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UNITED STATES DISTRICT COURT
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UNITED STATES OF AMERICA, et al.,
vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, et al.,
__________________________________________ |
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| Miami, Florida November 9, 1995 |
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| TRANSCRIPT OF HEARING PROCEEDINGS IN THE
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APPEARANCES:
2
3
Reported By:
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MORNING SESSION
not have Dr. Jones this morning, and so we will again I think we agreed with one of our your witnesses?
before I had left for Judge Highsmith's hearing, we had had this conversation with counsel, and it does make sense to the Miccosukee Tribe, they have out of town witnesses, and so forth.
those that Hour next witness was Mr. Duncan, and it makes some sense to take these witnesses. Mr. Duncan lives here, but we just again are somewhat concerned that it be understood that Mr. Duncan is still there.
the 28th. If he could be done today, that would be fine.
happened with these experts, it may be that that residual time when Mr. Jones comes back is when Mr. Duncan would have to testify as well.
5 everyone that that wasn't said yesterday just because I was in Judge Highsmith's court.
record, I would like to re-move to strike additionally Dr. Jones' testimony in the event he does not face cross-examination.
cross-examination.
call Dr. Michael Mocina to the stand, please.
there. MICHAEL JOHN MACEINA, Ph.D, SWORN AS A WITNESS, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
your last name.
DIRECT EXAMINATION BY MR. GREEN:
6 Direct-Green-Maceina
Q Good morning, Dr. Maceina. A Good morning. Q Would you briefly describe your educational background? A Yes. I have a Bachelor of Science Degree in Wildlife and Forestry from the University of Florida, a Master of Science Degree in Fishery Biology from the University of Florida and a Ph.D in Fishery Science from Texas A & M University. Q Please briefly describe your professional experience since completing that formal education? A After I finished my Ph.D in 1987, I was hired as a senior environmentalist for the South Florida Water Management District. I worked for the Water Management District for 3 years. I am currently at Auburn University. Q And what is your position at Auburn University? A I am associate professor. Q Are you currently teachings cources there? A I teach two classes. Q What are they? A One is in fish population dynamics. The other one is in statistical applications. Both of those are graduate level classes. Q And what sorts of subjects do you apply your statistical applications to, just briefly? A Of course, mostly the fishery data, but a lot of it is
7 Direct-Green-Maceina
applicable to any type of natural resource field. Q Now, Dr. Maceina, I would like to read some sentences to you from -- Your Honor, this is the memorandum in support of the motion of the United States for partial summary judgment on liability filed in this case on November 19, 1990.
statement to you, if I could, Dr. Maceina. It starts, "WCA-2A wetlands receive a particularly large supply of nutrients through the S-10 inflow structures, which transports drainage from the Refuge, because of the large canal system which converges on these structures and because of their proximity to the EAA."
A I agree with that statement.
The federal claims have been settled. They are not being tried. I am not you sure I understand the relevancy of the questions about the merits of the United States' summary judgment motion.
testimony. We are just trying to reference -- if you will bear with me for about two more minutes, we are trying to get into the issue that Dr. Jones raised very briefly.
please.
8 Direct-Green-Maceina
supply of nutrients through the S-10 inflow structures, which transport drainage from the Refuge, because of the large canal system which converges on these structures and because of their proximity to the EAA."
statement?
the citation after that sentence and then read the next one, Your Honor.
absence of interior canals in WCA-2A forces this water to flow across the marsh where nutrients accumulate in the marsh through a corporation by marsh soils and vegetation eventually saturating the system and moving farther and farther downstream."
BY MR. GREEN: Q When you say, "That is correct," I am asking you did you you hear Dr. Jones' testimony yesterday? A Yes, I did.
9 Direct-Green-Maceina
Q Can you tell me whether this statement reflects the testimony you heard yesterday, whether or not -- A It agrees with the testimony of Dr. Jones.
didn't testify at all about conservation area 2-A.
that nutrients accumulate in the peat if the phosphorus levels are raised above ten parts per billion; that the peat becomes saturated; that the system is destroyed, and that the nutrients just keep moving.
Dr. Jones who, by the way, is referenced here as Jones Declaration at paragraph 14 back on this page 28. That's the theory basically he expoused yesterday.
his general understanding, not to water conservation area 2-A.
BY MR. GREEN: Q Now, Dr. Maceina, when you were working with the Water Management District, I think the dates you described that since you left was back in 1990, is that correct? A That is correct. I left in June of 1990. Q Okay. But before you left, in your responsibilities for
10 Direct-Green-Maceina
the District, were you asked to undertake any work to analyze data in water conservation area 2-A to determine whether those data supported or did not support the moving nutrient front theory? A In November of 1989, I was asked by the District to assemble all the water quality data that had been collected by the District from 1976 through September of 1988 to analyze the nutrient front gradient that appeared to be apparant in water conservation area 2-A.
made. My expertise is statistical analysis. They wanted me to statistically analyze the data to verify if that, in fact, was true. Q Did you conduct such an analysis? A Yes, I did. Q When you conducted that analysis, can you tell us whether you used standard and approved statistical techniques? A Yes, I did. Q Thank you. Dr. Maceino, I am going to show you a document that has been pre-marked defendant's exhibit 86 and ask you if you can identify it? May I approach the witness, Your Honor?
11 Direct-Green-Maceina
BY MR. GREEN: Q And what it is it? A This is part of the SWIM Plan for the Everglades that was published in March of 1992 and pages 166, 167 and 168 reflect the results of my analysis that I conducted and held in early 1990. Q Okay. I would like to refer you, if I could, to page 166, and there is a third paragraph down with an underline under it.
perimeter marsh." Do you see that paragraph? A Yes. Q And would you review that, the first two sentences of that paragraph briefly that follow the title. A Yes. That is what I found. Q Okay. So you agree? A I agree with It. I agree with those two statements. Q Okay. Now, let's turn to page 167.
sentences are you referring to?
I was trying to save time. I apologize.
Everglades WCA's during the late-1970's and early 1980's indicate that major water quality changes have taken place
12 Direct-Green-Maceina
downstream from District water controlled structures within WCA-CA-2A. The discharge of nutrient enriched canal water across the northern portion of WCA-2A has resulted in a nutrient gradient of decreasing phosphorus concentration downstream of the S-10 down stream discharge structures." Do you agree with those two sentences? A Yes, I do. Q Now, if I could ask you to go to the next page, Dr. Maceina, and refer you to what is labeled figure 29 there entitled, "Comparison of Average Total Phosphorus Concentrations Downstream of the S-10-C, 1978-1979 and 1985- 1996."
data that underlie it? A Yes. I didn't construct this plot, but the data that was given to me while I was employed at the District, I went ahead and analyzed this data, and essentially came up with the same type of schematic that's presented in figure 29. Q Do you agree with its basic depiction? A Yes. What I did essentially was do statistical analysis on that data, basically looking at the differences in phosphorus as you move from south -- from north to south and essentially determined if those differences as you see in 195, 1986, which appear a lot higher, are significantly higher than the base line period of 1978, 1979.
13 Direct-Green-Maceina
Q Can you tell us which way north to south goes on thishorizontal axis? A Sure. North is at zero. That's essentially the location of the S-10 structures, the S-10-C, and then going south into water conservation area 2-A down to about 11.3 killometers, which is the 217 gage. Q I want to be sure I understood what you said. What does this lot compare to? What time period? A This time period compares 1978, 1979, which was a period where a lot of data was collected in area two and compared phosphorus concentrations to 1985, 1986 essentially in the same distance areas south of the S-10-C. Q Okay. Now, let's turn to the next page, please. The second paragraph, the last sentence, and I will read it.
observations that nutrient levels having increased downstream of these water control structures over time" -- citations omitted -- "and that a "Nutrient front" has progressed further south into WCA-2A during the 1980's."
discussed so far in the SWIM document, do you agree with that conclusion? A Yes. That conclusion is true.
Maceina as an expert in equatic biology, including the
14 Direct-Green-Maceina
analysis of environmental data to discern transient water chemistry.
will be received as an expert in that area.
BY MR. GREEN: Q Dr. Maceina, I hand you what has been marked as exhibit 7 and ask you to please identify it.
86. I assume you are offering that?
like to go ahead and offer 86 while we are here.
BY MR. GREEN: Q What is that, Dr. Maceina? A This is a document that I submitted to Mr. Gary Perko who is an attorney with your law firm. It is an update on looking at changes in total phosphorus in water conservation area 2-A, using data now all the way through September of 1994. Q I would ask you to look at page 1 of this document and just read outloud the second and third sentence in that
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page, please. A "There is absolutely no evidence that the phosphorus front has moved further south from the S-10 structure since 1978-'79 due to anthropogenic loading from the upstream basin. In fact, the reversal of the process appears to be occurring." Q And read the next sentence, too, please. A "Total phosphorus concentrations. TP concentrations continue to climb in 1994 from 1995, '86 and 1991, '92." Q Is that your opinion? A Yes. Q Now, how did you reach that opinion? A I was able to gather data from 1989 through 1994. Most of the data was collected by the South Florida Water Management District. I re-analyzed the data, compared it to the results that were collected during the base line period of 1977, '79. Q And in the interests of time, Dr. Maceina, can you come up and just point out on the chart the evidence that supports your opinion? A Do you have a pointer? Q First, I would ask you to identify this demonstrative aid which is labeled figure 1. A Figure 1 one is the document marked in evidence as 87. Q And what does that show, Dr. Maceina?
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A This is analogous to figure 29, which is evidence 86. Here is the base line period 1978, '79. Here is your different distance zones coming south of the S-10-C, so this is the northern portion of WCA-2.
very, very high total phosphorus concentrations in '78, '79. It declined rapidly. Here is the period of '85, '86, which is also that data is presented in figure 29 and evidence 86.
relatively similar to those measured in '78, '79, but now in '85, 86, they are much, much higher than they were in '78, '79, indicating that the nutrient front has moved further south.
analyzed 1991, 1992. The same phenomena is apparent. You see now a decline in total phosphorus concentrations, and levels have essentially dropped essentially to the background levels that were measured in 1978, '79. So, there is still a gradient that exists in the marsh. However, that front is now the same as it was in 1978, '79. There is no evidence right now to suggest that the nutrient front has moved further south. Q Dr. Maceina, does this analysis support Dr. Jones' theory about the moving nutrient front? A No, it does not. It contradicts it, and Dr. Jones
17 Direct-Green-Maceina
probable ideal SWIM Plan, but based on the latest data analysis, there is absolutely no statistical evidence to show the nutrient front has moved further south.
from decade to decade? That is, you show, for example, the experience -- I forget which line. It is the larger broken line.
pretty well downstream.
lesser contribution. What has happened to the concentration that existed in 1985?
system, and I believe it is primarily regulated by internal forces, and that when the marsh gets low, dries out phosphorus is re-memoralized out of the soil and comes back in the water column.
back down into the soil. And the one thing to remember is that this marsh has operated essentially as a lake for 20 years. When the new regulation schedule was put in effect
18 Direct-Green-Maceina
in 1981, we went back to a normal wet-dry cycle, and phosphorus concentrations were extremely unstable in the marsh for 10 years, and now they appear to be stablizing.
what has happened to the phosphorus concentration that existed in '85?
or destroyed. A lot of this phosphorus has probably now settled back down into the soils.
biodegrade?
the peat soil and into the plants.
the entry point in different levels, it doesn't accumulate?
understanding why in '95 it would be so much less than in '85 and before.
BY MR. GREEN: Q Where does it accumulate?
19 Direct-Green-Maceina
A It accumulates in the soil. In many cases it accumulates in the soil that's no longer available.
testing the water.
water. You asked me where the phosphorus went. It went into the soil.
water problems? Does it come back up again as you suggest?
hydroperiods in the Everglades, and all, and it remains to be seen, and certainly this needs to be examined over time, but since 1991, it appears that the phosphorus concentrations have declined and we are --
phosphorus continues to build over time, no matter what kind of system you have. The question is are we in a more stable type of situation right now?
the state analysis, that the nutrient front is moving further south.
Direct-Green-Maceina
BY MR. GREEN: Q Do you have another poster just while you are up here? A Yes. I analyzed the data lots of different ways. This is below the S-10-C. I pulled the data for all the S-10's. I looked at many different time periods that are listed in exhibit 87. Q What figure? A I am sorry. This is figure 2 in evidence 87. If we take a look at '83, '84, it is two years after the new regulations schedule is put into effect. There is very, very high phosphorus concentrations, declining, and now when we look at 1994, we see that we are much lower, particularly close to the S-10 structures. Q If I may ask a leading question? Is this a 10 year period? A This is essentially a 10 year difference. Q Okay. Now, Dr. Moceina, did you hear Dr. McClave and Dr. Goforth yesterday testify that in general the data seems to show the Loxahatchee phosphorus measurements are back to the levels of 1978 and '79? A Yes. They appear to be at the some base line levels. Q Would you agree with their conclusions? A Yes, I do. Q Why?
21 Direct-Green-Maceina
A Why? Because water flows to the Loxahatchee marsh, and if it flows to the Loxahatchee marsh and it has remained unchanged over this let's say 15 year period of time, there is no reason to believe it has reremained unchanged in area 1 that it should not remain unchanged in area 2. Q Do you have an opinion on whether the phosphorus front, if you will, south of the S-10's is back to the same way it looked in 1978, '79; whether it is or not? A Could you restate the question again. Back to the same levels. It is lower. It is lower right below the S-10's in 1994 then it was in '78, '79. Other than that, the concentrations are basically the same; '78, '79 as they are in 1994. Q What is the source of that water? A The source of that water is from area 1. Q So, because that's a source, does that give you any additional information one way or the other on whether the Loxahatchee has returned to the '78, '79 levels? A Yes. I mean, that is what the data showed that we saw yesterday, that it returned to those levels. So, if it appears to be the same or it is the same in the Loxahatchee, there is no reason to believe that it is not the same in area 2.
for cross.
22 Direct-Green-Maceina
to begin?
first, please?
will receive 87.
down here, Mr. Lehtenin?
CROSS-EXAMINATION BY MR. LEHTINEN: Q This is just based on or this is based upon data that the Water Management District has? A Yes, that's correct. Q And let me show you or let me ask you about, you think this phosphorus was not destroyed. The 1985, 1986 phosphorus is still somewhere there, right? A For sure. Q It is just not shown in this data? A It is not shown in the water column. Q Right. Isn't that part of the problem, that the phosphorus goes into the soil? A Well --
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not been defined. BY MR. LEHTINEN: Q Well, let me ask you this: As the expert that you have been, I didn't object because it sounded okay when Mr. Green said an expert, but I wasn't sure what it was, to tell you the truth, but I was willing to let you testify,
opinion about the effect that that phosphorus being in the soil will have on the Everglades? A I have no opinion on that. Q Okay. So, then, let me show you the draft impact statement from the Corp of Engineers. On page 123 -- this was passed out many times, Your Honor. Do you you see that open there?
used it before.
this may be much ado --
BY MR. LEHTINEN: Q That is a map that purports to show phosphorus influences at various discharge structures in or around canals, is that correct?
24 Cross-Maceina-Lehtinen
question, Mr. court reporter.
Lehtenin. BY MR. LEHTINEN: Q Does that map purport to show or the heading shows phosphorous influences around canals and discharge structures? A That is what the label says. Q Perhaps it is out of your area to lead you into that. Do you have an opinion about whether phosphorus could cause those influences that are shown on the map?
broad question. This witness has been offered to give a statistical analysis of water quality data south of the S-10 structures for purposes of testing the moving water column nutrient hypothesis. This goes beyond the scope of his testimony. BY MR. LEHTINEN: Q So let me ask you this: We may be establishing what I want to drive at. What effect the phosphorus has is outside of your area of expertise? A No, I have looked at a lot of the data that's out there, and phosphorus certainly has an affect on plant
25 Cross-Maceina-Lehtinen
growth. Q Okay. Is that a little bit different than when you testified earlier, and I asked you what happens if that phosphorus is in the soil, or let me ask you that, based on your answer.
which is not in that water column now, what would the effect be if it went into the soil as you said it might have done? A It all depends on the bioavoilability of that phosphorus, which I can't really answer.
questions, Your Honor.
sit down. CROSS-EXAMINATION BY MR. SEARCHINGER: Q Dr. Maceina, you would degree, wouldn't you, that phosphorus is continuing to come through the S-10 structure at a level above background concentrations, is that correct? A Nobody has ever measured background concentrations, so I cannot answer that. Q Okay. But would you agree that the phosphorous coming through the S-10 structure is higher than the phosphorus downstream of the S-10 structure in the water column?
26 Cross-Maceina-Searchinger
A That is correct. Q Do you have an opinion on what is stopping the expansion or what is taking up the nutrients on the way down from the S-10 structures to that lower area?
that same question, I believe.
opinion what is taking up the --
phosphorus? What is preventing it? Essentially, what is preventing that nutrient from expanding.
will take it up. Sometimes you have direct precipitation of phosphorus in the soil, and then plants will take the phosphorus. BY MR. SEARCHINGER: Q Would you agree that the fact that that zone is already impacted has significance for how it is taking up phosphorus?
impacted. It is a very general question.
ahead. BY MR. SEARCHINGER
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Q Would you agree that the area south of the S-10 structure is high in phosphorus in the sediment and has a lot of cattails in it? A That's true. Directly south of the S-10 area the water is relatively high in phosphorus compared to the rest of the Everglades, and it does have cattail in it. Q Do you think that has anything to do with your theory that it is blocking the nutrient expansion?
repeat the question. I think you will see it. BY MR. SEARCHINGER Q Do you have an opinion on whether or not that cattail and nutrient enrichment is slowing the rate of or blocking the rate of or blocking nutrient expansion? A I think any type of plant life emergent plant life and associated microbes would also cause a decrease in phosphorus concentrations. Q Now, did you hear Dr. Jones testify that the northern end of conservation area 3-A is relatively pristine from the standpoint of phosphorus yesterday? A How do you define pristine? Q Has low phosphorus concentrations in the sediment water. A Yes. Q What do you think? Now, you heard that Mr. Gherini recommends or proposed a plan that would move the phosphorus
28 Cross-Maceina-Searchinger
into that area directly from the EAA instead of having the phosphorus go through the impacted area south of water conservation area 2-A.
mischaracterizes the testimony. Mr. Gherini showed what the implementation of the Everglades Forever Act plan would show when you spread phosphorus into the northern areas. In fact, I think there is a chart still up there that shows the EFA plan.
simulation, what effects that would have. He made no proposals.
Your Honor. He was recommending it.
BY MR. SEARCHINGER: Q Do you have an opinion on what is likely to happen in terms of expanding nutrient front if water is coming in to the top, now this pristine area in top of conservation area 3-A? A Well, I have shown there is no expanding nutrient front. Q You have shown there is no expanding nutrient front in 2-A? A I have not analyzed data in 3-A, so I can't give you any
29 Cross-Maceina-Searchinger
opinion on it. Q Do you think it is possible that there may be a different impact of moving water through an area that's already filled with cattail and has high phosphorus in the sediment, that in putting it in an area that doesn't have cattail and has low phosphorus in the sediment? A I can't speculate on that. Q Okay. Now, your testimony, as I understand from looking at your chart, you are comparing, all you are comparing is data from '83, '84 and '78, '79 with data from 1994, is that correct? A If you take a look at all the figures that are in that exhibit, 87, as well as the table, I have made multiple comparisons over time which all show the same trend. Q Have you made any analysis of whether or not phosphorus is or have you made any analysis of whether or not there is an expanding nutrient front in the sediment in water conservation area 2-A? A No, I have not done that. Q You heard Dr. Jones testify that what impacts the micro-organisms and the macrophytes is phosphorus enrichment in the sediment. Do you have an opinion on that statement? A No, I don't. Q Would you agree that the actual phosphorus concentrations in the water column depend in part on whether
30 Cross-Maceina-Searchinger
or not we are in a high rainfall or low rainfall year? A I've done some other analysis, and there is no relationship at all between phosphorus loading or phosphorus concentrations coming through the S-10's. Q That's not my question. A I am sorry. Q Phosphorus --
answer, please, counsel.
this, and this is an analysis I did while I was at the District. There is no relationship at all between the phosphorous concentration coming in or the phosphorus load coming into the S-10 and total phosphorus concentrations in the water column in area 2. BY MR. SEARCHINGER: Q Okay. What about the relationship between how much rain is falling on area 2 and how much water is in area 2 and concentration in the water column? A Typically, when water levels are high phosphorus, concentrations decline. Q Was 1994 a high water year? A I haven't seen any staged data, but from talking to people, it seems like it was a very wet year in South
31 Cross-Maceina-Searchinger
Florida, so I assume that it was. Q Isn't it possible that we could be seeing significant fluctuations in the water column phosphorus concentration and yet have an expanding sediment nutrient front? A I can't speculate on that because I don't have any data. Q Okay. Do you know how long it takes sediment to absorb water from or absorb phosphorus from the water column? A That depends on a variety of chemical and biological factors. Q Would you agree that in some cases it can take minutes? A Sure. Q So isn't it possible that an area could be receiving, let's say an area down at the bottom end of this nutrient gradient, that that could be receiving phosphorus that is rapidly absorbed into the sediment and then reveals a water column concentration that isn't all that high? A That's possible, yes. Q Do you have an opinion on whether sediments can become saturated with phosphorus? A I have no opinion on that. Q Okay. Have you ever heard of sediment saturation? A Yes, I have. Q What does it mean? A Like I say, I have heard of it, but I am not knowledgeable in soil dynamics, phosphorus dynamics in soils
32 Cross-Maceina-Searchinger
to state an opinion on that. Q Okay. Now, doctor or Mr. Gherini testified that there was a higher settling rate of phosphorus closeer to the EAA than there was of a settling rate for phosphorus as you went down through water conservation area 2-A.
the opposite of what Mr. Gherini testified to.
lower settling rate of phosphorus in the area immediately just below the EAA and a higher settling rate as you went down. You are right. I apologize. I misspoke. BY MR. SEARCHINGER Q Doesn't that evidence suggest a standing nutrient front? A I can't comment on that because I am not a phosphorous dynamics modeler. Q Okay. Do you have an opinion on whether or not the plant, that the cattail community in water conservation area 2-A is likely to be more or is more likely to return to a sawgrass Everglades community if phosphorus continues to come in that area at the existing concentrations through the S-10 structure? A Based on my analysis and my observations in water conservation area 2-A, I believe the hydroperiod is the most dominant factor. When I was out in the marsh in 1989, right below the S-10 structures, sawgrass was reappearing in
33 Cross-Maceina-Searchinger
conservation area 2-A, but yet you had phosphorus concentrations in the water columns of 4 to 5, 600 parts per billion. Extremely high. Q So you do have an opinion on what causes cattail in the marsh? A Yes, I do. Q Are you aware of Dr. Jones' work which shows that or I think he said 99.9 percent correlation between the existence of cattail in the marsh and elevated concentrations of phosphorus in the southern?
heard Dr. Jones testimony, but there is no data in evidence to support any of that.
a published paper on that.
I would be interested in seeing it. It doesn't surprise me, based on previous analysis. The problem with all this, and this has been brought up before, is that tigh phosphorus concentrations in the soil, high water column phosphorus concentrations coming from inflows is highly correlated with hydro-period. It is also highly correlated with sodium Choride.
34 Cross-Maceina-Searchinger
doctor?
inundation. Essentially, if a wetland is covered through January through June, there is a hydroperiod of 50 Percent, and in the case below the S-10's, it is nearly a 100 percent hydro-period which favors the growth of cattails.
building of the L-39 canal, that area is a lot deeper. It has been a disturbed area. The deeper water, along with the the high hydroperiod, in conjunction -- I believe there is an inner action going on here with nutrients, and that this is why you have cattails there. 3 factors. Hydroperiod, disturbance, and to a lesser extent, nutrients. BY MR. SEARCHINGER: Q Do you agree that there are areas that have cattail in interior portions of the marsh that have no different hydroperiods from the areas adjacent to them? A The areas that I have seen in the interior of the marsh tend to be slightly disturbed areas or lightly deeper areas. Any place you go pretty much through the Everglades area, the Everglades protection area where there is a canal that's been dug or a ditch that's been dug, you always have cattails which correspond to deeper water. Phosphorus concentrations can be as low as ten parts per billion in those areas and still contain cattails.
35 Cross-Maceina-Searchinger
Q And isn't there a deep water area at the bottom of water conservation area 3-A? A Yes, there is. Q Is there cattail are? A Yes, there are. Along the canal there are. Q What about in the large pool that extends up through the water conservation area? A They have not been exactly along that area. I don't know how for they go back. In area 2 they go back about half a mile from the canal. Q In the canal. You don't know if they go back -- A I don't know how far they go back. Q It is an extended pool, isn't it, in the bottom of water conservation 3-A? Isn't that the deepest? A At times it is. It depends on the regulation schedule. The water tends to be deep. Q Yes. It is the deeper portion of the Everglades as a whole right now, isn't it? A In respect to water level? Q In respect to water level for any extend area in the Everglades. A I can't comment on that. Q Okay.
Honor.
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cross of other counsel and the Court's questions, in the spirit of moving this along, no further cross from the settling parties.
redirect at this point.
(WITNESS EXCUSED)
My partner, Mr. Sams, would like to call our second witness.
box, I would just state to the Court that I haven't previously entered a formal appearance, but I have been in the past admitted to practice before this Court.
GARY NEIL BIGHAM, SWORN AS A WITNESS, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
full name and spell your last name, please.
37 Cross-Maceina-Searchinger
B-i-g-h-a-m.
DIRECT EXAMINATION BY MR. SAMS: Q Mr. Bigham, by whom are you employed and in what capacity? A I am employed by PTI Environmental Services, and I am a principal with that firm. Q And where is that firm located? A In Bellview, Washington. Q And what is the business of PTI Environmental Services and the scope of its compliment of employees? A PTI is a consulting firm. We specialize in environmental sciences. We have a total of about 135 people in the firm and 5 offices across the country. Q Briefly outline your higher educational background, please? A I have a Bachelor's Degree in geology from Oregon State University which I received in 1968; a Master's Degree from Georgia Tech which I received in 1972. Q And in what areas of concentration did you work in in your Master's Degree studies? A My degree was in geophysical sciences there. It was primarily in geochemistry and hydrology. Q Did that include --
38 Direct-Bigham-Sams
A Water quality. Q Did that experience include water quality? A Yes, it did. Q Could you summarize briefly your employment experiences insofar as pertinent. Briefly outline its relevance to your testimony today. A Yes. After receiving my Master's Degree, I went to work for the U.S. Army Corp of Engineers at their Water Ways Experiment Station in Bicksburg, Mississippi. There I helped develop and get started a major research project for the Corp on evaluating the effects of dredging and dredge material disposal in rivers and oceans and estuaries.
District of the Corp where I my primary job there was evaluation of affects of major harbor expansion on water quality levels in Los Angeles harbor.
and over the course of several years was involved in evaluating the affects of disposal of many types of materials into the ocean and into fresh waters, looking at really the fate and water quality and biological affects of those activities.
Environmental Services, and continuing the same types of studies, a little more emphasize this time in looking at
39 Direct-Bigham-Sams
doing risk assessment to human health and ecological systems. Q Mr. Bigham, what is your area of expertise as you would describe it? A My area of expertise is evaluation of transport fate and affects of contaminants in aquatic environments. Q Have you conducted studies of the transport fate and affects of mercury in aquatic environments? A Yes, I have. Beginning in 1990, or since 1990, I should say, I have been project manager of one of the largest investigations of a behavior and affects of mercury in aquatic systems, specifically in Onondaga Lake In New York.
analysis of total mercury and various mercury species; how it behaved in the lake; perform a mass balance on the system.
mercury behaves, including how it bioaccumlates up through the food level of the particular lake. Q In addition to your work in New York, are you involved with the interpretation of mercury cycling and bioaccumulation in other areas? A Yes, I am. I am currently engaged to evaluate behavior of mercury at other sites in New Jersey, Alabama, Georgia. Also at the Georiga site we are performing ecological risk
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assessment. Q How long have scientists in the U.S. been analyzing mercury cycling and bioaccumulation in the manner that you have done, say, for Onondaga Lake in New York? A Well, actually, not very long. It is a fairly new endeavor, primarily because only until about the mid to late '80's have we had the analytical tools to even be able to analyze for mercury and various mercury species at the very low concentrations that occur in natural waters.
million, or sometimes lower in parts per billion, but the level of the concentration of concern for mercury and methyl mercury is in the parts per trillion range. Q Have you authored or co-authored any peer review publications in the area? A Yes, I have. I am a principal author or first author of one publication and co-authored 3 others regarding mercury cycling and bioaccumulation. Q At this point, Your Honor, I would offer Mr. Bigham as an expert in the transport, fate and affects of mercury in the environment.
objection to Mr. Bigham's qualifications. However, we do object just generally to the relevancy of this whole line of testimony concerning mercury, and it doesn't appear to
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relate to any of the motions that are pending before Your Honor.
under advisement, and we will proceed with the testimony.
BY MR. SAMS: Q Mr. Bigham, is there a mercury bioaccumlation problem in the Everglades? A Yes, there certainly is. There is currently a fish consumption advisory over I think approximately two million acres of the Everglades basically from coast to coast. There is also evidence that higher level organisms are being impacted by mercury bioaccumulation. One, of course, I think high profile example was the Florida panther where mercury may very well have been a contributing factor in a death of a couple of animals.
many of the wading bird species in the Everglades are definitely being exposed and potentially affected by high levels of mercury. Q When you speak of a fish advisory, what are you speaking of, sir? A That is that the State Health Department has issued an advisory to the public that they should limit their consumption of fish caught in the Everglades.
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Q Are there agencies studies underway of the problem that you have described. A Well, yes, there are. Fairly recently there is one of the larger mercury investigations I think in this country is underway funded by EPA. I believe certainly I think funds are also from the State of Florida and also from the South Florida Water Management District. Q Have you conducted analysis of the behavior of mercury and its affects in the Everglades for our clients? A Yes, I have. Q What was the purpose of your analysis? A The purpose of my analysis was to see if there was a relationship at all between phosphorus concentrations in the Everglades and concentrations of mercury in fish tissue. Q Did you find such a relationship? A Yes, we did. We found basically an inverse relationship. That is, that as concentrations of phosphorus decrease in the water, we tend to find elevated concentrations of mercury in fish tissues; specifically some of the small, what we call forage fish tend to be fed on by other organisms. Q What is the environmental significance of the relationship between mercury in water and mercury in fish? A Mercury is somewhat unusual as a contamenant in natural systems, in that it bioaccumlates, and specifically it is
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the methyl form of the mercury. Methyl mercury that bioaccumlates.
on to plankton, periphtyon, which is then consumed by these small fish that we have a fair amount of data for now.
in each step of the way, the concentration of mercury in the tissues of those organisms increases, and then toward the end of the food web, organisms such as the wading birds then get exposed to quite high concentrations of mercury via their diet. Q What affects do elevated concentrations of mercury in, say, the tissue of wading birds have? A The affects on wading birds have been shown in lab studies, as well as recent evidence from the Everglades, to have affects on both the behavior and reproductive success of wading birds. Q I assume those are adverse affects, is that correct? A Yes, sir, they are. Q Have you produced a report on such affects in the Everglades that could arise from proposed reductions in phosphorus concentrations? A Yes, I have. Q I believe that report is the one that we have pre-identified as number 83.
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A That's correct. Q If I could, Mr. Bigham, I would like to first ask you to turn to pages 29 and 30 of your report. Can you demonstrate to the Court or describe for the Court using those pages the inverse relationship that you have identified in the Everglades? A Yes, I can. If you first turn to page 30, which is figure 14, figure 14 shows the locations of the data we have available, and some of the data we have available to us and these are data, by the way, that were collected by EPA in their continuing sampling program.
starts at about the S-6 structure and proceeds eastward into the Loxahatchee.
structure and proceeds southward in WCA-2A basically along that same gradient that Dr. Maceina was talking about. Q If I could interrupt you for just a second, Mr. Bigham. Is the transect that you just described south of the S-10 structures in the same location that Dr. Maceina just referred to in his testimony concerning the so-called moving phosphorus front? A Yes, it is. Q Go ahead, please. A Now, if we turn back to page 29, it says figure 13-B,
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these show the phosphorus in water data and mercury in -- and this is a small fish I was talking about -- the mosquito fish on those two transacts, and the panel on top of the page is that first transect I described.
horizontal axis is distance from the S-6 structure and then going eastward into the Loxahatchee. The solid line represents the total phosphorus concentration, and you can see as right in the vicinity of the canal, or that I guess it is the Tetra Tech model cell number 1, you can see that there is relatively high phosphorus concentrations on this particular sampling, around 50 parts per billion or micrograms per liter, and that as we proceed eastward, that it drops pretty quickly down to values in the vicinity of ten parts per billion.
concentrations in mosquito fish, and bear in mind that mosquito fish have a relatively small range in the Everglades. They never go very far. Their range is on the order of maybe a hundred meters or so. So, they are typically exposed to whatever is going on right in that immediate location.
difference here; that the concentrations or where we have relatively high phosphorus, mosquito fish mercury starts out
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very low. As the phosphorus concentrations decrease, the concentration of mosquito fish go up.
relationship, and that is as we start with looking at phosphorus concentrations at the S-10 structure. Of course, it is high, a lot higher than before it is up around 90 parts per billion and drops quickly and ultimately gets down to that same, around ten parts per billion level. Of course, once it is down there, we see that concentrations in mosquito fish again are going up. This time the direct maximum value is up to around 250 parts per billion in fish tissue. So that is the basically the inverse relationship or one manifestation of the inverse relationship. Q Mr. Bigham, I believe you have already stated it, but just for clarification, are these based on EPA data? A Yes, they are. Q Is the mosquito fish or <TKPWAPL> abuse yeah, the fish that EPA has chosen to handle In its work? A Yes, it is. EPA is using the mosquito fish basically as an indicator species of how in general mercury is being bioaccumulated by these smaller fish species.
the variance, are you in a position to assign any cause for
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this change; the differences that taked place?
we think is a very plausible reason for this; why we see this affect.
answer to the Court's inquiry.
reasoning, or is it based on some connection?
sir?
Honor.
there before. It is there after. It must be the cause of.
changes that are taking place, and so the reason you assign a cause to them is because they took place.
reason behind this relationship. First of all, understand that the source of mercury is primarily from precipitation. In fact, it is typically on the order of about 30 parts per trillion rainfall.
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natural over the last several decades concentration of mercury in precipitation has roughly doubled. So, we have over the Everglades then pretty much everywhere a loading of mercury to the system.
the food chain is it gets absorbed into plankton. In fact, it is just recently that there is, just a couple of papers that have described that mechanism as to how methyl mercury gets up getting concentrated in the psydoplasm or in the interior of plankton or periphyton cells, but it is fairly clear that's happened.
There is a big concentration that takes place there. It gets multiplied by about a thousand times the concentration that was in the water, and now the concentration in the plankton.
small fish eat that, and it gets, as I described before, it gets bioaccumulated, but the relationship with phosphorus is this: That if you had two bodies of water that are basically the same mercury concentration, and in one we have more plankton and the other we have less plankton, that available mass of mercury is going to absorb on to the surface of the particles of plankton, right, and the more particles we have, the lower the concentration will be on
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the particles.
food, it turns out that then that the food web where we have higher nutrient concentrations ends up showing lower levels of bioaccumulation and, conversely, if we have that same mass of mercury, fewer particles available, that mass is going to absorb at a higher concentration on to those particles, so that now that food web in the lower phosphorus or lower nutrient condition tends to bioaccumulate more strongly.
further, also been observed in other systems. It is not unique to the Everglades. This has been noted in some studies in Minnesota. It has been noted in other lakes in Florida. It has also been observed in Sweden.
mean that phosphorus is good?
entire analysis, Your Honor, is that in the course of setting phosphorus standards, I think one needs to be very much aware that you may very well be setting a level of exposure to mercury that we believe this -- I certainly believe that this is a very important relationship that merits much more work.
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but it is a serious affect that needs to be looked at more completely.
careful about about how much we decrease the phosphorus content?
much, much further so that we have a much better idea of what the consequences of a particular phosphorus level would be in terms of mercury bioaccumulation, which we know is already at problem levels.
BY MR. SAMS: Q If I may return to the descriptions of the work that is contained in your report. Why did you choose wading birds as you have described it to the Court as the focus of your study? A For a couple of reasons. One was that wading birds are at the top of the food web, basically. So this process of bioaccumulation and biomagnification, the maximum impact is typically seen at the very top of the food web.
there is recent evidence that indicates right from the Everglades work that's being done for the state has shown that it is very clear that the wading birds are exposed to elevated mercury concentrations.
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especially was just in the process of, when we started our analysis last year, of developing for the first time water quality criteria for the protection of wildlife.
usually for the protection of human health or the protection of aquatic organisms; that is, the fish in the water, but never for protection of wildlife; in this case, fish eating birds and mamals.
in fact, those regulations were finalized earlier this year, and the value of mercury that they came up with was 1.3 parts per trillion as the water quality standard to be productive of wildlife.
Your Honor. Of course, their analysis was largely based on birds as a consumer. So we felt that that was a reasonable indicator to choose, and also that it was prudent to proceed with this, to look at these risks because concentrations of mercury in the Everglades typically exceed 1.3 parts per trillion. We often find levels higher than that, so it looked like a good indicator. BY MR. SAMS: Q What did your report conclude as a general proposition?
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A Our report concluded, as I stated a bit ago, is that we think that, you know, based on our screening level risk assessment, it was quite clear that the potential for harm in lowering the phosphorus concentrations in the Everglades further was real, and that definitely warranted further evaluation to have a better idea of exactly what that trade off looked like. Q Did you identify a phosphorus concentration in water at which you anticipated bioaccumulation would be of concern; mercury bioaccumulation? A Well, what we found was that there was the data kind of falls out into two regions. In the general area of 40 to 50 parts per billion phosphorus. Above that level we never see concentrations of mercury in the mosquito fish over let's say roughly 300 parts per billion.
parts per billion phosphorus, you can get almost any value. They are not all high. Some are low, but the important thing is there doesn't seem to be anything at those low phosphorus levels that is limiting the degree of bioaccumulation. Q Could you describe briefly for the Court how you conducted this study to arrive at this conclusion? A Yes. The way we did the analysis, which is pretty much a standard approach for ecological risk assessment is --
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well, first of all, we started with the phosphorus concentrations from the Tetra Tech phosphorus model that gave us the distribution of phosphorus concentrations around the Everglades; in fact, for each of the cells that are still up on the exhibit there.
water, mercury and mosquito fish so that we could apply a regression equation to that so that we could predict under any or for any given phosphorus concentration what would the concentration be in a small mosquito fish like fish.
assumption that the EPA made in the Great Lakes analysis, which I think is reasonable, that when a larger fish, if it feeds on these smaller fish, it ends up with roughly 5 times the mercury concentration.
and that's the dosage that it is getting. We have literature values that tell us typically how much this fish they eat. We also know how much the birds typically weigh so that we can get, make an estimate of the actual exposure or dosage of mercury that would go into a typical wading bird.
that with what is called a toxicity reference value that was developed by EPA, again as part of this Great Lakes
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analysis, and that toxicity reference value or TRB is basically it is considered to be the exposure or dosage above which adverse affects would be expected.
that we use for coming to our conclusion in this risk assessment as to whether we would expect adverse affects or not. Q Have you attempted to verify whether all of the available data from the Everglades are consistent with your finding? A Yes, we have. Each time we get another set of data from EPA as a continuing monitoring program, we have replotted and compared the data sets, and it has been remarkably consistent.
attention to what we have premarked as exhibit number 84. Your Honor, we have a blow up of that, if I may.
into that?
and large?
atmosphere is -- the natural components really would be from things like volcanic emissions. Some of it actually is, or
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much of it is actually coming from the ocean. It actually evaporates or it is called evade into the atmosphere.
As I mentioned, the concentration of mercury typically you see in the rainfall which comes out of the atmosphere in rain, that's how it ends up in the Everglades. About half of that you might consider natural.
processes. Most of it is from burning of coal, although not all of it is even from this country. A lot of it is still in the atmosphere from like from Eastern Europe.
water from natural rainfall?
that yesterday. They actually get about, as I recall him saying, around 30 parts per billion phosphorus in rainfall. There is also a phosphorus component in rainfall, definitely.
easel where I have placed an enlarged copy of exhibit number 84, and if you could show the Court on that graphic, which is entitled "The Inverse Relationship Between Mercury Concentrations in Fishes And Total phosphorus in Waters in
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the Everglades," what it means. BY MR. SAMS: Q First, let me ask you, did you prepare this exhibit? A Yes, I did. It was prepared under my direction at PTI. Q This exhibit shows basically all of the data available to us from the EPA to date. It includes some of the marsh transect data that we looked at earlier, and includes some fairly recent data from the canals collected by EPA.
when you plot it just in terms of total phosphorus versus mercury and Gambusia.
As I said, there seems to be a major difference in the way mercury is bioaccumulated. When we have a system with phosphorus concentrations less than roughly 50 parts per billion, you can see we have a lot of low values, and the point here is that there doesn't seem to be any limitation, whereas above 50, as I pointed out in our earlier look at the transect in the report, we tend to not get any values much above 300 parts per billion.
the affects of these higher concentrations on upper parts of the food level. Q Mr. Bigham, please remain in the area where you are standing. Have you attempted to project mercury
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bloaccumulation in Everglades wading birds if phosphorus concentrations were required to be 50 parts per billion or less? This question I ask specifically with reference to a concentration at the outflows from the storm water treatment areas. A Yes. We did do some projections. In fact, we focused right on these model cells, 3, 4, 5 and 6, which is the area where we expect the biggest decrease in phosphorus concentrations.
heavily utilized by wading birds for feeding activity, so it is certainly important and relevant. Q What outflow concentrations of phosphorus from the STA's did you examine in this analysis? A We looked at 4 cases. One was the long term averaging or background concentrations. We also looked at STA outflows of 50 parts per billion, 25 and 10 parts per billion, just for a range of comparisons; what that would mean in terms of bioaccumulation or exposure to Great Blue Heron, using that example. Q In general, what did you find in conducting that analysis? I would state, for the record, that I am now having you speak with respect to exhibit number 85 as pre-marked. A Well, what we found, of course, is our ecological risk
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assessment that I described earlier pointed out, is as we decreased phosphorus concentrations, we would expect an increase in the exposure to wading birds.
put that in terms of what is called a hazard index, also known as a hazard quotient. It is a commonly used way of expressing the results of ecological risk, and what this means is if we look at the value of a hazard index of one, that means we are right at that level that's considered to be the acceptable dose, or that TRB that I mentioned before as it has been estimated by EPA.
is currently right about at that level. Then as we decrease phosphorus further, we end up up basically trippling the hazard index, and then, of course, if we go down to ten parts per billion phosphorus case, it is about a 7-fold increase then in this hazard index.
line is 25 parts?
progressively or keep lowering the phosphorus
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concentrations, this hazard index or risk to the Great Blue Heron would increase. BY MR. SAMS: Q Is the risk that you have identified in that exhibit average or based on a mean? A Well, yes. Actually, of course, there is a lot of assumptions in here, and we tried to be extremely careful not to over estimate what the risk might be.
concentration. If I can go back to the earlier exhibit. Basically, the equation or the fitted curve that we used to predict mercury bioaccumulation here was basically more of an average value. We did not use these stream values in coming up with these projections.
think another thing to keep in mind are that it is kind of a reality check that I think is important to keep in mind is that the current case is giving us indications also that if we look at the long term average, that we are about at or a bit above, as in the case of cell 6; what would be the level above which adverse affects would be expected. And since we are starting to see adverse affects, this seems that we are in the right ballpark.
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related to behavorial and reproductive affects. Mercury tends to affect wildlife. For example, they may not exhibit appropriate courtship behavior. They may abandon nests at the wrong time. It also seems to decrease their appetite, so their general fitness reproductive ability is greatly deminished. BY MR. SAMS: Q While you are still up, Mr. Bigham, could you describe briefly for the Court why the cell 6, the last 3 bars, yellow, green and red, appear to be at an even height? A Yes. Another thing we did again to make sure we weren't over-predicting or overly crying wolf, so to speak, is that in the data set we have available, about the lowest phosphorus concentration we have is about 80 parts per billion.
hazard index, any time there was that the Tetra Tech model projected a phosphorus value lower than 8 parts per billion, I just used the value of 8 because less than that is beyond the range of our data and legitimate ability to extrapolate.
higher, but I just chopped them off. Q Mr. Bigham, have any of the birds that you have looked at been designated endangered species, to your knowledge?
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A One of the species that we evaluated in our report Is the Wood Stork which is listed as a threatened and endangered species, yes. Q I believe you can take your seat now. A Can I? Q Yes. Mr. Bigham, did you hear Dr. Goforth testify a couple of days ago that there is enough concern about mercury in the Everglades to essentially warrant the District to conduct a special study in parallel with its studies of the numeric phosphorus limits? A Yes, I did. Q Do you agree with his statement? A I very definitely agree. Q Let me show you a demonstrative exhibit that we have prepared. It is similar to one that Mr. Lehtenin used and, we are not going to introduce this as an exhibit. I am attempting to show the settlement agreement numeric agreements as they are established in that document.
agreement that is part of the discussion before the Court requires these interim and long term phosphorus concentrations for the Loxahatchee Refuge and the Everglades National Park? A Yes. Q Does your study and the continuing data supplied by EPA
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give you any cause for concern about these levels? A Well, these levels are all within the ranges which we would predict adverse affects to wading birds.
the admission of exhibits 83, 84 and 85 as pre-numbered.
reserve objection on that, since this is a rather lengthy report. We haven't had a chance to look at it at this point.
advisement. We will continue.
would just like to point out that the report is dated June, 1995, and has been available in its prior forms, as well as that one to the agencies.
that point in time.
receive them in evidence, and if counsel has any serious objection to some part of it, I will hear him on it later on.
of the relevance concern raised by Mr. Nettleton before,
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there is a lot in evidence that we could submit to talk about on mercury in this proceeding. And if mercury is really an issue in this proceeding, if it is considered a relevant issue, then there is a whole lot of other evidence.
to phosphorus and the balances that appearantly do have some relevancy to the question of phosphorus content.
considered by all of us, and particularly by the Court in doing whatever it is going to do or whatever I am going to do. All right. Do you have something more?
Bigham for cross-examination.
an hour and a half. Let's take about 10 minutes. (RECESS TAKEN)
Nettleton.
CROSS-EXAMINATION Q Mr. Bigham, I would just like to clarify a couple of items. I believe in response to questions from the Court you indicated, did you not, that atmosphere deposition, that is rainfall and particles, dry particles settling from the atmosphere are the dominant contributor of mercury to the
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surface waters in the northern hemisphere? A Well, not all surface waters in the northern hemisphere. My reference was really to the Everglades. Q So with regard to the Everglades then? A Yes, that's correct. Q And you also indicated, I believe -- and these are probably my words, not yours, but the research in the mercury cycling area in the ecosystem is pretty much in its infancy, is that right? A Yes. It has expanded very, very rapidly in the last several years since the late '80's. Q But the technology and quality control and methodologies have really just been developed within the last decade, is that right? A Correct. Q And you mentioned that the form of -- well, let's talk about mercury cycling. In mercury cycling we are really primarily concerned with, if I am correct, the 3 forms of mercury, the mecuric, ion and on elemental mercury and methyl mercury, is that right, in general? A Primarily, that's correct. Q Okay. And methyl mercury is the form which is a human health concern and an ecological concern, is that right? A Yes, it is. Q All right. And am I correct when we refer to mercury
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cycling, you are referring to the processes that lead to either methylation or demethylation of other forms of mercury into methyl mercury or back the other way? A Yes. Mercury cycling really in general refers to the behavior of these various mercury species, because again mercury is somewhat unusual because sometimes when we speak of lead or cadmium, or something like that, we are concerned about the total concentration, but the concern is not just total mercury.
which is the more toxic species, that's right. Q And would you agree that given the current scientific knowledge in this area, that it is unclear whether the dynamics of methylation are primarily under biological or geochemical control? A Well, I think the evidence in the literature is pretty clear that it is primarily biological and mediated by sulphate reducing bacteria.
particular type of bacteria that are ubiquitous that occur virtually anywhere and seem to be responsible. It is a product of their metabolism they seem to, incidently, end up converting ionic mercury to a methyl form. Q Would you agree that the sulfate reducing bacteria
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activity is not as important in fresh water systems as salt water systems? A No, I would not. Q The mercury cycle as we have discussed in methylation and demethylation of mercury, does that occur naturally in the ecosystem? A Yes, it does. Q And would you agree that currently there are little if any, and I will ask you whether there are any existing scientific studies in peer review journals relating to the mercury cycle in subtropical wetlands such as the Everglades? A Yes. I am aware of a couple of articles that deal with the Everglades. I think work by Jerry Stober of EPA has been published. There may be a couple of others that I am not aware of yet. Q Are you aware of any such published articles that deal with the phosphorus hypothesis that you have discussed here today? A Not for the Everglades, no. There are other papers that have posed a similar relationship between phosphorous or a degree of utrification and mercury bioaccumulation similar to what we have seen in the Everglades. Q And what are the geographic areas of those studies? A Many of then are from Sweden where they have looked
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fairly extensively where they have a significant problem with elevated mercury and bioaccumulations in Swedish lakes.
location specific. It was talking more from a theoretical basis. Q Okay. Well, would you agree that a system in Sweden would not be as useful a tool as far as a modeling tool for predicting how mercury may cycle in an ecosystem such as the Everglades? A Well, it is very hard to say. First, you have to kind of work out the science of what has really gone on in the system before you can model it. If the fundamental processes are the same, it would. If they are not, it is quite clear that we have a ways to go in understanding the the or in working out the science of mercury bioaccumulation, mercury cycling and bioaccumulation in the Everglades, and then that's really my whole point in emphasing the serious effort that has to be put into that. Q Well, you would agree that the biology and vegetation, hydrology, water chemistry, meteorlogical affects influencing a lake in Sweden would be probably substantially different than those in the Everglades, wouldn't you? A It is a pretty broad question. Q I can break it down. A We can discuss that on a more specific basis.
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Q There would be differences, would there not? A There would be some differences, yes. Q Would you agree that it is possible that these storm water treatment areas that are proposed will actually act as a mercury sink? A I think that is possible. In fact, we did look at that issue; whether the STA's might be kind of exporters of methyl mercury because it has been observed that in wetlands that typically wetlands end up kind of generated in a generator of methyl mercury. So there was obvious concerns that maybe the STA's would be a generator of methyl mercury.
reasoning in concluding that an STA is not going to be or is probably not going to be a net generator of methyl mercury.
our inverse relationship; that is, that because there is more biological production in an STA, that is, we have got a large mass of plankton in those things and plant matter, there is plenty of material for, even if this wetland does generate more methyl mercury, it is my opinion that there is plenty of organic matter, plankton, periphyton and plant matter available to absorb that, such as it probably would not be a net generator of methyl mercury. Q Well, regardless of the mechanisms of whether or of the final conclusion, though, are you, in fact, aware of the
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data that has been collected from the ENR project, the prototype STA which shows that both total and methyl mercury are reduced between inflow and outflow? A Yes. I have been in a presentation where the District showed those data, Yes. Q Now, the theory that you have presented here today is, if I understood it correctly, is that by reducing phosphorous loads, or perhaps it is really only concentrations to the Everglades, that is, this would cause an increase in methyl mercury concentrations in fish and organisms, is that right? A Yes. It is primarily concentration that the system would be responding to, that as you decrease the concentration of phosphorus below levels of 40 to 50 parts per billion, that there is a general increase in mercury concentration in fishes. Q And just so this is clear, the fact that we are using storm water treatment areas or BMP's, or you are using chemical treatment plants or filtration really makes no difference. It is the question of reducing phosphorus itself that is the concern you are raising? A Correct. Q And am I also correct that this hypothesis has never been experimentally tested to determine an actual cause and effect relationship between reducing phosphorus and
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bioaccumulation of mercury? A There has been some experimentation, at least part of it on a couple of different scales. I will describe it briefly.
periphtyon cells, whatever you want to call it, that has been demonstrated in a laboratory. Some of the other evidence, though, that have been evaluated experimentally is actually in Sweden again where, as I mentioned, there is problems with excess bioaccumulation in the lakes.
figure out what could you do to these lakes to reduce mercury concentration in the fish.
the pH of the lakes. They also tried, interestingly enough, adding phosphorus to those lakes, and they, indeed, found that phosphorus was effective in reducing the concentration of mercury in the fish over time.
conversations that we have had with the investigators exactly, you know, to what extent other plant growth was increased, but they also presumed that that is the mechanism. Q Well, in phosphorus enriched lakes or eutrophic lakes,
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don't they generally have higher pH and higher alkalinity and higher concentrations of major islands? A Yes. When you compare oligorophic and eutrophic lakes, there tends to be many variables that co-vary.
again?
that have low levels of plant productivity; low nutrient concentrations. They can also exhibit lower pH. They can also have lower concentrations of just dissolved substances in general.
levels of plant productivity; high nutrient concentrations usually, and also what goes along that would be slightly higher pH levels, as well as higher concentrations of other dissolved substances. So there is quite a number of variables that tend to follow in those two categories. BY MR. NETTLETON: Q Well, given these co-varying variables, isn't it true that the some relationship would exist with regard in the study you discussed in Sweden with the pH and the higher concentration of ions and the higher alkalinity as well as with the phosphorus inverse relationship? A You would expect to find other things co-varying with phosphorus, yes, definitely.
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Q Now have you conducted any experimental work to factor out those other variables to determine whether, in fact, phosphorus is the parameter that is causing the mercury bioaccumulation? A I have not. However, there was a study in Minnesota that was conducted over a large group of lakes that is probably one of the best ones that I am aware of that helps shed some light on that.
and it turns out that the northern part of Minnesota generally has soft water lakes or very low dissolved substances.
water lakes, high dissolved substances, and then within those two groups they had low nutrient and high nutrient, so you could help you could start to ease out some of these affects to try to see what it might be that was actually causing this bioaccumulation.
of these lakes. Their conclusion was, which is in our report, is that there seemed to be two key variables that that can drive bioaccumulation. One of them was in general what they call the ionic character of the water, which means that the load of all of this, of the dissolved substances, including pH, because pH co-varies very clearly with these
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dissolved substances. That was one important driver.
what was the level of productivity? How much was it oligotrophic or was it utrophic, and they found the same thing, that where we had low levels of plant productivity, you tended to have higher concentrations of mercury in the fish tissue. Q I take it you are familiar with the term biodilution? A Yes. In fact, we have used that term to generally describe the process of how plankton and periphtyon end up leading to lower concentrations of mercury in fish tissue. Q And am I correct that biodilution, the concept of biodilution is if you add a lot of phosphorus to a oligotrophic system you encourage biological productivity and you grow more plants, and more bugs and animals show up and the mercury that's in the system is spread out more among them so you have a lower bioaccumulation? A Not exactly. I think the way we have stated it before is if you were to compare two systems with the same levels of mercury in them, the same mass of mercury in them, one with a higher level of primary production and the other where you have high primary productivity, that that it is the route of the mechanism, or at least the lower bioaccumulation. Q Well, doesn't there come a point in any system where the
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biological pools, if you will, will fill up and there wouldn't been any additional biological productivity regardless of how much additional phosphorus has entered? A We haven't really considered that issue in this regard. Q Well, If you consider a system that I think the term has been used in here of saturated with phosphorus, in the sense of that no further biological productivity would occur within that system, based upon many introductions of phosphorus or nutrients, and if you assume, also, the continued constant amount of mercury occurring within that system, wouldn't you expect that over time the mercury bioaccumulation as low as biomagnification would increase? A I am trying to follow that lengthy question. First of all, I am not quite sure what you mean by saturation, but I don't think that's necessary for us to see this shift between where we find elevated bloaccumulation and where we don't.
concentrations we've seen in the water, because that's the data we have to work with, and it is fairly clear to us -- I should say it is quite clear to me that that cut-off is in terms -- again in terms of phosphorus concentration in water is around 40 to 50 parts per billion.
your scenario of saturation.
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Q Does that suggest that at concentrations below 40 to 50 parts per billion, that that correlation no longer exists? A Below 40 or 50 parts per billion, there does not seem to be a mechanism controlling bioaccumulation; that we can get low values of mercury in initial tissue or we can get very high values. Q And I believe that's depicted in some of your graphs as well, isn't it? A Yes, it is. Q Again, reverting back to the co-varying parameters, it wouldn't surprise you, would it, if the bioaccumulation that you found along your transacts inversely or positively correlated also with other parameters in the water, such as sodium chloride or sulphate. Would that surprise you? A No, it would not. Q And have you done any experimental work to factor out those other variables? A No, I have not.
am not sure I understood that. BY MR. NETTLETON: Q The question was to you, Mr. Bigham, was whether you conducted any experiments in order to eliminate parameters, such as sodium chloride or sulphates as the cause and to try to narrow the field down to phosphorus as being an actual
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cause of the bioaccumulation of mercury? A No, I have not, nor am I aware of any plausible hypothsis how those other parameters might regulate the observations we see. Q But did you collect water quality data for those other parameters? A We have those data. We have relied on the data collected by EPA. We do have I know that, certainly sulfate data. Q And do you see the same correlation that exists there? A Yes. We do see or we tend to see high sulfate in the some areas where you would see how phosphorus, and similarly you do see -- and, of course, low sulfate where you see high phosphorus. So if you see a lot sulfate with mercury like we have, you will get a pattern that looks very similar.
where you are getting high sulfate, you are getting low concentrations of mercury, which I am not sure how that all would work. Q Well, accepting the statistical analysis that you have performed, and given the fact that you have not done any experimental studies as I understand it in the Everglades on this issue, is it correct that this could, in fact, be simply a false correlation? A No. I don't think there is any chance of that.
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Q No chance of that? A No. Q Okay. Now, yesterday -- I think it was yesterday -- we heard Dr. McClave talking about statistical correlations, and I think he said something along the lines that the strength of a statistical correlation is dependent on the strength of the data. Do you agree with that? A In general, yes. Q And if you refer to your report, I think it is number 83, page 30, the map showing the transacts that you sampled from. A Yes. Q Am I correct that below the S-10-C structure that your sampling locations went from, did you start in the canal? A These are the sampling locations of EPA and, yes, I believe it started in the canal. Q So it goes from the canal -- and correct me if I am wrong -- but it goes through the canal through a monocutural of cattail, then a mixed area of cattail sawgrass into a sawgrass marsh. I don't know if there are any slough communities these down further south, but is that generally correct? A That's my understanding. Q Okay. And in your analysis, have you combined all of that data to formulate your statistical correlation?
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A Yes, we have. Q Okay. In area 1 up above in the Refuge, can you describe the different vegetative cover that exists along that transect? A Yes. We start out near the S-6 structure with primarily cattails, and as it gets further into element number 2, probably about the last 3 stations are more in sawgrass type habitat. Q And along that transect, was there different hydrology as far as water levels? A Right. These are all taken pretty much synoptically at the same time. Q Well, do you know how deep it is at the beginning of the transect versus the end of the transect? A Oh, the depths vary, Yes; the deepest water being in the canal, of course, and close to the canal. Q And are you familiar with the water chemistry in area 1? A Generally, yes. Q All right. Would you agree that the water chemistry in area 1 is substantially different than the water chemistry in area 2? A Of this model or the model cells? Yes. Q I am sorry. Go ahead. You are referring to the cells depicted on your map? A Correct. When you say 1 and 2, I am referring to the
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cells labeled 1 on figure 14. Q Okay. And all those are within what we call the Refuge future or WCA-1? A Correct. Q And would you also agree that there is substantial differences in the water chemistry generally between WCA-1, the Refuge and WCA-2A? A Yes, I would. Q In your analysis, have you done anything to factor in those differences in the water depth vegetation, the water chemistry between the various sampling points? A I have not looked at water depth specifically, We did do analysis that is not in this report, where we took all of the data points; in fact, the data points I showed on the earlier exhibit, which is basically everything we have from the EPA, and we basically plotted concentrations in fish tissue and/or we looked at the phosphorus and mercury in fish tissue relationship between all stations that were primarily in cattail and all stations that were primarily in sawgrass.
we did notice that the mean fish concentrations were higher in the cattails than they were in the sawgrass. Q And am I correct that all of the data that you show plotted here is fish tissue sample, is that right, other
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than the phosphorus? A Figure 13-B. Q I mean, as for as the mercury data that you are plotting in your graphs, and so forth, that's methyl mercury found in fish? A Most are methyl mercury in fish tissue. We do have some other plots in the report that show dissolved methyl mercury in the water. Q All right. I think there is also a plot that shows mercury in sediment because we find the some inverse relationship in sediment as we do basically in the water column. Q Well, let me ask about that. I guess the third prong, what did your correlation find between the phosphorus in the water column and the methyl mercury in the water column? A There was just one data set available that I am aware of where they actually looked at dissolved methyl mercury, and we find that it increases as phosphorus decreases. Q So that's the exact opposite of the other correlation that you have testified to today? A Well, no. It is basically the same thing. In fact, it is what we would expect, in fact, that as phosphorus concentrations decrease and there are fewer particles in the system for the mercury to absorb on to, you would expect to find higher concentrations of dissolved mercury, or that is
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methyl mercury I am speaking of. That is, mercury that's not already absorbed on to particle cells. Q Would that suggest that with higher concentrations of phosphorus, you are creating a net methylation of bio-available mercury that is absorbed into the -- A No not at all, I haven't finished my question -- that has absorbed into the plants and animals of the system? A Let's start from the beginning. I am sorry. Q Okay. Doesn't that suggest that by increasing phosphorus, you are encouraging net methylation of bio-available mercury that is then absorbed into the plants and animals in the system? A I don't think so, I know Dr. Jones has talked about that, but where we find the higher concentrations of methyl mercury in the water are, of course, furthest away from the STA's or EAA, which I believe is the area that Dr. Jones was most concern about that process.
methylation?
of two processes. In natural waters you get production of methyl mercury. You can also get destruction of methyl mercury. So, typically, when we talk about methylation, it is often times referred to as net methylation.
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Q In other words, Mr. Bigham, that means that you are creating more methyl mercury than destroying methyl mercury? A Correct. Q Now, when you were talking about Dr. Jones' work in the EAA, wouldn't that also hold true if you moved further south from the S-10 structures, isn't it true you would have less biological matter, if you will, or plants, animals to absorb the mercury, so wouldn't you expect to see more mercury in the water column? A That is what I would expect, and that is what we show in our report, yes. The data indicates more methyl mercury. Remember, you have to make an important distinction between dissolved and total. There is very little dissolved data available. Dissolved. By total, I mean not filtered, that is. Q All right. And I believe you may have mentioned this before, but would you agree that at least low levels or what have been referred to as background levels in the Everglades of phosphorus concentrations in the ranges of ten parts per billion, that there would be no cause effect or even correlation between the phosphorus level and mercury bioaccumulation? A At very low concentrations of phosphorus, we do not see the same kind of patterns terms when you follow a transect like I showed earlier in the Loxahatchee in 2-A.
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Q The chart you had where you plotted all the material on it? A Yes. Q Am I correct this includes more information than the two transacts that are shown in your report? A Yes, it does. Q And where was all this data collected? A This additional data was collected by EPA this March and April, and that was the primary canal data, They did not share with us their marsh data yet. Q Have you done a corelative analysis for any of the data restricting the data to one particular area of similar hydrology, vegetation and water chemistry? A We have done some similar plots of phosphorus in mercury and fish tissue for just the Loxahatchee or just WCA-2A. We found a similar pattern. Q I think you mentioned earlier, though, that even in the transect or that area, the water chemistry differs and vegetation differs? A Yes. Q Getting to what I kind of thought what we were here about between the SWIM Plan Technical Plan versus the Technical Plan adopted in the Everglades Forever Act, does your opinion that you have expressed here today have any bearing on which one of those would be better?
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think the witness is really being asked to render partially a legal conclusion.
event, we will take an answer if you wish to give it.
question?
is really not my purpose here to recommend a particular phosphorus level, either. That should come out of an STA.
opinion as to which plan is going to be better. The point I am trying to make here is that we definitely need to put more effort into evaluating this inverse relationship in the process of selecting that phosphorus. BY MR. NETTLETON: Q And I believe you testified earlier, did you not, that, in fact, the South Florida Water Management District, in combinatin with DEP, EPA and various other federal and state agencies are engaged in a massive effort to study the mercury situation in the Everglades? A Well, I am certainly aware that a lot of data is being collected. What they are doing with those data I have some concerns about.
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CROSS-EXAMINATION BY MR. SEARCHINGER: Q Dr. Bigham, you indicated that you didn't collect the data that you used in your analysis, is that correct? A That is correct. Q And is it correct to say that Dr. Jones is responsible for the collection of that data? A That's not completely correct. Q Is he responsible for the collection of some of the data? A Yes, he is. Q Okay. Would it be fair to say that he is the primary person responsible under the EPA contract for, or I mean he is collecting more of the data than anybody else in the South Florida Everglades, isn't that correct? A I don't know that. Q You indicated that you were concerned about impacts on wading birds because of the impact on the so-called mosquito fish, is that correct, because of the impact of mercury on the mosquito fish? A Not solely. The reason for our concern with the wading birds is that there is more for the fact they are at the top
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of the food chain which would lead you to believe that they might be most likely to suffer impact and then, of course, that impact is already being observed. Q All right. Is it because they eat the mosquito fish, is that right? A Most wading birds have a diet that includes mostly fish. Mosquito fish among them. Q In fact, the Mosquito fish are a very important part of the food chain in the Everglades, is that correct? A I believe that's correct. Q Now, did you put up a chart for page 29? Referring now to page 29 of your report. And in the bottom charts if you will take a look at it -- does Your Honor have a copy of this?
indicates, I believe in the dotted line mosquito fish fish population, is that right, or the Mosquito fish mercury concentrations, is that correct? A That is correct. Q And the Mosquito fish does not, measurement does not start until you get close to two -- is that two miles south of the S-10 structures? A That's correct. For whatever reason, the samples weren't collected at those other stations.
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Q And isn't it correct that the reason the samples weren't collected is that there weren't Mosquito fish at those other areas? A I don't know the reason for that. It wasn't noted in the logs that were available to me. Q Would it suprise you if Dr. Jones, who I believe -- do you know is Dr. Jones responsible for collecting the mosquito fish data? A I don't know. Q Let me ask you to accept that for a moment.
in fact, or had the opinion that there weren't any mosquito fish in those first areas and that's why he didn't have that data there? A I can't respond to a question like that. Q Well, what other food oganism is being tested for mercury concentrations along with mosquito fish? A There are other data available from Florida Fish & Game. There are other researchers who are looking at mercury and other fish species, but as for as the standard EPA, what is referred to as the E-Map Program, as for as I am aware, Gambusia is the only indicator species that they are working with. Q Well, have you ever heard of the species Palmenaties? A I am to the familiar with that one, no.
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Q It is a shrimp. Does that ring a bell? A Yes. Q Okay. Isn't it also a very important part of the Everglades food chain? A It is certainly part of it, yes. Q And isn't, in fact, mercury data being collected for Palmenadies? A I am not aware of any mercury data for Palmenadies. Q Would it surprise you if Palmenadies is also not being found in areas of high phosphorus concentration? A That's really not part of what I have been considering. Q Well, you have testified that you are concerned about wading birds because of the high mercury concentrations in the Gambusia. Would that concern change if you discovered that, in fact, where you have high phosphorous concentrations in these cattail areas you don't have even Gambusia in the first place? A That doesn't make much sense to me, but, you know, that birds feed in those areas. I should probably point out, too, that the recent data, there is very little data to actually know very with any precision as to what wading birds actually eat, even though it is in spite of the importance of the topic.
latest progress report from the State of Florida and work
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that they have been funding shows that actually the mosquito fish is not always seen in the wading birds that have been sampled so far. The pray species, these bird are very opportunistic it is called. It is basically eat whatever they can catch.
is there, and so they end up consuming a wide variety of different fish and gustation species. Q Well, if there is not a close correlation between Gambusia abuse and wading birds, then doesn't that destroy your own claim here? A What type of correlation are you speaking of? Q Well, isn't the basis of your concern about wading birds that Gambusia have high mercury concentrations? A Yes. Q And if, in fact, wading birds don't eat Gambusi, then that would hurt your argument, wouldn't it? A Well, it is among the food they do it, and I think Gambusi as we do point out in the report, is a very good indicator of what would be in other fish species of a similar trophic level, Q Well, I would agree with you that, in fact, Gambusi are very importantly and that Palmenadies is very important.
with the disappearance of Gambusia and Palmenadies, isn't
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that even a bigger problem for wading birds than mercury? A I am not aware of anything that suggests that phosphorus contributes to the disappearance of any fish species. Q But you never bothered to ask why data weren't collected for Gambusia in those first two miles? A From the field notes, I am trying to recall. I don't recall what it said. I mean, there was no sample analyzed for those stations. Q What if Gambusia -- A Let me back up. I know that in the field logs some stations were noted as dry, but I don't know that these were the ones. Q What do Gambusi breathe?
BY MR. SEARCHINGER Q What do they breathe? A Well, they have to consume oxygen in some form, Q That's right. Now, Dr. Jones has testified that in nutrient enriched areas you have a transformation in the marsh from one with relatively high oxygen to very low oxygen. Did you hear that yesterday? A I heard it. I haven't seen any data substantiating
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that. Q And he testified that there is a fundamental transformation in the micro-organisms from some that produce oxygen to some that do not produce oxygen. A Okay. Q So, if he is correct, then in nutrient enriched areas, doesn't that explain why, in fact, you are going to have fewer Gambusia? A No. I think if you look at the some data from the EPA, they also have dissolved oxygen numbers in there. I don't recall seeing any anarobic conditions in the water column that went along with these observations. Q Well, there has been -- let me show you or have you seen a report -- well, have you read the SWIM Plan, the different, the final SWIM Plan that was submitted by the South Florida Water Management District? A I have read parts of it. Q Yes. Didn't that SWIM Plan indicate that nutrient enriched areas you have lower dissolved oxygen or no dissolved oxygen sometimes? A I am recalling the most recent data I have seen from the EPA. Q Okay. So do you know if the SWIM Plan said that? A I think that I do recall It saying those types of statements, yes.
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Q Now, I am going to hand you what I earlier marked and it was not introduced because there were objections, but, Your Honor, this is why it is an important document is we offer it as exhibit 3 which is the report by Frank Nearhoff of DEP in which he outlines various water quality violations associated with nutrients. Have you seen that report or that document?
continuing objection to the so-called Nearhoof document. I think anyone who is reasonably familiar with it would know that this document is an opinion upon opinion or hearsay upon a hearsay document. Mr. Nearhoof is not even articulating his own opinions in this. He is articulating a summary of what are opinions of other people.
consideration when these questions are asked. And if you object to any particular question, I will take it up at that time.
a final document.
don't have a fish in that fire, so to speak, expect that whatever ruling you would make, we may refer to the Neorhoof
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document later. It might hove a different predicate. We just note that it might be a different one.
document that's referred to frequently by the District and other official reports. It is, as far as we understand, the summary technical document of the DEP's opinion on phosphorus and its impacts on the Everglades.
BY MR. SEARCHINGER: Q Have you seen that document before? A I have not reviewed it. I am not really generally familiar with it. I may have seen it before, but as I say, I haven't reviewed it. Q Well, do you remember from your having seen it before if Mr. Nearhoof concluded that phosphorus caused low dissolved oxygen in the marsh? A I am aware that that conclusion is made in this report. Q Okay. And, in fact, caused violations of dissolved oxygen in water quality standards, is that correct.
a legal conclusion at this point from a witness who understands that some conclusion have been reached concerning the scientific matters, but not as to the law.
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in this report, what is your question?
familiar with that. That's all. I will go on to the next area.
BY MR. SEARCHINGER: Q Now, you testified that the reason phosphorus, the reason you believe that phosphorus causes low mercury concentrations is because it increases productivity, is that correct? A That is the linkage, yes. Q And increasing productivity means more plants, more algae, more micro-organisms, is that correct? A In general, yes. Q Yes. And you heard Dr. Jones testify that the unique quality of the Everglades system is that it is a low productivity system. Do you have any reason to disagree with that? A No. Q So, in fact, the reason that you have low mercury concentrations in these high nutrient enriched areas is because they are filed with cattail, isn't that right? A Well, I think you are extrapolating beyond what I said. I was pointing up here the friendship between phosphorus and mercury in fish.
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Q But one of the things that would dilute mercury is that there are a lot of cattail around? A Well, more to the point, it would probably be a periphyton associated with the cattails. Q Well, are you aware that in the most nutrient enriched areas the SWIM Plan indicates that there is a transformation at least in the periphyton community? A Yes. It certainly takes on many forms. Q And so it is your opinion, then, that there is an increase in the periphyton community because there is an increase of specially nutrient tolerant periphyton periphyton, is that correct? A There is a species shift, as I understand it, and the biomass is greater. Q That's right. So, in fact, one way to solve the mercury problem in the Everglades would be to transform it all into a cattail marsh, wouldn't it? A Well, I am certainly not suggesting that. Q Well, maybe you are. Maybe you are not.
National Park. BY MR. SEARCHINGER:
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Q Dr. Jones testified yesterday. I think you heard, that the phosphorus levels reaching Everglades National Park have always been below 20 parts per billion. Did you hear him say that? A Yes, I did. Q Do you have any reason to disagree with that? A No. Q And, in fact, the interior concentrations of phosphorus in the Everglades National Park, isn't it correct they are even below ten on average? A Yes. That's my understanding. Q So Everglades National Park, then, has naturally had back up phosphorus concentrations that, in your view, contribute to the mercury problem, is that right? A That is correct. Q Now, Dr. Jones testified that at even levels slightly below 20, that you started seeing cattail in other forms of nutrient enrichment, is that right? A I heard him say that, yes. Q And I think I heard or my understanding was you were concerned about setting a phosphorus limit below 40 because of concern with mercury, is that right? A That is correct. Q So then to solve the mercury issue problem in Everglades National Park, the suggestion would be that we allow water
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above 40 parts per billion to their Everglades National Park, is that right? A I don't know what the solution is right now. My point is that I believe that much more work needs to be done. The data, for example, that are currently being collected need to be carefully evaluated in the right way, and all possible hypothsis evaluated in order to arrive at the really optimum of phosphorus to minimize mercury bioaccumulations. Q Well, if water quality standards were set above 40 or at 40, that would mean that it would be or I assume you would agree that that would mean it would be legal to discharge water above 40 into Everglades National Park; above 40 parts per billion of phosphorus? A Do you mean like an effluent limitation of 40? Q Right. A Yes, that would be the implication. Q And Dr. Jones has testified -- and you at least have no reason to disagree -- that that would cause cattail and a shift in the periphtyon community, a change in the micro-organisms, is that right? A I believe that you have confused something. I thought we were talking about effluent releases to the Everglades in STA's. Q I am sorry, I am talking about if water entered Everglades National Park above 40 parts per billion, you
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have no reason to disagree with Dr. Jones' conclusion that that would cause cattail changes in the algo community and changes in the micro-organisms? A I am not going to agree or disagree. I am not here to talk about effects of phosphorus, per se. I am here to talk about the relationship between phosphorus concentrations and mercury bioaccumulation and mercury cycling. Q And the reason having water come into Everglades National Park above 40 would lower mercury concentrations, isn't it?
periphyton community and otherwise increase the productivity of Everglades National Park.
beyond the scope of the witness' direct examination. Dr. Jones said what he said, and this witness is has not commented about that.
length, was -- I mean altogether was rather limited. He is concerned with the effect of an increased mercury content in the water and suggests that it be explored.
of the lower phosphorus content, and it is pretty clear. It is about that simple.
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concerns specifically the water quality standards in the settlement agreement; the water quality numbers in the settlement agreement, and the concern that those numbers in the settlement agreement would cause a mercury problem in the Park. I am trying to explore why it is, what it is, what would happen.
is because as you increase the phosphorus, you decrease the attendant organisms that would absorb the mercury. Did I understand you correctly to say that?
transforming Everglades National Park for a cattail marsh.
that. Indeed, he just rejected that thought. He said that's not his problem.
relationship of mercury and phosphorus.
about the means. How it is, what is the means by which phosphorus at 40 would lower or would solve the mercury problem. That is what I am asking. How does that work.
repetitious because I think he has answered it.
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there is a trade off here. On the one hand, they are seeking to reduce phosphorus concentrations to some acceptable level, and equally clear to me is this:
risk of effects of mercury by bioaccumulation and toxicity to oganisms in the Everglades.
problem of reaching that balance. I think that's much more in the Judge's area than it is in mine.
BY MR. SEARCHINGER: Q Let me ask you, before humans increased phosphorus concentrations,did they have a problem, a mercury problem in Everglades National Park? A How far back in time would you take that? Q Well, let's say for, you know, 5 thousand years. For 5 years before, not counting the last let's say 100. Let's assume we haven't had any phosphorus problem then. A Obviously, there is no data to go back that far. Conceiveably there was no mercury problem at that point. Q Well, you testified that same of the mercury that enters the Park comes from natural sources, is that right? A Most of it does. Most of it comes from natural sources.
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And presumably, therefore, it was entering Everglades National Park for 5 thousand years, is that correct? A No, that's not right. Q Then explain that to me? A Well, I believe I explained that the concentration of mercury in precipitation, or the amount that comes into the or the bulk of what comes into the Park is basically doubled in the last several decades. Q I am not talking about just human sources from other sources. I am talking about even if you eliminated the human sources of mercury in the atmosphere, there was still natural mercury in the Park and in the rain, is that right? A Sure. Mercury is a naturally occurring substance. Q And presumably the Everglades ecosystem learned how to live with that for 5 thousand years? A Every ecosystem lives with it, to some extent. Q So the problem is, as you see it, is caused by new airborne sources of mercury, is that right? A I think that's probably largely the case. Q And so if we were to raise phosphorus concentrations in Everglades National Park, isn't what you are suggesting that we should study the possibility of raising phosphorus concentrations above their natural level in Everglades National Park as a way of dealing with this airborne mercury problem?
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A Well, I have certainly not stated it that way. Q But isn't that the implication of what you are seeing? A I don't think so. I think that's not even within the realm of what most people have been considering. I think we are talking about how far to reduce phosphorus, not to how much to increase it. Q Well, I don't understand. I mean, you are saying that it would be to -- the way you would differ with me is that you are suggesting that we should tolerate higher phosphorus levels in Everglades National Park as a way of coping or of solving this airborne pollution problem. Airborne mercury pollution problem? A I am not really getting at the issue of tolerance or any of that, I am simply pointing out that I believe that it is extremely imprudent to see how low you can get phosphorus concentrations without taking into account the potential ecological risk of doing that due to mercury bioaccumulotions. Q Let's focus on the Everglades National Park. Now, you testified that at low phosphorus concentrations there is no relationship between differences in phosphorus and mercury, is that right? A No, I didn't say that. Q I thought you testified that you studied or you did a study comparing phosphorus at low levels and mercury and you
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discovered no trend, isn't that right? A Well, if you plot the data as we showed it on a previous exhibit, that with all of our data where we saw the vast spread of numbers at low phosphorus concentrations and then we saw the low mercury and fish tissue concentrations at higher phosphorus, if you take that, if you do that same kind of plot and you plot only the data for phosphorus concentrations under ten, it Is not going to look the same.
tissue values that range all over the place; basically just cover up half that lot and that is what you get. Q So, unless we are are interested in possibly tolerating phosphorus levels in Everglades National Park significantly above their natural level, their background level, then we don't really care about the relationship between phosphorus and mercury, isn't that right? A I am not sure I follow that. Q Well, if we are committed, and you testified, I believe, that the critical relationship was at 40, right? That was where you really got a big impact at 40 versus lower, isn't that right? A That's the biggest changes in the data, yes, as we ploted them out. Q Okay. And that there is no correlation at the low numbers below ten, anyway?
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A There is nothing limiting the concentration of mercury in fish tissue below ten. Q And the reason is because you don't get an increase in biomass at ten, isn't that right? A I think that's probably part of it. Some of it may have to do with the differences in the food web at the various locations where those data points are being collected. Q Okay. A There is a number of things that it could be. Q Well, I mean, obviously you would agree that study dollars are limited, and we have a limited amount of money to spend studying things. A Well, but I would also point out that probably one of the biggest mercury investigations in the country is going on in the Everglades presently. Q Well, I understand that. What I am wondering, particularly in terms of the phosphorus mercury relationship, I mean, there are a lot of things to study in the mercury problem, but in terms of the phosphorus mercury relationship, if we are not interested in raising or allowing the concentration of phosphorus in Everglades National Park to be increased to a level that will change its basic level of productivity, if we are not interested in it, if we make a policy decision, I am sorry, we are not going to consider that as a possible solution to the mercury
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problem, then there is no reason to study the relationship, is there, between phosphorus and mercury?
may understand it. It looks like he might, but I am not sure that I do.
Honor, is I want to assume for a moment that as a policy matter we have decided, or someone who decided the people who control the research money have decided that they are simply not interested in possibly solving the mercury problem in Everglades National Park by allowing the phosphorous level to increase significantly above ten. BY MR. SEARCHINGER Q Now, given that assumption, why would we want to spend a lot of money studying the relationship between phosphorus and mercury?
question, haven't you?
the question is if we are not interested in a solution, a bio-solution to mercury -- do you understand what I am
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saying? BY MR. SEARCHINGER Q If we are not interested in deluding out the mercury as the way of solving the mercury problem, then why should we be so concerned in your study? A Well, you are focusing this discussion on the Park, all right, and I think if we go back, I certainly agree with Mr. Gherini from what he said a couple of days ago, that virtually any alternative that you look at with respect to STA construction and operation, it is actually going to make very little difference as to what phosphorus concentrations are going to be in Everglades National Park.
much as the way you have been proposing it, as it is more of how much change is there going to occur in places like WCA-2A which currently are important areas for wading birds.
of the data that I have seen -- well, all the of the reports that I have seen on wading birds distribution and feeding behavior show that those areas in the northern part of WCA-2A are important feeding sites. That's the area I think that the kinds of questions you are posing might be more appropriate. Q Well, let me ask you on that point right there. Have you seen any studies that indicate the relationship between
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thick cattail areas and whether wading birds can use them? A I am aware that thick anything impedes the ability; whether it is sawgrass or cattails. Q Okay. A The feeding ability of wading birds. Q So if nutrient enrichment leads to cattail areas, then wading birds arn't going to be able to use it, is that right? A Well, it doesn't quite work that way. Q Are you an expert on the issue of nutrients?
Go ahead.
and from what I've observed, even where you have thick cattails, you are going to have a certain amount of open water.
important feeding area for wading birds because of its higher level of productivity. That's where the food is. BY MR. SEARCHINGER Q Let me ask you now, your study focused entirely on the relationship between water column phosphorus and mercury, isn't that right?
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A That and the implications to risk to wading birds, yes. Q You didn't look at the relationship between sediment phosphorus concentrations and mercury, did you? A Yes. That's also in the report. Q Oh, it is. Okay. What did you find in terms of either increased sediment phosphorus concentrations and mercury? A Well, as I would expect, I found lower mercury concentrations. Q And are some areas with increased sediment concentration have relatively low water columns of phosphorus? A Please say that again. Q Well, isn't it the case that there are some areas that have high sediment concentrations of phosphorus but don't have high water columns of phosphorus? A I don't know that. Q Well, Dr. Jones has testified -- I think you heard him -- that even with water coming in let's say to Everglades National Park below 20 parts per billion, you eventually reach sediment saturated with phosphorus, isn't that right? A I heard him say that, yes. Q Okay. And do you have any reason to dispute that? A That's not the area in which I am prepared to testify. Q And he testified that once the sediment are saturated with phosphorus, you get all of these increases in
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productivity, such as cattail, changes in the periphyton and that kind of thing. Do you remember him saying that? A I remember him saying that, yes. Q And as I understand it, when you have that increase in productivity, according to your theory, you will have a decrease in mercury levels, isn't that right? A You are building in a lot more than what we were looking at. The mechanism that we see -- I mean, the most important part of the mechanism that leads you to lower mercury bioaccumulation, I believe, is the link where mercury gets absorbed by phytoplankton or periphyton. You get about a thousand-fold concentration between the concentration in the water and the concentration in those primary consumers.
on. We have not really, in fact, attempted to factor in the relationship on phosphorus and mercury bioaccumulation. I've not not attempted to factor into that whether they have cattails there or not. Q Well, if we assume that there is a relationship between that periphyton community and soil sediment phosphorus, sediment phosphorus loads -- A Concentrations? Q No. Loads in terms of saturation levels. A Concentrations. Q Well, in terms of concentrations, yes. You are right.
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I am sorry. Yes. Then couldn't we expect to have these changes that you are talking about even at low phosphorus levels in the water column? A You will be have to be more specific. I am sorry. Q Well, I am saying if we can have high sediment phosphorus concentrations even at a low water column phosphorus concentration -- A I didn't say that. Q No. But Dr. Jones testified to that, so I am asking you. If we can have that sediment concentration that can cause these other changes in the periphyton, isn't it probable that the sediment concentration, in and of itself, can decrease the mercury or lead to a decrease in mercury? A Well, in spite of that being out of my area of testimony, I am not aware of any data on sediment absorption knetics of phosphorus to base any opinion on it. Q I think I have just one last area. You testified that wetlands can be net generators of methyl mercury, didn't you, just a moment ago? A That is correct. Q And is that because wetlands, is their ability to generate methyl mercury connected to the fact that they tend to have very low oxygen conditions? A I believe that's probably true. Q So in terms of generating methyl mercury, isn't it
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possible that having, if phosphorus causes low oxygen conditions in the Everglades, that it could increase the production of methyl mercury? A It could. Q All right. A Our studies have shown, however, that especially from Ononadaga Lake where that condition exists, usually the attendant increased biomass is more than sufficient to absorb it. Q Okay. So we are both kind of creating a problem and solving the problem at the same time, essentially, if we have low oxygen conditions? A I don't know. I don't know. Q Okay. You have testified that you believe that the mercury is primarily coming from the air. Are you familiar with the draft of the environmental impact statement prepared by the Army Corp of Engineers on the Everglades program? A Yes, and the mercury sections of that. Q And would you agree that in that document, at least, the Army Corp concludes that we don't really know where the mercury is coming from for the Everglades. I am not asking you your own opinion. I am asking you to characterize that. A In my reading of that, they were quite clear they had, in fact, a number that how much come from Lake Okeechobee
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and the EAA, and it also contains a discussion of the atmospheric source. Q Well, let me ask you about the EAA. Doesn't that document indicate that the EAA, made -- the EAA made it a significant source of mercury for the Everglades? A In terms of the overall mass balance, it turns out to be a very small number. They had a number 2 thousand pounds, or something. I don't remember. Q I thought they said that they didn't really know, didn't they, in the report? A Well, all you have to do is to estimate what the mass would be in the rain fall versus how much comes from the EAA. Q All right. A It turns out to be a small percentage.
speak for itself. Thank you.
examiners? MR. LEHTENIN: Yes, Your Honor. I can do this briefly. CROSS-EXAMINATION BY MR. LEHTINEN: Q I was out, but I am told that you alluded to phosphorus levels in rainfall?
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A Correct. Q I just want to assure that the nature of your testimony was you had heard someone else say something about phosphorus levels in rainfall. What did you say about it? A That is correct. I have not evaluated that directly. Q You have not evaluated it. So you are not testifying personally as to phosphorus levels? A No, I am not. Q Also the Miccosukee Tribe are the only people who actually live there among these fish, and everybody else does not have this mercury problem. So, let me just make this clear. You see a correlation between the mercury and phosphorus, is that correct? A That's correct, Q So if I have got a natural level of phosphorus through whatever biological causation, I get the natural level of mercury associated with that natural level of phosphorus, is that correct? A It sounds correct, yes. Q So all else being equal, airborne mercury problems set aside, all else being equal, if I have an unnatural high level of phosphorus, I will get associated with that, through the biological causation, an unnatural really low level of mercury, will I not? A If you want to call it unnatural or natural, I am not
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sure. My point is that as you decrease phosphorus concentrations, or --I am sorry. You said increase, No. You said decrease? Q I said increase. A As you increase phosphorus concentrations, you tend to get lower levels of mercury bioaccumulation. Q Right. I want to make sure. The correlation goes in both directions. Higher phosphorus, lower mercury? A Correct. Q Is that right? Lower phosphorus, higher mercury. A That's right. That's why we refer to it as inverse relationship. Q If I didn't have an airborne mercury problem or something else, if my goal was to have a natural balance, then it seems to me your testimony is consistent with this: That if I have an unnaturally high level of mercury, unnaturally -- strike that -- an unnaturally high level of phosphorus, I will have an unnaturally low level of mercury? A Conceptually that's possible. As you may have noticed in the graphic, there is a lot scattering, especially at low level. If you were well below 40 to 50 parts per billion, that may or may not be apparent. Q So if my goal was the natural ecosystem and I put put in more phosphorus, I don't get just one problem, more phosphorus. I get two problems. I have got a phosphorus
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problem and a mercury problem? A Well, yes. Q Too low mercury? A Although, I guess in my experience, I have never heard about reducing mercury bioaccumulation a problem. Q Well, let me ask you this: Have you ever heard the Miccosukee Tribe of Indians say what they want is the natural Everglades? They don't want unnaturally low levels of chemicals anymore than unnaturally high levels of chemicals? A I haven't heard that directly.
Your Honor.
is that we have an unnatural level of mercury, isn't it.
stop clouds, I guess.
global consequence. Really, where it has also been felt is in the northern tier states and in Sweden, and it is very widespread. Not just Florida.
a handful of questions.
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REDIRECT EXAMINATION BY MR. SAMS: Q Mr. Bigham, just to tie up some loose ends, I believe Mr. Nettleton asked you about whether the STA's would be net generators or non-generators of methyl mercury.
balanced and generate or don't generate methyl mercury in any way affect your analysis of the effects downstream that you gave the Court in your testimony today? A No, no, not in general. Our analysis has been pretty much restricted to just the data as they exist right now. Q You weren't focusing on any particular assumption, were you, as a basis for your testimony as to whether or not the STA's would generate more methyl mercury or less methyl mercury? A No. Q Your analysis was not dependent on such a number or concept, was it? A No, it was not, Q At one point in your testimony I believe I heard you say that mean fish mercury concentrations are higher in cattails than in sawgrass. At a later point I thought I heard you say the reverse. Which of those did you mean to say, sir? A I may have gotten it backwards. The way it worked was that the mean concentration of mercury in fish tissue is
117 Cross-Lehtinen-Bigham
lower in cattail habitats than it is in sawgrass. When we divided and stratified the data set between those two habitats. Q Are you familiar with the method by which the EPA data that you have been relying on has been obtained? A Yes. I have reviewed the work plans, and some call it insurance plans that were involved with that program. I assume they followed them, yes, Q Did EPA provide those data voluntarily? A No, they have not. They have been provided by your firm. Q And are you aware of how our firm acquired those data? A Via the Freedom of Information Act. Q Are you aware of formal requests that we have had to make each and every time to obtain those data? A Some of them, yes. Q You stated at one point, but received no follow-up, that you had concerns about what EPA and the District are or are not doing with the phosphorus mercury data that you have been attempting to review.
A Well, it has been my impression so far that the agencies have been reluctant to examine the inverse relationship carefully, and also with the recent Corp of Engineers draft, I felt that that evaluation was completely inadequate.
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Q Could you explain in what sense you felt it was completely inadequate? A That it was not complete in its consideration of available data or of available hypothesis. It did not or was not very well constructed on its face. In short, that it was well, almost a whitewash of the issue. Q Are you aware of who drafted that section of the Draft DIS that's been referred to? A I don't know who personally drafted it, no. Q Do you know what agency drafted it, by any chance? A I understood it was drafted by the EPA.
am sorry. We can resume the normal order of witnesses, if it please the Court at this point in time. We thank you very much for allowing us the opportunity to put these two out of town witnesses on the stand today.
normal of order of witnesses, we will start on the 28th of November because we are going to wrap it up now.
is a pending motion in limine that Mr. Nettleton made the first day of this proceeding concerning U.S. Sugar's desire to utilize Anthony Federico as its witness.
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cannot finish him or start him today.
later date, but I would like to have some certainty as to whether there is any point in doing so. I feel confident that you will not grant that motion, but I would like to have it resolved prior to that time, so that if I absolutely have to get a substitute witness, I will have the opportunity to do so.
given you the basis for his statement.
My disposition is to let him testify and deal with any problems that may occur as a result of his testimony when those problems arise insofar as they affect his prior relationship.
one issue. I accept your ruling on that, but the papers that United States Sugar has filed say that United States
Cross-Lehtinen-Bigham
Sugar intends to have Tony Federico exclusively testify about the differences between the MSA, the modified settlement agreement and the Everglades Forever Act, including providing a side by side comparison of the two documents.
the Everglades Forever Act?
simply it is not legally relevant. That's something for the Court to do, to present purely legal issues. We would object on that ground, as well.
comparison. I am not going to ask Mr.Federico to engage in a statutory exercise.
agreement to the original agreement?
modified settlement agreement provisions to the requirements of the Everglades Forever Act and to point out the technical differences between the two.
into that. If there are any objections that relate to his prior relationships, I will take those up.
point in accepting evidence that we might as well continue
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to be, and hopefully I will be able to filter it to whatever extent is necessary.
Miccosukee Indians handed Your Honor a copy of a somewhat changed position on then --
settlement agreement, what they would accept and not accept and what kind of order they would like.
conservation intervenors, we need to consult with our clients, but we also expect to be able to file in the interim period a similar document, probably very similar to what Mr. Lehtenin has filed which I think can be useful in limiting the scope of the disagreement. I just want to alert you to that.
Tuesday. We have got some requests, at least one request
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that suggested Monday was a bad day. It is the first day after the Thanksgiving holidays, so we will do it Tuesday instead. That will be Tuesday at 9:15.
day. If not, certainly immediately thereafter. I thank you all. We will be in recess until then. (Whereupon the following proceedings in open court were concluded.)
C E R T I F I C A T E
UNITED STATES OF AMERICA, SOUTHERN DISTRICT OF FLORIDA:
United States District Court, Southern District of Florida, do hereby certify that the foregoing pages constitute a true transcript of proceedings had before the said Court, held in the City of Miami, Florida, in the matter therein stated.
this 15th day of November, 1995.
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