218
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. )
17
VOLUME II
18 Deposition of Steven M. Davis
19
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 Tuesday, March 3, 1993
319 Clematis Street
24 West Palm Beach, Florida 33401
9:06 - 4:59 p.m.
219
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
12
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
220
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
8
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
16
17 Also Present: W. Michael Dennis, Ph.D.
18 Courtney T. Hackney, Ph.D.
19
221
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Steven M. Davis (Continued)
7
By Mr. Kobelinski 222
8
9
10 - - -
11 E X H I B I T S
12 - - -
13
14 NUMBER PAGE NO. DESCRIPTION
15 DAVIS EXHIBIT 3 371 Draft Memorandum dated
July 27, 1989
16
222
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 previously
6 duly sworn, was further examined and testified as
7 follows:
8 THE COURT REPORTER: Mr. Davis, you're
9 still under oath.
10 THE WITNESS: Okay.
11 CONTINUED DIRECT (Steven M. Davis)
12 BY MR. KOBELINSKI:
13 Q. Good morning, Mr. Davis.
14 MR. BARTELL: Mark, before you begin, I
15 just want to mention that I will probably be
16 leaving about an hour or so early today.
17 And just because I should have to leave
18 certainly doesn't mean that you have to end any
19 earlier than you would have planned.
20 MR. KOBELINSKI: All right, that's fine.
21 Thank you.
22 BY MR. KOBELINSKI:
23 Q. Mr. Davis, just a reminder that you're
24 still under oath and we will be following the same
25 procedures we did yesterday. I'll be asking you
223
1 questions. If at any time you don't understand a
2 question, please state so and I'll attempt to
3 rephrase it.
4 If you don't know the answer to a question,
5 please state so. If you don't remember the answer,
6 please tell us what you recall and qualify it in
7 whatever way you'd like, all right?
8 A. All right.
9 Q. Okay. Yesterday you had mentioned in
10 passing that, or I believe you had, that you had
11 changed I believe the reference was to departments in
12 the last year or two years.
13 Perhaps if you could take us through from
14 1985 forward what your duties have been at the
15 District, just briefly.
16 A. In 1985 I was an Environmentalist IV in the
17 Environmental Sciences Division. I directed a group
18 of researchers and continued to do data analysis
19 myself on research in the water conservation areas
20 and Kissimmee River floodplain.
21 Q. Okay. And who was that group of
22 researchers that you were supervising?
23 A. Nancy Urban, Lou Toth. I believe Pamela
24 Reeder was there during that time. I'm, I'm not sure
25 of the chronology of when some of the staff came and
224
1 left.
2 Q. Okay. And I believe you'd mentioned
3 yesterday that around '85 is the time that you had
4 stopped doing your actual field work as opposed to
5 data analysis; is that correct?
6 A. About 1985.
7 Q. All right. Proceeding forward then from
8 that date?
9 A. In May '86 I was promoted to senior
10 environmentalist in the Environmental Sciences
11 Division. I continued my responsibilities
12 supervising research staff on the Kissimmee River and
13 the Everglades. I also became involved in the
14 Everglades symposium and was co-chairman of the
15 Steering Committee.
16 Q. The Everglades symposium, who sponsored
17 that?
18 A. The Water Management District and
19 Everglades National Park.
20 Q. Okay. Had the research staff that you were
21 supervising, had it changed from the preceding year?
22 A. No.
23 Q. Okay.
24 A. Again, I'm not sure of the chronology of
25 when people came and went, but it was essentially the
225
1 same --
2 Q. Group of three?
3 A. -- group of three or four.
4 Q. Okay. Anyone in addition to the three that
5 you'd mentioned that you recall for '86?
6 A. Not that I recall. I'd have -- I haven't
7 really thought out when people came. We had a couple
8 of technicians in the group which I haven't
9 mentioned. I only mentioned the professional staff.
10 Q. That's fine.
11 Any other primary duties that commenced in
12 '86?
13 A. I led an interdisciplinary group that
14 examined the alternatives for a nutrient removal
15 system for the Knight Farm property, came up with a
16 research design, and I was a staff advisor to
17 LOTAC II concerning Everglades nutrient inputs.
18 Q. That would be the Everglades Nutrient
19 Removal Project?
20 A. Yes.
21 Q. Okay.
22 A. I was also involved in the Northeast Shark
23 River slough general design memorandum, the Holeyland
24 restoration project and a Kissimmee River tributary
25 floodplain restoration planning project and a small
226
1 exhibit at the South Florida Science Museum.
2 Q. Proceeding forward then?
3 A. In 1989 I became a supervising professional
4 and I had supervisory responsibility for all the
5 staff in Environmental Sciences for a period of about
6 a year, about 22 staff I believe at that time.
7 Q. That would be 22 professionals?
8 A. No, professionals and technicians.
9 Probably about half of those professionals.
10 Q. Okay.
11 A. I continued my involvement in the
12 Everglades symposium and my involvement in the
13 planning of the Everglades Nutrient Removal Project.
14 Q. Okay. From '86 to '89 essentially your
15 duties had stayed the same?
16 A. (No response).
17 Q. Is that what you described commencing 1986,
18 May of '86?
19 A. The supervisory responsibilities remained
20 the same, but I was involved in several additional
21 planning efforts that I've mentioned in addition to
22 simply supervising research staff.
23 Q. Right.
24 Other than those that you've already
25 mentioned, though, was there anything else between
227
1 '86 and '89?
2 A. Nothing major.
3 Q. Proceeding forward from 1989 then?
4 A. In February 1990 I served as acting
5 assistant division director when the division
6 director Walt Dineen died. We had two acting
7 division directors, myself and Dewey Worth, and I was
8 in charge of the Everglades and Kissimmee River
9 projects and staff and Dewey was in charge of
10 estuaries and other projects.
11 Q. Did that change your supervision of
12 research professionals?
13 A. Actually it cut it in half because we had,
14 I had Dewey working with half the staff, whereas
15 before I was handling the entire staff.
16 Q. Okay.
17 A. But I had more administrative
18 responsibilities to balance it that go along with
19 division director.
20 Q. Advancing forward from then?
21 A. I remained as supervising professional
22 since, and January 1992 I transferred to the Planning
23 Department and was in -- or directed the
24 environmental planning activities for what's called
25 the lower division planning which is Lake Okeechobee
228
1 south including the Everglades and lower east coast.
2 Q. Now, the Planning Department, does it
3 conduct research?
4 A. No.
5 Q. Essentially this is -- that's what you
6 mentioned yesterday. A year or so ago you were no
7 longer doing any type of research activities. Is
8 that essentially that cutoff point?
9 A. During the last two, couple of years I had
10 published papers, and that was my research activity,
11 but I wasn't doing any actual field research.
12 Q. Okay. You had stated that after '85,
13 after --
14 A. Yes.
15 Q. -- or about that time you stopped field
16 research, you continued doing data analysis.
17 Has that essentially continued on through
18 January of 1992?
19 A. Yes, data analysis and publication, yes.
20 Q. Okay. And that data analysis would be with
21 regard to the papers that you've published or are in
22 current process of publishing?
23 A. Yes.
24 Q. Proceeding forward then from the January
25 1992 date?
229
1 A. I'm still the senior professional in the
2 Planning Department.
3 Q. I believe you mentioned yesterday you
4 actually are the supervising professional; is that
5 right?
6 A. Supervising professional. Did I say
7 senior?
8 Yes, supervising professional in the
9 Planning Department.
10 My duties shifted in, it's actually the
11 fall of 1992, about October, even though the decision
12 was made in August, to make my primary responsibility
13 the completion of the book coming out of the
14 Everglades symposium.
15 Q. What are your other duties at this time?
16 A. None as priorities. Minor things come up,
17 but it's my priority.
18 Q. Does the book take that much of your time?
19 A. Yes.
20 Q. You mentioned yesterday that the St. Lucie
21 Press was publishing the book.
22 Is the book being sponsored by the District
23 as the symposium was?
24 A. And the Park, yes.
25 Q. Who is St. Lucie Park? Where are they --
230
1 excuse me, Publishing? Where are they located?
2 A. Delray Beach.
3 Q. Delray Beach?
4 How were they selected for publisher?
5 A. We had an Editorial Board meeting and
6 reviewed responses of perhaps ten presses to a book
7 proposal we had sent out and included in those
8 responses was St. Lucie Press, and by vote of the
9 Editorial Board chose St. Lucie Press.
10 Q. Okay. Are you familiar with what the
11 ownership of the Press is, St. Lucie Press?
12 A. It's owned by Dennis Buda, B-u-d-a.
13 Q. Do you have a copy of the book proposal by
14 St. Lucie Press?
15 A. Yes.
16 Q. Is the District picking up any of the costs
17 of publication?
18 A. No.
19 Q. What about the Park?
20 A. The Park is possibly going to contribute
21 about $7500 to color illustrations in the book.
22 Q. Okay. The remainder is being fronted by
23 St. Lucie Press?
24 A. Yes.
25 Q. All right. Yesterday we were discussing
231
1 your opinions as to the causes of cattail expansion
2 in response to a question as to a listing of causes
3 of expansion in addition to nutrients. I believe
4 your response was hydroperiod, fire and disturbance;
5 is that correct?
6 A. That's correct.
7 Q. What is your understanding of hydroperiod?
8 What do you mean by that term?
9 A. I use the term hydroperiod in the broadest
10 sense, meaning hydrologic conditions including the
11 depth, duration of flooding.
12 Q. Do you make any distinctions between
13 hydrologic conditions which are either created due to
14 anthropogenic activities such as the diking off of
15 the water conservation areas and natural hydrologic
16 conditions?
17 A. Well, there are differences.
18 Q. But do they all fit within your term of
19 hydroperiod or is hydroperiod just a description of
20 the natural --
21 A. They would all fit within my term of
22 hydroperiod.
23 Q. Fire, I assume you're just talking about
24 fires in the Everglades.
25 A. That's correct.
232
1 Q. All right. What is meant by disturbance?
2 A. Disturbance would be a change in natural
3 patterns that is not a cyclical event or a long-term
4 trend.
5 Q. Could you give me a couple of examples of
6 what a disturbance would be?
7 A. A severe fire, physical soil disturbance
8 due to levee construction or dredging of a canal, a
9 major hurricane.
10 Q. You'd mentioned a severe fire. However,
11 you'd also listed fire as a separate cause or factor.
12 Is fire such a, let's say, relatively
13 common factor or does it have such an impact that
14 you've listed it separately apart from disturbance?
15 A. I would view fire as a type of disturbance.
16 Q. Okay. What about a severe drought, for
17 instance, a one-in-a-hundred-year drought? Would
18 that be considered a disturbance or is that
19 essentially since it's hydroperiod, it falls under a
20 different factor in your definition?
21 A. That would be a disturbance by that
22 definition.
23 Q. So there can be times when a particular
24 event falls under one or more of the factors
25 resulting in the expansion of cattails; is that
233
1 correct?
2 A. Fire, hydroperiod and disturbance aren't
3 mutually exclusive terms.
4 Q. Would an anthropogenic change in
5 hydroperiod be a disturbance, for instance, the
6 period of time that WCA-3 was kept flooded?
7 MR. NETTLETON: Object to the form.
8 THE WITNESS: I don't recall what period of
9 time WCA, that you're referring to when WCA-3 --
10 BY MR. KOBELINSKI:
11 Q. I'm sorry. I meant to reference 2A.
12 MR. GREEN: Does that resolve the objection
13 to form?
14 MR. NETTLETON: (Shrugged shoulders).
15 THE WITNESS: That would be stretching the
16 definition of disturbance. It would be more a
17 change in hydrology. A disturbance is usually
18 viewed as a discrete event.
19 BY MR. KOBELINSKI:
20 Q. Can one event have an impact as to both
21 hydrology and disturbance? For instance, a canal can
22 drain an area, which would that be a disturbance in
23 your viewpoint?
24 A. It could be.
25 Q. Okay. And, likewise, the drainage would
234
1 create an alteration of hydroperiod; is that correct?
2 A. It could.
3 Q. Okay. Are there any instances where
4 nutrients would fall into the disturbance category,
5 introduction of nutrients?
6 A. Would fall into the disturbance category?
7 I don't understand.
8 Q. Well, we had discussed where fire could be
9 a disturbance.
10 Is there any situations where nutrients can
11 be a disturbance?
12 A. Possibly.
13 Q. Okay. Would you be able to think of any
14 examples?
15 MR. NETTLETON: I'll object to the form. I
16 mean, are you asking him for hypothetical
17 examples or actual occurrences?
18 MR. KOBELINSKI: Same type of examples he's
19 been describing all along, counsel.
20 MR. NETTLETON: Like a plane dropping a ton
21 of phosphorus on...
22 MR. KOBELINSKI: Could you swear him in?
23 THE WITNESS: That would be an example.
24 BY MR. KOBELINSKI:
25 Q. Anything other than what your counsel is
235
1 testifying as to?
2 A. Again, I think nutrient additions to a
3 system would not generally fall under the description
4 of a disturbance but a long-term change or
5 directional change.
6 Q. We discussed yesterday that Water
7 Conservation Area 2A was your primary and practically
8 sole area of study with regard to cattails; is that
9 correct?
10 A. That's correct.
11 Q. Given both your research and the historical
12 review that you have done as to that area, could you
13 take us through what changes have occurred in Water
14 Conservation Area 2A or what is currently Water
15 Conservation Area 2A that would classify as a
16 disturbance, an example of fire or an example of
17 hydroperiod and, finally, the example of nutrients
18 that have resulted in impacts to cattail?
19 Would it be best if we just took those one
20 at a time, would that be easier for you?
21 A. Yes.
22 Q. All right. Start at the top of your list
23 which is nutrients.
24 What throughout the history of Water
25 Conservation Area 2A nutrient changes have resulted
236
1 in your opinion or had an impact upon the expansion
2 of cattail in that area?
3 MR. NETTLETON: Object to form.
4 THE WITNESS: Nutrient supplies through the
5 S-10 structures.
6 BY MR. KOBELINSKI:
7 Q. Prior to the operation of the S-10
8 structures were there any changes in nutrient
9 patterns that had an impact upon expansion of cattail
10 in Water Conservation Area 2A?
11 A. Not that I'm aware of.
12 Q. Okay. Are there any other nutrient-related
13 events which had had an impact upon expansion of
14 cattail in Water Conservation Area 2A?
15 A. Not that I have any direct evidence for.
16 Q. Okay. Would the implementation of the
17 Interim Action Plan have had any impact on Water
18 Conservation Area 2A that you're aware of?
19 A. Very likely.
20 Q. And what was that impact?
21 A. Increasing nutrient loads through the S-10
22 structures.
23 Q. Okay. Does that essentially cover
24 nutrients then?
25 A. Yes.
237
1 Q. Going on to hydroperiod. I recognize that
2 some events, as you said, sort of cross over
3 different areas.
4 What events have created changes or
5 alterations to hydroperiod, be they natural or
6 unnatural, which have resulted in impacts upon the
7 expansion or distribution of cattails within Water
8 Conservation Area 2A?
9 A. As I mentioned yesterday, the completion of
10 construction of Water Conservation Area 2A and its
11 flooding probably allowed the replacement of willow
12 by cattail in that subsidence valley below the
13 Hillsboro Canal.
14 Q. The Hillsboro Canal was dredged prior to
15 the completion of construction of Water Conservation
16 Area 2A, was it not?
17 A. That's correct.
18 Q. All right. Would the dredging of the
19 Hillsboro Canal be the first alteration in
20 hydroperiod having an impact upon that area?
21 A. Probably.
22 Q. Okay. Do you know when that was?
23 A. Either in the Teens or early Twenties of
24 the Twentieth Century.
25 Q. Okay. What impacts did the Hillsboro Canal
238
1 have on the area that is currently Water Conservation
2 Area 2A? You'd mentioned subsidence in the area
3 approximately a mile south of the S-10 structures.
4 Any other impacts?
5 A. That would be due to local drainage around
6 the canal.
7 Other than that, I don't think it's clearly
8 understood the effects of the original canals.
9 Q. Prior to the construction of the levees
10 around 2A or essentially the completion of the Water
11 Conservation Area did the Hillsboro Canal result in
12 severe drainage of the area with fires in the
13 northern end of Water Conservation Area 2A or what is
14 currently Water Conservation Area 2A?
15 A. As I just said, I don't think it's clearly
16 understood the effects of the Hillsboro Canal before
17 construction of the water conservation areas.
18 Q. Have you reviewed any of the historical
19 accounts by the Corps of Engineers or any of the
20 state agencies as to the impacts of the Hillsboro
21 Canal or the condition of the area that is now Water
22 Conservation Area 2A prior to the construction of the
23 conservation area levees?
24 A. There were major droughts and fires. It's
25 hard to separate the natural causes of these droughts
239
1 and fires from the causes induced by the construction
2 of these canals.
3 Q. Once there was construction of Water
4 Conservation Area 2A then, what impacts did that have
5 on the hydroperiod resulting in impacts upon the
6 cattail distribution and expansion?
7 A. As I just said, raising water levels
8 probably drowned out the willows and allowed
9 replacement by cattail in that subsidence valley.
10 From what we know about Typha domingensis,
11 deeper water would have encouraged that species along
12 with nutrient enrichment.
13 Q. Exactly when did that cattail become
14 established in the area that was formerly willow
15 approximately a mile south of Water Conservation
16 Area 2A?
17 A. I don't know the exact date.
18 Q. Was it a steady overtaking or change from
19 one to the other?
20 A. I don't know.
21 Q. Have you done any research or done anything
22 to establish whether or not nutrients did have an
23 impact upon the change from willow to cattail?
24 A. As I stated yesterday, what we now know
25 about the nutrient status of cattail, it would be
240
1 unlikely it would take over without an increase in
2 nutrient supply.
3 Q. Don't cattail move into a disturbed area
4 even without a nutrient supply?
5 A. That's questionable. It may well be that
6 the disturbances in one way or another increase the
7 nutrient supply temporarily.
8 Q. All right. Then perhaps let me change my
9 question.
10 Have any research or historical review that
11 you've done determined that nutrients from
12 agricultural runoff resulted in the establishment of
13 the cattail as opposed to -- or the changeover from
14 willow to cattail after the construction of 2A?
15 A. Yes.
16 Q. And what research and data would that be?
17 A. That would be that cattail's generally
18 viewed as an early colonizer of a disturbed site but
19 generally does not persist over the time frame of
20 decades in a site without -- in areas that do not
21 have elevated nutrient supply.
22 Q. Okay. So if I understand your testimony,
23 you're saying that elevated nutrient supply from
24 agricultural runoff would have allowed the cattail
25 after it replaced the willow to remain there; is that
241
1 correct?
2 A. That's correct.
3 Q. Do you have an opinion as to whether or not
4 nutrients from agricultural runoff resulted in the
5 establishment of the cattail site in that area in the
6 first place?
7 A. No, I don't.
8 Q. Okay. With regard to the Water
9 Conservation Area 2A, we discussed yesterday there is
10 a canal essentially that runs the interior of the
11 conservation area alongside the 10 structures; is
12 that correct?
13 A. That's correct.
14 Q. Was that canal there prior to the
15 construction of the project or Water Conservation
16 Area 2A?
17 A. Not to my knowledge.
18 Q. So the construction of the levee and that
19 interior canal itself right by the area south of the
20 10 structures would have been an example of a
21 disturbance, would it?
22 A. I'm unclear on that.
23 There was, before construction of Water
24 Conservation Area 2A there was the Hillsboro Canal in
25 a much shallower form than exists now.
242
1 I don't know if the canal to the south of
2 the levee was part of that canal or the canal north
3 of the levee. I'm assuming the canal north of the
4 levee, but I'm not clear on that.
5 Q. If the canal north of the levee was the
6 site of the original Hillsboro Canal and the canal
7 south of the levee within Water Conservation Area 2
8 was constructed as part of the project, would that be
9 considered a disturbance in your opinion?
10 A. Yes.
11 Q. Okay. Do you know by what date the cattail
12 stand just south of the S-10 structures, what we've
13 referred to as essentially that one mile area, became
14 established?
15 A. I don't recall the particular year. I've
16 looked at aerial photography from the about the mid
17 Sixties that showed that stand.
18 Q. Okay. How long would a disturbance from,
19 for instance, the dredging of that interior canal,
20 construction of the dike, the disturbance of the
21 soil, how long would that result in an impact on the
22 spread or establishment of cattails?
23 A. I don't know.
24 Q. Would the disturbance of the soils in that
25 fashion, the construction of a canal, result in a
243
1 release of nutrients from the peat?
2 A. Possibly.
3 Q. How long would that effect last?
4 A. I don't know.
5 Q. Any other changes in hydroperiod after this
6 initial establishment of the Water Conservation Area
7 and the flooding that you referred to?
8 A. The water regulation schedule for Water
9 Conservation Area 2A was changed in roughly 1980 to a
10 schedule with lower water levels.
11 Q. What impact did that have upon the
12 establishment or expansion of cattails?
13 A. There's no way to be certain.
14 I would, I would think given the deep water
15 affinity for Typha domingensis, that it would have
16 decreased the competitive ability of that species.
17 Q. So that in your opinion would have had a
18 negative impact upon the establishment or expansion
19 of cattails?
20 A. That's correct.
21 Q. If I understand you correctly, it's your
22 opinion then that had the original water regulation
23 schedule for Water Conservation Area 2A, the one
24 prior to the change about 1980, had remained in
25 effect, there would have been a greater degree in
244
1 density of cattails throughout Water Conservation
2 Area 2A.
3 A. That's only hypothetical, but based on what
4 we know about Typha domingensis, that's believable.
5 Q. Well, what is your opinion as to that based
6 upon your studies and research?
7 A. My opinion would be that that would have a
8 negative effect on Typha domingensis.
9 Q. What would have a negative effect?
10 A. The lowered water regulation schedule.
11 Q. I'm asking had there never been a change in
12 the water regulation schedule --
13 A. Oh.
14 Q. -- and that prior to 1980 higher water
15 regulation schedule remained in effect, what is your
16 opinion based upon your research and studies as to
17 the impact that would have had on the distribution
18 and spread of cattail throughout Water Conservation
19 Area 2A?
20 MR. NETTLETON: Object to form.
21 THE WITNESS: I think that would continue
22 to encourage the spread of cattail.
23 BY MR. KOBELINSKI:
24 Q. Was it your opinion then that we would have
25 greater cattail under that scenario than we do today?
245
1 MR. NETTLETON: Same objection.
2 THE WITNESS: Yes.
3 BY MR. KOBELINSKI:
4 Q. Any other changes in hydroperiod that have
5 impacted the spread or distribution of Water
6 Conservation Area 2A?
7 A. The major drought during 1989 to 1990.
8 Q. What effect did the drought have of 1989
9 and 1990?
10 A. It visibly killed back the above-ground
11 portions of cattails throughout the area.
12 Q. Did it kill off any of the below-ground
13 portions of cattails?
14 A. I don't know.
15 Q. How would you establish that?
16 A. I don't know.
17 Q. Would the lack of regrowth of cattail in
18 that prior cattail-dominated area for a year after
19 water levels were restored be indicative of a killing
20 off of the below-ground portion of the cattail plant?
21 THE WITNESS: Would you repeat that
22 question, please?
23 (Thereupon, a portion of the record
24 was read by the reporter.)
25 THE WITNESS: Probably.
246
1 BY MR. KOBELINSKI:
2 Q. Did you experience that in any of your
3 study sites in the Urban cattail study?
4 A. I'd have to review the data -- or the
5 report to look if there's any specific instance in a
6 particular year at a particular site where we saw
7 that.
8 Q. Okay. Would the killing off of both the
9 above-ground and below-ground portions of the cattail
10 plant be considered a long-term impact, be it as a
11 result of fire or hydroperiod or any other reason?
12 A. Not necessarily.
13 Q. In what instance would it not be?
14 A. Cattail has a wind-blown seed and can very
15 rapidly recolonize a site through seed distribution.
16 Q. Any other instances?
17 A. Not that I can think of.
18 Q. How quickly would that seed reestablishment
19 result?
20 A. I don't know.
21 Q. Okay. Would seed reestablishment be
22 greater in a high nutrient soil concentration or low
23 nutrient soil concentration site?
24 A. Based on my observations, I'd have to say
25 high phosphorus concentration sites.
247
1 Q. In fact, cattail seeds are born by both
2 wind and water; is that correct?
3 A. That's correct.
4 Q. Okay. Do cattail seeds always establish
5 wherever they happen to land?
6 A. I don't know.
7 Q. What factors are necessary for a cattail
8 seed to establish and commence growing a plant?
9 A. The major factor would be adequate
10 moisture.
11 Q. Okay. Anything else?
12 A. A source of nutrients.
13 Q. Okay. Anything else?
14 A. I don't know.
15 Q. What would you consider adequate moisture?
16 A. Anything from moist soil to flooded
17 conditions.
18 Q. Can a seed establish in flooded, a cattail
19 seed establish in flooded conditions?
20 A. I've observed that, yes.
21 Q. How deep? How deep a flooded condition can
22 you have an establishment of cattail plant through
23 seed?
24 A. I don't know for sure.
25 Q. Okay. Is there a preferable water depth
248
1 for the establishment of a cattail seed?
2 A. Not that I'm aware of.
3 Q. Is there a preferable depth for the
4 establishment of a sawgrass seed?
5 A. To my knowledge, sawgrass seed rarely
6 germinates in deep water conditions.
7 Q. What is a deep water condition?
8 A. Probably someplace over a foot.
9 Q. All right. How much, what level nutrients
10 or what availability of nutrients would be necessary
11 for the establishment of a cattail plant?
12 A. I don't know the specific availability.
13 Q. Have any of your studies considered what
14 nutrients are necessary to establish a cattail plant?
15 MR. NETTLETON: Object to form.
16 THE WITNESS: They'd indicate that
17 phosphorus would be the limiting nutrient in the
18 water conservation areas.
19 BY MR. KOBELINSKI:
20 Q. What level of phosphorus or phosphorus
21 availability would you require to have a cattail seed
22 establish as a plant?
23 A. I don't know.
24 Q. Okay. Have any of your studies indicated
25 what that level would be?
249
1 A. No.
2 Q. How would the control of phosphorus
3 concentrations in surface water stop the
4 establishment of a cattail seed from growing or
5 establishing as a plant?
6 A. Simply inadequate nutrition for growth.
7 Q. Okay. And what would be that inadequate...
8 A. I don't know that level.
9 Q. Did any of your studies show a level at
10 which cattail seeds would not establish?
11 A. On personal observations after the, after
12 the drought indicated that cattail seedlings were not
13 establishing themselves throughout most of the water
14 conservation areas, only in the areas below the
15 structures with major nutrient inputs.
16 Q. Is there a particular phosphorus
17 concentration at which you will no longer see an
18 expansion of cattail?
19 A. All I can say is that we do not see that
20 expansion under what we consider to be background
21 phosphorus concentrations in the interior portions of
22 the water conservation areas or the park.
23 Q. All right. In your studies how can you
24 determine whether or not a cattail plant is the
25 result of a being established from a cattail seed as
250
1 opposed to a vegetative propagule?
2 A. By digging up the plant.
3 Q. And have you done that?
4 A. No.
5 There's one other way you could tell.
6 Simply if there's a single cattail seedling coming up
7 with no other cattails in the immediate vicinity, I
8 think it's a safe assumption that it's a seedling.
9 Q. What is a propagule?
10 A. Propagule is a seed that's, as far as I
11 know, usually water-distributed. I guess it could be
12 extended to air-distributed.
13 I may have misanswered your question. If
14 you could repeat that question before what is a
15 propagule.
16 (Thereupon, a portion of the record
17 was read by the reporter.)
18 THE WITNESS: I misanswered your question.
19 BY MR. KOBELINSKI:
20 Q. All right. What would the accurate
21 response be?
22 A. To my knowledge, the definition of a
23 propagule is a seed that's distributed by primarily
24 water, perhaps by wind.
25 So a propagule is different from vegetative
251
1 reproduction.
2 Q. All right. Vegetative reproduction would
3 be from rhizomes?
4 A. That's correct.
5 Q. How long would a rhizome survive?
6 A. I don't know.
7 Q. In a drought condition how long can a
8 rhizome survive?
9 A. I don't know.
10 Q. What impacts would dry-out of an area have
11 on a rhizome?
12 A. If it was dry long enough, it could
13 potentially kill the rhizome.
14 Q. How long would long enough be?
15 A. I don't know.
16 Q. Okay. What impact would a dry-down have
17 upon a cattail plant?
18 A. If it was dry long enough, it could kill
19 the plant.
20 Q. Okay. How dry is dry?
21 A. I don't know.
22 Q. How long is long?
23 A. I don't know.
24 Q. Okay. Let me ask you this, going back for
25 a moment to the change in regulation schedules
252
1 pre '80 and post '80, you'd offered the opinion that
2 had there not been a change, we would have seen a
3 greater density or spread of cattail as a result of
4 the higher water levels, is that accurate?
5 A. That's correct.
6 Q. Would further lowering in the water
7 regulation schedules result in a further decrease in
8 the density and spread of cattails?
9 A. I would expect that, yes.
10 Q. How much per foot?
11 A. I don't know.
12 Q. Have any of your studies shown what the
13 change in density and distribution would be as a
14 result of a one-foot change?
15 A. No.
16 Q. Have you examined the pre-project
17 hydroperiod simulation by the natural system model
18 developed by the District?
19 A. Yes.
20 Q. Are you basing any of your opinions upon
21 that natural system model hydroperiod?
22 A. Opinions about what?
23 Q. Any of these opinions as to the causes of
24 distribution and expansion of cattails in Water
25 Conservation Area 2A.
253
1 A. Yes.
2 Q. And how does the model simulation, what
3 impact or effect does that model simulation have upon
4 your opinions?
5 A. The model indicates a wide range of
6 hydrologic conditions throughout the Everglades under
7 which we do not have evidence for expanding cattail
8 stands.
9 Q. With regard to the area that is now Water
10 Conservation Area 2A, how did the hydroperiods
11 reflected in the natural system model simulation
12 compare to the existing hydroperiods for the area?
13 A. I'd have to review that data.
14 Q. Have you ever reviewed that in coming to
15 your opinion?
16 A. My recollection is that the water would be
17 a little deeper there, but not much deeper than it is
18 now.
19 Q. Would that be true throughout the entire
20 conservation area?
21 A. No. As I mentioned yesterday, the
22 northwestern portion of Area 2A is much drier because
23 there's no water source to it and the extreme
24 southern end is pooled water and is probably deeper.
25 Q. The southern end is probably deeper than
254
1 the natural hydroperiod?
2 A. Probably.
3 Q. And the northern end then would be drier
4 than the natural hydroperiod?
5 A. It's not that simple a relationship. Even
6 though the southern end is deeper, it's highly
7 fluctuating up and down. So it's not comparable.
8 It's not an easy comparison to make just in terms of
9 water depth.
10 Q. Is there any portion, to your knowledge, of
11 Water Conservation Area 2A that does essentially
12 match the natural hydroperiod?
13 MR. NETTLETON: Object. Asked and
14 answered.
15 THE WITNESS: I would have to review the
16 model before I could answer that.
17 Can we take a quick break?
18 MR. KOBELINSKI: We certainly can.
19 (Thereupon, a recess was taken from
20 10:06 a.m., until 10:15 a.m.)
21 BY MR. KOBELINSKI:
22 Q. I believe your last mention of hydroperiod
23 impacts on cattail density and distribution was the
24 major drought in 1989-1990.
25 Has there been any subsequent change in
255
1 hydroperiod which has resulted in an impact upon
2 cattail spread or distribution in Water Conservation
3 Area 2A?
4 A. Well, at the end of the drought the water
5 has returned.
6 Q. Okay. Anything subsequent to that?
7 A. Not to my knowledge.
8 Q. And what would the return of water after
9 the drought do with regard to cattail densities and
10 distribution? Did it increase or decrease?
11 A. The cattails came back in areas near the
12 structures of nutrient input.
13 Q. And I believe you'd mentioned earlier that
14 you have to actually look at the data to determine if
15 that was true of all sites that you studied; is that
16 correct?
17 A. That's correct.
18 Q. The next factor would be fire. And by
19 next, I put them in no particular order, just the
20 next one I'm going to discuss with you.
21 What impacts has fire had on Water
22 Conservation Area 2A resulting in a change in density
23 or distribution of cattails in that area or what is
24 currently that area?
25 A. A large fire occurred in the north end of
256
1 Water Conservation Area 2A I believe in the late
2 Eighties. I'd have to review the data. Much of the
3 area that was burned was colonized by cattail after
4 the burn.
5 There have been numerous other small fires
6 in Conservation Area 2A -- or not so small, I should
7 say -- where cattail did not come in after the burn.
8 Q. Okay. With regard to the fire in northern
9 2A in the late Eighties that you referred to, the
10 colonization by cattail, does that cattail area still
11 remain today or exist today?
12 A. I don't know.
13 Q. Did that area exist in 1991 when you did
14 your vegetative helicopter mapping?
15 A. Yes.
16 Q. What document does that cattail vegetative
17 mapping -- ah, found it.
18 Drawing your attention to what's been
19 marked as Exhibit 2, Bates page or number 1084713 --
20 MR. GREEN: What page?
21 MR. KOBELINSKI: 1084713.
22 MR. GREEN: Thank you.
23 MR. KOBELINSKI: You're welcome, sir.
24 BY MR. KOBELINSKI:
25 Q. -- is that cattail site indicated on this
257
1 map?
2 A. The burn site?
3 Q. Yes.
4 A. It would be included within the stippled
5 area at the north end of Water Conservation Area 2A.
6 Q. Up by the S-6?
7 A. No, mostly between S-10C and S-10A.
8 Q. Over what area was that fire? How large
9 was the area affected by the fire?
10 A. I don't recall.
11 Q. How far south of the S-10C and S-10A
12 structures did the fire...
13 A. I don't know for certain. Nancy Urban has
14 the data on that. I haven't reviewed that for -- I'd
15 have to take another look at that.
16 Q. With regard to the Urban data on that, is
17 that just data that she collected as part of the
18 Urban, Davis cattail study?
19 A. It would just be an observation on her part
20 of the extent of the fire since she was working out
21 there so frequently during that period.
22 Q. Okay. But she didn't attempt to map it in
23 any sense of the term.
24 A. I don't know if she did or not.
25 Q. Okay. At that time were you still
258
1 supervising Ms. Urban?
2 A. Yes.
3 Q. Was she assigned with attempting to
4 delineate the boundaries of the fire or the
5 fire-impacted area?
6 A. I didn't supervise Nancy at that level of
7 supervision. I left decisions on her field study up
8 to her.
9 Q. Was this fire over a one-acre area, over a
10 two-acre area?
11 A. Yes.
12 Q. Over a hundred acres?
13 A. Yes.
14 Q. Two hundred acres?
15 A. Yes.
16 Q. Three hundred acres?
17 A. Yes.
18 Q. Can we go hot and cold on this one? Strike
19 that.
20 Was it in excess of a thousand acres?
21 A. To my knowledge it was. Probably closer to
22 2,000.
23 Q. Okay. I started too low.
24 What impact did that fire have upon the
25 distribution and spread of cattails in Water
259
1 Conservation Area 2A?
2 A. It was in an area that already had the
3 scattering or peppering effect of cattails, although
4 after the fire the cattails came in in much greater
5 density.
6 Q. And that would have been an impact
7 resulting from the fire?
8 A. The results of the Urban, Davis and Aumen
9 study would indicate that was the result of the
10 combination of the fire and nutrient enrichment.
11 Q. Do all fires result in an impact upon
12 cattail expansion or distribution?
13 A. No.
14 Q. What distinctions would there be or what
15 type of fire would result in an expansion or
16 distribution of cattail?
17 A. A very severe peat-burning fire that would
18 destroy the meristem and rhizome system of the
19 sawgrass or a fire in a nutrient-enriched area.
20 Q. Would all fires in a nutrient-enriched area
21 have an impact upon cattail densities?
22 A. I don't have direct knowledge of that.
23 Q. All right. What type of fire within a high
24 nutrient area or nutrient impact area would have an
25 effect on cattail spread and distribution?
260
1 A. All I can comment on is this fire that
2 we've been referring to in the north end of
3 Conservation Area 2A.
4 Q. Given the areal extent of it, approximately
5 2,000 acres, was that a peat-burning fire?
6 A. Not to my knowledge.
7 Q. Did it kill any of the rhizomes that you've
8 referred to?
9 A. I don't know.
10 Q. Would it have made a difference in your
11 study as to whether or not that was a peat-burning
12 fire or not?
13 A. It could have.
14 Q. How so?
15 A. As I mentioned before, a peat-burning fire
16 would be more damaging to the sawgrass.
17 Q. Would it also be damaging to cattail?
18 A. Yes.
19 Q. In what way?
20 A. It would probably kill the cattail rhizome
21 systems as well as the sawgrass.
22 Q. In a background site what impact would a
23 peat-burning fire have with regard to cattail
24 distribution or density?
25 A. It is likely that cattail would colonize a
261
1 site after a peat-burning fire in a background
2 location.
3 Q. Would cattails colonize a site if it was
4 not a peat-burning fire? Would you call that a
5 surficial fire or is there a distinction or another
6 term you use for that other than one's peat-burning
7 and one is not?
8 A. There's no particular terminology for it.
9 Q. For the sake of the deposition, I'll refer
10 to a nonpeat-burning fire as a surficial fire, okay?
11 Would you have cattail colonization in a
12 background site where there was just a surficial
13 fire?
14 A. Probably not usually.
15 Q. Why not?
16 A. Because sawgrass is a species adapted to
17 fire and fire affects sawgrass, a surficial fire
18 affects sawgrass by increasing its density rather
19 than decreasing it in its regrowth after the fire.
20 Q. What is it about a peat-burning fire that
21 results in the establishment or colonization of
22 cattail even in a background site?
23 A. It would be the killing of the sawgrass
24 plants.
25 Q. Okay. Anything else?
262
1 A. As I mentioned before, many types of
2 disturbances, and probably fire would be accompanied
3 by a brief availability of nutrients.
4 Q. How long would that availability of
5 nutrients exist?
6 A. Very limited data on that would indicate a
7 few weeks.
8 Q. All right. How long do cattail exist in a
9 peat-burning burnt-out background area?
10 A. I don't know.
11 Q. Okay. Does a peat-burning fire also result
12 in a deeper water level?
13 A. It could, yes.
14 Q. Would the hydroperiod impact and fire
15 impact then overlap in that instance?
16 A. Apparently over in -- only in
17 nutrient-enriched areas.
18 Q. Why so?
19 A. Because over the 5,000-year history of the
20 Everglades soil cores indicate peat-burning fires
21 over the entire area without evidence for domination
22 by cattail following the burn.
23 Q. So in some instances where you have a
24 peat-burning fire cattail will not colonize.
25 A. That would be correct.
263
1 Q. In what instances?
2 A. Probably under low-nutrient conditions from
3 external nutrient supply.
4 Q. I thought you had stated, though, that a
5 peat-burning fire does result in a nutrient release.
6 A. Yes, and you would expect after such a fire
7 even in a low-nutrient site to get -- I would not be
8 surprised, let's say, to see a regrowth of cattail,
9 but that has to be temporary and cattail has to be
10 viewed there as an early colonizer, otherwise the
11 entire Everglades would be cattail.
12 Q. Okay. Given its role as an early
13 colonizer, do you ever have in a background site a
14 peat-burning fire without the cattail coming in as an
15 early colonizer?
16 A. Yes.
17 Q. What instances would you have that?
18 A. The instances I can think of would be in
19 Conservation Area 3A following severe fires in the
20 early to mid Seventies.
21 Q. And there was no cattail establishment
22 after those fires?
23 A. No.
24 Q. Okay. Do you have any theory as to why
25 there was not?
264
1 A. Only that these were low-nutrient, would be
2 considered low-nutrient areas removed from any pump
3 stations or structural inputs.
4 Q. You made reference a few moments ago to
5 core samples showing that there were fires throughout
6 the Everglades but that cattail was not the dominant
7 species in the Everglades.
8 Were these core samples that you took?
9 A. No.
10 Q. Who took these core samples that you're
11 referring to?
12 A. A number of individuals. Primarily Pat
13 Gleason and some of his coworkers.
14 Q. In what areas were these core samples
15 taken?
16 A. To my knowledge, these cores have been
17 collected throughout the Everglades system from
18 Conservation Area 1 down through the park over the
19 last couple of decades.
20 Q. Have you ever reviewed the data from these
21 core samples?
22 A. No.
23 Q. With regard to the major peat fires I
24 believe you said in the Seventies in the northern
25 portion of Water Conservation Area 3A; is that right?
265
1 A. As I recall, they were mostly north of
2 Alligator Alley, yes.
3 Q. After the fire do you know what the
4 hydrologic conditions were at those sites?
5 A. I'd have to review the data.
6 Q. Do you know whether there was sufficient
7 water for the cattails to establish?
8 A. I don't know.
9 Q. Would that be a factor that could have
10 impacted the establishment of cattail in that area?
11 A. Could have.
12 Q. You also made the comment that the water
13 level depth in a peat fire only has an impact in a
14 high-nutrient site, not in a low-nutrient site.
15 Why is that?
16 MR. NETTLETON: Object to form.
17 BY MR. KOBELINSKI:
18 Q. Or am I misunderstanding your prior
19 statement?
20 A. Two reasons. One is the reason I just
21 stated, that there was chronic fire history
22 throughout the 5,000 years of the Everglades without
23 major establishment of large cattail stands, and the
24 second reason is that our research on cattail
25 nutrient status would indicate that the species would
266
1 not be competitive in low-nutrient situations even
2 under deeper water conditions.
3 Q. And what study are you referring to there?
4 A. (Witness reviewing Exhibit 2).
5 The last two references on Exhibit 1084703,
6 Davis, 1989 and Davis, 1991.
7 Q. That would be of Exhibit --
8 MR. NETTLETON: 2.
9 BY MR. KOBELINSKI:
10 Q. -- 2?
11 A. 2.
12 Q. In these two studies did you have sites
13 located in varying hydroperiods with background
14 sites?
15 A. No.
16 Q. How do you draw that opinion or conclusion
17 from these studies then?
18 A. The growth and nutrient retention
19 characteristics of sawgrass and cattail as a result
20 of these studies indicated cattail was a species that
21 would only be competitive under high levels of
22 nutrient availability, while sawgrass would only be
23 competitive under low levels.
24 Q. Yet, you have stated that after a
25 peat-burning fire even in a background site cattail
267
1 will establish as an early colonizer.
2 A. That's correct.
3 Q. And that's only with several weeks of
4 nutrient impact from the fire or disturbance.
5 A. That could happen, yes.
6 Q. You referred to cattails as an early
7 colonizer.
8 How long does the cattail stay in that
9 background site in that fire hole or the depression
10 created by the fire?
11 MR. NETTLETON: Objection. Asked and
12 answered.
13 THE WITNESS: I don't know.
14 BY MR. KOBELINSKI:
15 Q. Have your studies shown that cattail
16 essentially builds up peat faster than sawgrass?
17 A. No.
18 Q. Sawgrass builds up peat faster than
19 cattail?
20 A. My studies have not measured peat buildup
21 by either species.
22 Q. Okay. What role does cattail have --
23 perhaps this isn't, not a scientist -- but does
24 cattail have a role in the Everglades ecosystem as an
25 early colonizer in a post peat fire burn hole?
268
1 A. Probably.
2 Q. What would that role be?
3 A. It probably has a beneficial effect on
4 habitat diversity and creating more of a patchiness
5 in the natural system.
6 Q. With regard to a surficial fire in a
7 background site -- let me withdraw that for a moment.
8 Sawgrass in a background site, are they
9 just one monospecific stand continuous with no breaks
10 whatsoever?
11 A. No.
12 Q. Do you have breaks between the clumps of
13 sawgrass?
14 A. Yes.
15 Q. Open areas?
16 A. Yes.
17 Q. Okay. Is there a nutrient release as a
18 result of a surficial fire?
19 A. Yes.
20 Q. And do cattail establish themselves in
21 these openings between the sawgrass after a surficial
22 fire in a background site?
23 A. I don't believe I've seen that documented.
24 Q. Is that because without a peat burn,
25 there's no difference in water level or an increase
269
1 in the depth of water level?
2 A. That would be difficult to say.
3 Q. Well, what would you attribute the
4 difference in reaction between a peat burn site and a
5 surficial site in a background area? Why do you have
6 establishment of cattail in one and not the other?
7 A. I can immediately think of three factors
8 that would all be compounding one another. One would
9 be the increased depth, one would be increased
10 nutrient availability, simply more peat burned and
11 therefore would release more nutrients, and the third
12 would be the death of the existing vegetation if it
13 were sawgrass which would open a niche for the
14 encroachment by cattail.
15 Q. There already exists, though, niches
16 between the sawgrass stands; is that correct? We
17 discussed that. You have open areas.
18 A. That's correct.
19 Q. Okay. Have you ever tested to determine
20 what the difference in nutrient release from a
21 surficial fire and a peat-burning fire is?
22 A. No.
23 Q. Have you ever tested to see what the
24 difference in water depth is between the two?
25 A. No.
270
1 Q. With regard to the Gleason study of soil
2 cores, how did they establish that there was no
3 cattail or cattail did not exist where the site was
4 that the core was taken?
5 MR. NETTLETON: Object to form.
6 THE WITNESS: As I understand it, the
7 presence of cat- -- the long-term presence of a
8 cattail stand would be indicated both in the
9 structure of the peat and in pollen within the
10 peat.
11 BY MR. KOBELINSKI:
12 Q. Were both studied with regard to the
13 Gleason study you referred to?
14 A. As I understand it, they were, yes.
15 Q. I may have asked this already, but how long
16 do, in a background site where there's a peat burn,
17 how long do cattails last after they're established?
18 A. I don't know.
19 Q. Would that depend upon the depth of the
20 peat burn?
21 A. I don't know.
22 Q. Have you studied any cattails outside of
23 the Everglades?
24 A. No.
25 Q. Does the natural system model that the
271
1 District has developed show that the hydroperiod for
2 the natural Everglades prior to the project or
3 anthropogenic impact was vastly different than the
4 hydroperiod of the Everglades today or the remainder
5 of the Everglades that we have today?
6 A. It varies from place to place in the
7 Everglades, but in general the system was wetter
8 historically.
9 Q. And have you considered how changes in
10 hydroperiod would have impacted the pre-anthropogenic
11 impact distribution of cattail?
12 THE WITNESS: Would you repeat that
13 question, please?
14 (Thereupon, a portion of the record
15 was read by the reporter.)
16 THE WITNESS: I don't understand the
17 question.
18 BY MR. KOBELINSKI:
19 Q. Well, I'll withdraw the question.
20 MR. NETTLETON: I don't have to object to
21 its form then.
22 MR. KOBELINSKI: You blew your chance.
23 BY MR. KOBELINSKI:
24 Q. With regard to the establishment of a
25 cattail plant from seed, is that correct that that
272
1 would be referred to as germination; is that right or
2 no?
3 A. That's correct.
4 Q. Okay. Does a cattail seed itself carry any
5 type of supply of nutrients for the germination of
6 the seed once it hits the soil or substrate?
7 A. Probably some.
8 Q. Okay. Is it sufficient for the initial
9 germination or establishment of the plant?
10 A. I don't know.
11 Q. With regard to the 2,000-acre,
12 approximately 2,000-acre fire that occurred in Water
13 Conservation Area 2A in the late Eighties, were there
14 any areas where there was a peat-burning fire as
15 compared to a surficial fire such that they could be
16 studied, the differences in reaction?
17 A. To my knowledge, none of that fire was a
18 peat burn.
19 Q. Throughout the entire 2,000 acres?
20 A. To my knowledge.
21 Q. Did anyone study that, go out and check?
22 A. I would have to rely on Nancy Urban's
23 observations for that.
24 Q. Did you ever have a discussion with Nancy
25 Urban as to whether or not there was any peat
273
1 burning?
2 A. Her descriptions of the fire to me would
3 not indicate a peat burn.
4 Peat burn is very obvious, keeps smoking
5 for days after the surficial fire goes out.
6 Q. Was Ms. Urban able to actually get into the
7 fire area immediately after the fire?
8 A. As I recall, she was out there within a few
9 days after. I'd have to check her notes on that.
10 Q. Did Ms. Urban have difficulty getting to
11 most of the sites in dry conditions?
12 MR. NETTLETON: Object to form.
13 THE WITNESS: Yes.
14 BY MR. KOBELINSKI:
15 Q. Were the conditions dry when the peat fire
16 of 2,000 acres occurred?
17 A. Let me qualify that. She had difficulty
18 getting to the site by airboat during dry conditions.
19 Q. How would she get out there otherwise?
20 A. Helicopter.
21 Q. How often did she use a helicopter?
22 A. Generally to collect water samples which
23 she collected every two weeks during periods when she
24 could not get around by airboat.
25 Q. If Ms. Urban was not out there within days
274
1 of the fire, how would you go about establishing
2 whether or not there was a peat fire or surficial
3 fire?
4 A. I'd check with either the Florida Game and
5 Freshwater Fish Commission or the Florida Forest
6 Service.
7 Q. Why would they know?
8 A. They are the agencies that keep track of
9 Everglades fires in terms of size and intensity.
10 Q. That's the Florida Game and Freshwater Fish
11 Commission and?
12 A. Florida Forest Service.
13 Q. If you're not able to review a site until
14 after the fire's out and sufficient water's returned
15 for you to gain access, how would you, is there
16 visually some way to tell whether it was a surficial
17 or a peat-burning fire?
18 A. I don't know.
19 Q. Have you visually ever seen that out in the
20 Everglades?
21 A. After reflooding?
22 Q. After reflooding so you could gain access
23 to the site that was burned.
24 THE WITNESS: Would you repeat the question
25 again?
275
1 BY MR. KOBELINSKI:
2 Q. I'll just restate it.
3 After a site's reflooded after a fire, have
4 you ever in your experience out in the Everglades
5 been able to just visually be able to tell whether
6 there was a peat-burning fire there or a surficial
7 fire?
8 A. No.
9 Q. Would a fire have a greater impact upon a
10 sawgrass that was growing in a tussock growth pattern
11 as opposed to a regular stand of sawgrass?
12 A. I don't know.
13 Q. Would you anticipate it would?
14 A. I don't know.
15 Q. Well, in a tussock growth pattern is there
16 a greater portion of the root structure exposed above
17 ground?
18 A. Yes.
19 Q. Would the burning of this greater portion
20 of the root structure result in a greater impact to
21 the plant?
22 A. I'm not certain that that burning would
23 occur in tussock growth.
24 Q. Why is that?
25 A. To my knowledge, the intensity of a marsh
276
1 fire is, unless there's a peat burn, is greatest at
2 the level of the foliage a few feet off the ground,
3 not right within the first foot of the ground where
4 the tussocks would be. And I do not know the
5 susceptibility of the root and rhizome systems in a
6 tussock to burning. I don't know the protection that
7 the tussock provides the roots within it. There's
8 just a lot of factors I don't know.
9 Q. After the drought years in '89 and '90 when
10 water was reintroduced to the area in Water
11 Conservation Area 2A, would that have resulted in any
12 type of a surge of nutrients?
13 A. Yes.
14 Q. Why?
15 A. Well, for two reasons. One, there was
16 reduced resistance to water flow from the structures
17 across the marsh because of the burn and, two, there
18 would be some regeneration of phosphorus in the
19 burned material.
20 Q. Was there any oxidation of the peat soils
21 in Water Conservation Area 2A as a result of the
22 '89-'90 long drought?
23 A. I don't know.
24 Q. Did Ms. Urban ever remeasure her water
25 depths after the drought to determine whether or not
277
1 the ground level had decreased at all?
2 A. I'd have to check with her on her notes on
3 that.
4 Q. Could there have been any compaction or
5 subsidence of the soils at the study sites as a
6 result of the long drought, the '89-'90 drought?
7 MR. NETTLETON: Object to form.
8 THE WITNESS: I would doubt if it would be
9 measurable, and I think there could be
10 offsetting factors where any oxidation that
11 might have occurred might be balanced by the
12 compaction of the sediments in the water column
13 which would actually increase the soil level.
14 BY MR. KOBELINSKI:
15 Q. At what sites did you have the flowing
16 sediments in the water column?
17 A. I didn't say flowing sediments.
18 Q. Okay. At what sites did you have sediments
19 in the water column that would result in a
20 countervailing factor as compared to subsidence or...
21 A. At any site there is a matrix of detritus
22 above the soil surface in the water column. It is a
23 flocculant texture at enriched sites. But even in
24 background sites there's a matrix of detritus in
25 various stages of decomposition which would be
278
1 consolidated on the marsh floor with the drought.
2 Q. Would any of that have been burnt off as a
3 result of the fire?
4 A. Some of it could have been.
5 Q. Is it possible that the drought between
6 subsidence, oxidation and the like resulted in a
7 decrease in the or a drop in the level of the
8 substrate surface --
9 MR. NETTLETON: Object to form.
10 BY MR. KOBELINSKI:
11 Q. -- at the study sites?
12 A. As I said, I'd be very surprised if it was
13 measurable.
14 Q. Did you do any testing to determine whether
15 there was a measurable difference in depth?
16 A. As I said, I'd have to look at Nancy
17 Urban's notes to see if she did that.
18 Q. Do you recall if you instructed her to do
19 so?
20 A. No, I do not.
21 Q. Any other fire impacts in Water
22 Conservation Area 2A that have resulted in a change
23 in density or distribution of cattail?
24 A. Not that I'm aware of recently.
25 Q. Disturbance.
279
1 What disturbance events are you aware of
2 that have occurred in Water Conservation Area 2A or
3 the area that is currently known as Water
4 Conservation Area 2A that would have impacted the
5 spread and density of cattails?
6 A. We've discussed fire and drought. Both
7 could be viewed as a disturbance also.
8 I might go back and add one hydrology
9 effect, it would be more of a hydrology effect than
10 disturbance, and that is when the area was kept under
11 the deep water hydrologic regime before 1980 there
12 was a drowning of tree islands, and cattails came in
13 in this situation in small patches.
14 Q. That would have been during what period?
15 A. That would have been during the Sixties.
16 Q. Did the flooding during the Sixties and
17 Seventies have any impact upon the sawgrass marsh?
18 A. As I said yesterday, it resulted in a
19 conversion of some sawgrass areas to deeper water
20 slough communities and created a tussock growth
21 response of sawgrass in deeper water areas, a
22 thinning.
23 Q. Is sawgrass relatively resilient to changes
24 in hydroperiod?
25 A. That would depend on the situation.
280
1 Q. Okay. Do you know whether or not the
2 flooding that you've referred to in the Sixties and
3 Seventies, was that a gradual draw-up of the water
4 level or was that a rapid filling of the water
5 conservation area with water?
6 A. I'd have to look at the water records, but
7 it was initiation of a water regulation schedule that
8 involved deep water conditions during most times.
9 How fast it filled up would depend on rainfall. I'd
10 have to look at the records for that.
11 Q. Would the degree or the amount of time it
12 took to raise levels of Water Conservation Area 2A
13 have an impact upon the sawgrass community therein?
14 A. I don't know.
15 Q. Going back to disturbance, what disturbance
16 events are you aware of that have had an impact upon
17 the spread and distribution of cattails within Water
18 Conservation Area 2A?
19 A. The only other one I can think of in what
20 we've discussed would be just the physical impact of
21 levee and canal construction at the construction
22 site.
23 (Discussion held off the record.)
24 BY MR. KOBELINSKI:
25 Q. Are you familiar at all with the District's
281
1 use of herbicides within Water Conservation Area 2A?
2 A. Only that they periodically spray canals
3 for water hyacinths.
4 Q. Do you know whether or not that spraying
5 has any impact upon the cattail distribution and
6 expansion?
7 A. I don't know how it would other than on the
8 canal banks that were sprayed.
9 Q. How was the spraying taking place?
10 A. To my knowledge, it's usually by airboat.
11 Q. How would spraying along the canal banks
12 have an impact upon the distribution and spread of
13 cattails?
14 MR. NETTLETON: Objection. Asked and
15 answered.
16 THE WITNESS: If it were to kill other
17 species of vegetation along the canal bank,
18 cattail might come in, it might encourage
19 cattail to come in.
20 BY MR. KOBELINSKI:
21 Q. Have you done any studies to determine
22 whether or not that has occurred?
23 A. No.
24 Q. In your studies of the water conservation
25 area -- when did you start studying Water
282
1 Conservation Area 2A?
2 A. The very early work was in 1974. We really
3 began in earnest in about '75.
4 Q. Are Water Conservation Area 1's perimeter
5 canals also sprayed with herbicide?
6 A. I don't know.
7 Q. When herbicide is sprayed on the water
8 hyacinths in Water Conservation Area 2 in the canals,
9 would water overflow from that canal into the marsh
10 carry the herbicide?
11 A. I don't know.
12 Q. Are you familiar with the Army Corps of
13 Engineers mowing the sawgrass and cattail in Water
14 Conservation Area 2A below the S-10 structures?
15 A. No.
16 Q. What impact would mowing of a mile-wide
17 swatch through the cattail and sawgrass from the
18 S-10C down to the S-11 structures have?
19 MR. NETTLETON: Object to form.
20 THE WITNESS: I have no idea.
21 BY MR. KOBELINSKI:
22 Q. Would you characterize that as a
23 disturbance?
24 A. By definition, yes.
25 Q. Okay. The mowing that took place was in
283
1 1969.
2 Are you aware that Carroll White of the
3 Army Corps of Engineers testified that in 1969 a mile
4 wide strip was mowed from south of S-10C to S-11B --
5 MR. NETTLETON: Object --
6 BY MR. KOBELINSKI:
7 Q. -- with underwater mowers?
8 MR. NETTLETON: Object to form.
9 THE WITNESS: No.
10 BY MR. KOBELINSKI:
11 Q. Would that mowing have resulted in a spread
12 of seeds and rhizomes and the like?
13 MR. NETTLETON: Object to form.
14 Can I ask --
15 MR. KOBELINSKI: May I finish my question,
16 counsel?
17 MR. NETTLETON: Can you identify where the
18 testimony is?
19 MR. KOBELINSKI: After I finish my
20 question, I will identify whatever you'd like.
21 BY MR. KOBELINSKI:
22 Q. Now, would the underwater mowing from S-10C
23 to S-11 result in a spread of cattail seeds and
24 rhizomes into the interior marshes of Water
25 Conservation Area 2A?
284
1 MR. NETTLETON: Object to form.
2 THE WITNESS: I don't know.
3 MR. NETTLETON: Counsel, can you identify
4 what you were referring to as testimony, where
5 it came from?
6 MR. KOBELINSKI: Sure. I'm referring to
7 the deposition of Ormond Carroll White taken in
8 part of the SWIM proceedings on November 23,
9 1992, and specifically I'm referring to page 89
10 of his deposition.
11 At line 20 the question was asked, "You did
12 mow it?
13 "Answer: We did mow it.
14 "Question: When was that?
15 "Answer: Let me see it. I can guess it
16 was during the major floods of '69 and '70,
17 during that period. That's the only time that
18 we had a real major flood in my terms as major
19 until this year. We have had some pretty good
20 floods.
21 "Question: The purpose of the mowed strip?
22 "Answer: Was to reduce the friction. And
23 as the depth of water increased, you would have
24 more of your water column that didn't have that
25 friction from the vegetation there."
285
1 MR. NETTLETON: I just asked for
2 identification. I didn't need you to read it
3 into the record, but...
4 MR. HYDE: We like it, however.
5 MR. KOBELINSKI: We like it.
6 BY MR. KOBELINSKI:
7 Q. Finally, are you aware the testimony where
8 the question was asked Mr. White, "You said mowed a
9 mile wide, what did you use?
10 "Answer: We had a mowing machine that
11 would mow underwater. It was something like an
12 airboat and it was a cycle type mower, the same kind
13 you go out and mow but it mowed underwater. And it
14 broke down a lot"?
15 MR. NETTLETON: I'll object to form.
16 BY MR. KOBELINSKI:
17 Q. In your studies as to the Water
18 Conservation Area 2A, what would a mile-wide mowed
19 strip starting at S-10C going down to the S-11
20 structures right through that cattail area have done?
21 A. Would do apparently nothing.
22 Q. Nothing?
23 Why not?
24 A. I don't see a strip of vegetation change
25 between S-10C and S-11 structures and I didn't, we
286
1 didn't start to observe the expansion of cattail
2 until the late Seventies, ten years after this.
3 Q. Okay. So in this instance that would not
4 be a disturbance?
5 A. I think it would be a disturbance. I don't
6 believe I ever said that cattail was given an
7 advantage by every disturbance.
8 Q. Okay. In your opinion then the mowing of a
9 strip from S-10C down to S-11 would not be the type
10 of disturbance that would give cattail an advantage.
11 A. Based on our observations in area 2A I
12 would say it did not.
13 Q. Since you have studied cattails, why didn't
14 it in this instance?
15 MR. NETTLETON: Object to form.
16 THE WITNESS: All I know, it would be a
17 very different type of disturbance than a burn
18 or excavation or a drought. It wouldn't affect
19 sediments.
20 If you look at mowing the lawn, what it
21 does is increase the density of the grass.
22 Mowing through sawgrass areas might have
23 done the same thing.
24 I don't think we have any evidence that it
25 would have had any effect at all.
287
1 BY MR. KOBELINSKI:
2 Q. All right. You used the example
3 excavation, burn and drought.
4 Excavation and burn and drought, as we've
5 discussed, all deal with changes in water level.
6 Mowing apparently would not have a change
7 in water level; is that correct?
8 MR. NETTLETON: Object to form.
9 THE WITNESS: I wouldn't think so.
10 BY MR. KOBELINSKI:
11 Q. The S-10 structures were already
12 carrying --
13 A. I didn't mean to imply --
14 Q. I'm sorry.
15 A. -- that all excavation, burn or drought had
16 an effect on water level, lowering -- increasing
17 water level by lowering soil, if that's what you're
18 getting at. I didn't mean to make that implication.
19 Q. Okay. But I believe your testimony was
20 that a surficial fire does not result in the
21 establishments of cattail as an opportunistic
22 species. It's only when there's a peat burn which
23 does lower the surface level.
24 MR. NETTLETON: Object to form.
288
1 BY MR. KOBELINSKI:
2 Q. Is that correct?
3 A. I said I haven't seen a documentation of a
4 surficial fire that's resulted where cattails come
5 in.
6 Q. Well, in your experience then the only fire
7 sites you've seen where cattail has established is
8 where the peat has burned and there's been a lowering
9 of surface, ground surface level; is that correct?
10 A. No.
11 Q. Okay. Well, have you seen then a surficial
12 fire where cattail has been established?
13 A. As far as I'm aware, that burn of
14 approximately 2,000 acres was a surficial fire by
15 your definition and cattails did become established.
16 Q. But cattails were already there beforehand,
17 weren't they?
18 A. In a mixed stand as opposed to a much
19 increased density after the fire.
20 Q. Okay. And a background stand then, the
21 only time you'll ever have establishment of cattail
22 after a burn is if there's a peat burn resulting in a
23 reduction in the substrate level; is that correct?
24 A. Establishment in the sense of a long-term
25 stand, yes.
289
1 Q. Well, is there a short-term establishment
2 of cattail after a surficial fire in a background
3 site?
4 A. I don't know. Cattails occur throughout
5 the Everglades in little patches here and there.
6 There's no way to sort that out.
7 Q. Going back to the mowing, you said there
8 would be no disturbance of the substrate as a result
9 of an underwater mowing?
10 A. I wouldn't think so.
11 Q. Why not? Is the substrate so compacted
12 without any flocculant or detritus that a mower
13 swishing over it cutting off the plants and perhaps
14 ripping them up by their roots would not have any
15 impact upon it?
16 MR. NETTLETON: Object to form.
17 THE WITNESS: Mowing in terms of clipping
18 the plants off, which is what my view of mowing
19 is, I wouldn't think would affect the soil
20 surface, particularly if Carroll White described
21 the vehicle used as an airboat type device that
22 wasn't running over the substrate.
23 BY MR. KOBELINSKI:
24 Q. I believe his description, which I can read
25 back to you, was that the airboat -- the mowing was
290
1 underneath the airboat; it was not just on the
2 surface of the water. It was an underwater mowing.
3 A. Well, until I saw the device and saw it in
4 operation, it would just be pure conjecture that -- I
5 view mowing as clipping of vegetation.
6 Q. Well, have you ever done any underwater
7 mowing?
8 A. No, I never have.
9 Q. Okay. So your comparison to the mowing of
10 your lawn may not apply; is that correct?
11 A. Or it might apply.
12 Q. But you don't know, do you?
13 A. No.
14 Q. Now, the water coming out of the S-10
15 structures in '69-1970, did they already have
16 nutrient-enriched water from agricultural runoff?
17 A. Yes.
18 Q. Was the nutrient concentration in the water
19 coming out of the S-10 structures in '69-'70 have any
20 impact upon the spread and distribution of cattails
21 in Water Conservation Area 2A?
22 A. The most likely impact would be the
23 allowing of cattails to come in in the area that had
24 been formerly willow.
25 Q. It wouldn't have an impact beyond that?
291
1 A. As I stated previously, through the early
2 to mid Seventies up through about 1980 we did not see
3 an expansion of cattail beyond that area.
4 Q. Is that because the concentrations of the
5 phosphorus in the water coming out of the S-10s at
6 that point were essentially at a level resulting in
7 equilibrium where there would be no spread of
8 cattail?
9 A. I don't know.
10 Q. Well, was there a spread of cattail with
11 the concentrations that were coming out of the S-10
12 structures at that time?
13 A. Not that I observed.
14 Q. So nutrients in the, the phosphorus
15 concentration in the waters coming out of the S-10s
16 up through '70 and I believe you said up through 1980
17 were not causing any type of expansion in the
18 cattail.
19 MR. NETTLETON: Object to form.
20 THE WITNESS: I did not see an expansion in
21 the cattail during that period.
22 BY MR. KOBELINSKI:
23 Q. Okay. Do you have an opinion as to whether
24 or not the nutrients, the phosphorus concentrations
25 in the waters coming through the S-10 structures up
292
1 through the Seventies up to the Eighties were causing
2 an expansion of cattail?
3 A. Since there was not a -- since I did not
4 observe an expansion of cattail, I can presume that
5 it was not caused by a spread -- by nutrients.
6 Q. Now, Mr. White, as I just read, and I can
7 re-read the section if you'd like, stated that the
8 purpose of the mowing was to stop the vegetative
9 friction and allow the water coming out of the S-10s
10 to get down to those S-11s.
11 Would that mowing also have resulted in a
12 greater penetration of nutrient-enriched water into
13 the Water Conservation Area 2A marsh?
14 MR. NETTLETON: Object to form.
15 THE WITNESS: Probably for a time period.
16 BY MR. KOBELINSKI:
17 Q. Okay. Did that result in a, did that
18 increased nutrient load going into the interior of
19 the Water Conservation Area 2A marsh result in an
20 increase in the spread of cattail?
21 MR. NETTLETON: Object to form.
22 THE WITNESS: Not to my knowledge.
23 BY MR. KOBELINSKI:
24 Q. Why not?
25 A. I don't know.
293
1 Q. Was it because the, again, the phosphorus
2 concentrations in the water that were penetrating the
3 marsh there were insufficient to result in an
4 increase or spread of cattail?
5 A. I don't know.
6 Q. In fact, from your prior testimony this was
7 at a time when the water levels were at a more
8 favorable depth for the establishment of cattails; is
9 that correct?
10 A. Yes.
11 Q. Nutrients under that situation should have
12 resulted in a greater magnitude of expansion, if I
13 understand your testimony.
14 MR. NETTLETON: Is that a question?
15 THE WITNESS: I would say we just don't
16 have enough knowledge on, you know, the specific
17 amounts of nutrients that might have been
18 introduced to the south or how long they were
19 available for plant growth to make any
20 conclusions.
21 BY MR. KOBELINSKI:
22 Q. Well, you had stated with regard to fire,
23 in a peat-burning fire, that the nutrient flux from
24 that fire lasts for only a couple of weeks.
25 Would you expect that the underground
294
1 mowing of vegetation to allow flow from the S-10s to
2 penetrate the marsh would last for less than a couple
3 of weeks?
4 MR. NETTLETON: Object to form.
5 THE WITNESS: It easily could.
6 BY MR. KOBELINSKI:
7 Q. What would grow into that area in a couple
8 of weeks' time which would stop the water from
9 flowing into the marsh?
10 A. I don't, I wasn't observing the situation
11 then. I don't know what grew.
12 Q. Well, what could have grown in a couple
13 weeks' time that would have stopped the nutrients
14 from entering the marsh?
15 MR. NETTLETON: Objection to form.
16 THE WITNESS: Probably not much would grow
17 up through the water column in that period of
18 time. That would be very rapid growth.
19 BY MR. KOBELINSKI:
20 Q. Which is, of course, why the Corps cut the
21 vegetation, to increase the flow of water.
22 MR. NETTLETON: Object to form.
23 THE WITNESS: If that's what Carroll White
24 said.
295
1 BY MR. KOBELINSKI:
2 Q. All right. The mowing then essentially
3 would have resulted in, if I understand your
4 testimony, a disturbance, an increase in nutrients
5 into the interior marsh and also hydroperiod was more
6 favorable at the time, but there was no expansion of
7 cattail.
8 MR. NETTLETON: Object to form.
9 THE WITNESS: Not to my knowledge.
10 MR. KOBELINSKI: Okay. Why don't we take a
11 break.
12 (Thereupon, a recess was taken from
13 11:30 a.m., until 11:40 a.m.)
14 BY MR. KOBELINSKI:
15 Q. Back on the record.
16 Perhaps at a bit more rapid pace since this
17 is not an area that you conducted your research in,
18 what nutrient impacts have there been in Water
19 Conservation Area 1, historical impacts that have
20 resulted in the spread and distribution of cattail?
21 A. My only knowledge of nutrient impacts in
22 Area 1 would be from surface water phosphorus
23 concentration maps, from soil phosphorus maps of John
24 Richardson, and cattail distribution maps from, as
25 mapped by John Richardson in his vegetation map which
296
1 all correspond very closely.
2 Q. Are there increased soil phosphorus
3 concentrations south of the S-5A structure?
4 A. As I said yesterday, I would have to review
5 his map to determine that.
6 Q. Actually, I was trying to go in a different
7 direction here.
8 We've just gone through the various, the
9 four impact or factors that you've stated cause the
10 distribution and expansion of cattail: nutrients,
11 hydroperiod, fire, and disturbance for Water
12 Conservation Area 2A.
13 My question was historically what
14 nutrients, changes in nutrients have resulted or have
15 impacted the distribution and spread of cattails in
16 Water Conservation Area 1 similar to what we've just
17 done for Water Conservation Area 2A?
18 A. The construction of the S-5A and S-6 pump
19 stations.
20 Q. All right. Anything else?
21 A. There's a small pump on the eastern side of
22 Water Conservation Area 1 that would be relatively
23 negligible in its inputs.
24 Is that the Acme Improvement District?
25 Q. Is there a corresponding cattail in that
297
1 area?
2 A. I'd have to look at the vegetation map. It
3 would not be a big stand.
4 Q. Would that be because the nutrient
5 concentrations in the water are insufficient to
6 result in a spread of cattail?
7 A. As I said yesterday, nutrient
8 concentrations only are useful as correlates to
9 nutrient supply. And although I'm not certain what
10 the concentrations are from that pump outflow, the
11 supply would be low because it's a small pump.
12 Q. Would that just mean you'd have a smaller
13 impacted area or would that mean that you would have
14 no cattails whatsoever?
15 A. It would be hard to say in that case since
16 the discharge from that pump is into the perimeter
17 canal, and as I mentioned yesterday, that canal
18 provides a hydrologic bypass for most of the marsh.
19 So I'd have no idea in that case if there
20 was penetration of water and phosphorus into the
21 marsh from that pump station, so there would be no
22 way for me to tell.
23 Q. You had stated earlier, as a matter of fact
24 you just restated that the nutrient concentrations
25 are, in the surface waters are not the important
298
1 factor but, rather, nutrient supply; is that correct?
2 MR. NETTLETON: Object to form.
3 THE WITNESS: I think the nutrient
4 concentrations are important as correlates to
5 nutrient supply in a particular area such as
6 Area 2A. I don't think you can make a direct
7 relationship between concentration and supply at
8 an area below the Acme pump station with the
9 concentration/supply relationship that exist in
10 Water Conservation Area 2A.
11 BY MR. KOBELINSKI:
12 Q. Can you make a correlation between
13 concentration and supply in the area below S-5A?
14 A. Probably.
15 Q. Are the --
16 A. But it wouldn't be the same one that would
17 exist in Water Conservation Area 2A.
18 Q. Why is that?
19 A. Different pumping rate.
20 Q. Is there more water going into Water
21 Conservation Area 1 or more water going into Water
22 Conservation Area 2A?
23 A. Everything that goes into at least the
24 north end of 2A has passed through some part of
25 Conservation Area 1.
299
1 Q. And what are the major influences of
2 nutrient input into Water Conservation Area 1?
3 A. As I've said previously, from the maps I've
4 seen, elevated surface water phosphorus
5 concentrations, elevated soil phosphorus and cattail
6 distribution mostly along the perimeters of
7 Conservation Area 1.
8 Q. Where does the phosphorus come from?
9 A. Mostly from S-5A and S-6.
10 Q. Okay. But I believe you stated that S-6 is
11 only a minor supply; is that right?
12 A. It's not a minor supply. It enters the
13 southern end of the area, so it would not influence
14 very much of the area.
15 Q. Why wouldn't it influence much of the area?
16 A. 'Cause it's a direct shot to the S-10
17 structures down the canal.
18 Q. The S-5A, on the other hand, is on the
19 northern end of Water Conservation Area 1.
20 A. That's correct.
21 Q. Okay. Would you anticipate then given the
22 high nutrient -- or phosphorus concentration in the
23 water that you would have high nutrient supply to the
24 vegetation in the northern end of Water Conservation
25 Area 1?
300
1 A. It would depend on how much that water
2 mixed with -- went into the marsh rather than down
3 the canal.
4 Q. Would you anticipate that the phosphorus
5 concentrations were higher in Water Conservation
6 Area 1 or Water Conservation Area 2A in surface
7 water?
8 MR. NETTLETON: Object to form.
9 THE WITNESS: It would depend where you
10 were collecting the sample.
11 BY MR. KOBELINSKI:
12 Q. Okay. Let's say from the canal right below
13 the S-5A input and from the canal below the S-10
14 structures.
15 A. And what is your question?
16 Q. Where would you anticipate having higher
17 surface water phosphorus concentrations?
18 A. I'd anticipate having higher concentrations
19 in the S-5A outflow compared to the S-10 outflows.
20 Q. Okay. Would you have an impact on the
21 phosphorus supply to the vegetative community if you
22 spread the flow of water from Water Conservation
23 Area 1 all the way up and down the eastern boundary
24 of Water Conservation Area 2A as opposed to the four
25 structure sites of the S-10s?
301
1 MR. NETTLETON: Object to form.
2 THE WITNESS: I don't understand the
3 question.
4 BY MR. KOBELINSKI:
5 Q. Okay. Right now the water flows from Water
6 Conservation Area 1 into Water Conservation Area 2A
7 through the four S-10 structures plus S-10E which is
8 a smaller structure; is that correct?
9 A. No.
10 Q. All right. How does water flow from Water
11 Conservation Area 1 into Water Conservation Area 2A?
12 A. Through the three S-10 structures plus
13 S-10E.
14 Q. Okay. One S-10 structure not being used.
15 A. There is no S-10B.
16 Q. Now, would there be a change in the supply
17 of nutrients to the cattail community located below
18 S-10C if you redistributed the water flowing from
19 Water Conservation Area 1 all the way up and down
20 that common border through, let's say, as opposed to
21 four structures you had fifty structures?
22 MR. NETTLETON: Could you read back the
23 question, please?
24 THE WITNESS: Yes, please.
302
1 (Thereupon, a portion of the record
2 was read by the reporter.)
3 MR. KOBELINSKI: I'll go ahead and rephrase
4 it.
5 MR. GREEN: I thought it was clear.
6 MR. KOBELINSKI: Thanks, Bill.
7 BY MR. KOBELINSKI:
8 Q. Currently, as you've testified, water flows
9 from Water Conservation Area 1 into 2A through four
10 structures; is that correct?
11 A. That's correct.
12 Q. Three primary and one minor?
13 A. That's correct.
14 Q. Okay. And the phosphorus supply to the
15 cattail community below the S-10C structure primarily
16 comes from the S-10C and S-10D structures; is that
17 correct?
18 A. Yes.
19 Q. Okay.
20 Now, would there be any impact upon the
21 phosphorus supply to the cattail community below
22 S-10C if you expanded the number of structures which
23 regulate the flow from Water Conservation Area 1 into
24 Water Conservation Area 2A from four to fifty all
25 along and up and down the common border between Water
303
1 Conservation Area 1 and Water Conservation Area 2A?
2 MR. NETTLETON: Object to form.
3 THE WITNESS: Just read the last part of
4 that question to me again.
5 (Thereupon, a portion of the record
6 was read by the reporter.)
7 THE WITNESS: I don't know.
8 BY MR. KOBELINSKI:
9 Q. Would there be a change in the phosphorus
10 supply to the cattail community below S-10C if all
11 the water from Water Conservation Area 1 that flowed
12 into Water Conservation Area 2A came solely through
13 the S-10E structure?
14 MR. NETTLETON: Object to form.
15 THE WITNESS: Yes.
16 BY MR. KOBELINSKI:
17 Q. Would it be an increase or decrease in
18 phosphorus supply?
19 A. Decrease.
20 Q. Okay. If you spread the flow between Water
21 Conservation Area 1 and Water Conservation Area 2A so
22 that there was a decrease in the amount of water
23 flowing through the S-10C structure, would that
24 impact the water, the phosphorus supply to the
25 cattail community below S-10C?
304
1 A. I don't know.
2 Q. What are the factors that comprise
3 phosphorus supply?
4 A. Low volume, the pattern of flow, how the
5 water flows across the marsh, and the phosphorus
6 concentration in that water.
7 Q. Pattern of flow.
8 What do you mean by pattern of flow?
9 A. Where the water goes. In other words,
10 would there be a uniform flow across the marsh or
11 would it be going, channeled or going down a canal.
12 Q. Based upon your studies and research, is
13 there currently a uniform flow across the marsh below
14 the S-10 structures?
15 A. Probably not.
16 Q. Where does it flow? What has impacted a
17 uniform flow?
18 A. Variations in vegetation density or
19 contours.
20 Q. Are you familiar with a term
21 flow-weighted P concentration?
22 A. Yes.
23 Q. How does P supply differ or phosphorus
24 differ from flow-weighted phosphorus concentrations?
25 A. We're mixing the term supply and loading
305
1 again.
2 Q. If you could explain the difference between
3 the two.
4 A. Loading is the external input of phosphorus
5 to the system. I've used supply more in terms of
6 availability, what's available to the plants in the
7 particular location.
8 Q. Okay. Are you saying then that loading is
9 equal to flow-weighted phosphorus concentration?
10 A. No. It's a correlate of flow-weighted
11 phosphorus concentration times flow volume.
12 Q. Okay. Is there a correlate between
13 phosphorus supply and loading?
14 A. Probably less of one. The correlate there,
15 as I said yesterday, is between supply or
16 availability and concentration.
17 Q. What does a flow-weighted phosphorus
18 concentration measure? How would you calculate that?
19 A. It measures the phosphorus concentration in
20 the water giving a weighting factor to the
21 concentrations during periods of higher flow.
22 In other words, if you have one week when
23 the phosphorus concentration is a hundred and three
24 weeks when it's ten in a month period, your -- no,
25 excuse me. If you have a, if you have a phosphorus
306
1 concentration of a hundred during a period when
2 the -- bad example.
3 It gives more, gives a higher weighting to
4 phosphorus concentrations when flow volumes are
5 higher.
6 If you want me to go through some
7 calculations for you, I will.
8 Q. No need.
9 In a flow-weighted phosphorus
10 concentration, does that calculation take into
11 consideration the pattern of the flow?
12 A. Not usually.
13 Q. In your definition of phosphorus supply is
14 there a timing factor?
15 A. I don't understand.
16 Q. Would it make a difference as to how long
17 the water was in contact with the plant or is that
18 merely a portion of the flow volume?
19 A. The two would be auto-correlated. They'd
20 fluctuate together.
21 Q. Have you ever done any study or research or
22 reviewed any study or research wherein a correlation
23 was drawn between phosphorus supply and the expansion
24 or distribution of cattails in the Everglades?
25 A. Yes.
307
1 Q. What study?
2 A. The very strong overlap of the results of
3 three studies: the distribution of surface water
4 phosphorus concentrations, the distribution of soil
5 phosphorus and the distribution of cattail combined
6 with our process research indicating that cattail are
7 a high-nutrient species and sawgrass a low-nutrient
8 species.
9 Q. Okay. Was that one particular study?
10 A. I think that's four studies.
11 Q. Are there papers resulting from those four
12 studies?
13 A. The soil phosphorus concentrations are in
14 Reddy, et al., as we cited yesterday.
15 The cattail distribution is in the
16 vegetation map produced by Ken Rutchey.
17 Surface water concentrations have been the
18 subject of a number of studies, everything from
19 Millar, et al., in the, I believe the early Eighties
20 to the water sampling by Nancy Urban and Marguerite
21 Koch more recently.
22 Q. And did Ken Rutchey study the flow volume
23 in preparing his vegetative map?
24 A. No.
25 Q. Did he study the pattern of flow?
308
1 A. No.
2 Q. Did he study the phosphorus concentrations
3 in the surface water?
4 A. No.
5 Q. He did not then determine what the
6 phosphorus supply was.
7 A. No.
8 Q. Did Reddy in his soil phosphorus
9 concentration study, did he look at the flow volume
10 of water?
11 A. No.
12 Q. Did he look at the pattern of flow?
13 A. No.
14 Q. Did he look at phosphorus concentration in
15 the surface water?
16 A. I would have to review that to see if he
17 had phosphorus surface water concentration data in
18 that report.
19 Q. So he possibly looked at one of the three
20 factors comprising phosphorus supply; is that
21 correct?
22 A. That's correct.
23 Q. Now, with regard to Urban and Koch's water
24 sampling, have they been establishing or studying the
25 flow volume?
309
1 A. No.
2 Q. Have they been looking at the pattern of
3 flow?
4 A. No.
5 Q. Have three been looking or establishing
6 what the phosphorus concentrations are in the surface
7 water?
8 A. Yes.
9 Q. Okay. Did they then determine what the
10 phosphorus supply was?
11 A. As I said, I was relying on the combination
12 of these studies.
13 Q. Okay. Which of the studies you referred to
14 have looked at flow volume?
15 A. As I said yesterday, phosphorus
16 concentration is commonly used as a correlate to
17 supply at sites in the same area of wetland, and I
18 feel it's a valid correlate.
19 Q. Okay. So for phosphorus supply, you can
20 actually knock out the flow volume factor since we
21 already have phosphorus concentration in surface
22 water; is that correct?
23 MR. NETTLETON: Object to form.
24 THE WITNESS: As long as you don't imply
25 that concentration equals supply. It's a
310
1 correlate to supply.
2 BY MR. KOBELINSKI:
3 Q. All right.
4 Well, does that just give you an error
5 factor in there?
6 A. No.
7 Q. Well, how good is the correlation
8 statistically?
9 A. I stated that we made an assumption that
10 phosphorus concentration was a correlate to supply.
11 Q. When you say phosphorus concentration is a
12 correlate to supply, are you referring to phosphorus
13 supply as a whole? In other words, phosphorus
14 concentrations are a correlate to the combination of
15 flow volume, pattern of flow and phosphorus
16 concentration in surface water?
17 A. Availability to the plants at the site.
18 Q. Well, is that what phosphorus supply is,
19 the availability of phosphorus for the plants in the
20 site?
21 A. That's the way I'm using it and the way
22 I've used it in my papers and the way it would
23 influence cattail.
24 Q. Okay. Have you ever attempted to quantify
25 phosphorus supply?
311
1 A. No. As I stated yesterday, that's almost
2 impossible in an open marsh area. You have to use
3 correlates.
4 Q. Okay. Have you ever attempted to quantify
5 patterns of flow?
6 A. No.
7 Q. Is that something that can be done in a
8 marsh area?
9 A. It would be extremely difficult, if not
10 impossible.
11 Q. Okay. Is phosphorus supply more of a
12 concept than a quantitative figure?
13 A. I wouldn't call it a concept. I would say
14 that it's a, that it can be used in a quantitative
15 way when comparing sites with low versus high
16 phosphorus concentrations. I would call it more than
17 a concept.
18 Q. Have you ever used the term phosphorus
19 supply in any of your papers?
20 A. Yes, I stated the assumption in my papers
21 that phosphorus concentrations are used as a
22 correlate to phosphorus supply.
23 Q. And which paper would those be in?
24 A. That would be the Davis, 1991. I know that
25 one in specific.
312
1 Specifically I'd have to look back at the
2 others.
3 Q. Okay. In that paper do you explain that
4 phosphorus supply is comprised of flow volume,
5 pattern of flow and soil phosphorus concentrations?
6 A. I'd have to look at the paper as far as the
7 specific wording goes, but we do make a definite
8 point of stating that we are using concentration as a
9 correlate to supply.
10 Q. Okay. If the flow volume increases, what
11 impact does that have on phosphorus supply?
12 A. It would increase.
13 Q. Okay. And if flow volume decreases, what
14 impact would that have on phosphorus supply?
15 A. It would decrease.
16 Q. If you had a high flow volume but low
17 phosphorus concentration, what would that do to
18 phosphorus supply?
19 MR. NETTLETON: Object to form.
20 BY MR. KOBELINSKI:
21 Q. Let me go ahead and give you two examples
22 and see if I understand the concept.
23 If you have high flow volume but low
24 phosphorus concentrations, how would that compare
25 with high phosphorus concentrations but very low flow
313
1 volume?
2 MR. NETTLETON: Object to form.
3 THE WITNESS: Both would give you -- they
4 would be offset in terms of phosphorus supply.
5 BY MR. KOBELINSKI:
6 Q. Okay. If you had then the same low
7 phosphorus supply but low flow volume, what would
8 that do to phosphorus supply?
9 MR. NETTLETON: Object to form.
10 THE WITNESS: I think you stated the
11 question incorrectly.
12 Would you restate it?
13 MR. KOBELINSKI: Okay. Well, I'll rephrase
14 the question.
15 BY MR. KOBELINSKI:
16 Q. If you had low phosphorus concentration and
17 low flow volume, what would that do to phosphorus
18 supply?
19 MR. NETTLETON: Same objection.
20 THE WITNESS: I don't know.
21 BY MR. KOBELINSKI:
22 Q. Okay.
23 Well, if you had low phosphorus supply and
24 in one instance you had low flow volume and in one
25 instance you had high flow volume, would there be a
314
1 difference in phosphorus supply?
2 A. Would you restate the question?
3 Q. Sure.
4 You have the same concentration of
5 phosphorus. In one instance you have very low flow
6 volume, in the other instance you have high flow
7 volume.
8 Would there be the same phosphorus supply?
9 A. No. The phosphorus supply would be higher
10 under the higher flow volume.
11 Q. Okay.
12 Now, let's say you have a high phosphorus
13 concentration and in one instance you have low flow
14 volume and in one instance you have high flow volume.
15 Would there be an equivalent phosphorus
16 supply?
17 A. Yes.
18 Q. Okay. Why is that?
19 A. There would be more phosphorus coming
20 across the particular area with the high flow volume.
21 Q. So the two would be the same; no matter
22 what the volume, as long as the phosphorus
23 concentration is high, there's no impact on
24 phosphorus supply?
25 THE WITNESS: Would you re-read that?
315
1 BY MR. KOBELINSKI:
2 Q. Let me restate the question. Perhaps you
3 misunderstood me.
4 If you have a high volume or concentration
5 of phosphorus in the surface water and in one
6 instance you have low volume of flow and in the other
7 instance you have high volume of flow, would you have
8 the equivalent phosphorus supply?
9 A. No, not necessarily.
10 MR. NETTLETON: Can I kind of retroactively
11 object to the form?
12 MR. KOBELINSKI: Sure.
13 BY MR. KOBELINSKI:
14 Q. How does phosphorus concentration in
15 surface water correlate to flow volume? Is there any
16 correlation there in your experience in Water
17 Conservation Area 2A?
18 A. Concentrations are often higher under
19 higher flow volumes.
20 Q. Are concentrations then often lower under
21 low flow volumes?
22 A. Yes.
23 Q. Okay. So there is a correlation between
24 phosphorus concentrations in surface water and flow
25 volumes, a positive, direct correlation?
316
1 A. I haven't tested that statistically, but my
2 observation is that at times when structures are open
3 and a rapid flow of water across the marsh, we do get
4 penetration of higher phosphorus concentrations into
5 the marsh.
6 Q. Okay.
7 MR. KOBELINSKI: This looks like a good
8 time to break for lunch.
9 (Thereupon, a luncheon recess was taken
10 from 12:23 p.m., until 2:10 p.m.)
317
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. Mr. Davis, is there a means of
6 mathematically calculating P supply?
7 A. Probably only in a laboratory situation.
8 Q. Okay. And what would that calculation be?
9 A. Simply where you can add a known amount of
10 phosphorus in whatever form you want it to a small
11 controlled ecosystem and measure its form and content
12 in each of the components of that system.
13 Q. Okay. Well, given the three factors: flow
14 volume, pattern of flow and surface water phosphorus
15 concentration, do you just literally add those three
16 numbers together to come up with a number of
17 phosphorus supply?
18 A. It would be a multiplication.
19 Q. Multiply all three of them?
20 A. It would be volume times concentration.
21 And, of course, it's what would be
22 available to plant uptake or growth in parts of the
23 system such as the soil.
24 Q. Is there then a factor for soil phosphorus
25 concentrations in P supply, phosphorus supply?
318
1 A. Yes.
2 Q. Again, is there an equation that we
3 multiply, add or how do you combine these different
4 factors to come out with your phosphorus supply
5 number?
6 A. In a laboratory situation, that would be
7 the phosphorus concentration in the inflowing
8 solution, water in this case, times the volume of
9 that water divided by the time interval that you're
10 introducing the water or phosphorus plus the
11 concentration times the volume -- concentration of
12 available phosphorus in other components within the
13 system times the volume of, volume or mass of those
14 components whether it's a solid or a liquid.
15 Q. Did you just develop this calculation now
16 or have you used this calculation in the past?
17 A. I'm referring to methodologies that have
18 been used in, in refereed papers on this subject.
19 Q. What papers are you referring to?
20 A. Specifically referring to Shaver and
21 Mellilo, M-e-l-l-i-l-o, about 1986, '87 in ecology.
22 Q. Is that one of the papers you're relying
23 upon?
24 A. No.
25 Q. Okay. As I understand it, you multiply the
319
1 phosphorus concentration of the surface water times
2 the volume, divide that by the time interval of the
3 water contact with the plant?
4 A. It simply gives you concentration times
5 flow.
6 Q. Okay. Plus the phosphorus concentration in
7 the soil? You actually had not said soil.
8 A. I said other components in the system.
9 Q. Other components.
10 Times the volume or mass.
11 A. Yes.
12 Q. Of what?
13 A. Of those components, of the component in
14 question.
15 Q. So, for instance, if you're looking at
16 soils component, you'd be multiplying the phosphorus
17 soil concentration times what?
18 A. For available phosphorus, it would probably
19 be the phosphorus in the interstitial water times the
20 volume of that interstitial water.
21 Q. And how would you go about calculating the
22 volume of the water?
23 A. This can be done through determinations of
24 both density of soil which is with and without water
25 content.
320
1 Q. Okay. What other component would you have
2 other than the phosphorus soil concentration?
3 A. Another component would be retranslocation
4 from dying plants to growing plants through rhizomes
5 or other tissue or release of phosphorus from dying
6 plant tissue into the water which would then be
7 utilized by the growing plants.
8 Q. And how would you calculate that
9 concentration?
10 A. As I recall in the laboratory, that's done
11 by subtraction, looking at the difference between
12 input and output of phosphorus to the, to your
13 laboratory system, looking at uptake by growing
14 plants which can be determined within the system by
15 the tissue content of phosphorus, and if there's any
16 uptake that's not accounted for by influx minus
17 outflux from the system, that would be due to
18 translocation.
19 Q. And in doing that calculation, would you
20 have to take into consideration the impacts of
21 bacteria and fungi on the detritus?
22 A. If you have detritus in your system, yes.
23 Q. Would you have detritus in a sawgrass marsh
24 and cattail marsh?
25 A. Yes.
321
1 Q. Are you aware of any study that has
2 attempted to make that type of calculation within the
3 water conservation areas?
4 A. No.
5 Q. Are you aware of any laboratory study that
6 has attempted to make that calculation in a manner
7 where it could be applied to the Everglades
8 ecosystem?
9 A. I believe the study I referred to by Shaver
10 and Mellilo was done in a manner that could be
11 applied to the Everglades ecosystem.
12 Q. Has anyone ever applied that study then by
13 Shaver and -- is it Mellilo?
14 A. Yes.
15 Q. -- to the Everglades system that you're
16 aware of?
17 A. Not directly, no.
18 Q. Are you aware of any current macrophyte
19 studies being conducted by the District within the
20 water conservation areas or the Everglades National
21 Park?
22 A. The only study within the conservation
23 areas or park I can think of is Ken Rutchey's
24 continuing vegetation map of the system.
25 Q. Are you aware of any greenhouse studies of
322
1 macrophytes being conducted by the District?
2 A. I don't even think we have any greenhouses.
3 Q. Are you aware of any greenhouse experiments
4 being conducted by a consultant retained by the
5 District?
6 A. No.
7 Q. Are you aware of any greenhouse studies
8 being conducted with regard to macrophytes to be
9 applied to the Everglades ecosystem by any party?
10 A. Not that I can think of.
11 Q. Okay. For instance, in particular, are you
12 aware of any competition studies being conducted
13 between sawgrass and macrophyte, be they laboratory,
14 greenhouse or field experiment or study?
15 A. Yes.
16 Q. What are you aware of?
17 A. Sue Newman has a competition study set up
18 at the ENR project.
19 Q. Just so I understand so perhaps I can
20 phrase the question differently in the future, why
21 didn't you mention Sue Newman's study when I asked
22 you about macrophyte studies?
23 A. I believe you only asked me about
24 greenhouse studies.
25 Q. No, I --
323
1 A. Oh, you said in the conservation areas or
2 the park.
3 Q. I see.
4 What is Sue Newman's competition study
5 about?
6 A. She's testing two levels of, of surface
7 water phosphorus concentration and two water levels --
8 I believe it's only two water levels. It might be
9 three -- with various combinations of some of the
10 plants that are being considered for the ENR project
11 including sawgrass and cattail and there's two or
12 three others, I believe Pontederia and maidencane, as
13 I recall. I'm not -- again, I haven't been directly
14 involved in that study.
15 Q. Is the District currently considering using
16 sawgrass as a vegetative type for the ENR project?
17 A. It was under consideration when the
18 competition study was set up.
19 Q. Is it still currently under consideration?
20 A. I'm very far removed from the ENR project.
21 I don't even know what the latest proposal is.
22 Q. What is the purpose of Ms. Newman's study?
23 A. We were concerned in the early stages of
24 planning of the ENR project that some of the species
25 under consideration for planting would not be
324
1 competitive against cattail in the high nutrient
2 situation and, therefore, we would waste a lot of
3 money in planting cost with cattail coming in anyway.
4 By the way, one of the species also was
5 scirpus in their competition study which was one of
6 the species under consideration.
7 Q. Have you heard of any of the results of
8 Ms. Newman's study?
9 A. There aren't any results yet. The study
10 has to run for a number of years before we'll start
11 to see anything sort out. I think it's only, it's
12 been going about a year and a half. I think it's
13 scheduled for three years before the first interim
14 report will be written on it.
15 Q. Is one of the purposes of the study to
16 determine essentially the vegetative type to be used
17 in the ENR project?
18 A. That was the main purpose of the study or
19 to question the planting of species which might not
20 be competitive with cattail, to evaluate the cost of
21 planting if it wasn't going to be effective.
22 Q. Does the study have any applicability to
23 the STA's?
24 A. I would think so.
25 Q. Going back for a moment to the phosphorus
325
1 supply, does the vegetative type or the type of
2 vegetation that you're calculating the phosphorus
3 supply for have any bearing upon the calculation?
4 A. I would think the main bearing would be
5 species differences in relocation.
6 Q. What does that mean?
7 A. Some species might tend to -- or
8 translocation, retranslocation.
9 Some species might translocate phosphorus
10 more readily than others, therefore create an
11 internal supply more than other species.
12 Q. Does the cattail have the same phosphorus
13 uptake if the water level is only, for instance, two
14 inches above the ground as compared to two foot above
15 soil level?
16 A. I don't know.
17 Q. Would that have a bearing upon phosphorus
18 supply for the plant?
19 A. It could.
20 Q. How is that factored into the equation?
21 A. It wasn't in the work of Shaver and
22 Mellilo.
23 The reason it could have a factor in the
24 conservation areas is that both sawgrass and cattail
25 have upward growing roots into the water column
326
1 between the dead leaf sheaves which are active uptake
2 sites.
3 Q. Did you take it into consideration in your
4 analysis of phosphorus supply for Water Conservation
5 Area 2A?
6 MR. NETTLETON: Object to the form.
7 THE WITNESS: Did I take what into
8 consideration? The depth of the water?
9 BY MR. KOBELINSKI:
10 Q. Yes, and its impact upon phosphorus supply.
11 A. That wouldn't have been a factor in my
12 work.
13 All sites remained continually flooded and
14 fluctuated together during the period I was working
15 out there doing my calculations, that resulted in my
16 calculations, and during that entire period the bases
17 of the plants including the dead leaf bases were
18 submerged.
19 Q. Would it have made a difference in an
20 attempt to correlate phosphorus supply with the
21 changes in cattail density in the Urban, Davis study?
22 A. Most of the conclusions from the Urban,
23 Davis study -- Urban, Davis, Aumen study were not
24 based on correlations of phosphorus supply in cattail
25 density but were based on comparisons of
327
1 nutrient-enriched versus background sites as
2 characterized by both surface water and soil
3 phosphorus.
4 These sites fluctuated together. When they
5 went dry, they went dry more or less together. When
6 they were flooded, they were flooded together. There
7 were very small differences in water depth between
8 the sites.
9 So I would not expect that to have been a
10 confounding variable in that study that would mask or
11 would get in the way of drawing conclusions about
12 phosphorus.
13 Q. I know we asked this question yesterday but
14 your immediate answer here has confused me a bit.
15 Yesterday we were discussing whether or not
16 there was a level of water under which cattail plants
17 would not be impacted by the level of nutrients or
18 phosphorus in the surface water because it's a deep
19 water species, and you said that you did not know
20 what that level was; is that correct?
21 A. That's correct.
22 Q. Didn't you essentially during the period of
23 time of your Urban, Davis, Aumen study have water
24 level fluctuations from zero to in excess of a
25 hundred centimeters?
328
1 A. I don't recall the upper level, but the
2 lower level was certainly below zero.
3 Q. Okay. Wouldn't there be times then at some
4 time between zero and X point where the phosphorus
5 supply would be impacted by the fact that cattail
6 plant was not utilizing it because it was not deep
7 enough?
8 A. Supply is an entirely different calculation
9 than utilization.
10 Q. All right. Are there water levels then at
11 which phosphorus supply will not result in a change
12 in density with the, for cattail?
13 A. Well, we certainly found that under dry
14 conditions.
15 Q. Okay. Are there any other conditions above
16 zero for surface water?
17 A. That's what I was saying yesterday I could
18 not define. Someplace in that range, but I wouldn't
19 be able to say where.
20 Q. So what you're saying is phosphorus supply
21 is always the same; it's just a question of whether
22 or not the plant can use it is just a matter of
23 looking at the vegetative type.
24 MR. NETTLETON: Object to form.
25 THE WITNESS: I don't believe I said
329
1 phosphorus supply's always the same.
2 BY MR. KOBELINSKI:
3 Q. Well, I mean, you'd always calculate it in
4 the same manner; is that correct?
5 A. Yes.
6 Q. And whether or not the plant can actually
7 use that phosphorus supply is then just a question of
8 looking at the vegetative type.
9 A. Yes.
10 Q. Okay. Could phosphorus supply in Water
11 Conservation Area 2A --
12 A. There might be -- excuse me. It might be
13 things other than vegetative type. It could be
14 season, temperature. Any number of factors could
15 influence how much the plant accumulates.
16 Q. All right. Let's see which ones we can
17 think of.
18 Species is one.
19 Temperature's another.
20 Vegetative type?
21 A. Season.
22 Q. Season.
23 Anything else?
24 A. Disease.
25 Q. Disease.
330
1 A. Growth stage of the plant.
2 Q. All right.
3 A. Those are the ones that come to mind.
4 There may be others.
5 Q. Okay. Could phosphorus supply in Water
6 Conservation Area 2A be affected by the
7 concentrations of other chemical constituents in the
8 surface water?
9 A. I don't know.
10 Q. Approximately how long is the common border
11 between Water Conservation Area 1 and Water
12 Conservation Area 2A?
13 A. Gee, I've never measured it. Ten, twenty
14 miles.
15 Q. Okay. Would spreading the flow of water
16 from Water Conservation Area 1 into Water
17 Conservation Area 2A, keeping the same volume, just
18 spreading that volume out over the common border,
19 change the phosphorus supply that is currently going
20 to the cattail stand below the S-10 structures?
21 MR. NETTLETON: Objection. Asked and
22 answered.
23 THE WITNESS: Probably.
24 BY MR. KOBELINSKI:
25 Q. Is there any circumstance or situation
331
1 where it would not?
2 A. Well, I wouldn't -- I've already stated
3 that I don't know the flow patterns of that water. I
4 don't know how much of it would end up funneling down
5 next to the north levee on the inside and ending up
6 being, how much there would be equal distribution
7 across the marsh. I don't know the role of the
8 phosphorus pool in the soil versus external
9 phosphorus loadings at a highly eutrophic site below
10 S-10C. It might be external, it could be that
11 because of the 30 years of external phosphorus
12 loading at the phosphorus pool there is a major
13 source of supply right now. It's just a lot of
14 factors that I don't know.
15 I would say that probably it would reduce
16 the external phosphorus input to a particular point
17 below S-10C.
18 Q. Did you assume a uniform or even flow in
19 your Urban, Davis, Aumen cattail study?
20 A. No.
21 Q. What assumptions did you make with regard
22 to flow across the marsh?
23 A. None, except that we do know that water
24 flows across the marsh. We don't know if it's
25 uniform or nonuniform or its variability.
332
1 Q. Since we've now been using this term
2 phosphorus supply, would a more accurate statement of
3 your expert opinion be that increased levels of
4 phosphorus supply are the primary cause of the
5 expansion of cattail in Water Conservation Area 2A?
6 MR. NETTLETON: Object to the form.
7 THE WITNESS: I don't believe that would be
8 more correct, no.
9 BY MR. KOBELINSKI:
10 Q. Okay. What would be a more accurate
11 statement of your opinion?
12 MR. NETTLETON: Object to the form.
13 THE WITNESS: Well, I stand on the opinion
14 that I gave.
15 BY MR. KOBELINSKI:
16 Q. Okay. I don't have the exact quote written
17 down. If you could repeat it for me.
18 A. I think at that point yesterday we were
19 talking about loading, the phosphorus loading through
20 the structures being a major cause of cattail
21 expansion.
22 Q. You're saying it's a major cause.
23 Is it the primary cause or merely a major
24 cause of cattail expansion?
25 A. I believe I stated that it was the primary
333
1 cause.
2 Q. When you say primary, would you say it
3 essentially accounts for over 50 percent of the
4 expansion?
5 MR. NETTLETON: Object to form.
6 THE WITNESS: I don't think you can view it
7 in those terms. I don't think the expansion
8 would occur without it.
9 BY MR. KOBELINSKI:
10 Q. Did you have an increase in density of
11 cattails in your background site during the Urban,
12 Davis, Aumen study, cattail study?
13 A. Very slight increase, yes, compared to the
14 other sites.
15 Q. But there was an expansion there without
16 the input of external nutrients; is that correct?
17 A. As I stated yesterday, I wouldn't consider
18 that site to be a totally background site; intended
19 for it to be, but it didn't turn out that way. The
20 nutrient front had moved down to that point by that
21 time.
22 Q. Have you ever studied then a background
23 site to determine whether or not the other factors
24 such as hydroperiod and others that you've listed
25 would result in an expansion of cattail?
334
1 A. I've observed many tens of thousands of
2 acres of background sites and have not seen this
3 happen in all sorts of hydrologic and fire regimes in
4 the remainder of the conservation areas in the park.
5 Q. Have you conducted similar type studies as
6 you did in the Urban, Davis, Aumen cattail study?
7 A. No.
8 Q. In your opinion is there a growing nutrient
9 front in Water Conservation Area 2A?
10 A. I can say that there was from the Seventies
11 till the early Nineties. I can't say there is now
12 'cause I haven't seen data for this year.
13 Q. During the Seventies, though, there was a
14 growing nutrient front?
15 A. From the late Seventies through the
16 Eighties.
17 Q. Okay. Prior to the late Seventies was
18 there a growing nutrient front?
19 A. Not that I was able to detect.
20 Q. What caused the nutrient front to expand or
21 grow?
22 A. I don't know.
23 Q. Okay. Do you think the same factors that
24 caused it to grow or expand are still causing it to
25 expand or grow today?
335
1 MR. NETTLETON: Object to form.
2 THE WITNESS: I can't say that it is
3 expanding or growing today. I could only
4 comment on the period that I've seen data for.
5 BY MR. KOBELINSKI:
6 Q. And that period of data goes through what
7 date?
8 A. It would be through the end of Nancy
9 Urban's water sampling which would be 1991, I'd have
10 to look at the year, '91 or '92.
11 Q. Are you referring to the Urban, Davis
12 cattail study?
13 A. Yes.
14 That should just be referred to as the -
15 Urban study. I was, I was simply her supervisor.
16 That's her work. She should be credited for that. I
17 shouldn't receive credit for it.
18 Q. She originally was the sole author; is that
19 correct?
20 A. Yes.
21 Q. Why were you added as a co-author?
22 A. That was the first time Nancy had attempted
23 writing a technical paper and was having writing
24 difficulty, and so I assisted in some of the writing.
25 Q. Why was Dr. Aumen added?
336
1 A. To provide an additional level of review,
2 just to assure that we were on track in our
3 conclusions from the, from the data.
4 Q. Ms. Urban has testified that Dr. Aumen is
5 primarily responsible for the statistical analysis
6 that is essentially reported in the paper. Is that
7 essentially correct?
8 MR. NETTLETON: Object to form.
9 THE WITNESS: He also did some of the
10 writing, particularly introductory review
11 section.
12 BY MR. KOBELINSKI:
13 Q. But is he the one who's primarily
14 responsible for the statistical analysis in the
15 paper?
16 A. He added to the statistical analysis. He's
17 not primarily responsible for it. Much of the
18 statistics that were done before he reviewed the
19 paper are still in the paper.
20 Q. That would be done by Ms. Urban?
21 A. And myself.
22 Q. Yesterday you stated you have reviewed the
23 paper.
24 Are you essentially relying upon
25 Dr. Aumen's statistical work within the paper?
337
1 A. Either statistical approach showed the same
2 thing. In my mind it's just a matter of choice.
3 Either one would be appropriate.
4 Q. They both showed the same results, is what
5 you're saying.
6 A. You draw the same conclusions from both.
7 Q. Okay. Is there anything you disagree with
8 in his statistical analysis?
9 A. No.
10 Q. When you state that it really should not be
11 referred to as the Urban, Davis or Urban, Davis,
12 Aumen study, it's really Ms. Urban's work, do you
13 have or have you had review and approval of the work
14 during the past several years?
15 MR. NETTLETON: Object.
16 THE WITNESS: Have I reviewed and approved?
17 BY MR. KOBELINSKI:
18 Q. Yes.
19 A. Yes.
20 Q. And I believe that's about to be published,
21 has been accepted for publication; is that correct?
22 A. That's correct.
23 Q. Will you be reviewing it prior to the final
24 submission?
25 A. I'll have that option. Whether I'll do it
338
1 or not depends on how busy I am.
2 Q. What statistical analysis in that paper did
3 you do as opposed to Dr. Aumen?
4 A. Nick used some very recently developed
5 statistical methods that replace some of the more
6 traditional analysis of variance techniques that I
7 had used to analyze the data, but they both showed
8 the same results.
9 Q. Have you ever calculated what the cattail
10 expansion rate was between 1980 and 1990 in Water
11 Conservation Area 2A?
12 A. It's gone in that 5 to 6,000 acres to
13 someplace on the order of 20,000 or slightly more
14 acres.
15 Q. In the 20,000 or slightly more acres, is
16 that a monospecific stand of cattail?
17 A. No, it's a, for the most part, a mixed
18 stand of sawgrass and cattail.
19 Q. Was the 5 or 6,000 original acre, was that
20 a monospecific stand of cattail?
21 A. Pretty much so, yes.
22 Q. Okay. Has the monospecific stand of
23 cattail expanded?
24 A. I can't say it's exactly the same, but it's
25 pretty close to the same as it was.
339
1 Q. Okay. Had the project been designed or
2 Water Conservation Area 1 and 2A been designed so
3 that the water flowing from Water Conservation Area 1
4 into 2A was distributed evenly along the common
5 border, would that have impacted the distribution or
6 distribution of cattail as compared to the
7 distribution we see today?
8 MR. NETTLETON: Object to form.
9 THE WITNESS: Probably not in my opinion.
10 BY MR. KOBELINSKI:
11 Q. You still would have seen the same 5 to
12 6,000-acre monospecific cattail just south of the
13 S-10 structures?
14 A. It might have been bigger.
15 Q. Okay.
16 A. Extending to the northwest.
17 Q. Would you still see the approximately, as
18 you put it, 20,000 acres of mixed cattail that
19 surrounds or is now south of that monospecific stand
20 of cattail?
21 MR. NETTLETON: Object to form.
22 THE WITNESS: I don't have any reason to
23 think that it would be that different.
24 BY MR. KOBELINSKI:
25 Q. Well, would you have an expanding nutrient
340
1 front during the Eighties into early Nineties below
2 the S-10 structures that you currently have?
3 A. I beg your pardon?
4 MR. NETTLETON: Same objection.
5 BY MR. KOBELINSKI:
6 Q. Would you have the same expanding nutrient
7 front that you have testified occurred during the
8 Eighties into the early Nineties below the S-10
9 structures?
10 A. I would think so.
11 Q. The distribution of the nutrients over the
12 entire common border would not change the expansion
13 of a nutrient front over just that one small section?
14 MR. NETTLETON: Object to form.
15 THE WITNESS: Well, the nutrients are
16 already distributed over about two-thirds to
17 three-quarters of that border, so you'd only
18 gain perhaps a quarter dilution factor in doing
19 that.
20 I just don't think it would make that big
21 of a difference. I think what it would do is
22 expand your dense cattail stand to the northwest
23 where nutrient-laden water can't reach at this
24 time.
341
1 BY MR. KOBELINSKI:
2 Q. Drawing your attention to Exhibit 2, the
3 final page, Bates Number 1084716, do you have the
4 highest concentrations of soil phosphorus closest to
5 the S-10 structures?
6 A. Closest to the region of S-10C and D.
7 Q. And if historically the flow from
8 approximately 1960 onwards had been spread across the
9 entire common border, would you have that same
10 concentration right there at S-10C and D?
11 MR. NETTLETON: Object to form.
12 THE WITNESS: Well, gee, I see, I see a
13 contour line of someplace in the order of 6 to
14 800 milligrams per kilogram that corresponds to
15 the distribution of cattail that covers the
16 entire northern border of Conservation Area 2A
17 or, as I said, about three-quarters of it.
18 BY MR. KOBELINSKI:
19 Q. All right. But going back to my question,
20 would you have that same soil phosphorus
21 concentration right below S-10C and D had
22 historically the flow from Water Conservation Area 1
23 into Water Conservation Area 2A been spread evenly
24 across the entire border?
25 A. I imagine that little peak of looks like
342
1 about 1800 would not be there.
2 Q. Would the peak of 1400 be there?
3 MR. NETTLETON: Same objection.
4 THE WITNESS: Probably not.
5 BY MR. KOBELINSKI:
6 Q. The peak of 1200?
7 A. I would say at that point we'd be getting
8 into a likely range, just from visually examining
9 this map, which is three times background level and
10 well above the level that corresponds to the
11 distribution of cattail that we'd see.
12 Q. So as I understand your testimony,
13 concentrating the flows into two or three discrete
14 structures does not have any impact upon the nutrient
15 front other than a very minor impact, as you put it,
16 in a slight peak at 1800, 1400.
17 MR. NETTLETON: Object to form.
18 THE WITNESS: It has an influence, but I
19 don't think it has enough of one based on that
20 soil data to influence or to reduce the
21 distribution of cattails.
22 BY MR. KOBELINSKI:
23 Q. What soil data?
24 A. The map we just were looking at.
25 Q. What causes an expanding nutrient front?
343
1 What was the cause of it during the Eighties?
2 A. There are probably more than one causal
3 factor.
4 One certainly would be the increased load
5 of phosphorus through the S-10 structures due to both
6 higher volumes as well as higher concentrations.
7 Another possibility that is not documented but
8 possible is that the most eutrophic sites in that
9 area that you were referring to immediately below
10 S-10C and D are saturated and are passing phosphorus
11 downstream.
12 Q. Do you have an opinion as to whether or not
13 those sites are saturated and are passing phosphorus
14 downstream?
15 A. It would be very difficult for me to
16 separate those two variables. The only one we'd have
17 direct evidence for is the increased load.
18 Q. I believe yesterday you'd stated that the
19 release of large slugs or pulses of water through the
20 S-10 structures resulted in the penetration of
21 nutrients farther into the marsh than a steady
22 release of the same volume of water over the entire
23 year period; is that correct?
24 A. I've observed that to result in farther
25 penetration of phosphorus into the marsh during the
344
1 pulse release period.
2 Q. Does that have an impact upon the expansion
3 of cattail in your opinion?
4 A. It could.
5 Q. How?
6 A. Simply by providing a supply -- let me
7 decide whether I want to use the word supply or
8 loading here as we're using it. In this case it
9 would be loading -- an additional loading of
10 phosphorus to sites farther within the marsh.
11 Q. And if the flow of water out of the S-10s
12 was spread over the entire year as opposed to let out
13 in a large pulse, you would have lower nutrients in
14 the interior marsh; is that correct?
15 A. (No response).
16 Q. The nutrients wouldn't penetrate as far.
17 A. Possibly. It would depend on whether that
18 northern area was saturated and retaining or
19 releasing nutrients, which we don't really know at
20 this time, but it could have that effect.
21 Q. Wouldn't spreading out the flow over the
22 entire area have the like effect that you'd have less
23 water penetrating that interior marsh?
24 A. The soil phosphorus contours indicated on
25 the map that we've just been looking at would
345
1 indicate that the flow of phosphorus has now spread
2 over, oh, I'd guess about three-quarters of that
3 northern border to the point that it would encourage
4 the development of cattail stands.
5 Q. But that phosphorus concentration map
6 you're referring to is based upon concentrating the
7 flow in primarily three structures and based upon
8 approximately 30 plus years of operation of those
9 structures under regulatory releases of pulses of
10 water; is that correct?
11 A. That's correct.
12 Q. So if you went back 30 plus years to 1960,
13 spread out the flow over the entire common border and
14 changed your pulse releases, would you have the same
15 phosphorus concentration?
16 A. What I'm saying is I think those, those
17 contours indicate to me that the flow has been spread
18 out over two-thirds to three-quarters of that border
19 during that period simply because there's no place
20 else for it to go, and I just don't see you'd gain
21 that more by adding an additional 25 to 33 percent of
22 border.
23 Q. And you wouldn't gain that much from
24 changing the regulatory releases to steady flow
25 releases.
346
1 A. Well, if I saw major extensions of
2 phosphorus into the marsh, into the soil of the marsh
3 below S-10C and D and little impact elsewhere, I
4 would agree with that statement. But when I see the
5 high concentrations of soil phosphorus that
6 correspond very well to cattail distribution
7 extending over two-thirds to three-quarters of that
8 border, I think that the, I'd have to conclude that
9 even though flow's not perfectly uniform over that
10 marsh, that the resistance to flow by the vegetation
11 has pretty much integrated that flow over that border
12 already.
13 Q. Have you ever seen a contour map of Water
14 Conservation Area 2A?
15 A. Yes.
16 Q. Okay. Is there a slope in Water
17 Conservation Area 2A?
18 A. There's a very gradual slope from northwest
19 to southeast.
20 Q. Okay. Would water coming out of S-10 --
21 excuse me, not water. If rainfall fell right at
22 S-10D, would it have a tendency to go up north
23 towards the EAA?
24 A. No.
25 Q. Well, the contour line you're referring to
347
1 on the back page of Exhibit 2 does show the
2 phosphorus concentrations are penetrating northward,
3 doesn't it?
4 A. That would indicate to me under high
5 discharges from the S-10 structures that there is a
6 backup of water slightly to the northwest, yes.
7 Q. When you say slightly, you've pointed out
8 that it goes almost two-thirds the way up the common
9 border.
10 A. Well, in reality S-10D is well up past that
11 bend in the levee.
12 Q. How far up?
13 A. I don't know the exact distance.
14 Q. Half the way up to the northern point of
15 Water Conservation Area 2A?
16 A. No, it looks like it's perhaps a third of
17 the way. I'm referring to the figure on page 1084713
18 of Exhibit 2.
19 Q. And the contour of phosphorus actually goes
20 up above that S-10D; is that correct?
21 A. Which is not surprising under very high
22 discharges from the structures a head of water builds
23 up at the north end and would be expected to back up.
24 Q. And the high water discharge you're
25 referring to is what I was saying regulatory release
348
1 causing impact or intrusion into the marsh farther
2 than a flow over the entire year; is that correct?
3 MR. NETTLETON: Object to form.
4 THE WITNESS: Well, what that looks like
5 it's caused to me is the integration of water
6 and phosphorus over two-thirds to three-quarters
7 of that northern border. It seems like you'd
8 achieve the same thing by having a lot of little
9 structures open all the time. You'd integrate
10 the water and phosphorus over the northern
11 border.
12 BY MR. KOBELINSKI:
13 Q. Actually I was asking you about the
14 discharge of water as opposed to the spreading.
15 A. I think that's probably been responsible
16 for that, that distribution, integration factor we
17 were just talking about which would, could also occur
18 through the construction of 30 or 50 little
19 structures.
20 THE WITNESS: It's a little -- it's nearly
21 3:15. Could we take a five-minute break?
22 MR. KOBELINSKI: Sure.
23 (Thereupon, a recess was taken from
24 3:15 p.m., until 3:17 p.m.)
349
1 BY MR. KOBELINSKI:
2 Q. What effect would an 80 percent reduction
3 of the phosphorus load through the S-10 structures
4 have on cattails in the Water Conservation Area 2A?
5 THE WITNESS: Would you repeat that
6 question?
7 (Thereupon, a portion of the record
8 was read by the reporter.)
9 THE WITNESS: That would probably go a long
10 way towards slowing or stopping the expansion.
11 BY MR. KOBELINSKI:
12 Q. Would it actually stop the expansion?
13 A. I don't know.
14 Q. Well, what would it take to stop the
15 expansion?
16 A. A reduction in phosphorus inputs plus a
17 flushing over time of the existing phosphorus pool in
18 the soil or other marsh components.
19 But the first step would be making a
20 reduction in phosphorus load. You would not start to
21 see a decline in the pool until you did that.
22 Q. Would an 80 percent reduction of phosphorus
23 load result in a flushing of the phosphorus pool in
24 the soil that you've referenced?
25 A. I would think it would.
350
1 Q. Would a 75 percent reduction in load have
2 the same effect?
3 A. I don't think our, I don't think it's
4 warranted to try to analyze a five percent
5 difference.
6 Q. Why not?
7 A. The confidence intervals on most of the
8 data that have been involved in our discussions so
9 far would be more than plus or minus five percent.
10 Q. What would a 50 percent load reduction do?
11 A. Help.
12 Q. Would you still have an expansion of
13 cattails?
14 A. I don't know.
15 Q. What about a 50 percent load reduction and
16 shallower water depths?
17 MR. NETTLETON: Object to form.
18 BY MR. KOBELINSKI:
19 Q. Would that halt the expansion of cattails?
20 A. It probably would help.
21 Q. Would it halt it?
22 MR. NETTLETON: Object to form.
23 THE WITNESS: I don't know.
24 BY MR. KOBELINSKI:
25 Q. Would an 80 percent reduction in load with
351
1 higher water levels halt the spread of cattails?
2 MR. NETTLETON: Same objection.
3 THE WITNESS: Probably.
4 BY MR. KOBELINSKI:
5 Q. Increased water depths would not result in
6 a counteracting force to the 80 percent reduction in
7 load?
8 A. Not from my knowledge of cattail biology.
9 Q. If you reduce the phosphorus load by 80
10 percent but retain the same hydroperiod, would the
11 cattails remain in the areas they're currently at
12 within Water Conservation Area 2A?
13 A. They would for a while until the pool of
14 available phosphorus in the marsh that I've already
15 referred to was depleted to the point that they
16 became nutrient-limited again.
17 Q. Would you ever be able to eliminate the
18 5 to 6,000 acres of monospecific stand below the S-10
19 structures?
20 A. I don't know.
21 Q. What would a 25 percent reduction in load
22 do?
23 MR. NETTLETON: Object to form.
24 BY MR. KOBELINSKI:
25 Q. With regard to the expansion of cattails in
352
1 Water Conservation Area 2A?
2 A. I don't know.
3 Q. Would it halt the expansion of cattail?
4 MR. NETTLETON: Object to form.
5 THE WITNESS: I don't know.
6 BY MR. KOBELINSKI:
7 Q. Someone mentioned to me before the break
8 you had testified with regard to 5 to 6,000 acres of
9 monospecific stand of cattail and 20,000 mixed stand
10 of cattail and sawgrass. Yesterday I believe you'd
11 mentioned 5 to 6,000 of monospecific stand and around
12 14,000 mixed cattail, in other words, for a total of
13 20,000.
14 Which would be the accurate?
15 A. The accurate would be a total of -- well,
16 depending on where you measure the border, anyplace
17 from 20 to 24,000 total.
18 Q. You had done cattail mapping and, in fact,
19 have a cattail map as part of Exhibit 2.
20 Approximately what did your mapping show?
21 A. If you'll read the legend of that map, it
22 says not to scale.
23 Q. Okay.
24 A. So it doesn't really show anything. It's,
25 it's not meant to put an area calculation on cattails
353
1 in any of those areas. It's to show their, the
2 approximate location of the stands within the
3 conservation areas.
4 I would rely on Ken Rutchey's vegetation
5 map of Conservation Area 2A to do a precise
6 calculation of area.
7 Q. Have you reviewed Mr. Rutchey's vegetative
8 map?
9 A. I've looked at it, yes.
10 Q. What was the areal extent that he showed in
11 his vegetative map?
12 A. I forget the precise number. I'd have to
13 go back and look at the data. It's in that range of
14 the 20 to 24,000.
15 Q. Out of curiosity, Mr. Davis, you made
16 mention that this map, cattail map, is not to scale.
17 Where would I find that? It may well -- I
18 believe it isn't, but...
19 Is that in the text, is that why I'm
20 missing it?
21 A. (Witness reviewing the document) Page
22 number 1084712 of Exhibit 2, line 3.
23 Q. Ah.
24 So it's in the text in the preceding page.
25 A. It's on, it's the title of the figure.
354
1 Q. Have you continued to take field visits or
2 visit Water Conservation Area 2A from 1985 through
3 1991?
4 A. Occasionally.
5 Q. How often? How many times a year?
6 A. I'd say once or twice a year.
7 Q. Okay. Has there been an expansion of
8 cattail in Water Conservation Area 2A from 1985 to
9 1991?
10 A. My observations during that period wouldn't
11 be adequate to say whether there was or wasn't.
12 Q. Okay.
13 Well, in 1985 you were doing continuous
14 field work out there in Water Conservation Area 2A;
15 is that correct?
16 A. Yes, it ended around 1985.
17 Q. Okay. Has there been an expansion of
18 cattail from 1985 through 1991 in Water Conservation
19 Area 2A?
20 MR. NETTLETON: Object. Isn't that the
21 question you just asked? Asked and answered.
22 THE WITNESS: I can't say one way or the
23 other.
24 BY MR. KOBELINSKI:
25 Q. Was there an expansion of cattail in Water
355
1 Conservation Area 2A from 1980 to 1985?
2 A. Yes.
3 Q. Okay. Throughout that entire period?
4 A. I couldn't say that.
5 Q. Well, what years did you have an expansion?
6 A. My observations were, as I stated
7 yesterday, that up until and through part of 1979 the
8 cattails extended about down to the north airboat
9 trail which would correspond to that 5 or 6,000
10 acres.
11 Over the next five years or so you
12 gradually started to see this influx of cattails to
13 the south to the point that by 1985 they had reached
14 an area about four miles out into the marsh.
15 As far as if that rate was constant over
16 that period, that I couldn't say.
17 Q. About how far into the marsh did the
18 cattails extend in 1991?
19 A. The area in 1991 was similar to the area I
20 described in 1990 of, in that range of the 20 to
21 24,000 acres going about four miles out into the
22 marsh. The cattails that we observed closely
23 corresponded to the cattail distribution map by Ken
24 Rutchey. I have no reason to believe that his
25 figures didn't represent the extent of cattails at
356
1 that time.
2 MR. KOBELINSKI: I'm sorry. I didn't catch
3 the last part of that.
4 (Thereupon, a portion of the record
5 was read by the reporter.)
6 BY MR. KOBELINSKI:
7 Q. At that time meaning?
8 A. 1991 or the time that we produced this
9 generalized map of cattail distribution.
10 Q. Do you have an expert opinion as to whether
11 there has been an expansion of cattails in Water
12 Conservation Area 2A from 1985 through 1990?
13 A. Yes.
14 Q. And what is that opinion?
15 A. Cattails have expanded in area from a band
16 extending about one mile below the north levee of
17 Area 2A and corresponding to 5 to 6,000 acres to an
18 area extending about four miles into the marsh and
19 corresponding to an area of 20,000 or more acres.
20 Q. Isn't that the same expansion you've
21 testified occurred between 1980 and 1985?
22 A. Oh, excuse me. I thought, I thought you
23 said -- I'm sorry.
24 Q. That's all right. Let me rephrase the
25 question or repeat the question.
357
1 A. I'm sorry.
2 Q. Do you have an expert opinion as to whether
3 or not there has been an expansion of cattails in
4 Water Conservation Area 2A from 1985 through 1990?
5 MR. NETTLETON: Objection. Asked and
6 answered. I don't mean the last answer; I mean
7 the one before that.
8 Mark, we've gone over this about twenty
9 times now.
10 THE WITNESS: No, I don't.
11 MR. HYDE: We needed to clarify that one.
12 MR. NETTLETON: I agree. The last one was
13 a bit confusing. But you have covered this
14 exhaustively.
15 THE WITNESS: I'm wearing out.
16 BY MR. KOBELINSKI:
17 Q. That's fine.
18 As I understand it, sir, then you have an
19 expert opinion as to the expansion of cattails from
20 the period essentially 1979 through 1985; is that
21 correct?
22 A. Yes.
23 Q. In your opinion have cattails remained in
24 the exact same areal -- not the exact same -- the
25 same areal distribution from the period 1985 to 1990?
358
1 A. I don't know.
2 Q. How would you determine that?
3 A. I would compare my estimate of cattail
4 distribution in 1985 with estimates from Ken
5 Rutchey's vegetation map which was about 1990.
6 Q. Have you made that comparison?
7 A. No.
8 Q. Yesterday you testified that you had, you
9 personally had done an aerial reconnaissance of the
10 water conservation areas including Water Conservation
11 Area 2A in 1991.
12 A. That's correct.
13 Q. And you based your opinion as to the
14 distribution of cattails in Water Conservation
15 Area 2A in 1991 upon that aerial observation; is that
16 correct?
17 A. That's correct.
18 Q. Based upon comparison of your 1985
19 determination of distribution of cattail distribution
20 and your 1991 aerial observation of cattail
21 distribution, was there any expansion from 1985 to
22 1991?
23 A. I just said a few minutes ago that our
24 observed distribution in 1991 very closely
25 corresponded to Ken Rutchey's vegetation map. Our
359
1 vegetation map in the exhibit we've been referring to
2 is not to scale due to landmarks confirmed during
3 that survey, landmarks such as fish camps and airboat
4 trails; that the cattail distribution that we saw was
5 very similar to that that Ken mapped. His map is
6 more accurate in determining area, and, therefore, I
7 would utilize his map in comparison with our 1985
8 estimate rather than this map which, as stated, is
9 not to scale.
10 Q. I'm not referring to the map now, sir.
11 Your 1985 estimate as to the distribution
12 of cattails was not based upon a vegetative map, was
13 it?
14 A. No, it wasn't.
15 Q. It's based upon personal observation?
16 A. That's true.
17 Q. Okay. Then comparing your personal
18 observation in 1985 to your personal observation in
19 1991, has there been an expansion of cattail during
20 that period of time in Water Conservation Area 2A?
21 MR. NETTLETON: Objection. Asked and
22 answered three or four times.
23 MR. HYDE: That question hasn't been.
24 THE WITNESS: The way I determine that is
25 to calculate or to compare the estimated area in
360
1 1985 with our best estimate in 1991 which is Ken
2 Rutchey's vegetation map. I have not done that.
3 BY MR. KOBELINSKI:
4 Q. But you do have personal observations you
5 made in 1985 which is what you're basing your expert
6 opinion as to the cattail distribution and you have
7 personal observations in 1991.
8 I'm asking you to compare those two.
9 Has there been an expansion based upon your
10 personal observations?
11 MR. NETTLETON: Objection. Asked and
12 answered.
13 THE WITNESS: My personal observation in
14 1991 from that one helicopter trip was not
15 intended to be with the accuracy that I would
16 feel comfortable putting a number, a number on
17 the number of acres of cattail that we saw. We
18 weren't even intending to do that. We were
19 intending to point the locations and very rough
20 sizes of major cattail stands in the
21 conservation areas. I knew that Ken Rutchey was
22 preparing a much more detailed vegetation map of
23 that particular cattail stand. It was only one
24 of a number that we were surveying very
25 generally during that period. And because of
361
1 that, I didn't make an attempt to make a visual
2 estimate of its exact size.
3 BY MR. KOBELINSKI:
4 Q. I believe you've already stated that there
5 was no vegetative map made in 1985 of the cattail
6 distribution; is that correct?
7 A. That's true.
8 Q. And you are basing your expert opinion as
9 to the cattail distribution in 1985 upon personal
10 observation; is that correct?
11 A. That's correct.
12 Q. Approximately how many times were you out
13 in the Water Conservation Area in 1985, 2A?
14 A. Oh, perhaps twenty times.
15 Q. Okay. During those twenty trips did you
16 travel the length and breadth and across the entire
17 approximately 20, 24,000 acres of cattail that you
18 testified existed below the S-10 structures?
19 A. Not on all twenty trips, but over the
20 twenty trips I think I covered the entire area.
21 Q. Okay. And did you have any type of loran
22 unit that you were using to try and determine the
23 boundaries of cattail expansion or distribution?
24 A. No. We were relating that to known
25 landmarks such as airboat trails and fish camps.
362
1 Q. And are there known landmarks you can see
2 in this rough boundary of the cattail expansion in
3 1985 for the entire border?
4 A. Pretty much, yes.
5 Q. Okay. Could you see the same landmarks by
6 helicopter?
7 A. Yes.
8 Q. Okay. Based upon that, did you see the
9 approximately exact same or approximately the same
10 cattail distribution in 1991 from the helicopter as
11 you did in 1985?
12 MR. NETTLETON: Same objection.
13 THE WITNESS: Up until 1985 my familiarity
14 with the marsh and the distribution of cattails
15 was based on a number of trips, let's just take
16 1985, where I at that point was alerted that
17 there might be a problem with cattails and was
18 making particular notes in my mind of where the
19 cattails were in relation to specific points
20 that we could recognize out in the marsh and
21 pick out on an aerial photograph.
22 In the -- and that's the basis of my
23 estimate in 1985.
24 I feel very comfortable with that. It's
25 not accurate to the acre and never, I've never
363
1 said it was.
2 The 1991 survey was very different. We
3 covered all the conservation areas in the
4 Everglades National Park in probably twelve
5 hours of flight time including flying back and
6 forth to West Palm Beach and refueling. We
7 crisscrossed the areas. When we found cattails,
8 we did a few clockings of distances from levees
9 or pump stations to get a rough idea of those
10 borders.
11 I feel much less comfortable with making an
12 estimate of cattail distribution. In fact, I do
13 not feel comfortable at all with making an
14 estimate of acreage of cattail distribution
15 based on those 1991 overflights compared to much
16 more intimate knowledge of the marsh that I'd
17 gained during the years that I was working out
18 there intensively.
19 The only note I would make is that the few
20 observations I did make of where the cattails
21 were in 1991 in relation to a couple of
22 landmarks, namely, a fish camp and an airboat
23 trail, indicated that there was not a big
24 conflict between what we were seeing in Ken
25 Rutchey's much more accurate map of that period.
364
1 I will not be held to an estimate of
2 cattail acreage based on that very brief
3 overflight in 1991. And I stated -- that's why
4 it's stated in that paper that is not to scale.
5 I don't know how to better answer that
6 question.
7 BY MR. KOBELINSKI:
8 Q. That's fine.
9 You've been studying cattail now for
10 approximately, in Water Conservation Area 2A, for
11 over ten years?
12 A. From the, throughout 1974 and '75 into
13 about 1985, yeah.
14 Q. Okay. And after 1985 you were still
15 overseeing Ms. Urban and were well aware of her
16 cattail density study in Water Conservation Area 2A;
17 is that correct?
18 A. Yeah.
19 At some point during that time Lou Toth was
20 also working on sawgrass and cattail out there.
21 As I said, I forget the chronology of all
22 the people when they came and went in the Everglades
23 study.
24 Q. Okay. Were you curious when you went in
25 the helicopter, Water Conservation Area 2A, to see
365
1 what's happened to cattail distribution in 2A,
2 "I haven't been out here in five years, six years.
3 What's happened with it?"
4 A. I did not state I had not been out there in
5 five or six years. I stated I'd been out there one
6 to two times a year during that period.
7 Q. All right.
8 Well, given then the cumulative one to two
9 times a year during the ensuing period and your
10 helicopter ride, were you curious to see what
11 happened to that cattail stand or the cattail
12 distribution in Water Conservation Area 2A?
13 MR. NETTLETON: Object to form.
14 THE WITNESS: On the particular trip where
15 we located sample sites for Nancy Urban's study,
16 that was a -- I'm always curious where cattails
17 are. But that was such an intensive trip with
18 two airboats on the ground trying to communicate
19 with the helicopter in the air and having to
20 break trails through to where we wanted to
21 establish sites -- not break trails, but find
22 the area where we wanted to establish a site.
23 We made a point not to break trails through --
24 that the last thing on my mind was doing an
25 overview of the area.
366
1 BY MR. KOBELINSKI:
2 Q. That was 1985, right?
3 A. Whenever we went to set up her sample
4 sites.
5 Q. 1985.
6 I'm talking about subsequent to '85 after
7 you're no longer visiting the field on a regular
8 basis, weren't you curious to see what's happened
9 with the cattail distribution in Water Conservation
10 Area 2A?
11 A. I'd always look at it as we flew over.
12 Q. Are you going to be able to when you review
13 Ken Rutchey's map actually with a pen or however go
14 ahead and essentially draw a vegetative map which
15 will show the cattail distribution in 1985?
16 A. I did that as accurately as I could in the
17 last deposition. I'd rely on that same map. You can
18 certainly expand that to the scale of Ken Rutchey's
19 map and overlay them.
20 Q. So you have already done a vegetative map
21 of '85 distribution or a cattail distribution map of
22 the '85 distribution?
23 A. We spent a great deal of time during that
24 deposition drawing lines on a map.
25 I would consider that to be my best
367
1 estimate of cattail distribution.
2 Q. Okay. And if you compare that to the Ken
3 Rutchey, are you going to be able to testify or
4 determine with accuracy as to whether or not
5 variations between the two reflect reality?
6 A. I'll stand behind my estimates for the
7 period of about '85. And I think that Ken Rutchey's
8 produced a product that definitely corresponds to
9 reality in the early Nineties, and I would not
10 hesitate to use that as a basis for whether there's
11 been an expansion or not of cattail.
12 Q. Okay. When were you deposed in the federal
13 lawsuit?
14 A. I think it's, I believe it was 1990 or '91.
15 I forget.
16 Q. Essentially five years, though, after 1985?
17 A. Yes.
18 Q. All right. Given the fact that you've
19 testified that the overall areal extent, 20 to 24,000
20 acres, is the same in '85 as it was in 1990-'91,
21 would a 50 percent load reduction from the S-10
22 structures result in a halt to the expansion of
23 cattails?
24 MR. NETTLETON: Object to form.
25 THE WITNESS: I don't believe I said that.
368
1 BY MR. KOBELINSKI:
2 Q. What part of it didn't you say?
3 A. I believe I said that I do not have an
4 estimate of cattail expansion from 1985 to 1991.
5 Q. Do you intend to testify at the final
6 hearing as to whether there has been an expansion of
7 cattails from post 1985?
8 A. I would have to compare my estimate for
9 1985 with estimates from Ken Rutchey's map in the
10 early Nineties. I have not done that yet.
11 Q. Is that something that you intend to
12 testify about at the final hearing?
13 A. I imagine I'll look into it.
14 Q. Okay. Are you aware of anyone at the
15 District who's going to testify that there's been an
16 expansion of cattails subsequent to 1985?
17 A. I'm not aware of what anyone else is
18 testifying about at the District.
19 Q. Do you have any knowledge of any other
20 district employee or consultant who has done any work
21 or study to determine whether or not there's been an
22 expansion of cattails from 1985 through 1993 or any
23 point in between?
24 A. Not that I know of.
25 Q. Okay. In your trips through Water
369
1 Conservation Area 2A in 1985 in attempting to
2 determine the areal extent of the cattails in Water
3 Conservation Area 2A, did you go off the airboat
4 trails?
5 A. As I said, about half the trips involved
6 helicopter, and so we covered the, over that period,
7 flew over the entire area, so the airboat trails were
8 only used for airboat trips.
9 Q. The helicopter trip you're referring to,
10 was that for the specific purpose of determining the
11 areal extent of cattails?
12 A. No, but we covered that entire northern
13 portion of Conservation Area 2A on those trips.
14 Q. Okay. But were you making any notes, for
15 instance, as to essentially the delineation of the
16 cattail distribution?
17 A. Only mental notes.
18 Q. Okay. So then I would repeat my prior
19 question. Were you purposely attempting to determine
20 what the areal distribution was during these trips?
21 A. As I said just a few minutes ago, that was
22 not the purpose of the trips, but by that time I was
23 aware that this might be an issue and was paying
24 attention.
25 Q. Why were you aware in 1985 that this would
370
1 be an issue?
2 A. Because we had seen an expansion of
3 cattail.
4 Q. Did you ever recommend that there be a
5 vegetative map of the distribution of cattail?
6 A. I believe that's why Ken Rutchey is doing
7 it.
8 Q. I'm talking about back in 1985.
9 A. Around that period I did recommend a
10 vegetation map be prepared, and it was about that
11 time that Ken Rutchey started his initial work on
12 doing that along with Dewey Worth at that time. They
13 were both working in remote sensing.
14 Because of the other projects that they
15 were already involved in and simply the backlog of
16 work that was being done, the final map wasn't
17 produced until the map we're talking about, Ken
18 Rutchey's map.
19 MR. KOBELINSKI: Would you read back the
20 last portion of that?
21 (Thereupon, a portion of the record
22 was read by the reporter.)
23 BY MR. KOBELINSKI:
24 Q. Are you aware whether anyone else, be it
25 the federal government, DER, or anyone else who is
371
1 looking at or studying whether or not there's been an
2 expansion of cattail in Water Conservation Area 2A
3 from 1985 through 1993 or any time in between?
4 A. My guess is a lot of people are, but I'm
5 not aware of it.
6 Q. Okay.
7 A. I have no direct knowledge of that.
8 MR. BARTELL: With that, I think I'll take
9 off.
10 (Thereupon, Mr. Bartell withdrew
11 from the room.)
12 (Discussion held off the record.)
13 (The document was marked
14 Davis Exhibit Number 3.)
15 BY MR. KOBELINSKI:
16 Q. Mr. Davis, I'm showing you what's been
17 marked as Davis Exhibit Number 3.
18 MR. NETTLETON: Do you have another copy?
19 MR. KOBELINSKI: I thought I did, Paul, but
20 I can't find it at the moment.
21 BY MR. KOBELINSKI:
22 Q. It's a multiple-page document. At the top
23 of the first page is entitled "Draft Memorandum" from
24 Peter B. Rhoads through John R. Wodraska to James F.
25 Garner dated July 27, 1989 and it bears Bates Numbers
372
1 0072683 through 0072691.
2 Have you ever seen this document before,
3 sir?
4 A. (Witness reviewing the document).
5 I'm honestly not sure if I've seen this
6 particular document or not. Some of the wording in
7 it is very familiar, but whether I've seen this or
8 not, I don't know.
9 I've seen an awful lot of everybody's
10 documents the last few years.
11 Q. Understandable.
12 Were you ever asked to determine a
13 threshold number for phosphorus for the SWIM Plan?
14 A. No.
15 Q. Were you coordinating the establishment of
16 that number?
17 A. No.
18 Q. Okay. Did you in any of your studies --
19 did you ask Nancy Urban to establish such a number?
20 A. No.
21 Q. In your studies have you ever --
22 A. Let me qualify that. We did look at
23 Nancy's data about midway through her study to see if
24 we could see a threshold response of cattail
25 expansion to total phosphorus concentration in the
373
1 water.
2 Q. When was that?
3 A. I don't even -- I don't remember. Sometime
4 about midway through her study.
5 It didn't, it wasn't -- as I recall, people
6 working on the SWIM Plan had mistakenly thought that
7 we were going to develop that type of a number from
8 her study, which was never the intention of her
9 study.
10 We did look at the data.
11 My memory fails me. I believe I may have
12 written a memo to Pete Rhoads or may have just showed
13 him some of our analysis and indicated we didn't
14 think at that time our data was sufficient to, based
15 on her study, to develop a number. We made a couple
16 of stabs at it but didn't come up with anything we
17 were comfortable with.
18 Q. Throughout your studies in the Seventies
19 and Eighties did you determine a surface water
20 phosphorus concentration level below which the
21 Everglades habitat degradation would not occur?
22 A. The only thing I've done is what I
23 described yesterday with Dave Swift for LOTAC II.
24 That's where we put our heads together and he looked
25 at his periphyton communities and I looked at the
374
1 sawgrass and cattail communities, and based on our
2 observations in area 2A is where we saw changes
3 occurring. And looking at the water quality at those
4 sites, we felt that we saw change in areas that had
5 concentrations around .03 milligrams per liter total
6 phosphorus on an average annual basis.
7 Q. Now, is it you saw changes at .03 or was
8 that above .03 you had seen changes?
9 A. As I recall, the site I used was at .025.
10 It wasn't seeing change. It was mainly
11 looking at characteristics in the marsh which would
12 indicate degradation. And I went over this
13 yesterday, the texture of the detritus, the odors,
14 cattail, periphyton species that are indicators of
15 pollution, that type of thing, just a general
16 impression of the sites that we've been working on so
17 long. The sites that are closer to the S-10
18 structures are very characteristic in both their
19 appearance, odors and textures and the sites farther
20 away are characteristic, have a whole different set
21 of characteristics.
22 So the areas at that time where we could
23 either visually or olofactorally detect change was in
24 about the level of .03. That's very rough. It was
25 never intended to be anything more than very rough.
375
1 Q. And has your very rough opinion as to that
2 .03 changed from 1989 through today?
3 A. As I recall, and I'd have to look at the
4 data, in Nancy Urban's study her most interior site
5 had phosphorus concentrations above what we might
6 consider background for the Everglades but below .03,
7 and she did get a slight increase in cattail which
8 would provide some evidence that the threshold level
9 is below that.
10 Q. Other than that data you're referring to
11 from the Urban cattail report, is there anything else
12 that would impact your opinion?
13 A. Not that I can think of.
14 Q. All right. If the .03 milligrams per liter
15 were not a solid estimate, why did the District
16 propose it as a limit in earlier versions of the SWIM
17 Plan?
18 MR. NETTLETON: Object to form.
19 THE WITNESS: I can't really speak on that.
20 I had very little to do with the development of
21 the SWIM Plan.
22 I view it as our best estimate at that
23 time.
24 I think I probably related that opinion to --
25 not probably -- I'm sure I related that opinion
376
1 to a number of people in the District including
2 those working on the SWIM Plan. That's probably
3 how it got in there.
4 BY MR. KOBELINSKI:
5 Q. Okay. Is it your understanding that Swift
6 agreed with that opinion of .03?
7 A. Within the context that I stated it, that
8 we felt it was a very rough estimate.
9 Q. Well, have you ever seen cattail expansion
10 at surface water nutrient concentrations of .03?
11 A. You mean exactly .03 or you mean below, at
12 or below .03?
13 Q. At or below .03.
14 A. As I mentioned in Nancy Urban's study, her
15 most interior site had concentrations below .03 but
16 did have a very low rate of cattail expansion.
17 MR. GREEN: I didn't hear the answer.
18 Would you mind reading that back, the last part?
19 (Thereupon, a portion of the record
20 was read by the reporter.)
21 BY MR. KOBELINSKI:
22 Q. Other than the Urban data, are you aware of
23 any additional data?
24 A. I think I just answered that question a
25 couple minutes ago, but, no.
377
1 Q. All right.
2 MR. KOBELINSKI: Let's take a break.
3 (Thereupon, a recess was taken from
4 4:31 p.m., until 4:52 p.m..)
5 MR. KOBELINSKI: We've had a discussion off
6 the record with regard to the continuation of
7 this deposition, and counsel's made the
8 representation that there was an agreement it
9 wouldn't go on beyond today.
10 As we've attempted to explain, this
11 deposition is taking longer than it was
12 otherwise anticipated due to the deposition of
13 Nancy Urban last week. And this witness has
14 already identified the Urban cattail expansion
15 study as one of his studies that he's relying
16 upon.
17 Unfortunately, as can be seen by a review
18 of the transcript of Ms. Urban's deposition last
19 week, her deposition was not quite as revealing
20 as we had hoped. As a result, additional time
21 was necessary with this witness.
22 I believe Bill Hyde in his discussions with
23 Jackie Birch was unaware of that since he was
24 not taking the Urban deposition and was likely
25 talking to Jackie at the time I was conducting
378
1 the deposition.
2 We will not be finished today even if I go
3 till nine or ten o'clock.
4 We're more than willing to go late this
5 evening and I'm more than willing to stay and
6 continue to depose Mr. Davis tomorrow.
7 I'm told that neither Mr. Davis nor counsel
8 Mr. Nettleton are available.
9 We're not finished.
10 I can only state that in the past we have
11 agreed and agreed, for instance, on the basis of
12 mutual consideration in the future to allow the
13 deposition of Curtis Richardson, which
14 originally was supposed to take five days and is
15 now scheduled for an additional five days,
16 agreed to allow that type of continuous
17 deposition.
18 Likewise, both the District and the
19 United States have scheduled what they refer to
20 as follow-up depositions of indeterminate
21 length.
22 We need to depose this witness, finish off
23 with his testimony, and need to go ahead and do
24 so.
25 We await the District's response.
379
1 MR. NETTLETON: My response will be made to
2 the hearing officer, if that's what you want.
3 He's not going to read the transcript, I'm sure.
4 I've already told you I'm not in a position
5 today to agree to a continuation of the
6 deposition.
7 MR. KOBELINSKI: Are you in a position to
8 proceed forward tomorrow?
9 MR. NETTLETON: No, I'm not a position to
10 proceed forward tomorrow in light of commitments
11 that have previously been made in this case.
12 MR. KOBELINSKI: Friday?
13 MR. NETTLETON: I am willing to continue
14 tonight if you can assure me that we will
15 complete tonight, but you have stated that we
16 cannot do that.
17 MR. KOBELINSKI: We cannot do that, I can
18 assure you of that.
19 Monday?
20 MR. NETTLETON: You're at that point
21 continuing the deposition, and it's creating
22 major conflicts with other depositions that have
23 already been scheduled.
24 MR. KOBELINSKI: Have you checked the
25 calendar to make that determination?
380
1 MR. NETTLETON: I haven't checked that at
2 this point, but I'm -- just, I mean, again, it's
3 going back to continuing the deposition, and I'm
4 just not in a position to agree to that at this
5 point without a conference with my client.
6 MR. KOBELINSKI: Any comment you have?
7 MR. GREEN: Just for the record, I would
8 still like the opportunity to depose Mr. Davis
9 on behalf of our clients at some point in time.
10 We're not waiving that right.
11 MR. NETTLETON: Okay.
12 MR. KOBELINSKI: All right.
13 MR. NETTLETON: Are you guys planning on
14 leaving now, though, anyway?
15 MR. KOBELINSKI: Everyone has 5:45's over
16 here.
17 MR. NETTLETON: I'm sorry. I didn't
18 realize that.
19 MR. GREEN: I'm leaving because I'm under
20 the assumption Mr. Kobelinski cannot finish what
21 he's going to do whether I stay or not tonight
22 and that we're not going forward the rest of the
23 week.
24 I can stay if --
25 MR. KOBELINSKI: I can't finish tonight,
381
1 Bill.
2 MR. GREEN: Okay.
3 MR. NETTLETON: I believe you also told me
4 you couldn't finish tomorrow either.
5 MR. KOBELINSKI: I could attempt to, Paul.
6 But, again -- you know, I would do my best -- I
7 have, as you know, taken many depositions in
8 this case, and I think if you check the record
9 you'll find that in almost every deposition I've
10 finished either a half day or a day early. So
11 we try and do our best to go ahead and estimate
12 times.
13 If you prefer that we notice these
14 depositions for six or seven days instead of two
15 or three, we'll do so so we don't run into a
16 problem. I mean, it can be solved in that
17 manner. But this is supposed to be a
18 cooperative process, not a secretive process.
19 MR. GREEN: Can we go off the record?
20 (Discussion held off the record.)
21 MR. GREEN: Just a question.
22 Mr. Nettleton, I assume that you will agree that
23 if I leave now, that I'm not waiving whatever
24 right I have to depose Mr. Davis?
25 MR. NETTLETON: I agree that by you
382
1 leaving, you are not waiving any rights.
2 MR. GREEN: Okay, thanks.
3 You all do whatever you need to do, guys.
4 (Thereupon, at 4:59 p.m., March 3, 1993,
5 the deposition was adjourned sine die.)
6
383
1 C E R T I F I C A T E
2
The State of Florida )
3 County of Palm Beach. )
4
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 218 to 382, inclusive, are a
8 true and correct transcription of my shorthand notes
of said deposition.
9
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.
17
In witness whereof I have hereunto set my
18 hand and seal this ____ day of_____________ 1993.
19
20
_______________________________
21 MARIANNE MARTINI HOLMES, RPR, CP
Notary Public, State of Florida
22 at large. My commission expires
July 30, 1993.
23
24
25