrients is the

7 primary factor which causes cattail expansion only

8 under the current water regulation schedule for

9 WCA-2A?

10 A. Would you repeat that question, please?

11 Q. Would you like me to repeat it or rephrase

12 it?

13 A. Either/or.

14 MR. KOBELINSKI: Why don't you go ahead and

15 repeat it and I'll see if that works.

16 (Thereupon, a portion of the record

17 was read by the reporter.)

18 MR. NETTLETON: Object to the form.

19 THE WITNESS: Would you read that one more

20 time to me?

21 (Thereupon, a portion of the record

22 was read by the reporter.)

23 MR. NETTLETON: I'd like to just instruct

24 the witness if he does not understand the

25 question and can't answer it as phrased, he can

162

1 say that instead of trying to reformulate it in

2 his mind and ask you to rephrase it if that

3 would be helpful to him.

4 MR. KOBELINSKI: I believe those were the

5 ground rules we set, so...

6 MR. NETTLETON: Well, he's obviously

7 struggling with the question.

8 THE WITNESS: It was a complex question.

9 There's not a simple yes or no answer to it.

10 That's why I'm --

11 BY MR. KOBELINSKI:

12 Q. I understand.

13 A. In a nutshell, no.

14 MR. GREEN: Well, now that we've

15 established that...

16 BY MR. KOBELINSKI:

17 Q. Why not?

18 MR. NETTLETON: That was the safest answer.

19 THE WITNESS: Because the majority of the

20 Everglades system that's left has relatively

21 small patches of cattail that are not expanding

22 under a wide range of hydrologic conditions at

23 interior sites that would be characterized as

24 oligotrophic.

163

1 BY MR. KOBELINSKI:

2 Q. Well, have any of your studies essentially

3 been designed or, in fact, looked at the impact of

4 nutrients under different hydroperiods?

5 A. The Urban and Davis study or during that

6 six years experienced drastic extreme in

7 hydroperiods, everything from a one-in-100-year

8 drought to continuous flooding, a hydroperiod being

9 the portion of the year that a site is flooded.

10 Q. Okay.

11 A. So it did examine many different

12 hydroperiods.

13 Q. But in that particular study all the sites

14 experienced the same hydroperiod, didn't they, or did

15 the sites actually experience different hydroperiods?

16 A. They all roughly experienced the same

17 hydroperiod, but from year to year the whole group of

18 sites, nutrient-enriched or background, experienced

19 different hydroperiods. And so we were able to

20 utilize the yearly variation or yearly change in

21 hydroperiod as a variable, as a hydroperiod variable.

22 Q. Okay. And if I recall the study,

23 essentially the study broke it up in between wet

24 years and dry years; is that right?

25 A. Yes. We characterized the hydroperiod in

164

1 terms of wet year and dry year.

2 Q. And a dry year was essentially the drought

3 that you're referring to.

4 A. Yes.

5 Q. Would the hydroperiods that were

6 experienced during the study period at the six sites,

7 would that be sufficient to answer my prior question

8 of whether there was a particular water level under

9 which cattail would not outcompete sawgrass even in a

10 high-nutrient site?

11 A. No. I already answered that we, that we

12 don't have the information as to what that water

13 level is.

14 Q. Well, how would you make that

15 determination? Is there a different way of designing

16 a study to find that answer?

17 A. The obvious way I would think of would be

18 to find sites with different water levels under the

19 same nutrient regime.

20 Q. Okay. And that's not the way the sites

21 were selected for the Urban, Davis cattail study, was

22 it?

23 A. No. Our purpose was not to determine that

24 number. That was not the purpose of the study.

25 Q. Okay. And, in fact, the sites were not

165

1 selected to determine what impact hydroperiod had on

2 cattail expansion, were they?

3 A. The primary objective of that study was to

4 examine the effects of nutrients on cattail

5 expansion.

6 Q. Okay. At the time the site was selected

7 was hydroperiod a factor that was going to be studied

8 at all?

9 A. We anticipated over the period of the study

10 that we would get different hydroperiods and planned

11 to compare hydroperiod effects in that regard, but --

12 and we did so in terms of analyzing wet versus dry

13 years, short hydroperiod versus long hydroperiod

14 years, but we never had the objective of determining

15 a number, a water level under which cattail would not

16 outcompete sawgrass.

17 Q. And under the Urban, Davis cattail study

18 did cattail densities increase at all sites during

19 the wet years?

20 A. Yes.

21 Q. And in the same study did cattail densities

22 decrease at all sites during the dry years?

23 A. My recollection is yes.

24 Q. And once a wet or higher hydroperiod was

25 restored, did cattail densities again increase?

166

1 A. Yes.

2 Q. How were you able then to differentiate

3 between a causal effect for high nutrients as opposed

4 to one by hydroperiod?

5 A. The rates of increase during wet years were

6 greater at the high-nutrient sites.

7 Q. But there was still an increase at the

8 low-nutrient site.

9 A. Yes, a very small increase.

10 Q. Was that considered a background site?

11 A. I would not consider it a background site

12 anymore. We thought it was a background site when we

13 set up the study and then found nutrient levels above

14 what we would consider background at that site during

15 the study.

16 I used to consider D6.4 to be a background

17 site, but it's not anymore. It was back when I did

18 my work.

19 Q. Does the lack of a background site in the

20 study impact your opinion at all?

21 A. No.

22 Q. Would the control of nutrients alone then

23 result in a halt of the expansion of cattails?

24 A. I would expect it to slow the expansion of

25 cattails, and probably expansion would not be halted

167

1 until the internal pools of nutrients at enriched or

2 eutrophic sites had been essentially diluted and

3 taken downstream. But as that happened, at least on

4 a temporary basis you'd expect to see a continued

5 spread of cattails downstream for an indefinite

6 number of years, but it would reverse the, it should

7 reverse the trend of expanding or rates of cattail,

8 yes.

9 Q. Would your studies have shown that cattail

10 expanded as a result of altered hydroperiods and that

11 nutrients magnified that expansion?

12 A. It should be just the opposite.

13 The hydroperiod in Conservation Area 2A is

14 under a lower regulation schedule since the expansion

15 that I noted of cattail has occurred, and this

16 particular species of cattail is a deep water species

17 so it should be just the opposite effect.

18 In other words, the water regulation

19 schedule in Water Conservation Area 2A should be more

20 detrimental to the spread of cattail than the

21 previous regulation schedule if that were the, if

22 that were a causal factor.

23 Q. When you're referring to the previous

24 regulation schedule, are you referring to the period

25 where the water levels were kept at essentially a

168

1 higher level than they are now?

2 A. That's correct.

3 Q. Okay. As a matter of fact, the WCA-2A was

4 essentially kept flooded year-round; is that correct?

5 A. It didn't stay flooded year-round every

6 year, but that's what the regulation schedule would

7 have dictated if the, with normal rainfall.

8 Q. Is there a water level that's actually too

9 deep for this type of cattail?

10 A. I don't know the upper range.

11 The water depth ranges in Conservation

12 Area 2A have never exceeded the depth tolerance of

13 Typha domingensis according to the research of Grace

14 who's looked at a relationship of the species to

15 water depth. He's found average water depths, that

16 the species can grow in average water depths of over

17 a meter which were higher than Conservation Area 2A

18 ever experienced on an average basis.

19 MR. KOBELINSKI: I'm sorry. I didn't catch

20 the last half of that. Could you repeat that

21 back?

22 (Thereupon, a portion of the record

23 was read by the reporter.)

24 BY MR. KOBELINSKI:

25 Q. When you refer to on an average basis, were --

169

1 is it Dr. Grace?

2 A. Yes.

3 Q. -- did Dr. Grace, was his study looking at

4 average water depth in tolerances of cattail?

5 A. Yes.

6 Q. Does it matter the levels, whether the

7 levels exceed that average depth for a portion of the

8 year?

9 A. It could, depending on how much they

10 exceeded it. I don't know the upper depth tolerance

11 for, for that species of cattail. I know it's

12 greater than a meter because his cattails did well at

13 a meter.

14 Q. Have you done any research or

15 revieweBRITISH research as to whether or not the

16 prior regulation schedule for Water Conservation

17 Area 2A was detrimental to cattail due to the depth

18 of the water?

19 A. I think Dr. Grace's research clearly

20 indicates that it was not detrimental.

21 Q. Was that research, did that deal with a

22 study of Water Conservation Area 2A during that

23 period?

24 A. No, no. It was experimental studies in

25 creating impoundments where cattail was planted.

170

1 Q. What effect, if any, did the higher

2 regulation schedule have on sawgrass in Water

3 Conservation Area 2A?

4 A. It resulted in a thinning of sawgrass, a

5 tussock formation where the sawgrass essentially

6 grows on top of itself to try to get, create its own

7 shallower water, create its own elevations, and it

8 created open water areas in areas that had been

9 formerly sawgrass, slough areas, areas that had been

10 formerly sawgrass.

11 Q. What species of cattail did Dr. Grace use

12 for his study?

13 A. The study I'm talking about or the results

14 I'm talking about were Typha domingensis, the species

15 we find in most of the conservation areas.

16 He compared other species of cattail, one

17 of which is present in the conservation areas but

18 not, not abundant. That's Typha latifolia and one

19 that doesn't even occur down here, Typha

20 angustifolia.

21 Q. And which study was that that Dr. Grace

22 did? Is that one of the references that you made

23 earlier --

24 A. Yes.

25 Q. -- indicated earlier?

171

1 Would that be Grace, 1989 at page 18, Bates

2 Number 1084704 of Exhibit 2? Is that the study

3 you're referring to?

4 A. And the one before that, Grace, 1988.

5 Q. DiBRITISH of the sites in the Davis, Urban

6 cattail/sawgrass study have tussock growth form for

7 the sawgrass?

8 A. There's always some tussock growth in

9 sawgrass, just depends on how extreme it is.

10 We purposely selected sites with as uniform

11 vegetation characteristics as we could find at the

12 beginning of the study along this nutrient gradient

13 so that the beginning state of the vegetation was as

14 constant as we could get it, so that that wasn't a

15 variable.

16 So we were starting with each stand had

17 more or less a uniform cover of sawgrass with just a

18 few cattails invading for a starting condition.

19 That uniform cover, in choosing for uniform

20 cover, we did not choose areas with extreme tussock

21 growth. We chose areas that -- you don't find

22 uniform sawgrass cover with extreme tussock growth.

23 You get tussocks and several feet of open water

24 between the tussocks. And so we did not have any

25 sites that had that characteristic, no.

172

1 Q. When you say the sites were selected with

2 uniform sawgrass cover...

3 A. As best as we could visually estimate at

4 the beginning of the study.

5 Q. Were they then essentially a dense sawgrass

6 stand?

7 A. Yes, with scattered cattails.

8 Q. Were there open water areas within the

9 sites?

10 A. No major open water areas. There's always

11 some space in between plants.

12 Q. Where would cattail be in relation to the

13 sawgrass? Would they sprout up in the midst of a

14 sawgrass stand or in the, you referred to some open

15 areas?

16 A. Well, in the sawgrass stands that we

17 selected the cattail plants occurred between the

18 sawgrass plants.

19 Q. Is that an open area between or -- again,

20 I'm just trying to understand if the sawgrass

21 literally was growing in the middle of a dense

22 sawgrass stand.

23 A. Well, a dense sawgrass stand has a sawgrass

24 plant spaced a few inches apart and that's very dense

25 and -- but there's, the cattails would grow in

173

1 between those. Obviously they weren't growing on the

2 sawgrass; they were growing in between them. I'm

3 not... but we didn't have openings, we did not have

4 conspicuous openings in any of our plots, if that's

5 what you're asking, where the cattails were growing.

6 Q. Did you have conspicuous openings where the

7 cattails weren't growing?

8 A. No. We chose our plots where there were

9 not conspicuous openings.

10 Q. In testing, in doing your determination of

11 density, how was that done?

12 A. Again, you're talking about Nancy Urban's

13 determination of density. I never diBRITISH of those

14 measurements.

15 Q. Did you assist in the determination of the

16 methodology for the study?

17 A. Yes. But I just want to clarify, this is

18 Nancy's study.

19 Q. I understand.

20 A. Okay.

21 Q. Let me ask it differently then.

22 How was the density determined?

23 A. We set up five 10 meter by 10 meter plots

24 at each of the sites and, again, those plots were

25 chosen on uniformity of vegetation at the beginning

174

1 of the study. We -- Nancy counted every cattail

2 plant in the plot each year in late summer for six

3 years. She avoided counting the same plant twice by

4 putting a small orchid tag on the plants that had

5 been counted so that we wouldn't count them twice.

6 Because of the, because the plots were

7 primarily sawgrass, it was not practical to count

8 every sawgrass plant in the entire plot, so we set up

9 three sub plots within the larger plots for counting

10 sawgrass and then used the same technique for

11 counting sawgrass.

12 Q. The three sub plots, were they smaller

13 plots?

14 A. Oh, yes.

15 Q. And where were those plots located within

16 the larger cattail plot?

17 A. Nancy located them in relation to the

18 corners of the larger plots. I forget her exact

19 scheme. I even forget the exact size of them. I

20 think they were a meter by half a meter, if I recall.

21 Q. How often had you visited the sites of the

22 Urban cattail study during the study period?

23 A. Other than the selection of the sites at

24 the beginning, I think I was just out there once to

25 look at her methods.

175

1 Q. And do you recall approximately when that

2 was? Was that the first year of the study?

3 A. Probably the first or second year of the

4 study.

5 Q. She was taking water quality samples more

6 frequently than she was doing vegetative counts; is

7 that correct?

8 A. Yes.

9 Q. When you went out with her the second time

10 for the first, during the first or second year of the

11 study, did you go out during a vegetative count or

12 during a water quality sampling?

13 A. Vegetation count.

14 Q. Did you participate in the vegetation

15 count?

16 A. Yes.

17 Q. Okay. Would you have field notes on that?

18 A. No. Field notes were the data that we

19 collected. That's the only -- there's only one data

20 set which was the data set Nancy used.

21 The field notes was, were making hash marks

22 on a piece of paper as people called out the number

23 of plants.

24 Q. If you reviewed the field notes for the

25 various years, would you be able to determine which

176

1 year you had gone out?

2 A. Probably not unless Nancy has notes as to

3 who went with her on every trip. I just acted as a

4 technician when I went along and either tagged plants

5 or recorded, a little bit of both.

6 Q. Got your hands dirty?

7 A. Sure.

8 Q. Would you characterize the sawgrass at all

9 six sites as healthy sawgrass stands at the beginning

10 of the period of study?

11 A. I really couldn't comment on the health of

12 the stands. All I can say is that they were, we

13 picked sites for these plots that were primarily

14 sawgrass with a few scattered cattails. I really

15 don't have a way to estimate the health of a stand or

16 a plant.

17 Q. I believe you referred to in the Urban,

18 Davis paper as a peppering of cattails. Do you

19 recall that term?

20 A. That's correct, that's what I meant to

21 describe.

22 Q. When you say --

23 A. Uniform cover of sawgrass with a few

24 scattered cattails.

25 Q. That peppering of cattails, is that

177

1 indicative of any particular manner of expansion?

2 A. It's really hard to say.

3 Q. Okay. Would you expect that peppering

4 pattern if the expansion was as a result of rhizome

5 growth or expansion, propagation?

6 A. Well, that was my thought when I was

7 answering your previous question, that a peppering in

8 some areas would indicate a fairly recent

9 colonization through wind-blown seeds which is a type

10 of seed that cattail has, but there's some

11 uncertainty about the, in the vegetative reproduction

12 of cattails sending out runners and the rhizomes and

13 new shoots, how far they might send those new shoots

14 before they come -- they might send the runners

15 before the new shoots come up, particularly in a

16 dense sawgrass stand where the runner might go quite

17 a distance before it found a spot to make, before it

18 found a spot to come up between some sawgrass plants.

19 So it's just hard to say.

20 I would generally tend to think that it

21 indicated a seed method of initial dispersion of the

22 cattails after which they would then spread by

23 rhizomes, but it's hard to say.

24 Q. And when you're referring to a rhizome, the

25 possibility of it going for a distance prior to it

178

1 finding a spot where it can come up, is it

2 essentially then the rhizomes would come up in

3 openings or gaps in the sawgrass plants?

4 A. Well, it would have to come up between

5 sawgrass plants.

6 There's any number -- the reason I said

7 it's hard to say, there's any number of things. It's

8 just second-guessing what the sawgrass plants were

9 doing. They could have sent new shoots up and for

10 some reason or another those shoots didn't make it

11 and so the rhizome goes farther and sends another up.

12 And you don't see any of that. That's all below the

13 water and decomposed. All you see is the plants that

14 are sticking up. So it's very difficult to interpret

15 unless we were to totally excavate the site and try

16 to trace rhizomes and map rhizome patterns. It would

17 be very difficult to make that determination.

18 Q. What is the, in your opinion, the primary

19 method of reproduction of cattails in the Water

20 Conservation Area 2A?

21 A. Both wind-blown seeds, and once they get

22 established, vegetative reproduction through

23 rhizomes.

24 Q. Essentially you feel they are coequal?

25 A. I don't have any idea.

179

1 Q. Do wind-blown seeds continue to play a

2 factor once cattails are established in an area?

3 A. It would play less of a factor, I would

4 think.

5 Q. With regard to the Urban, Davis cattail

6 study, were the vegetative communities at the sites

7 essentially the same as that contained within the

8 actual plots?

9 A. For the most part.

10 We did have a problem at the sites that we

11 characterized as high-nutrient sites, the ones

12 closest to the S-10 structures where there was mostly

13 cattail. We had, we were limited in our, in our

14 sites for our actual plots finding places where there

15 was still patches of sawgrass.

16 Q. Would that have an impact upon the

17 percentage change of density within the plots between

18 the various sites?

19 A. It could.

20 Q. Did you account for that in your study?

21 A. There's really no way to account for it.

22 The site that's referred to as D1.6 was the

23 site where we had the most difficulty finding

24 sawgrass stands that we were looking for with

25 scattered cattail, just scattered cattail. It was

180

1 mostly cattail. And that is the single site that

2 behaved differently than the other sites in the rate

3 of cattail expansion.

4 And it's very possible that there's a

5 reason why cattail, why these small areas of sawgrass

6 persisted there and something that we couldn't

7 account for why cattail hadn't invaded that area

8 previously because it had all around.

9 So there's a possibility there that there's

10 something that we weren't aware of that was

11 inhibiting the filling of these particular plots with

12 cattail because they might have -- since the whole

13 area around it was cattail and had been for some

14 time, there probably might have been a reason why

15 that area, these particular patches were not.

16 Q. Could that difference or that factor have

17 been the depth of the site as compared to surrounding

18 area?

19 A. No, because the site as a whole was cattail

20 and we had to, as I said, we had difficulty finding

21 patches of sawgrass. There was, as I recall, there

22 was no consistent depth difference between our

23 specific 10 by 10 meter plots and the areas right

24 around them that were cattail.

25 Q. Did you actually take measurements to

181

1 compare that?

2 A. I took a few when I was out there at the

3 beginning and didn't see any. I did all the sites

4 and didn't see any difference. I didn't record them

5 but more or less just to make sure there was no

6 drastic depth difference that we were missing.

7 Of course, you can stick the meter stick

8 down any two places in the marsh and find a few

9 centimeters difference in depth one foot apart, but I

10 didn't see any trends. That was just to satisfy my

11 own curiosity. It wasn't a data collection exercise.

12 Q. The density of cattails at the D1.6 was

13 greater than at the other sites overall, is that

14 correct, other than the drought years?

15 A. In our plots at 1.6?

16 Q. Yes.

17 A. No, that's not, that's not correct, as far

18 as I recall.

19 And, again, one thing I need to say is I

20 haven't even looked at this data for close to two

21 years and my input into the report was about two

22 years ago, so I'm -- and I have not reviewed it

23 recently, so I'm talking from memory of about two

24 years ago.

25 Q. What was your input into the report?

182

1 A. I did some of the writing and made

2 suggestions concerning data analysis.

3 Q. To Ms. Urban or to Dr. Aumen?

4 A. To Ms. Urban.

5 I had really nothing to do in the final

6 revisions of the report after Nick Aumen started to

7 work on it.

8 Q. Have you reviewed Dr. Aumen's findings?

9 A. Have I what?

10 Q. Have you reviewed Dr. Aumen's analysis?

11 A. I've read the report since it's been

12 revised, yes.

13 Q. Which would be when? When was the last

15 A. Oh, a few months ago. But I am going to be

16 rusty on specifics of which site had the higher

17 density or lower density. I haven't really looked at

18 that data in detail for probably more than two years,

19 so...

20 But as I recall, we had higher densities of

21 cattails at other sites at least during some years.

22 Q. Were the nutrient concentrations at the

23 D1.6 the highest of any of the sites?

24 A. As I recall they were. There was one other

25 highly eutrophic site below one of the C, on the C

183

1 transect below S-10C. I forget whether -- that one

2 was high also. I'd have to go back and look. I

3 believe those two were, the one directly below C and

4 D were the highest in terms of nutrient

5 concentrations, as I recall.

6 Q. Was there then some other factor

7 influencing the expansion of the density of cattail

8 which resulted in D1.6 not having as great an

9 expansion as lower nutrient sites?

10 A. It could either be two things. It could be

11 just the natural variability you find in vegetation

12 communities. And when we did our correlations of

13 cattail expansion to nutrients, the correlation,

14 significant correlations that we found included D1.6,

15 so they were strong enough that even the variation we

16 found at the site didn't destroy a strong

17 correlation. But you find that. That's why you have

18 a number of sites in a study. You find a huge amount

19 of variability. And we had other factors, as I

20 mentioned, fire and -- but we definitely had higher

21 cattail counts at some of the other enriched sites

22 after fire.

23 Q. There was no fire at the D1.6 site.

24 A. No.

25 Q. Has --

184

1 A. That was really what I was referring to

2 when you asked if D1.6 had the highest counts. I

3 know that the two eutrophic sites that burned just a

4 little bit farther out in the marsh had the higher

5 counts the year after the burn. That's -- when I

6 said no, that's what I was referring to.

7 Q. Has the District used herbicides at any

8 point to attempt to kill off cattails in Water

9 Conservation Area 2A?

10 A. Certainly not in the marsh. I don't know

11 if our spray crews spray -- they spray the canals for

12 water hyacinths. I don't know if -- they probably

13 hit cattails going along banks, too. But I don't

14 think there's any intention, certainly there's been

15 no intentional program to control cattails in

16 conservation areas with herbicides.

17 Q. The herbicide use that you referred to, was

18 that for hyacinths in the canal along the 10

19 structures within the 2A?

20 A. I would presume that's been sprayed. I'm

21 not involved in the spraying operation at all.

22 Q. Were soil borings taken as part of the

23 Urban, Davis cattail study?

24 A. Nancy took soil samples, one set of soil

25 samples early in the study that very generally

185

1 characterized the soils in terms of higher level

2 phosphorus concentration in the top 10 centimeters.

3 Q. And what was the purpose of that?

4 A. Simply to see if soil concentrations

5 reflected what we saw in surface water

6 concentrations.

7 We didn't have any of the data from Reddy

8 and Marguerite Koch at that time, so we were -- it

9 wasn't a full-blown soil study. We simply took a

10 soil core at each site.

11 Q. Did those soil borings or soil samples bear

12 out the gradient you anticipated?

13 A. As I recall, they did. I would have to

14 look back. Again, I never even wrote up that part of

15 the study.

16 As I recall, we had higher soil

17 concentrations at the, what we characterized as the

18 high-nutrient sites.

19 Q. Earlier when you were providing your

20 opinion as to the distribution of cattails, you

21 referred in the 1970s that there was cattail

22 distribution of approximately one mile south of the

23 S-10s ending at the north-south airboat trail.

24 Do you recall approximately what the areal

25 or geographic area, how much distribution that was?

186

1 A. At someplace between 5 and 6,000 acres.

2 Q. And that 5 to 6,000 acres, had that area

3 previously been a sawgrass marsh?

4 A. It appears that it had been back in the, in

5 the Forties from the work, from the vegetation map

6 produced by John Henry Davis in the report I've

7 already cited. That area fell in a landscape that we

8 have termed the sawgrass dominated mosaic which was

9 mainly sawgrass with occasional sloughs and tree

10 islands.

11 There was always a band of willow along the

12 Hillsboro Canal.

13 Apparently sometime after the Forties that

14 area became, the band of willow expanded to about

15 this, about this mile width, about this 5,000 acres,

16 I guess if you want to put it in those terms.

17 And it's hypothesized that this was the

18 disturbance factor due to the drainage of the marsh

19 surrounding the Hillsboro Canal before the

20 conservation areas went in, willows and other species

21 that comes in disturbed situations.

22 And it was after the construction of

23 Conservation Area 2A or just at that time that,

24 within a year or so after reflooding that this band

25 of willows was drowned out essentially, water too

187

1 deep, and that's when the cattail came in.

2 I don't believe I've ever attributed that

3 initial stand of cattails to entirely a nutrient

4 situation.

5 Q. What else would you attribute it to?

6 A. A combination of disturbance in hydrology.

7 Q. How would hydrology have impacted the

8 establishment of that 4 to 5,000 acre...

9 A. It simply drowned out the willows.

10 And given the information that we know

11 about the Typha domingensis being a species that can

12 thrive and be competitive in water depths over a

13 meter, cattail would be a very likely species to

14 replace the willow under those deeper water depths

15 that were created by the impoundment of area 2A.

16 Q. Is that area, the 5 to 6,000 acres

17 approximately a mile south of the S-10s, how does

18 that compare substrate surfacewise with the area

19 immediately south of it?

20 A. In terms of ground elevation or --

21 Q. In terms of ground elevation.

22 A. It's lower.

23 Apparently the old Hillsboro Canal before

24 the construction of the conservation areas drained

25 the area around it which allowed oxidation of some of

188

1 the peat which lowered surface, ground surface

2 elevations creating what we call a subsidence valley,

3 a little dip in elevation going towards the Hillsboro

4 Canal. You see this on both sides of the canal.

5 Q. The Hillsboro Canal itself is on the,

6 within Water Conservation Area 1; is that correct?

7 A. That's correct.

8 Q. Prior to the construction of the project

9 was there ever that second canal that is currently

10 located in Water Conservation Area 2A?

11 A. I don't believe so.

12 Q. Is that essentially a borrow canal, to the

13 best of your knowledge?

14 A. I think it functioned for two purposes back

15 in the construction, one as a borrow canal and one as

16 what they call a get-away canal, get water away from

17 the inflow gates rather than have the water just hit

18 the marsh point blank upon going through the gate.

19 Q. Is it your opinion that nutrients were a

20 factor in establishing that original 5 or 6,000 acres

21 of cattail?

22 A. Well, everything we know about biology of

23 cattail would indicate that they would not have

24 thrived without nutrients under a low-nutrient

25 situation, so that would have been a prerequisite for

189

1 them establishing in that density that large a stand.

2 But in this case what probably came first

3 was the disturbance followed by the deeper water

4 which then drowned the willows.

5 So there we have all three factors.

6 That's all just hypothetical, but that's

7 probably the best guess of what happened in that

8 area.

9 Everything we know about cattail indicates

10 that under a low supply of nutrients it would not

11 take over like that.

12 Q. Would you say then that as with the

13 expansion from the Seventies to 1991 that nutrients

14 were the primary factor in the establishment of that

15 5 to 6,000 acres?

16 A. Well, it was already there. It was

17 already, it was there before the Seventies.

18 Q. No, I'm sorry. You misunderstood my

19 question.

20 I was saying that as with the expansion

21 from the Seventies to '91, was nutrient the primary

22 factor that caused the establishment of the 5 to

23 6,000 acre cattail stand that existed as of the

24 1970s?

25 A. Between 1980 and 1991?

190

1 Q. No.

2 A. Excuse me.

3 Q. I'm looking at in the 1970s you said there

4 was approximately a 5 to 6,000 acre cattail stand.

5 A. That's correct.

6 Q. Were nutrients the primary cause of that

7 5 to 6,000 acre cattail stand?

8 MR. NETTLETON: I object. It's been asked

9 and answered.

10 THE WITNESS: I don't know.

11 BY MR. KOBELINSKI:

12 Q. You've described your studies showing that

13 elevated surface water nutrients or in elevated

14 surface water nutrient conditions cattail outcompete

15 sawgrass and in low surface water nutrient conditions

16 sawgrass outcompetes cattail. Is that essentially

17 correct?

18 A. That would be the implications from that,

19 my studies, yes.

20 Q. So if you charted it, you'd essentially

21 almost get an X, with low nutrients resulting in

22 cattail being a poor competitor, high nutrients it

23 being a good competitor, and the opposite would be

24 sawgrass being a high competitor, good competitor in

25 low nutrient?

191

1 A. That's correct.

2 Q. Okay. Is there then a point where the

3 nutrient levels would essentially result in an

4 equilibrium between the competition between cattail

5 and sawgrass?

6 A. There probably is, yes.

7 Q. Have any of your studies indicated what

8 that point would be?

9 A. Only, only observation over the years that

10 I've been working out there.

11 Q. And what would that observation be?

12 A. Both myself and Dave Swift were working out

13 there during, in area 2A during the same period of

14 the mid Seventies to the mid Eighties, and he was

15 working primarily below S-10C, I was working

16 primarily below S-10D. And where I started to see

17 cattail coming into sawgrass and some of the

18 indications that go along with that such as the odors

19 of hydrogen sulfide coming up and changes in the

20 sediment texture and some of the things that we now

21 associate with enrichment and then the changes that

22 Dave Swift noted in periphyton communities starting

23 to change from oligotrophic to eutrophic, we both

24 agreed at that time that the areas that we saw these

25 changes were experiencing phosphorus concentrations

192

1 on an average level, annual average level of about

2 .03 milligrams per liter. That's very rough.

3 Q. In any of your studies have you seen a

4 reduction of surface water phosphorus result in a

5 reduction in density of sawgrass -- excuse me, of

6 cattail?

7 A. A reduction over time, you mean, in

8 phosphorus resulting in a reduction over time, is

9 that what you're...

10 Q. Yes.

11 A. No, I don't believe there's anyplace I've

12 seen a reduction over time in phosphorus, not that I

13 can recall.

14 I might qualify that. Phosphorus, as I

15 said, is highly variable in surface water. It goes

16 up and down. And, of course, if I go out one month

17 and it's high and the next month it's low, I guess

18 you could interpret that as a reduction over time.

19 I'm talking about annual, a decline in

20 annual values of phosphorus. I don't think I've seen

21 a general trend of decline in phosphorus in the

22 conservation areas.

23 Q. Well, did the surface water phosphorus

24 levels vary over the period of the Urban, Davis

25 cattail study?

193

1 A. Yes, they showed a variability that I just

2 mentioned. It's highly variable.

3 Q. And during a year when the nutrient

4 phosphorus concentration in the surface water

5 decreased, was there a like decrease in density of

6 sawgrass -- excuse me, cattail?

7 A. I'd have to go back and look at the data,

8 but not that I recall.

9 Q. You mentioned a change in sediment texture

10 at a eutrophic site.

11 What are those changes in sediment texture?

12 A. It's very distinct. The sediment at a

13 eutrophic site is unconsolidated and fills at least

14 part and sometimes all of the water column with a

15 flocculant material.

16 At a more interior marsh site, I won't use

17 the word oligotrophic anymore, at least a

18 low-nutrient status site, it's a very different

19 texture. The sawgrass sediment is very fibrous and

20 forms a fairly compact mat on the marsh floor. And

21 the cattail sediment is, it's always less fibrous

22 than sawgrass because of its structure, but it's much

23 more intact and it does not form this flocculant

24 material.

25 So, I mean, this has just been personal

194

1 observation over the years that, for many years.

2 Q. Have you done any studies to determine

3 whether or not the flocculant material is caused by

4 the high nutrient status as opposed to, for instance,

5 water level or the lack of opportunity to dry down

6 and consolidate?

7 A. We haven't had, we haven't had that

8 consistent water level differences between our

9 high-nutrient and low-nutrient sites. They both

10 maintain about the same hydroperiod during a

11 particular year.

12 I haven't, I haven't been able to attribute

13 it to water level. It seems more of a relationship

14 to the, to the S-10 structures.

15 Q. Do you find the flocculant material more

16 prevalent in the 5 to 6,000 acres that are a mile

17 south of the S-10s?

18 A. Yes.

19 Q. And you had previously testified that this

20 area was lower, the ground elevation was lower there

21 than in the area south of that, didn't you?

22 A. The 5 to 6,000 acres goes through that

23 subsidence valley and then out of it to the south up

24 to I guess I'd say normal marsh elevations for that

25 area. So it includes both deeper water and water

195

1 depths more similar to the areas to the south.

2 In fact, in my work on one of our sites

3 that was half a mile below the S-10D was in the

4 middle of that subsidence valley while the next site

5 down which has been referred to as D1.6 was on the

6 edge of it, shallower, and they both, I observed for

7 many, many years they both showed flocculant

8 material, whereas you go down, farther down in the

9 marsh we have all ranges of water depths depending

10 upon the particular location, and that material just

11 doesn't, it has not been evident.

12 Q. Did the flocculant layer compact as a

13 result of the drought?

14 A. I don't know 'cause I wasn't working out

15 there during the drought.

16 Q. Have you ever done any studies or

17 revieweBRITISH studies that essentially analyzed

18 whether or not annual dry-downs of any particular

19 period would result in a compaction of the flocculant

20 material?

21 A. The only thing I've seen is some very rough

22 studies where we simply took beakers of flocculant

23 material and dried them in the laboratory and they

24 form very hard little, like a hockey puck.

25 That was a different type of flocculant

196

1 material. That was from the slough systems in Water

2 Conservation Area 2A which was a product of primarily

3 periphyton. It was entirely different than -- I

4 didn't do that. Walt Dineen, D-i-n-e-e-n, did that.

5 And that was a different type of flocculant material

6 altogether. That wasn't what I'm referring to in

7 terms of sawgrass and cattail detritus.

8 Q. Does dry-down then result in a compaction

9 of the flocculant material at nutrient-enriched

10 sites?

11 A. I don't really know because the major

12 drought occurred during the period after I had been

13 working out there.

14 Q. Do the areas south of the 10 structure

15 there, do they dry down as often as, for instance,

16 the interior marsh?

17 A. Again, you have to go, you have to look at

18 the particular site.

19 And the sites that I worked at, the site

20 that was half a mile below S-10D, dried infrequently,

21 while the site that was a mile below S-10D which was

22 still what I would characterize as very eutrophic

23 dried just as frequently as the marsh to the south

24 from my observations.

25 Q. Have you ever experienced the flocculant

197

1 material in other than flooded areas?

2 A. Well, it couldn't be flocculant without

3 flooding. It has to be during flooding conditions

4 because flocculant indicates it's loosely

5 consolidated in the water, in the water column, at

6 least that's how I would define it.

7 But the two sites I just mentioned, one

8 half a mile below S-10D and one a mile below S-10D,

9 the sediment characteristics occurred at both those

10 sites even though one dried periodically with the

11 rest of the marsh to the south, whereas I mentioned

12 the site that was farther up probably in the

13 subsidence valley dried very rarely. But I, we

14 observed for many, many years the same types of

15 material at both sites.

16 Q. Have you ever studied to determine whether

17 there are flocculant levels similar in the

18 Loxahatchee along the canals?

19 A. I've never looked at that.

20 (Discussion held off the record.)

21 (Thereupon, a recess was taken from

22 4:55 p.m., until 5:10 p.m.)

23 BY MR. KOBELINSKI:

24 Q. Mr. Davis, your second area or subject

25 matter of expected expert testimony was response of

198

1 cattail to nutrient enrichment, and obviously it

2 appears that we've been talking about that for quite

3 a bit now.

4 A. Yes.

5 Q. Have we covered all of your expert opinions

6 as to the response of cattail to nutrient enrichment?

7 A. I don't think we've covered everything

8 that's in this bibliography where we noted the

9 papers. We've covered the main points, I think. I

10 say we've covered the main points.

11 Q. Well, you're referring to the bibliography

12 that is part of Exhibit 2; is that correct?

13 A. Yes.

14 Q. Now, that bibliography or literature cited

15 is essentially a list of all the literature cited in

16 this report "Phosphorus Inputs And Vegetative

17 Sensitivity In The Everglades"; is that correct?

18 A. Yes.

19 I meant the ones that I noted that I

20 thought were relevant to this particular subject.

21 I think we've covered all, I would say

22 we've covered what I consider to be all the main

23 points. I don't know that there are details that

24 might not come up.

25 Q. All right. And we'll be getting into a

199

1 little more heavy detail.

2 At this point I'm trying to establish if

3 there are any broad general opinions in addition to

4 what you've given that you are relying upon,

5 additional studies or additional papers or additional

6 research.

7 A. No.

8 Q. Okay. You know, for instance, the third

9 and final area or subject matter of your expected

10 expert testimony is the shifts in composition of

11 cattail and sawgrass communities.

12 And, again, a good portion of what we've

13 been discussing in the past several hours has been at

14 least some discussions of the shifts in composition

15 of cattail and sawgrass; is that correct?

16 A. I view the discussions as being really

17 covering both those topics.

18 Q. Okay. Then, more simply, are there any

19 additional studies, research, data or papers and the

20 like that you are relying upon in formulating your

21 expert opinions?

22 A. No.

23 Q. Okay. Why have you concentrated your

24 research, I'm not talking about the ones covered by

25 the various literatures you've cited, but your own

200

1 personal research, in Water Conservation Area 2A?

2 A. For two reasons. One's an historic reason

3 in that back in the early Seventies I took over a

4 very newly started project in Conservation Area 2A on

5 the effects or possible effects of nutrient

6 enrichment. At that time we had little idea what was

7 going on out there and we started to, particularly

8 Walt Dineen who had been supervisor started to see

9 change in the marsh and was interested in whether

10 there was any evidence that it was related to

11 nutrient inflows. And that's why we started working,

12 I started working out there.

13 I took over a project that had been

14 initiated by Pat Gleason on at that time just

15 nutrient gradients in the surface water in plant

16 tissue.

17 And so that's the reason we started working

18 in area 2A.

19 And as it turned out, that situation

20 probably provided the best opportunity to look at

21 vegetation response along a gradient of surface water

22 nutrient concentrations.

23 (Discussion held off the record.)

24 THE WITNESS: It provided a good

25 opportunity from that point on as we learned

201

1 more about the gradients of surface water

2 nutrient concentrations an opportunity to look

3 at sites along that gradient.

4 BY MR. KOBELINSKI:

5 Q. At that time were there any other areas of

6 the Water Conservation Area that there was suspected

7 impact from nutrient inflows?

8 A. That was the most obvious one.

9 This was very early in developing any ideas

10 about nutrient impacts. In fact, the whole field

11 around the country was young at that time, and so we

12 were just getting into it. That's just the area that

13 looked like where there was some obvious changes

14 starting to occur.

15 Q. When you say the entire field was young at

16 that time, you're referring to the early Seventies?

17 A. The scientific field.

18 Q. Are you talking about the scientific field

19 of the impacts of nutrients upon fresh water wetland

20 marshes?

21 A. Yes.

22 Q. Okay. In your opinion then when the

23 project was constructed in the late Fifties, which is

24 when it was designed, and then into perhaps the early

25 Sixties, were the impacts of, the scientific field

202

1 dealing with the impacts of nutrients on fresh water

2 wetland marshes well-developed or understood?

3 A. No, they were not.

4 Q. Okay. If I recall correctly, you had

5 stated that the initial or the first reason that you

6 conducted your studies in WCA-2A was as a result of

7 this Gleason study you took over.

8 A. Um-hum.

9 Q. Are there any other reasons?

10 A. No.

11 Q. Is WCA-2A unique in any way as compared to

12 the other water conservation areas as to how the

13 inflows enter and are dispersed within the system?

14 A. I'd say of the water conservation areas,

15 it's the only area that receives high phosphorus

16 loads through the inflow structures where there

17 aren't, where there is not a major north-south canal

18 or canal system which would force that water to flow

19 across the marsh rather than channel it down a canal.

20 Q. In comparing it to then, for instance,

21 Water Conservation Area 1, are there any differences

22 in the manner in which nutrient inflows come into the

23 system?

24 A. In Water Conservation Area 1 they come into

25 two pump stations S-5A and S-6, while in Conservation

203

1 Area 2 they just enter through, at least in the north

2 end they go through inflow gates, not pump stations.

3 At the south end of area 2A there's S-7

4 pump station, but a little of that water circulates

5 up into the marsh. It mainly flows down the canal

6 out the S-11 structures.

7 The big difference between Area 2 and

8 Area 1 -- two differences -- one is Area 1 has a

9 peripheral canal around its, around the interior of

10 the levee all the way around it which routes a lot of

11 the pump station inflows around the interior marsh

12 and down to the S-10 structures flowing into Area 2.

13 The other difference is that there is a

14 higher elevation marsh within the interior of

15 Conservation Area 1 compared to the perimeter which

16 again limits the flow of pumped water into the

17 interior of Area 1.

18 So Area 1 is more or less characteriz- --

19 the interior, at least, is relatively pristine water

20 quality, while most of the water that enters Area 1

21 goes around the perimeter and enters Area 2 which

22 then forms these nice nutrient gradients that -- or

23 not nice nutrient gradients depending on your point

24 of view.

25 Q. You stated that most of the water that

204

1 comes in through S-5A flows around through the

2 perimeter canals.

3 Is there an annual overflow into the marsh

4 up the northern portion of WCA-1?

5 A. I really don't know.

6 Q. Have you ever revieweBRITISH data to

7 determine whether or not there is an elevated soil

8 phosphorus at the northern portion of WCA-1?

9 A. I have seen soil phosphorus maps of Area 1

10 produced by John Richardson. I'm trying to remember.

11 He certainly shows elevated soil phosphorus along the

12 perimeter of Area 1. I saw these at this Ohio

13 Wetland Conference back in September just in his

14 presentation. I don't really recall whether he had

15 high levels in that northern tip of Area 1 or not.

16 Q. Are there cattails at the northern tip of

17 Area 1 south of the S-5A structure?

18 A. I really don't know. I haven't been out

19 that much. It's a very difficult area to get into.

20 Q. Why is that?

21 A. It's low, either very low water levels or

22 dry a lot of the time and very difficult to access by

23 airboat, and I just haven't worked that much in

24 Area 1.

25 Q. When you have low water levels, would the

205

1 water pumped in from S-5A flow into the marsh?

2 A. I really don't know.

3 Q. Well --

4 A. Certainly if the marsh is dry, water pumped

5 from S-5A isn't flowing into the marsh.

6 Q. Well, if the perimeter canals, level of

7 water in the perimeter canal was below that of the

8 marsh ground elevation, wouldn't it drain off the

9 marsh?

10 A. You would think so, but I'm not a

11 hydrologist and haven't worked with the hydrology of

12 Area 1.

13 Q. Okay. In your testimony, however, you

14 stated that most of the water pumped from S-5A goes

15 into the perimeter canals.

16 I assume by saying "most" that there is

17 some water that goes into the marsh then.

18 A. That's a very qualitative statement. I

19 don't know how much water goes into the marsh.

20 I would -- I think it's obvious that when

21 you have these major canals, the water's going to

22 take the path of least resistance as much as it can,

23 flow down the canal as opposed to across the marsh.

24 Q. And if water levels exceeded the top of the

25 canal, would that change that?

206

1 A. I would think more would flow into the

2 marsh then.

3 Q. And if that surface water has high nutrient

4 concentration that flow into the marsh, under your

5 opinion would that cause the expansion or

6 establishment of cattails?

7 A. It would.

8 The only thing that might inhibit that in

9 the north end of Area 1 is, as I mentioned, either

10 very shallow water or dry which we've already, I've

11 already stated seems to inhibit the growth of

12 cattail. So it could be dry conditions or very

13 shallow conditions offsetting the high nutrient

14 levels. I just don't know.

15 Q. Well, in that situation would that be an

16 area where you had high nutrient concentrations in

17 the surface water but low water levels essentially

18 stopping the spread of cattails?

19 A. It just hard to say. I don't know what the

20 circulation is up in there. This is all

21 hypothetical. I just...

22 Q. All right.

23 Well, in your opinion if you have shallow

24 surface water with high nutrient concentration, would

25 you have an expansion of cattail?

207

1 A. The Urban study indicated that dry

2 conditions, very low water conditions, at least

3 temporarily killed back the cattail.

4 Q. When you say temporarily, during her study

5 did cattail ever return to the area while the low

6 water conditions remained?

7 A. No. I meant upon reflooding, cattail came

8 back.

9 Q. Okay. Is the hydroperiod of WCA-2A to the

10 best of your knowledge equivalent to the natural

11 hydroperiod prior to the construction of the project?

12 A. You can't generalize over Conservation

13 Area 2A.

14 The northwest corner of Conservation

15 Area 2A is very likely drier than before construction

16 of the project or before the drainage efforts --

17 before drainage efforts, let's put it that way.

18 The lower end of Conservation Area 2A where

19 water pools in the lower end of the reservoir is

20 probably deeper. There are probably places in area

21 2A where water levels are similar to what they were.

22 As a whole, the natural system model,

23 comparing the natural system model with the South

24 Florida Water Management model would indicate that

25 generally that area probably dries more frequently

208

1 and has shallower water depths than it did under

2 pre-drainage conditions.

3 Q. Would that be true of the area south of the

4 S-10s?

5 A. No.

6 Q. Does that area have the same or natural

7 hydroperiod as pre project?

8 A. I have no idea.

9 Q. Okay. A few moments ago I asked you if

10 that was true of south of the S-10s.

11 What is the basis of your comment for

12 saying no?

13 A. What's your question?

14 Q. Whether or not the hydroperiod south of the

15 S-10s is the same as that of the natural hydroperiod.

16 A. You asked me if I knew, and I said no, I

17 didn't know.

18 Q. Excuse me.

19 A. That's what I meant to say.

20 Q. I'm sorry.

21 Actually, my question was in reference to

22 your statement that overall now the water levels in

23 WCA-2A comparing the NSM model with the SFWMM model

24 are shallower and dry out more often.

25 A. Slightly shallower. It's not drastically

209

1 different.

2 Q. Okay. And I'd asked then whether or not

3 that held true of the area south of the S-10

4 structures?

5 A. I haven't actually looked at the

6 simulations from those models in that particular

7 area, that area we're referring as that subsidence

8 valley, if that's what you're referring to. So I

9 couldn't say.

10 I don't think the model would show that, in

11 any case, because the grid size is at a square mile.

12 The areas's only a mile wide so -- or less than a

13 mile wide, so I don't think that the model would even

14 pick that up.

15 Q. Given the differences we've been discussing

16 and you've described between WCA-1 and WCA-2A, can

17 you extrapolate your opinion that you obtained from

18 research in 2A into the causes of cattail expansion

19 in Water Conservation Area 1?

20 A. I think that's valid in areas -- yes. I'll

21 say yes.

22 Q. Okay. Are there any areas of Water

23 Conservation Area 1 where you would not be able to

24 extrapolate your opinion as to the nutrients causing

25 expansion of cattail?

210

1 A. No.

2 Q. What are the differences, if any, between

3 the manner in which nutrients flow into Water

4 Conservation Area 2A and the manner in which

5 nutrients flow into Water Conservation Area 3A?

6 A. I'd say 3A's much more complex than either

7 1 or 2 in its hydrology. There are, there would

8 appear to be points in area 3A where water flows down

9 canals such as the Miami Canal and only mixes along

10 the borders of the canal going out of the marsh with

11 marsh water.

12 There's other areas that would appear to be

13 bottlenecks where the water might be forced into the

14 marsh.

15 But I think the hydrology of 3A in terms of

16 overland flow and how it works is very poorly

17 understood and we know more in Area -- Area 1 and

18 Area 2 are simpler to understand the role of canals

19 versus overland flow than Area 3.

20 Q. With regard to the northern end of Water

21 Conservation Area 1, you had stated that it's your

22 understanding that that is a shallower and overall

23 drier area than that found throughout WCA-2A; is that

24 correct?

25 MR. NETTLETON: Object to the form.

211

1 THE WITNESS: There are probably, and this

2 is only very subjective, there are probably

3 areas in the northwest corner of 2A that are

4 equally dry or drier or similar to the north

5 corner of area.

6 BY MR. KOBELINSKI:

7 Q. Well, would those sections in the north --

8 was it the northwest corner?

9 A. Yes.

10 Q. -- of 2A have the same inflows of nutrients

11 as that found in the northern section of Water

12 Conservation Area 1?

13 A. No.

14 Q. Which would have greater inflow of

15 nutrients?

16 A. Well, there's no way for high nutrient

17 concentration water to get in the northwest corner of

18 area 2A except for one very small structure S-10E

19 that's pretty negligible in its inflows. There's

20 just no way to get water into that northern corner

21 the way the system is designed, which is why it's

22 dry. It's also high elevation.

23 Area 1 has, the north end of area 1 is also

24 high elevation, but it has S-5A sitting at its upper

25 end.

212

1 That's really about all I could say about

2 the hydrology because I don't know how much of S-5A

3 water ever makes it into that north end of Area 1.

4 All I can say is that not much pumped water

5 gets into the north end of Area 2A. Both are

6 relatively high elevation marshes that are drier than

7 the rest of the marshes, each of the pools.

8 Q. Are there sections of the water

9 conservation areas where hydroperiod would actually

10 be a greater influence or impact upon the spread of

11 cattails as opposed to nutrients?

12 A. I would think the drier, shallower areas

13 would not be conducive to the expansion of cattails

14 even if there were high-nutrient water going into

15 them. I'm just trying to think where those areas

16 might be, and I can't think of one right now.

17 Q. Is the northern portion of WCA-1 a

18 possibility?

19 A. It would be if there's major flows going

20 into it, but I don't know that.

21 Q. During what approximate percentage of the

22 year are the S-10 structures open?

23 A. I don't know.

24 Q. Does that have an impact upon nutrient

25 supply to the sawgrass and cattail communities?

213

1 A. Yes.

2 Q. Would it make a difference, for instance,

3 if the S-10 structures were opened only a small

4 fraction for the majority of the year as opposed to

5 opening them wide open and providing a huge slug of

6 water during only a couple times over the course of

7 the year?

8 MR. NETTLETON: Object to the form.

9 THE WITNESS: I think that would help. I'm

10 not sure it would alleviate the problem.

11 BY MR. KOBELINSKI:

12 Q. Which would help?

13 A. Eliminating the large slugs of water.

14 Q. Do you know which, what the current

15 operation of the S-10s most resembles?

16 A. What we call regulatory releases. When

17 Area 1 goes above a certain prescribed level for a

18 particular month of the year, the S-10 structures are

19 opened and it's often in a slug of water fashion as

20 you described it.

21 Q. Are there cattail in the S-9 area in the

22 southeast part of WCA-3?

23 A. Yes.

24 Q. Is that a nutrient-enriched or eutrophic

25 zone?

214

1 A. I don't know.

2 Q. Do you know whether nutrients were the

3 primary cause of expansion in that area?

4 A. No. I found them there, but -- in that

5 mapping, two-day mapping reconnaissance that we did

6 from the helicopter, but I've never done any farther

7 work in Area 3 as to what might be causing that.

8 MR. KOBELINSKI: What time do you want to

9 go to?

10 It's up to the witness.

11 What time would you like to go?

12 MR. NETTLETON: He'd like to be finished

13 now for good.

14 THE WITNESS: I'm at your disposal.

15 MR. GEHLERT: We're going to have to leave

16 essentially now, for what it's worth.

17 MR. GREEN: Are you coming back tomorrow?

18 MR. GEHLERT: I won't be. Steve will be.

19 MR. KOBELINSKI: I'll try not to ask

20 questions that impact your interests.

21 MR. BARTELL: How much longer are you guys

22 going to go then?

23 MR. KOBELINSKI: I could go all night.

24 THE WITNESS: I didn't quite mean, don't

25 take me literally.

215

1 MR. GREEN: Until Dave is tired, I guess.

2 MR. NETTLETON: What do you anticipate

3 going to?

4 MR. KOBELINSKI: Steve?

5 MR. GREEN: Him, too.

6 Or Mark.

7 MR. KOBELINSKI: Well, let's just keep

8 going a bit more, if we will. You just give a

9 holler when you have a problem.

10 MR. BARTELL: We need to take off.

11 MR. GREEN: You've got to take him to the

12 airport?

13 MR. KOBELINSKI: Oh.

14 MR. BARTELL: Yes.

15 MR. KOBELINSKI: Well --

16 MR. BARTELL: I was just curious. If there

17 was another few minutes, we could wait, but if

18 it's going to be another 15 or 20, then there's

19 no point in...

20 MR. KOBELINSKI: Okay. Then let's just go

21 ahead.

22 Nine o'clock tomorrow morning?

23 THE WITNESS: Sounds good -- well, I won't

24 go that far, actually, but I'll be here.

216

1 (Thereupon, at 5:40 p.m.,

2 the deposition was adjourned.)

217

1 C E R T I F I C A T E

The State of Florida )

3 County of Palm Beach. )

I, MARIANNE MARTINI HOLMES, Registered

5 Professional Reporter and Notary Public, State of

Florida at large, do hereby certify that Steven M.

6 Davis was by me first duly sworn to testify the whole

truth; that I was authorized to and did report said

7 deposition in stenotype; and that the foregoing

pages, numbered from 1 to 216, inclusive, are a true

8 and correct transcription of my shorthand notes of

said deposition.

I further certify that the said deposition

10 was taken at the time and place hereinabove set forth

and that the taking of said deposition was commenced

11 and completed as hereinabove set out.

12 I further certify that I am not attorney or

counsel of any of the parties, nor am I a relative or

13 employee of any attorney or counsel or party

connected with the action, nor am I financially

14 interested in the action.

15 The foregoing certification of this

transcript does not apply to any reproduction of the

16 same by any means unless under the direct control

and/or direction of the certifying reporter.

In witness whereof I have hereunto set my

18 hand and seal this ____ day of_____________ 1993.

_______________________________

21 MARIANNE MARTINI HOLMES, RPR, CP

Notary Public, State of Florida

22 at large. My commission expires

July 30, 1993.