1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 SUGAR CANE GROWERS COOPERATIVE ) 3 OF FLORIDA, ROTH FARMS, INC., ) and WEDGEWORTH FARMS, INC., ) 4 -and- ) FLORIDA SUGAR CANE LEAGUE, INC., ) 5 and UNITED STATES SUGAR ) CORPORATION, ) 6 -and- ) FLORIDA FRUIT AND VEGETABLE ) 7 ASSOCIATION, LEWIS POPE FARMS, ) W. E. SCHLECHTER & SONS, ) 8 INC., and HUNDLEY FARMS, INC., ) Petitioners, ) 9 vs. ) DOAH CASE NO.: SOUTH FLORIDA WATER ) 92-3038 10 MANAGEMENT DISTRICT, ) 92-3039 Respondent, ) 92-3040 11 and ) (Consolidated) MICCOSUKEE TRIBE OF INDIANS, ) 12 THE UNITED STATES OF AMERICA, ) FLORIDA DEPARTMENT OF ) 13 ENVIRONMENTAL REGULATION, ) and FLORIDA WILDLIFE ASSOCIATION,) 14 Intervenors. ) ) 15 DEPOSITION OF: JOHN A. DAVIS, Ph.D. 16 TAKEN AT 17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 18 DATE: MARCH 15, 1994 19 TIME: COMMENCED: 9:18 A.M. 20 CONCLUDED: 5:05 P.M. 21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG. 2600 BLAIR STONE ROAD 22 TALLAHASSEE, FLORIDA 23 REPORTED BY: LAURIE L. GILBERT REGISTERED PROFESSIONAL REPORTER 24 NOTARY PUBLIC 25 VOLUME II PAGES 126-258 127 1 APPEARANCES: 2 Representing Petitioners, Florida Sugar Cane League, Inc., and United States 3 Sugar Corporation: 4 WILLIAM L. HYDE, ESQUIRE Earl, Blank, Kavanaugh & Stotts, P.A. 5 Suite 350 215 South Monroe Street 6 Tallahassee, Florida 32301 (904) 681-1900 7 Representing Intervenor Miccosukee Tribe 8 of Indians: 9 TRUMAN E. DUNCAN Water Resources Director 10 Miccosukee Tribe of Indians Post Office Box 440021 11 Tamiami Station Miami, Florida 33144 12 (305) 223-8380 13 Representing Intervenor The United States of America: 14 THOMAS A. WATTS FitzGERALD, ESQUIRE 15 Assistant United States Attorney Southern District of Florida 16 99 Northeast Fourth Street Miami, Florida 33132 17 (305) 536-5927 18 Representing Intervenor Florida Department of Environmental Protection: 19 LEE M. KILLINGER, ESQUIRE 20 Assistant General Counsel Department of Environmental Protection 21 640 Twin Towers Office Building 2600 Blair Stone Road 22 Tallahassee, Florida 32399-2400 (904) 488-9730 23 24 25 128 1 ALSO PRESENT: 2 Frank Nearhoos Douglas Gilbert 3 Russell Frydenborg 4 * * * * * 5 INDEX 6 (VOLUME II) 7 ITEM PAGE 8 DEPOSITION CONTINUED . . . . . . . . . . . . 129 9 CERTIFICATE OF REPORTER. . . . . . . . . . . 258 10 * * * * * INTERVENOR DEPARTMENT OF 11 ENVIRONMENTAL PROTECTION'S EXHIBITS 12 NUMBER DESCRIPTION PAGE 13 3 Disclosure of Expert and Fact Witnesses of Petitioners Florida 14 Sugar Cane League, Inc., and United States Sugar Corporation . . 170 15 4 Pretrial Disclosure of Issues 16 and Witnesses . . . . . . . . . . . 177 17 18 19 * * * * * 20 21 22 23 24 25 129 1 2 (WHEREUPON, DR. NYQUIST AND MR. STORY WERE 3 NOT PRESENT IN THE ROOM.) 4 DIRECT EXAMINATION (Continued) 5 6 7 BY MR. KILLINGER: 8 MR. KILLINGER: Okay. I guess we're back. 9 Q Wind up this CV questioning a little bit. 10 Dr. Davis, it -- your CV indicates that 11 you're experienced in the use of a variety of 12 computer packages for statistical analyses, data 13 management, and hydrological modeling. 14 Is that an accurate statement? 15 A More or less. 16 Q Okay. Well, let's go to the more part 17 first. 18 What statistical -- what computer packages 19 are you experienced with? 20 A You know, word processing, various 21 spreadsheets, little bit of Sys Stat, I don't 22 really use SAS any more. I used to use it a good 23 bit. 24 Q What is Sys Stat? 25 A It's a statistical package -- package 130 1 that's meant to run on a -- on a PC. 2 Q What is SAS? 3 A Pardon? 4 Q What is SAS? 5 A I don't know what it stands for. But it's 6 a program that's written by some people up in 7 North Carolina I think it is. And been distributed 8 for years, used to run on mainframe, now they 9 license it for PCs. I'm sure you have it in your 10 department. 11 Q What other computer packages for 12 statistical analysis are you -- 13 A For statistical. 14 Q -- experienced with? 15 A Reflex -- 16 Q Do you have one -- 17 A That's all that comes to mind right now. 18 Q I'm sorry. 19 Do you have one that your firm uses? 20 A We use a variety. We mainly use SAS. 21 Q Does your firm do a lot of statistical 22 analysis? 23 A Not so much statistical analysis, probably 24 as just data management. 25 Q Okay. What would you consider the 131 1 differences to be? 2 A You know, data management is more taking, 3 let's say, large volumes of data, and reformatting 4 it in ways that are conducive to quick, you know, 5 analysis and -- and understanding. Generating your 6 descriptive statistic, like, you know, number of 7 observations and min and max and mean and median, 8 and trimmed means -- 9 Q Is that more? 10 A -- geometric means, stuff like that. 11 Q Is that more spreadsheet type of -- 12 A Well, they're not necessarily -- 13 Q -- or -- 14 A -- spreadsheets will do these sort of 15 things. But, you know, SAS, for instance, does all 16 these same things, plus a lot more things. 17 Q Uh-hum. 18 A Then we, you know, graph the data and that 19 sort of thing. 20 Q Okay. So it helps you assist in doing 21 plots of data? 22 A (Nodding head.) 23 Q What computer packages do you use for data 24 management? 25 A It's the same ones. And D-Base is also 132 1 used. ARC Info is used. Fortran. 2 Q Any others, generally. 3 A Oh, we have FoxPro; Microsoft; Access; 4 Lotus 1-2-3. 5 Q What computer packages do you have 6 experience with for hydrological modeling? 7 A HSPF. 8 Q Is that an acronym? 9 A Right. 10 Q What does it -- 11 A Stands for -- 12 Q -- stand for? 13 A Hydrocomp Simulation Program Fortran. 14 It's a -- was a proprietary water quality and water 15 quantity model that was subsequently adopted 16 I guess by EPA, and they put out a -- I guess more 17 public domain type, you know, program that people 18 could, you know, buy and use at a reasonable cost. 19 Q Any other hydrological modeling computer 20 packages? 21 A There's a couple software programs that, 22 you know, apply the, you know, SCS, you know, type 23 little models and that sort of thing. 24 Q Can you name the -- 25 A I don't recall what the -- 133 1 Q -- programs? 2 A -- vendor is now. But it's the thing that 3 generates, like, TR20 and that sort of thing. 4 They're, you know, computations you can do with a 5 hand calculator and piece of paper. But people 6 have developed programs to make it easier and 7 quicker. 8 Q Do you have any -- does your firm do a lot 9 of hydrological modeling? 10 A It depends on, you know, what the need is 11 for a particular project. We also, you know, did 12 the -- the modeling, you know, for the mixings on 13 stuff. 14 Q Have you done any hydrological modeling 15 for this case? 16 A No. 17 Q Have you looked at anybody else's 18 hydrological modeling for this case? 19 A Yes. 20 Q Whose have you looked at? 21 A The District's. For instance, 22 McDonnell's, Carl Walters -- 23 MR. FitzGERALD: I'm sorry. Who was the 24 name? I couldn't -- 25 THE WITNESS: Carol -- I mean, 134 1 Carl Walters. 2 A The stuff that John Richardson did as part 3 of Work Order 32. May have been some others, I 4 don't recall right now. 5 Q Do you intend to offer any testimony about 6 hydrological modeling -- 7 A I don't recall -- 8 Q -- or hydrological -- 9 A -- being asked to at this point in time. 10 Q Okay. Have you done any statistical 11 analyses in connection with this case? 12 A Not anything beyond the kind of things I 13 described a while ago as far as the, you know, 14 general descriptive statistics. 15 Q Have you reviewed statistical work done by 16 other -- other people in connection with this case? 17 A Yes. 18 Q Whose work have you reviewed? 19 A Bill Walters, I guess various people at 20 the District, the little bit that Frank did. Stuff 21 done by Dr. Lettenmaier, Dr. Millard, Dr. Loftus, 22 Dr. Reckhow. 23 Q Do you -- 24 A -- Dr. Marin. 25 Q Any others? 135 1 A Dr. Robson. 2 Q Do you intend to offer any testimony about 3 statistical analysis based on your review of -- any 4 work you've done or review of other people's work? 5 A I haven't been asked to at this point in 6 time. 7 Q Did you reach any conclusions about the 8 statistical reports that you looked at or reviewed 9 that other people had done? 10 A Not really. 11 Q Okay. What about the hydrologic modeling 12 work that you've reviewed? 13 A I guess some, you know, general thoughts 14 or conclusions. 15 Q Did you reduce any of those to writing? 16 A Not that I recall. 17 Q Did you give any reports to anyone orally 18 about your conclusions about hydrologic modeling? 19 A Probably. 20 Q Probably? 21 A Yes. 22 Q Okay. Who would you probably have given 23 them to? 24 A The attorneys. 25 Q Okay. Were you instructed not to write 136 1 anything down? 2 A Not that I recall specifically, no. 3 Q What's krigging? 4 A A way of taking data -- spatial data, 5 distribute it over an area, and assigning an area 6 of influence to each one of the -- the data points, 7 and then creating isopleths, or if you like, 8 contour maps, depicting the distribution of a 9 particular parameter over a geographical area. 10 Q When you say assigning an area of 11 influence to each data point, what does that mean? 12 A You, let's say, go out into an area that's 13 100 acres -- 14 Q Uh-hum. 15 A -- and you take ten points over that area. 16 Then you want to try to extrapolate the 17 data from those, you know, ten points, over the 18 whole, you know, 100 acres. Then you have to 19 decide whether all those points should, you know, 20 simply influence an area, let's say, 10 meters or 21 100 meters, you know, in all degrees or angles from 22 that point; or for some reason, it has more 23 influence in a particular direction. 24 Q So is it -- would it be a simple way to 25 put it, or perhaps a simplification, to say it's a 137 1 type of an averaging process? 2 A Well, it's not -- not simply an averaging 3 process, because you're weighting each one of the 4 points differently. That's what I mean by 5 assigning an area of influence to some points. 6 Because if the influence is not the same 7 in all directions, and the same distance in all 8 directions, then you're, you know, weighting the 9 area that particular influences. So maybe in a 10 weighted kind of average. 11 Q Okay. Does your firm do any of that? 12 A Some. But it's not an area that we 13 profess to be experts in. 14 Q Are you familiar with any computer 15 packages for analysis that -- that -- that do that? 16 A Yes. 17 Q Which ones? 18 A Surfer; there's a package, GS+; GEO EAS. 19 I believe -- we don't use it -- but I think Erdas 20 does it. 21 Q GEO PAK? 22 A GEO PAK does it. 23 And there are, you know, a lot of others 24 that do the same kind of thing. 25 Q Have you participated in any -- any 138 1 meetings where statistical analysis of data was a 2 topic with regard to the Everglades? 3 A Yes. 4 Q Can you give me sort of a general 5 description of what those meetings were about, were 6 those SAGE meetings that -- where that was 7 discussed? 8 MR. HYDE: I'm going to -- 9 A I'm sorry -- 10 MR. HYDE: -- object to the form of the 11 question. There's two questions -- 12 MR. KILLINGER: Okay. I -- I'm trying to 13 clarify a little bit. 14 Q Was -- was that the topic of discussion at 15 some of the SAGE meetings, for instance? 16 A Yes. 17 Q Okay. Was that a topic at any other 18 meetings where you were a participant? 19 A Certainly. 20 Q How many meetings you think you've 21 attended where statistical analysis of Everglades 22 data has been discussed? 23 A I honestly have no idea. 24 Q Hundreds? 25 A I don't know if it would be hundreds. But 139 1 it would be numerous. 2 Q Okay. How about hydrological modeling? 3 A Several of those. 4 Q Okay. Have you met with other scientists 5 about statistical analysis of Everglades data? 6 A Yes. 7 Q Have you met specifically to discuss 8 statistics? 9 A Yes. 10 Q Who have you met with? 11 A Dr., you know, Reckhow, Lettenmaier, 12 Millard, Marin, Richardson, Patrick -- 13 MR. FitzGERALD: I'm sorry. Could the 14 witness specify when you use Richardson, which 15 you're referring to -- 16 THE WITNESS: Curtis. 17 MR. FitzGERALD: We have two. 18 Q Can you give me an idea of when you -- 19 when your first meeting about statistical analysis 20 of Everglades data might have occurred with any of 21 these scientists? 22 A When? 23 Q Yes. 24 A Probably '88, '89. 25 Q Have you met with any other scientists to 140 1 discuss hydrologic modeling in the Everglades? 2 A Yes. 3 Q Who have you met with? 4 A Gherini, Curt Polman. Then, you know, 5 those -- at various meetings, like the SAGE 6 meeting, or things at the District where it was 7 discussed. 8 Q Are you familiar with Dr. Gherini's model? 9 A Not in any depth. 10 Q Okay. What contracts have you presently 11 got with anybody about the Everglades for research 12 or analysis review or any topic? 13 MR. HYDE: Lee, just for purposes of 14 clarifying your question, what do you mean by 15 saying the "Everglades?" Because that's -- can 16 mean a lot of different things. 17 For example, do you intend it to mean the 18 Everglades Protection Area, do you intend it to 19 mean the historic Everglades, the entire 20 Everglades which might even include the, 21 you know, Kissimmee River Basin? So -- 22 MR. KILLINGER: Well -- 23 MR. HYDE: -- I think it's kind of an 24 ambiguous question in that regard. 25 Q I suppose I will limit my question to 141 1 points south of Lake Okeechobee, and east of 2 Big Cypress. 3 MR. HYDE: Okay. 4 Q If that assists. I don't need to inquire 5 right now about the Kissimmee. I may come back to 6 it, but it's not really where I'm going. 7 MR. HYDE: West of the urban areas? 8 Southeast coast, too? 9 MR. KILLINGER: No. We're talking about 10 urbans. See what -- 11 Q So what -- what contracts or proposals 12 have you got presently pending that concern that 13 geographic area? 14 A We have the work with the law firm. 15 Q Which law firm? 16 A Earl, Blank, Kavanaugh & Stotts. 17 Q And what's that related to? 18 A The SWIM litigation. 19 Q Okay. Anything else? 20 A We're doing a little work for I guess 21 Landers & Parsons. 22 Q And what's that related to? 23 A Basically just advice, you know, relative 24 to potential language litig-- and the legislation, 25 that sort of thing. 142 1 We have some work with U.S. Sugar. 2 Q What's that related to? 3 A One is related to the monitoring that 4 we're doing as part of the condition for the Corps 5 permit that we assisted them in obtaining. 6 Q What permit? 7 A It was a Corps permit for some wetland 8 issues related to their southern division ranch. 9 Q Anything else for U.S. Sugar? 10 A We are, you know, looking at some of 11 their, you know, BMP data. 12 Q Anything else? 13 A There might be some, you know, kind of 14 miscellaneous, you know, things that come up, 15 you know, from time to time. Nothing really comes 16 to mind to be honest. 17 Q Okay. Anything else for -- 18 A We have a little bit of work we're doing 19 for Flo-Sun. It's more of a miscellaneous, 20 you know, nature. 21 And we're looking at some of their, 22 you know, data for, you know, BMPs, that sort of 23 thing. 24 Q Anybody else? 25 A You're talking about existing work, 143 1 right? 2 Q Yes. At the moment. 3 A I think that's basically it. 4 Q And what about the 298 work? 5 A You said south of Lake Okeechobee. 6 Q Well, they're mostly south of 7 Lake Okeechobee. 8 A Hmm? 9 Q They're mostly south of Lake Okeechobee. 10 A Well, I was thinking about you weren't 11 talking about the work coming in to 12 Lake Okeechobee. But that would be included. The 13 stuff for Parker. 14 Q And that's with the law firm? 15 A Right. 16 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.) 17 A And we were doing some work -- well, no. 18 We're just talking about existing things. 19 Well, I don't know. Some of the Closter, 20 you know, BMPS, we were doing some stuff on that. 21 I don't know whether that's still ongoing or not, 22 we haven't done anything on that for a while. But 23 it's through the Earl firm. 24 Q Have you got anything with the EAA EPD? 25 A Yes. Have that -- 144 1 Q What's that? 2 A We were collecting some macroinvertebrate 3 samples in the Duke dosing study channels. 4 Q Is your contract with the EPD on that? 5 A Yes. 6 Q Anything for the -- for the Coop? 7 A No. 8 Q Directly or -- 9 A (Shaking head.) 10 Q To Hopping, Boyd? 11 A Not related to this. 12 Q Okay. Anything related to the Everglades? 13 A No. 14 Q Okay. How about to the FFVA? 15 A No. 16 Q Anything for their counsel? 17 A No. 18 Q All right. I guess we'll start off and go 19 backwards. 20 What about the -- tell me about the 21 EAA EPD contract. What is it -- have you produced 22 a copy of that? 23 A Copy of what? 24 Q Do you have a written contract with 25 EAA EPD? 145 1 A I think so. But I'm not sure. 2 Q Have you produced a copy of that? 3 A No. 4 Q Have you got a copy of it? 5 A With me? 6 Q Well, I mean, in your possession, not -- 7 not this second. 8 A I mean, there -- if -- if one exists, it's 9 at the office. 10 Q Okay. Do you know why you didn't produce 11 it? 12 A Because I didn't produce any contracts. 13 Q When did the contract come into existence? 14 A Approximately a year ago. 15 Q And what's its duration? 16 A It was about a year long contract. And we 17 have an extension on it, so that's the reason I say 18 it was probably about a year ago. Probably more 19 like 15 to 18 months I guess. 20 Q Under the term of the contract, what are 21 you supposed to be doing for the EPD? 22 A Basically we collected some 23 macroinvertebrate data from some of the Duke dosing 24 channels. 25 Q And what'd you do with it, the data? 146 1 A We analyzed it. 2 (WHEREUPON, MR. NEARHOOS ENTERED THE 3 ROOM.) 4 Q Have you provided that data to us? 5 A Yes. 6 Q Have you provided the analysis? 7 A I think we did. I mean, the analysis is 8 not complete. But we -- we produced what we had 9 done up to, you know, a week ago or whatever. 10 Q When will the analysis be complete? 11 A As soon as I get time to work on it. 12 Q Is the sampling completed? 13 A Yes. 14 Q How long will it take you to finish the 15 analysis? 16 A Probably a week. 17 Q Have you finished most of the analysis? 18 A Yes. 19 Q Can you tell me what your analysis of that 20 data is. 21 A I'm not sure I understand that question. 22 Q How did you analyze it, what did you 23 attempt to analyze it to show, or to reveal, or -- 24 A We basically put out, you know, 25 Hester-Dendy samplers, and also took some 147 1 qualitative samples in some other areas adjacent to 2 the site. And we identified, enumerated the 3 organisms in the samplers, put them into -- put 4 that data into the computer program that generated 5 the Shannon-Weaver Diversity Index, the number of 6 taxa, the number of organisms. 7 And then we plotted that data to see if 8 there were, you know, differences between the 9 various treatment channels and, you know, the 10 adjacent areas. 11 Q Were there any differences? 12 A Yes. 13 Q Can you tell me what those differences 14 were? 15 A Basically the channels that were receiving 16 some, you know, nutrients had a higher diversity, 17 and I think generally a, you know, greater number 18 of taxa and number of organisms I think. 19 I'd have to look at the actual data sheets 20 to be more precise. 21 Q But as far as you know, those data sheets 22 have been produced -- 23 A Yes. 24 Q -- and the analysis that you've done up to 25 last week has been produced. 148 1 A Yes. 2 Q What does that analysis look like? Is it 3 graphs, is it plots, is it -- 4 A They were -- as I recall, they were 5 spreadsheet, and also a couple of kind of bar 6 charts, pictogram. And I believe this was stuff 7 that was produced directly to you, it was sent to 8 Bill Hyde, and I believe he turned it over to you. 9 MR. HYDE: Yeah. I turned it over. 10 THE WITNESS: I thought you did. 11 MR. FitzGERALD: Counsel, would that have 12 been in the box of materials that was produced 13 in Tallahassee? 14 MR. HYDE: Yes. 15 MR. FitzGERALD: Is that what you're 16 saying? 17 Q Just to pursue a little bit generally. 18 You recall that your analysis was that there were 19 some differences in the -- the treated, untreated 20 areas. And that the channels that were getting 21 nutrients were -- had higher diversity, generally 22 greater number of taxon organisms. 23 Can you tell me why? 24 A Not, you know, really. I mean, I -- you 25 can look at the data and see, you know, what the, 149 1 you know, treatment was. We haven't really tried 2 to do any, you know, causative, you know, 3 analysis. We haven't done any statistical 4 treatment to see if what looks like a difference is 5 even statistically a true difference. It may not 6 be. Because, you know, it's not, you know, that 7 great a difference. 8 Q If there is a difference, would you 9 attribute that to the treatment that was in the 10 treatment area, or to some other factor? 11 MR. HYDE: By treatment, do you mean the 12 phosphorus concentrations in the dose 13 channels? 14 MR. KILLINGER: Well, I -- you used the 15 treatment, and I wasn't -- 16 MR. HYDE: Okay. 17 MR. KILLINGER: Okay. 18 Q What was the treatment in the treated 19 areas? 20 A I'd have to -- actually go back and look 21 at, you know, the description of the project 22 itself. 23 But, you know, basically the treatments 24 were to look at potential changes at different, 25 you know, phosphorus levels. 150 1 Q Okay. I may come back to this a little 2 bit later. 3 How much is that contract for in dollars? 4 A I honestly don't know. 5 Q Can you give me an estimate? 6 A I'm going to give you an estimate. But 7 that's what it is. 8 I think it's probably between fifteen and 9 thirty maybe. 10 Q Fifteen and thirty -- 11 A Thousand. 12 Q -- thousand dollars? 13 Okay. How do you normally -- well, how is 14 this contract set up for billing, is it a fixed 15 amount? 16 A Yes. 17 Well, I believe it's a kind of 18 not-to-exceed amount. 19 Q How do you invoice for it? 20 A Monthly. 21 Q On a monthly basis? 22 A Yes. 23 Q Do you charge on an hourly basis for 24 services, or is it an item -- 25 A It's an hourly charge for the -- for the 151 1 labor; and then if there are, you know, non-labor 2 expenses, that's billed at cost. 3 Q What do you charge per hour for labor? 4 A Depends. 5 Q Depends. Okay. 6 Elaborate a little bit. Depends on what? 7 The person doing the work? 8 A The person doing the work. 9 Q What's the range? 10 A For that particular, you know, contract, I 11 don't know. It's probably anywhere from 20 to, 12 say, 150. 13 Q Okay. Would someone like yourself be on 14 the 150 end? 15 A Yes. 16 Q And somebody doing -- slogging through the 17 mud would be on the 20 end perhaps? 18 A Perhaps. Maybe a little higher. 19 Q Okay. Would you consider that contract to 20 be a -- a scope of work? 21 A I mean, it has a scope of work to it, yes. 22 Q Okay. What are the deliverables under the 23 scope of work of the contract? 24 A I believe it's just a report. 25 Q When's that report due? 152 1 A I believe the original contract, it was 2 supposed to be done in -- I don't know. Like the 3 beginning of this year. And we had money left in 4 the budget, so we offered to do an additional 5 sampling, you know, at no additional cost, if they 6 would extend the time on the contract? 7 Q Uh-hum. 8 A They accepted, you know, that option. So 9 it was extended in a -- to allow for that. 10 I believe that extension, you know, called for the 11 report to be produced either at the end of February 12 or this month, one or the other. I mean, it's 13 slightly late. 14 Q It's imminent. 15 A Yes. 16 If I wasn't here, I would be working on 17 that. 18 Q Did you sign any kind of confidentiality 19 agreement about that contract or its terms with 20 anyone? 21 A I don't think so. 22 Q Can you produce a copy of that contract to 23 me together with a scope of work, or any other 24 attachments to it? 25 A I could. I guess. I mean, I need to 153 1 check with someone, but I think it's -- 2 Q Who do you need to check with? 3 A The EPD has, you know, some counsel, I 4 need to check with them. 5 Q Did you produce any of the invoices that 6 you've sent regarding that contract? 7 A No. 8 Q Why not? 9 A I didn't really think that was, you know, 10 relevant. I thought it was something between, 11 you know, us and the client. If the client wanted 12 to produce them, that's fine. If they want to tell 13 us to do it, that's fine. 14 Q Well, I think that they're within the 15 scope of my request. 16 MR. KILLINGER: Bill, I don't know if this 17 is something that you have any interface with. 18 If it's an EPD deal -- 19 MR. HYDE: I will inquire and see if they 20 have any objection to producing them. Assuming 21 that they don't, it will be produced. 22 MR. FitzGERALD: It seems to me that the 23 EPD is a public body of the State of Florida, 24 and this has come up a few times in the past. 25 And I know people have filed -- I know Sierra 154 1 at one point filed on them a public record 2 Sunshine issue, and got what they wanted, 3 because everybody sort of agreed on that. 4 MR. HYDE: Well, I don't think there will 5 necessarily be any problem here. 6 MR. FitzGERALD: I'm -- I'm not saying 7 that there is. It just seems to me that it's 8 just a matter of making the request. But I -- 9 I do concur with counsel for DEP, that once 10 that notice is served, if any basis is asserted 11 for not providing it, that is not -- the notice 12 is not on the issue of the Subpoena DT to do 13 that leg work. 14 MR. HYDE: Okay. I said I would inquire. 15 And I think that in all likelihood there won't 16 be any problem with producing it. 17 MR. FitzGERALD: We might even get it 18 faxed in time to look at it, take care of it 19 during this depo, so we don't have to carry it 20 over. 21 Q What normally is reflected on your 22 invoices to your client? 23 I mean, on this contract. I'll leave the 24 others alone for -- 25 A Well, they're all essentially the same, 155 1 just about. But we usually identify the category; 2 sometimes the person actually doing the work; 3 number of hours they charge, and times -- well, I 4 don't think it shows a rate. But it's a number of 5 hours, and then how much it would be for, you know, 6 that person -- 7 Q Uh-hum. 8 A -- may show the number of hours, I don't 9 know whether it does. And then whatever non-labor 10 expenses were incurred. 11 Q That EPD contract, did you make a proposal 12 to the EPD, or did the EPD come to you or your firm 13 to request you to do the work? 14 A We responded to an RFP as I recall. 15 MR. HYDE: Lee, I'd just like to note for 16 the record that when I -- I think I discussed 17 with you about the production of documents, you 18 indicated you were primarily interested in 19 things that he would be relying upon for 20 purposes of this final hearing. And final 21 testimony at a final hearing. 22 And obviously, one doesn't typically rely 23 on contracts, invoices for basis of opinions. 24 MR. KILLINGER: No, I understand. I -- 25 and I am primarily interested in -- in getting 156 1 to the ultimate opinions he has and the basis 2 for them. But I think that the work that he's 3 doing in the Everglades now and who he's doing 4 it for and -- and the reasoning and how much 5 it's all worth, and all of that sort of factors 6 into the ultimate opinions that -- that he's 7 got and is going to offer. And, you know, if 8 we don't -- 9 MR. HYDE: I understand. I'm not barring 10 you from making -- 11 MR. KILLINGER: Yeah. I'm just 12 thinking -- 13 MR. HYDE: And I -- 14 MR. KILLINGER: -- scope of work and 15 things under -- 16 MR. HYDE: -- and I -- 17 MR. KILLINGER: -- the contract, I think 18 it may be important for sort of analysis of the 19 breadth and scope of his Everglades knowledge. 20 So -- 21 MR. HYDE: Okay. 22 MR. KILLINGER: -- I'm not trying to go 23 down rabbit trails. 24 Q Okay. I guess I need to flip back a 25 couple of pages. 157 1 Like to ask you about the contract you've 2 got with -- well, I guess I'll ask you about what 3 you -- what kind of work -- what kind of contracts 4 you have with Earl, Blank. 5 Can you tell me how many contracts you 6 have with Earl, Blank? 7 A I don't know that there -- perhaps a 8 better way of putting it is, you know, we provide 9 separate invoices I guess for I think two or three 10 different aspects of work. 11 Q Have you got a written contract with the 12 firm? 13 A No. 14 Q No written contract. 15 Do you have a scope of work, anything in 16 writing that tells you what you're supposed to be 17 doing? 18 A No. 19 Q How do you know what you're supposed to be 20 doing? 21 A They tell me. 22 Q So you get a call from the lawyer saying 23 we need you to do this? 24 A Either that, or we have a meeting and 25 discuss it, or -- 158 1 Q Okay. Are the areas of your work 2 documented in writing by letter? 3 A I'm not sure I understand that question. 4 Q Do you ever document what you've been 5 asked to do, and who you're doing it for? 6 A We send a progress report, you know, with 7 the invoice. There are instances when we have 8 perhaps scoped out a particular, you know, type of 9 work or something, you know, like that, and sent, 10 you know, a little summary down of, you know, what 11 we thought, you know, we ought to do. And, 12 you know, what it might cost. 13 Q Do you normally invoice for the work that 14 you've done on a monthly basis? 15 A Yes. 16 Q Have you produced any of those invoices? 17 A No. 18 Q Have you produced any of the progress 19 reports? 20 A No. 21 Q What two or three -- 22 A Well, wait a minute. 23 Q Okay. 24 A Obviously the law firm has all of those. 25 Q Uh-hum. 159 1 A Okay. But, you know, I haven't sent you 2 any of those. 3 Q Well, there -- they were available for the 4 law firm to produce; is that a fair statement? 5 A Yes. 6 Q Okay. You said you have done work -- you 7 provide services for two or three different aspects 8 of the work you're doing. What two or three 9 different aspects would that be? 10 A We had a separate project set up for what 11 we call the entry and access that was the sampling 12 we did in the Loxahatchee and the 13 Everglades National Park. 14 We had a separate invoice for work that 15 was done relative to the mediation. 16 I believe there's a separate invoice for 17 our participation in the DOJ entry into the EAA. 18 There had been a separate invoice for the 19 Closter and EPS stuff. 20 Q Anything else you can think of? 21 A That's all I can recall right now. Over 22 the, you know, period of years, there obviously may 23 have been -- 24 Oh, there were obviously separate invoices 25 we did for the City's litigation back when that was 160 1 going on. 2 MR. HYDE: Lee, it was my understanding 3 that those documents, such as invoices, were to 4 be turned over to you in the files that we 5 produced in Miami. I have not reviewed all of 6 those files myself, there are many, many boxes 7 of them. 8 But with the exception of the mediation 9 invoices, which I think the Hearing Officer has 10 basically ruled off limits for reasons we all 11 understand, we will provide those documents if 12 they have not already been provided. 13 MR. KILLINGER: Okay. 14 MR. HYDE: I'm under the understanding 15 that they were provided. 16 MR. KILLINGER: Okay. I have not had the 17 opportunity to get through all the documents 18 yet myself, that's one reason I'm asking so 19 many questions to find out what should be in 20 there. 21 MR. HYDE: It's my understanding, they 22 should be in there; if they are not, they will 23 be provided. 24 MR. KILLINGER: Okay. 25 MR. FitzGERALD: I can't be conclusive on 161 1 that issue yet, because I may be -- I have 2 about a box or so to finish, which I will this 3 afternoon and this evening, but I have not come 4 across them as yet. 5 MR. HYDE: Well, I will telephone the 6 people that actually reviewed them this 7 evening, and ascertain what actually has been 8 produced. If they are not included, they will 9 be promptly available. 10 MR. FitzGERALD: None of your stuff when 11 we got it out of Miami was Bate stamped. So 12 they may have trouble figuring out where they 13 put it and tracking it down. 14 MR. HYDE: Okay. Well, what -- whatever 15 form it is, and wherever it is, I'm sure it's 16 available. And it can be made promptly 17 available. 18 Q To your knowledge, has the Earl, Blank law 19 firm hired you just because they have a lust for 20 knowledge about the Everglades, or have they hired 21 you because they represent a client who they're 22 going to use your information to assist? 23 A I would assume the latter. 24 Q Would you -- to your knowledge, does the 25 law firm include the amounts that you invoice them 162 1 to their ultimate clients? 2 A Yes. 3 MR. HYDE: I can assure you that we don't 4 pay them. 5 MR. FitzGERALD: We assumed it was 6 Mr. Earl anyway. 7 (WHEREUPON, A BRIEF OFF-THE-RECORD 8 DISCUSSION WAS HELD.) 9 Q What kind of arrangement, work 10 arrangement, have you got with Flo-Sun? 11 A What do you mean by "work arrangement?" 12 Q Have you got a written contract with 13 Flo-Sun to do work for them? 14 A No. 15 Q How do you know when they want you to do 16 work? 17 A They let me know. 18 (WHEREUPON, MR. GILBERT EXITED THE ROOM.) 19 Q Does someone call you on the telephone? 20 A Normally. 21 Q Who do you normally get a call from? 22 A Bill Tarr. 23 Q And do you on the telephone discuss what 24 you're to do, and how long it's to take, and -- and 25 how much it'll be billed? 163 1 A We generally, you know, discuss what's 2 going to be done, often they don't ask what it's 3 going to cost. If it's, you know, something that, 4 you know, they have an idea about how long it's 5 going to take and we've been doing work for them 6 for a big while, and I guess they feel like, 7 you know, what we charge them is reasonable for -- 8 for product we've always delivered. So -- 9 Q Do you -- do you follow-up any phone call 10 that has a request in it for you to do some work, 11 do you follow that up with a letter to document 12 that? 13 A No. 14 Q Do you set up a file at the office for the 15 specific request? 16 A Not necessarily. 17 Q Do you invoice for different requests 18 separately? 19 A No. 20 Q So does Flo-Sun then basically have an 21 account with you, and you just do whatever needs to 22 get done at the time, and you just send them an 23 invoice? 24 A Correct. 25 Q Okay. Have you produced any of those 164 1 invoices? 2 A No. 3 MR. HYDE: Might say, my representation as 4 to the earlier invoices holds true for any of 5 them, with the exception, of course, of the 6 mediation related materials. 7 MR. KILLINGER: Okay. 8 Q Let's talk about U.S. Sugar for a minute. 9 What kind of work arrangements do you have 10 with U.S. Sugar? Do you have any written contracts 11 with them for -- for work? 12 A I'm actually not sure. 13 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.) 14 A I don't think so. 15 Q How are work arrangements made with 16 U.S. Sugar, do you get a phone call about that, 17 too? 18 A On one of the projects where we talked 19 about the monitoring -- 20 Q Uh-hum. 21 A -- for the Corps, there was a, you know, 22 work scope laid out for that that had, you know, 23 identifiable tasks and -- and dollars associated 24 with it. And there was a -- an agreed upon, 25 you know, amount related to that. 165 1 The other stuff is more on the same order 2 we talked about on the other stuff. 3 Q Okay. Have you produced a copy of that 4 scope of work or the contract that went with the 5 monitoring for the Southern Division Ranch? 6 A No. 7 Well, that -- was probably produced to 8 Earl, Blank, that information. 9 Q Okay. What about Landers & Parsons? Have 10 you got any written -- 11 A No. 12 Q -- work arrangements with them? 13 A No. 14 Q Do they just pick up the phone and say, 15 figure it out? 16 A More or less. 17 Q And do you bill them directly? 18 A Yes. 19 Q Most of that is related to potential 20 legislative language; is that what you said before? 21 A It is currently, yes. 22 Q Is that all of it, or is that -- it is 23 currently. I mean, is that all the work you're 24 doing for them is that related to legislation? 25 A That I recall, yes. 166 1 Q Okay. Did you do work for them before on 2 other topics? 3 A Yes. 4 Q What other topics? 5 A We worked for them as part of the 6 Lake Okeechobee SWIM planning process. 7 Q Anything else related to this case? 8 A Not directly that I can -- well, let's 9 see. I believe we may have billed them directly 10 for some work that we were doing on the 40E-63 11 rule, the District. 12 Q All right. How much would you estimate 13 you've billed Landers & Parsons in connection with 14 issues involving this case? And if you want to 15 excerpt from that the SWIM Plan and 40E-63, that's 16 fine. I'll let you just qualify what you tell me 17 by what you would include in your answer. 18 A What period of time are we talking about? 19 Q Since, oh, I don't know, 1988. 20 A I honestly don't know. But it could be in 21 the $100,000 range, maybe two hundred. I don't 22 know. 23 Talking about five years or so. 24 Q Sure. 25 What about U.S. Sugar? 167 1 A It's probably in the same ballpark, I 2 don't know. 3 Q What about Flo-Sun? 4 A Probably less. I don't know. Maybe -- 5 well, let's see. 6 My guess would be more in the order of 7 fifty. 8 Q And what about Earl, Blank? 9 A More. 10 Probably a couple million. 11 Q I asked you about contracts that you had 12 presently pending before. Can you just sort of 13 quickly -- I don't need a voluminous exposition -- 14 but can you tell me what you have had contracts for 15 since, say, '88, that have been completed related 16 to the issues involved in this litigation with the 17 Everglades, and who with? 18 A How are you defining contract? 19 Q Any -- 20 A Because we had talked about the fact that 21 a lot of the work didn't have a contract. 22 Q Contract can be oral as well as -- 23 A Okay. 24 Q -- as written. Any proposal or request to 25 you or your firm that you do research or data 168 1 gathering or analysis on Everglades related issues? 2 A Now, what was the question? 3 Q I'm trying to find out what -- I think 4 I've asked you what you have presently on your 5 plate with regard to these issues, and -- 6 A Well -- 7 Q -- you made a mention that -- 8 A But the numbers we just talked about over 9 five years -- 10 Q I understand that. 11 A -- so that's not -- 12 Q That's why I'm making -- asking you about 13 the other things. 14 What other things have you done that would 15 cover -- that expired, for instance, since '88. 16 A Like I said, we did the Lake Okeechobee, 17 you know, SWIM Plan work. 18 We did a little BMP study for U.S. Sugar. 19 We did that Corps permitting work which was 20 actually for Landers & Parsons, but their client 21 was U.S. Sugar. 22 I guess we've completed the entry and 23 access into the Park and Refuge, although I 24 understand we may get to go back in the Refuge, 25 take a couple more samples. 169 1 MR. FitzGERALD: I changed my mind since 2 yesterday. 3 A I mean, you know, there's probably little 4 miscellaneous things. But there's -- I don't 5 really think of any other -- 6 Q Yeah. That's fine. I -- 7 A -- total. 8 Q -- I'm not looking for, you know, 9 exhaustive exposition. 10 What percentage of your professional life 11 is spent on Everglades issues? 12 A More than I want? 13 MR. FitzGERALD: Off the record for a 14 second? 15 (WHEREUPON, A BRIEF OFF-THE-RECORD 16 DISCUSSION WAS HELD.) 17 A Obviously it, you know, varies from time 18 to time. But on an annual basis, maybe 75. I 19 don't know. 20 Q What percentage of -- well, who else at 21 your firm works on Everglades related issue, how 22 many other people at your firm? 23 A About 25. 24 Q What percentage of your firm is that? 25 A I was talking about there are 25 people 170 1 there. 2 Q There are 25 people. Okay. 3 How many of -- 4 A And probably -- 5 Q -- those people -- 6 A -- all of them have worked on it, 7 you know, at one time or another for some, 8 you know, duration. 9 Q On an annual basis, what would you say 10 that your firm's time percentage is on Everglades 11 issues. 12 A Varies from year-to-year. But probably, 13 you know, 50 percent plus or minus 10. I don't 14 know. 15 MR. KILLINGER: I guess we can mark this 16 3. Is that what we're -- 17 COURT REPORTER: Yes sir. 18 (WHEREUPON, EXHIBIT 3 WAS DULY MARKED FOR 19 IDENTIFICATION.) 20 Q I'd like you to look at what's been marked 21 as exhibit 3. And ask if you can identify it. 22 A It appears to be a document prepared by 23 the law firm that's titled Disclosure of Expert and 24 Fact Witnesses of Petitioner's 25 Florida Sugar Cane League, Inc., and the 171 1 United States Sugar Corporation. 2 Q Could you turn to -- well, have you seen 3 it before? 4 A Not that I recall. 5 Q Okay. Can you turn to page 3, please. 6 MR. KILLINGER: Off the record. 7 (WHEREUPON, A BRIEF OFF-THE-RECORD 8 DISCUSSION WAS HELD.) 9 Q On page 3, item number 4, is that an 10 identification of you? 11 A It appears to be. 12 Q Okay. On page 4, at the top of the page, 13 it -- subsection b., and it's Subject Matter of 14 Expected Testimony. Just like to sort of walk 15 through those. 16 Do you recognize this write-up, have you 17 seen this write-up before? 18 A I'm not sure. I've seen something that's 19 I guess similar to this. 20 Q Okay. 21 MR. HYDE: Lee, let me just interject here 22 for a moment. You can, if you want to, go 23 through these specific items by item. And 24 I think that might take a long time doing that. 25 Or we could -- I could outline for you the 172 1 general areas that would be the subject matter 2 of his testimony. And I think it might 3 actually be more useful than actually looking 4 at this document here. 5 MR. KILLINGER: It might be. This is so 6 broad I was going to go through it item by item 7 to try and limit down -- 8 MR. HYDE: Okay. 9 MR. KILLINGER: -- where he was going to 10 be testifying. 11 So if you would like to do that for me, 12 then I can perhaps live with it, unless it's -- 13 MR. HYDE: Let -- let me just give you 14 some generic categories here. 15 The first would be water quality 16 database. That would include the District's 17 database; Corps data; USGS data, although not 18 much about that; and ES&P's entry and access 19 data. 20 Another general area, levels of phosphorus 21 concentration in perspective. Compliance with 22 what I call the old memo of agreement between 23 Park and the District; violations of the 24 biological integrity standard, alleged 25 violation. Those violations of the dissolved 173 1 oxygen standard; alleged violations of the 2 narrative nutrient, slash, nuisance species 3 standard, particularly as they relate to 4 benthic macroinvertebrates. 5 Limits for the Loxahatchee Refuge, Park 6 limits, Everglades National Park limits. An 7 inundation analysis for WCA-2A. 8 THE WITNESS: And 1. 9 MR. HYDE: And 1. Excuse me. The Refuge 10 and WCA-2A. 11 THE WITNESS: Right. 12 MR. HYDE: U.S. Sugar's BMP data. Load 13 calculations for District and Corps structures. 14 Those are the general areas. And 15 that's -- 16 MR. FitzGERALD: Can you repeat just the 17 last one, Counsel? 18 MR. HYDE: Sure. Load -- load 19 calculations for District and Corps structures. 20 And this is the area of his, you know, 21 these are his testimony's -- testimony -- 22 strike that. 23 These will be the areas upon which he will 24 offer opinions at a final hearing during our 25 case in chief. Areas obviously could come up 174 1 in the case of your rebuttal which might 2 require his rebuttal. But I can't anticipate 3 what might be said at a final hearing at this 4 point, or the possible eventualities. 5 But this is the area that he's going to 6 testify about in broad terms. 7 MR. KILLINGER: Okay. 8 MR. HYDE: I hope that's helpful to you, 9 and I -- I don't know that going through this 10 is really going to tell you a whole lot. 11 MR. KILLINGER: Well, would you consider 12 that what you've told me should supersede this, 13 to the extent that there are differences? I 14 haven't analyzed it for them yet, but -- 15 Sedimentation you didn't mention, 16 for instance. 17 MR. HYDE: You going to talk -- 18 THE WITNESS: I wouldn't think so. 19 MR. HYDE: Sedimentation would not be on 20 the -- the list then. Topography and 21 inundation are obviously related to the 22 inundation analysis. 23 Everglades ecology I guess, generically 24 related to the issues we've already identified 25 here. 175 1 So sedimentation I guess would be the only 2 one that you wouldn't specifically be looking 3 at -- 4 MR. FitzGERALD: That was certainly a 5 worthwhile exercise, to remove sedimentation 6 from that list. 7 You might as well have gone ahead, Lee. 8 MR. KILLINGER: What about STAs? 9 MR. HYDE: You're not going to be talking 10 about STAs, are you? 11 I guess it really depends on the scope -- 12 or the relationship between the limits and the 13 STAs. I guess he would be doing that. I don't 14 think he's going to be giving any civil 15 engineering testimony about STAs -- 16 THE WITNESS: Definitely not. 17 MR. HYDE: -- things like that. But 18 obviously to the extent that the limits -- 19 discharge limitations and the limits for the 20 Refuge relate to the STAs, I guess there is a 21 connexity there. 22 MR. KILLINGER: All right. All right. I 23 just -- would that nexus be about whether a 24 discharge limitation was practicable from a 25 scientific standpoint, or would that be 176 1 whether -- I mean, just because of the way 2 they're going to work, or would that be whether 3 they're going to work at all, or -- I guess I 4 could explore this in -- let -- further detail 5 later. I'm just trying to -- 6 MR. HYDE: I think it -- 7 MR. KILLINGER: -- cut some corners. 8 MR. HYDE: -- might be better to ask those 9 specific questions -- 10 MR. KILLINGER: Okay. That's fine. 11 MR. HYDE: -- to the person. I just 12 didn't want to hold John out as being our 13 supreme guru on STAs. 14 MR. KILLINGER: Okay. Who would that be? 15 MR. HYDE: There are several gurus. 16 MR. KILLINGER: I don't know what the term 17 of guru is. But -- okay. 18 MR. FitzGERALD: On the other hand -- 19 THE WITNESS: I'd like to see if we could 20 take maybe a short break here. 21 (Recess.) 22 MR. HYDE: I just wanted to make a note 23 for the record that concerns the -- my earlier 24 representations as to producing invoices. 25 I want to ascertain what the current 177 1 policy is about the production of invoices. 2 I'm assuming that that policy is now to 3 disclose invoices in all circumstances, they 4 will be done so -- or it will be done. And if 5 not, I will so advise the parties. 6 (WHEREUPON, MR. DUNCAN EXITED THE ROOM.) 7 MR. HYDE: But I just wanted to make that 8 clarification of my earlier comments. 9 I know that we've had some disagreements 10 in the past over the producibility of documents 11 of that nature, and I just want to make sure 12 that I'm being consistent with what the current 13 practice is. 14 (WHEREUPON, A BRIEF OFF-THE-RECORD 15 DISCUSSION WAS HELD.) 16 (WHEREUPON, EXHIBIT 4 WAS DULY MARKED FOR 17 IDENTIFICATION.) 18 Q Like you to look at what's been marked as 19 exhibit 4, and ask if you can -- ask if you 20 recognize it. 21 A No. 22 Q No. 23 Okay. Can you tell me what you think it 24 is. 25 A I can read what's at the bottom of the 178 1 first page. 2 Q Is it Pretrial Disclosure of Issues on 3 Witnesses? 4 A Right. 5 Q You've not seen this document before? 6 A Not to my knowledge. 7 Q Okay. 8 A Or my recollection I guess I should say. 9 (WHEREUPON, MR. DUNCAN ENTERED THE ROOM.) 10 Q Well, would you like a minute to look at 11 it? 12 MR. HYDE: I think that might be a good -- 13 A Not necessarily. 14 Q Okay. I guess I'll ask you to turn to 15 page 4. 16 A Okay. 17 Q Item number 3 on page 4 is a statement of 18 an issue together with some witnesses. And I'd 19 like to ask you about that issue. 20 And your name, which is listed underneath 21 it; is it not? 22 A Yes. 23 Q Do you intend at this point to testify 24 regarding the issues set forth as number 3? 25 MR. HYDE: Lee, I think that all of these 179 1 particular issues that are identified in this 2 pretrial disclosure would fall within the 3 context of those generic issues that I 4 identified earlier. 5 MR. KILLINGER: That may be. And this'll 6 serve to go through both the list you just gave 7 me and this. 8 A I've forgotten what the question was. 9 Q Do you intend to testify about the issues 10 set forth in item number 3? 11 A If asked to do so, yes. 12 Q Is the area set forth in the -- number 3 13 an area which you consider yourself to be an 14 expert? 15 A I think the issue basically goes to 16 whether or not there are sources of phosphorus that 17 are entering the EPA or Water Conservation Areas, 18 the Park, that haven't been addressed in the 19 remedies. 20 And I think that my familiarity with the 21 data and -- and the process would allow me to do 22 that. 23 Q Okay. Have you done any work under one or 24 more of your various contract assignments to 25 evaluate whether the SWIM Plan correctly identifies 180 1 all sources of phosphorus loading into the EPA? 2 A Portions of the work that we've done for, 3 you know, various reasons would be used to address 4 this, yes. 5 Q Have you got an opinion about whether the 6 SWIM Plan correctly identifies all sources of 7 phosphorus loading into the EPA? 8 A Yes. 9 Q What is that opinion? 10 A I think that the, you know, SWIM Plan 11 provides probably a reasonable approximation of, 12 you know, phosphorus loadings into the various 13 areas. It doesn't necessarily though then address 14 how all those sources are going to be treated. 15 Q Okay. That was a separate issue we can 16 deal with. I'm not trying to keep you from 17 qualifying or explaining your answer. I'm just -- 18 I'm just going to take it in piecemeal so you can 19 make it more clear. 20 A Well, the second part of it is says 21 assigns remedies for -- 22 Q I know. 23 A -- all sources. And that's what I was -- 24 Q I was breaking the issue down to whether 25 or not, first of all, it identifies all sources of 181 1 phosphorus loading. 2 Do you think it does that? 3 A I think it identifies certainly the 4 majority of them. 5 Q Well, what sources are not identified? 6 A I don't recall offhand without looking 7 whether or not, you know, the SWIM Plan accurately 8 or -- calculates the, you know, phosphorus loading 9 from, for instance, the western basin; whether or 10 not it, you know, accurately, you know, reflects 11 the, you know, current plans for the C-51, 12 you know, basin. 13 Q Well, are the -- are the western basins 14 included in the present SWIM Plan? 15 A I don't think so. 16 Q Okay. Are they a source of phosphorus 17 into the EPA? 18 A Yes. 19 Q Are they identified as a source of 20 phosphorous into the EPA in the SWIM Plan? 21 A I would have to go back and look at the 22 SWIM Plan to see. I mean, this issue came up as 23 part of the mediated plan, which was obviously 24 subsequent to the SWIM Plan. So it's hard for me 25 to, you know, put a lot of these things in specific 182 1 boxes. 2 Q Okay. 3 A And to remember whether, you know, at a 4 particular point in time; i.e., you know, March, 5 you know -- 6 Q Uh-hum. 7 A -- whenever -- '92 I guess, the SWIM Plan, 8 whether it was in there at that point in time. 9 My recollection is is that those sources 10 were identified as part of the mediated plan, and 11 there was a desire to incorporate these additional 12 areas into the process so that they could be 13 addressed. 14 Also the SWIM Plan considers the BMP 15 make-up water to bypass from -- from STAs. 16 Q I know. I'm -- 17 A -- and the lake released water to be 18 bypassed from the STAs. 19 Q I'm just -- what I'm trying to do is get 20 an estimate of your opinion about whether the 21 SWIM Plan identifies all the potential sources. 22 You said you think -- 23 A It may not identify -- 24 Q -- you said -- 25 A -- all the -- 183 1 Q -- the majority. I'm trying to find out 2 which ones -- 3 A Yeah. 4 Q -- you think were left out. 5 A I guess my response might be that it -- it 6 probably identifies all the sources and may not -- 7 Q Okay. 8 A -- have accurately calculated quantity. 9 Q I understand that. 10 A Okay. 11 Q That may be a different question. 12 Do you have an opinion about whether the 13 SWIM Plan evaluates the impacts of sources of 14 phosphorus loading to the EPA? 15 A I don't think it does, because it didn't 16 address quantitatively all of the sources, 17 you know, coming into it. 18 Q What didn't it address? 19 A Well, like we were just talking about, the 20 loading from the C-51 basin, for instance. The 21 western basins. I think it enumerates, like the 22 loading from S-140 and over in that area. 23 But it doesn't really address the -- the 24 impacts of that on -- on the Water Conservation 25 Area. 184 1 Q Are those sources that you've just talked 2 about, western basin, C-51, the other ones, are 3 they discrete identifiable sources of phosphorus 4 you can tell precisely where they go into the EAA, 5 Everglades Protection Area, I'm sorry. 6 A More or less. 7 Q More or less. 8 Can those impacts be evaluated separately 9 from the impacts, if any, of the phosphorus that 10 comes out of the EAA? 11 A I guess I'm not clear -- 12 Q Well, okay. Let me just rephrase it then. 13 You've said that you don't think that the 14 SWIM Plan correctly evaluates the impacts of the 15 sources of phosphorus because it didn't engage in a 16 quantitative analysis of where it comes from; is 17 that your answer? It didn't -- it didn't -- 18 A Are we talking -- 19 Q -- calculate -- 20 A -- about -- are you asking me if I agree 21 with the conclusions of the SWIM Plan? 22 Q No. I'm asking you -- 23 A Okay. 24 Q -- whether the SWIM Plan evaluates the 25 impacts of -- 185 1 A But -- 2 Q -- sources of phosphorus loading. 3 A I guess where I'm having maybe a little 4 bit of difficulty is understanding what you mean 5 by, you know, evaluate the impacts of phosphorus. 6 Q Okay. 7 A Because that goes to me more towards a 8 conclusion than, you know, what causes what. 9 Q Well, we've already -- you said already 10 that the SWIM Plan probably identifies all of the 11 sources. 12 A The sources, right. 13 Q Okay. Would you agree that there is an 14 evaluation of the impacts of phosphorus loading 15 into the EPA. Whether you agree or disagree with 16 the results is my next question. 17 But would you agree that there is an 18 evaluation of the impacts? 19 A Not of all the phosphorus. But -- 20 Q Okay. 21 A -- the majority of -- of the phosphorus, 22 the Plan, you know, attempts to address, you know, 23 the loads and concentrations of phosphorus going 24 through certain structures. And it, you know, 25 alleges I guess you would call it impacts from that 186 1 phosphorus. 2 Q Okay. And again, what specific sources 3 were left out of that evaluation in your opinion? 4 A I guess to the extent that the SWIM Plan 5 addresses the total amount of phosphorus, you know, 6 going through the structures, you know, exiting the 7 EAA, they're addressing all of the phosphorus loads 8 that leave the EAA. 9 Okay. So I guess all of it is included 10 from that extent except from the stuff that comes 11 down from S-140 and maybe some of the stuff coming 12 down, I think it's L-3. 13 And then there's a couple of, you know, 14 relatively minor, you know, sources in the 15 Loxahatchee, like the Acme pumps over there -- 16 Q Right. 17 A It doesn't -- I don't think the SWIM Plan 18 really addresses that much relative to impacts of 19 some of the pumps that, you know, drain the urban 20 areas over to the east. 21 Q All right. Now, I guess this is the 22 question you've been waiting for: In your opinion, 23 does the SWIM Plan correctly evaluate the impacts 24 of the total load, which is getting into the 25 Everglades Protection Area. 187 1 A No. 2 Q Okay. What in your opinion is the 3 SWIM Plan's evaluation of those impacts? 4 A You want to say that one more time? 5 Q Well, you said that you disagree that the 6 SWIM Plan -- 7 A Right. 8 Q -- correctly evaluates the impacts of 9 the -- the phosphorus loading of the EPA. 10 A Right. 11 Q What is your restatement to me of what the 12 SWIM Plan's evaluation is? 13 A I guess basically that phosphorus causes 14 everything that can possibly be wrong with the 15 Everglades. 16 (WHEREUPON, A BRIEF OFF-THE-RECORD 17 DISCUSSION WAS HELD.) 18 MR. KILLINGER: Okay. Put it back. 19 Q I think your last statement was that the 20 District has concluded that phosphorus causes 21 everything wrong in the Everglades. 22 Can you be a little more specific. 23 What's wrong in the Everglades, let's 24 start with that. 25 MR. HYDE: We might be here for the next 188 1 three days on that answer. 2 Q According to the SWIM Plan. 3 A Well, the SWIM Plan does talk about the 4 fact that there are, you know, water shortages; 5 talks a little bit about, you know, hydroperiod 6 impacts; that wildlife populations have been, 7 you know, declining; that, you know, phosphorus has 8 caused community shifts, violations of various 9 water quality standards. 10 Q Okay. Is that sort of the broad brush of 11 it? 12 A I think so. 13 Q What in your opinion is incorrect about 14 the District's evaluation about the effects or the 15 impacts of phosphorus loading into the Everglades? 16 A I think they have put, you know, way too 17 much, you know, emphasis on phosphorus as being 18 the, you know, primary, you know, causative factor 19 in a lot of the alleged problems. 20 Q Okay. What -- has the District identified 21 phosphorus as being the primary causative factor? 22 Yeah. Let's -- I mean, water shortages? 23 A I don't think they've alleged that. 24 Q Okay. Community shifts? 25 A Yes. 189 1 Q Okay. What's wrong with their conclusion 2 about that? 3 A I think they have, you know, failed to, 4 you know, consider a lot of the other causative 5 factors that can essentially cause, you know, 6 shifts in -- in the communities. 7 Q Do you intend to testify at hearing about 8 whether the SWIM Plan correctly evaluates the 9 impacts of the sources -- the phosphorus loading 10 into the EPA? 11 A You said correctly identifies the 12 phosphorus loading to the EPA? 13 Q We can start with that. I didn't start 14 with that. But that's fine. Do you intend to talk 15 about whether or not it correctly identifies the 16 sources of phosphorus? 17 A I think that could be one area, yes. 18 Q Have you done any specific work to reach a 19 specific conclusion about that? 20 A Basically be predicated on the work that's 21 been done by, for instance, Burns & McDonnell, 22 Bill Walker, and other people. 23 Q But do you have an opinion as you sit here 24 today about whether the SWIM Plan correctly 25 identifies all sources of phosphorus loading into 190 1 the EPA? I mean, I know we've gone over this in -- 2 A Yeah. I know. And -- 3 Q -- part before. 4 A -- I'm -- I may be reading into something 5 other that, you know, you're not intending into the 6 question, I don't know. 7 I don't think that the SWIM Plan has, 8 you know, correctly apportioned, you know, where 9 various, you know, parts of the phosphorus loading 10 comes from. 11 And -- and an example was, the ones we 12 went through, like the western basin, the 13 significant, that sort of thing. 14 For instance, I believe that, you know, 15 there's been, you know, various calculations and 16 recalculations of where the water comes from to go 17 through the S-58 pump, you know, complex. And how 18 you calculate that, because it's a -- kind of a 19 complicated, you know, system. 20 Q Yeah. 21 A And they are -- it's also kind of a 22 dynamic, you know, system in that there's various 23 planning going on all the time related to how they 24 operate these systems. 25 And again, as part of the mediated planned 191 1 process, a lot of these, you know, changes were 2 really examined in more detail, and, you know, new 3 calculations were made. That basically, you know, 4 changed, for lack of a better term, you know, 5 assignment of some of the phosphorus load to 6 various areas. 7 Q Okay. 8 A I'm not trying to avoid your question 9 really, I'm -- 10 Q I understand. 11 Do you intend to testify about the 12 correctness of the SWIM Plan's evaluation of 13 impacts of phosphorus loading into the EPA? 14 A To the extent that I would intend to offer 15 testimony relative to, for instance, whether or not 16 the, you know, biological integrity standard was 17 violated, for instance, in a particular area; and 18 then, whether or not, you know, phosphorus would 19 have been responsible for that, yes. 20 But not, you know, in a generic, you know, 21 broad sense. 22 Q Okay. That's what I was trying to get. 23 So with regard to what specific -- 24 MR. KILLINGER: And maybe we can refer, 25 Bill, to your list, if that makes life easier. 192 1 Q -- what sp-- with regard to what specific 2 areas would you intend on offering an opinion at 3 trial about the impacts of phosphorus loading into 4 the EPA? I mean, you did mention biological 5 integrity. What else would you -- 6 A I guess I don't, you know, view the 7 testimony that I would give so much in terms of is 8 it an impact of, you know, phosphorus per se as 9 much as whether or not, you know, there's a 10 violation of the particular standard. 11 And I would intend to offer testimony, 12 for instance, that would say that, you know, based 13 on the data that we've collected, the biological 14 integrity standard is not, you know, violated. And 15 to the extent it's not violated, there's no reason 16 to discuss, you know, what the cost of that might 17 have been. 18 Does that -- 19 Q Okay. 20 A -- help a little bit? 21 Q Okay. 22 A I just haven't thought of my testimony in 23 terms of is it a direct impact of phosphorus 24 loading. Because in -- in several instances, it's 25 not necessary to get to that point. 193 1 Q Okay. And let's move on a little bit to 2 make some progress. 3 In your opinion, does the SWIM Plan 4 correctly assign remedies for all sources of 5 phosphorus loading into the EPA? 6 A No. 7 Q What does it -- what does it leave out, 8 what's wrong about it? 9 A Well, if phosphorus is not really the 10 cause of the problem, then phosphorus doesn't 11 necessarily provide a remedy for that problem. 12 So maybe it's a -- a chicken and egg 13 situation. I don't know. 14 Q Do you know whether it is a legal 15 requirement for the SWIM Plan to include that 16 analysis or identification? 17 A As I recall, the, you know, legislation 18 requires the Water Management District to, 19 you know, look at the, quote, alleged phosphorus 20 problem and -- and presumably decide whether or not 21 it is a problem; and if so, provide a remedy. 22 Q Okay. So is it your statement that 23 phosphorus causes -- or is causing no impacts to 24 the Everglades? 25 A I'm saying that for the areas that, 194 1 you know, I've been asked to provide, you know, 2 testimony on, I don't think that, you know, 3 phosphorus has caused any, you know, significant, 4 you know, impact. 5 Q Well, we've already talked about what 6 areas you're going to testify about. But I'm not 7 sure I still have a clear idea. 8 But what would you call significant 9 impact? 10 A Well, it's obviously not causing any, 11 you know, life and death situations; I don't think 12 it's causing any, you know, human health, you know, 13 problem. 14 I don't think personally that it's causing 15 any decline, you know, per se in -- in wildlife, 16 you know, populations. 17 Although, I don't intend to offer any 18 testimony in this area, I don't think that, 19 you know, it's the primary cause for, you know, the 20 alleged, you know, cattail, you know, monoculture 21 or whatever. 22 I think that, you know, if there were, 23 you know, violations of the water quality, 24 you know, standards, for instance, that would be, 25 you know, a significant, you know, impact. 195 1 Q Do you think that it's causing any 2 community shifts in either taxon or -- any -- well, 3 any community shift. I'll leave it at that. Let 4 you quantify which ones. 5 A Well, I don't, you know, haven't been 6 asked to provide any opinion relative to, you know, 7 macrophyte, you know, shifts, and that sort of 8 thing. So I really haven't spent much time, 9 you know, thinking about that to be honest. 10 The area that, you know, I have been asked 11 to look at was, you know, specifically one of the 12 allegations that, you know, the biological 13 integrity standard was violated. And I don't think 14 that, you know, phosphorus has caused that standard 15 to be violated. 16 Q Do you think it's having an effect on the 17 biological integrity of the region? 18 MR. HYDE: Do you mean in the context of 19 the rule regarding biological integrity? 20 MR. KILLINGER: Yes. 21 MR. HYDE: Because the rule specifies 22 whether there's -- or how to measure whether 23 there is a biological effect in terms of the -- 24 that rule. 25 Or do you mean it in a more generic sense. 196 1 Q Is it having an effect that doesn't 2 constitute a violation. 3 A I think, you know, nutrients, you know, 4 have an affect on anything that's living. 5 Q Okay. What effect would you say that 6 nutrients are having -- I'm not sure that answers 7 my question. So I guess I'm going to ask it again. 8 A Okay. 9 Q Given that nutrients have an effect on 10 anything that's living, do you think that there is 11 any effect on any shift that doesn't constitute a 12 violation of -- of biological integrity occurring 13 in the Everglades? 14 A No. 15 Q Do you have an opinion about appropriate 16 remedies for all sources of phosphorus loading into 17 the EPA? 18 A I think so. If I understand your 19 question. 20 Q Okay. Well, what would your opinion be, 21 and we'll see if that answers it. 22 A If you are assuming that you want to 23 reduce the phosphorus -- 24 Q Okay. 25 A -- going into the 197 1 Water Conservation Areas, I do not think the 2 SWIM Plan solution to that; i.e., whatever it is, 3 37,000 acres of STAs, is -- has been appropriately 4 done. That's not an area I, you know, anticipate 5 offering testimony on but I don't -- 6 Q Okay. 7 A -- think it has been. 8 Q Can you indicate what you think was 9 inappropriate? 10 A The analysis contained in the SWIM Plan, 11 basically in Appendix F, incorrectly calculates 12 settling rate. It assumes that all the BMP makeup 13 water is going to go around the STAs, it assumes 14 all the lake release water is going to go around 15 the STAs. 16 Q Anything else spring to mind? 17 A I think that probably covers it. 18 Q But is it -- you're not going to offer any 19 testimony about those last things that you just 20 ticked off about Appendix F? 21 A I don't think it's been -- that I've been 22 asked to do that. 23 Q Okay. I guess we'll go to page 5. 24 I -- number 5 I believe, which carries 25 over to page 6, also has you listed as a witness 198 1 for that issue. 2 Do you consider yourself an expert in 3 Everglades hydroperiod issues? 4 A I have a pretty good understanding of, 5 you know, what, you know, the hydroperiod consists 6 of, and -- and, you know, some of the work that's 7 been done to describe that. 8 Q Have you performed any work under any of 9 your contracts about what the determination of the 10 natural Everglades hydroperiod is -- 11 A No. 12 Q -- or was? 13 A No. 14 Other than I guess perhaps I -- I mean, we 15 haven't done any direct work to, you know, look at 16 what the natural Everglades hydrology was. 17 But I indicated before, we reviewed some 18 of the work that others had done and the 19 South Florida Natural Systems Model, and some of 20 its shortcomings. 21 Q Do you intend to offer any testimony at 22 trial as far as you know about whether the District 23 has properly determined natural Everglades 24 hydroperiod? 25 A I don't believe that's one of the areas 199 1 I've been asked to go in. 2 MR. HYDE: Lee, in a sense, asking 3 questions about these specific issues is a bit 4 unfair to the witness, because what the lawyers 5 meant in writing these issues out and assigning 6 witnesses to them may not be readily apparent 7 to the witness himself. 8 In many instances, a witness may provide 9 information that is a foundation or building 10 block for other witnesses to rely upon. And 11 that may be the case here for some of these 12 issues, too. 13 So I think that's something that needs to 14 be kept in mind. 15 MR. KILLINGER: I think I -- I understand 16 you, Bill. I mean, we've had -- I think we've 17 had virtually this same discussion when I think 18 Russ Frydenborg was deposed because the issue 19 listing for him having -- 20 MR. HYDE: Right. 21 MR. KILLINGER: -- he didn't know what he 22 was going to talk about, because he didn't know 23 what he's going to talk about until he's asked 24 at trial. I mean, I understand the 25 witness-lawyer dichotomy that is replete in all 200 1 of these things. 2 MR. FitzGERALD: I don't think anybody's 3 proposing to shoot the witnesses because of 4 what the lawyers did. On the other hand, 5 neither are the lawyers in a position to shield 6 the witness from legitimate inquiry about 7 trying to figure out what in the hell their 8 building blocks are, when the lawyers have not 9 adequately described it and can't block and say 10 they did so. You know, unless the questions 11 are unfair. 12 MR. KILLINGER: Well -- 13 MR. FitzGERALD: And I agree, we've had 14 the problem. It's not exclusive to your 15 designations either. 16 MR. HYDE: Well, I wasn't barring anybody 17 from asking questions. I was just trying to 18 put it in context. 19 MR. FitzGERALD: That's what I was -- 20 MR. KILLINGER: I mean, I understand, and 21 I appreciate that. Because I think it applies 22 pretty much across the board. And what I -- 23 MR. FitzGERALD: Not to my witnesses. 24 MR. KILLINGER: Oh, okay. All right. 25 All right. 201 1 I don't want, you know, to run up against 2 a -- a wall of some deposition question about a 3 wrong witness designation with an ah-hah, and 4 what about this, you know, at hearing. 5 But I'm trying to go into what work the 6 witness has done on these things, and what he 7 knows he's considered, and how much. Because 8 I think that goes to -- 9 MR. FitzGERALD: Well, when you -- 10 MR. KILLINGER: -- how much he can testify 11 about. 12 MR. HYDE: That's why I articulated those 13 generic issues earlier, to provide a focus for 14 what Dr. Davis will be actually testifying to. 15 MR. FitzGERALD: The only thing, I think 16 it's fair to ask a witness, you know, do you 17 consider yourself an expert on this 18 subject matter. If the answer is no, that gets 19 around a lot of building block material 20 actually, because then any opinion is not an 21 expert opinion in that area, it needs to be 22 treated as such. 23 MR. HYDE: Well, not necessarily. 24 For example, one might ask a witness whether 25 they're a -- an expert in water -- water budget 202 1 analysis, and they may say no. 2 But at the same time, they may have done 3 some essential work -- 4 MR. KILLINGER: Then they're a 5 foundational witness, they're not an expert for 6 that purpose. 7 MR. HYDE: Right. 8 MR. FitzGERALD: That's my point. You -- 9 you can hone it somewhat and constrain the -- 10 the limits of the inquiry. 11 MR. HYDE: Understand. I just wanted to 12 make it clear that merely because one doesn't 13 claim an expertise regarding a given issue or 14 subject matter of a given issue doesn't make 15 one unqualified or unable to testify in a 16 manner that's probative and relevant to that 17 issue. That's all I'm saying. 18 Q Have you got an opinion about whether the 19 District has properly determined the natural 20 Everglades hydroperiod? 21 A Yes. 22 Q And what is that opinion? 23 A That it's -- their analysis is a best 24 guess, that it's pretty preliminary in nature, that 25 it's kind of generic in broad brushes, the 203 1 analysis. 2 Q Do you think it is fundamentally 3 incorrect? 4 A I think that it's based on a lot of 5 assumptions that are essentially impossible to 6 verify or test. 7 Q And what -- 8 A That it's impossible to calibrate the 9 model that they use to predict these things. 10 Q Do you think that same critique applies to 11 any model of Everglades hydroperiod? 12 A Yes. 13 Q Then is it a correct restatement of your 14 testimony that what the District has done is not 15 necessarily wrong, it's just that it's fraught with 16 difficulty and -- and not an easy task for anybody 17 to pull it off. 18 A Well, I wouldn't go so far as to say that 19 I think it's right, and by you saying, you know, do 20 I not think it's wrong, if your term then means 21 I think it's right, then the answer is no. 22 I think that, like I said, the analysis is 23 based on a lot of assumptions that are extremely 24 difficult, if not impossible, to verify. And that 25 there's no way to really, you know, calibrate the 204 1 model. So that when the model, you know, predicts 2 that the water levels were X inches for, you know, 3 this duration under this set of conditions, and you 4 can't -- and you don't have data to verify whether 5 that's right or wrong, you don't really know 6 whether the projections of that simulation are 7 correct or not. 8 So I'm not saying that I know that it's 9 wrong. I also don't know that it's right. I think 10 that there are a lot of assumptions that -- 11 Q Do you think those assumptions -- 12 A -- are questionable. 13 Q Do you think those assumptions are 14 reasonable? 15 A I would, you know, probably presume, that, 16 you know, based on the information that, you know, 17 they had available to them and that sort of thing, 18 that they made their -- their best guess at those 19 assumptions. 20 Q Okay. I think we already discussed that 21 you've had some experience with restoration of 22 ecosystems. 23 Do you have an understanding of what the 24 Everglades restoration goals are? 25 A A general understanding I guess. 205 1 Q What would be that understanding? 2 A I think that a lot of people want to put 3 it back to what their perception of it was 4 100 years ago or whatever. I don't think that's 5 possible. 6 Q Do you think that's what the District 7 wants to do? 8 A I think the District probably wants to 9 please as many people as they can, and get 10 everybody off their back. 11 Q That notwithstanding, do you think that it 12 clearly does-- doesn't -- clearly doesn't please 13 some of your clients from what I can tell. 14 What do you think that restoration goal 15 is? 16 A I think they would really like to restore, 17 you know, hydroperiod in those areas. But they 18 would like to, you know, manage the, you know, 19 water delivery and -- and timing to the various 20 areas better. 21 They obviously state that they want to 22 reduce the phosphorus in the water that they do 23 send south. 24 Q Do you think that the restoration goal of 25 restoring hydroperiod is -- is laudable or 206 1 appropriate? 2 A Yes. 3 Q You think the restoration goal of reducing 4 phosphorus is laudable or appropriate? 5 A I think it's out of perspective in terms 6 of emphasis -- 7 Q Okay. 8 A -- that -- I think that -- 9 Q I'm going to have to ask it again, I asked 10 you for a yes or no. We can qualify in a minute, I 11 will -- I will -- I'll represent to you that I will 12 give you a chance to qualify your answer. 13 But do you think it's a -- a laudable 14 goal, restoration goal. 15 MR. HYDE: I'm going to object. I don't 16 think the witness is necessarily required to 17 give yes or no answers to questions that he 18 doesn't feel are appropriately answered by a 19 yes or no. 20 MR. KILLINGER: Well, I'm going to request 21 that he give me a yes or no. And if he refuses 22 to so then I guess we'll have to -- 23 MR. HYDE: Well if he's able to -- 24 MR. KILLINGER: -- see I can live with 25 that. But -- 207 1 MR. HYDE: If he's able to do so, he can. 2 But I think it's a rather unfair choice to put 3 to the witness. 4 MR. KILLINGER: I told him I'll give him a 5 chance to qualify. You know, but he didn't 6 give me a yes but, or a no but. He just gave 7 me the qualifications. 8 MR. HYDE: Okay. 9 You may go ahead and answer the question. 10 A I guess if I had to give a yes or no 11 answer, I would have to say that in the context 12 I think about it, the answer would be no. 13 Q Okay. In what context do you think about 14 it? 15 A I think that, you know, the District 16 should have ranked the magnitude of the problems in 17 the, quote, you know, Everglades. And tried to 18 determine the cause of those problems. 19 And that they should have spent -- then 20 determined, you know, how much resources they had 21 to expend on, you know, these various problems. 22 And they should have directed more of the resources 23 towards resolving the hydroperiod issues, and less 24 on the phosphorus issues. 25 Q Okay. Just to back up for a second, there 208 1 was a rather instantaneous yes answer to my 2 question of whether you thought restoration of the 3 hydroperiod was a -- a laudable goal. 4 A Uh-hum. 5 Q Why do you think that's the case? 6 A Because I think that's where the majority 7 of the, you know, impact has been on the 8 Everglades. And I think it also has the most, 9 you know, possibilities relative to, quote, 10 restoration. 11 Q Highest chance of success? 12 A Uh-hum. 13 Q Okay. You said that hydroperiod has been 14 the major cause of impacts in the Everglades. 15 What impacts are you referring to? 16 A If you go back and look at the literature 17 and other, you know, publications that perhaps, 18 you know, didn't get actually into the literature, 19 you see that over the past twenty plus years, 20 everyone has almost constantly pointed out, 21 you know, problems with hydroperiod. 22 You know, not enough water, too much 23 water. They've tried to manage the system the -- 24 by delivering, you know, various quantities of 25 water, you know, at, you know, various times. 209 1 If you were to stack up a number of 2 publications that the Everglades National Park has 3 produced addressing problems in the Park, and you 4 measured them with a ruler, the ones laid to 5 hydroperiod and water supply problems, and then 6 measured the ones on -- in the phosphorus problems, 7 and take away the ones that were generated just for 8 this litigation, you know, there would be, 9 you know, probably ten or a hundred times, 10 you know, more publications on, you know, 11 hydroperiod impact. 12 And I -- I don't know if the comparison 13 would be as dramatic with District publications. 14 But I think, you know, the District has also 15 recognized to a certain extent the problem with 16 hydroperiod. 17 Their change in the regulation schedule 18 for, you know, 2-A is a very good example of that. 19 Where they recognize that during, you know, the 20 late '70s, they were drowning all the tree islands 21 in 2-A, so they decided to change the regulation, 22 you know, schedule to, quote, save the tree islands 23 and kind of restore, you know, the communities out 24 there. 25 The Refuge has historically, you know, 210 1 managed water levels in the Refuge to provide, 2 you know, habitat for, you know, snail kites or the 3 duck population or, you know, the fisheries 4 population, whatever. 5 They've always managed, you know, water, 6 you know, level hydroperiod to try to manage 7 various aspects of the communities out there. 8 You know, they've never tried to, 9 you know, regulate the amount of phosphorus that 10 came in. When they want to cause a shift in the 11 usage of the habitat for a particular species, they 12 change the regulation schedule for hydroperiod. 13 And that's the way that they've always 14 done it. And probably, you know, will in the 15 future, for that matter. 16 It affects a bigger area, you know, 17 geographically, number of acres. 18 Q Why is that? 19 A The -- the water from, you know, 20 Lake Okeechobee and, you know, areas north, 21 you know, that flow into it, you know, affect, 22 you know, water levels essentially in all the 23 areas, you know, south of there. 24 The Corps project -- 25 211 1 (WHEREUPON, A BRIEF OFF-THE-RECORD 2 DISCUSSION WAS HELD.) 3 Q I guess I didn't really ask the question 4 very clearly. 5 You said the hydroperiod affects a greater 6 area. And that's one reason that perhaps it has 7 a -- ought to be accorded a greater weight in any 8 restoration goal. Is that correct? 9 A Yes. 10 Q Are you saying that nutrients affect, 11 therefore, a lesser area? 12 A Certainly. 13 Q Okay. How much area do nutrients affect, 14 compared to the area effected by hydroperiod? 15 A On a percentage basis -- 16 Q That'll do. 17 A -- I don't know. Probably 1, 2, 18 3 percent, something like that maybe. Maybe less. 19 Q Is your -- does the -- what's the total 20 area geographically speaking that you're putting 21 into that statement? Is that all the 22 Water Conservation Area in 23 Everglades National Park? 24 A (Nodding head.) 25 Q What affect do nutrients have in that 1, 212 1 2, 3 percent, whatever it is of the total? 2 A They cause things to grow, more robustly 3 I guess. 4 Q Do they cause different things to grow? 5 A Not necessarily. 6 Q Okay. Do you have any knowledge about the 7 District's present water budget for areas regulated 8 under the SWIM Plan? 9 A Not very extensively. 10 Q What's your knowledge derived from? 11 A Maybe I should go back and seek 12 clarification about the last question. 13 Q Okay. 14 A I was, you know, responding to that in 15 terms of thinking about their water supply 16 planning, you know, process. 17 Q Okay. 18 A I haven't been -- tried to keep up with 19 that, okay. 20 Relative to water budgets for any of the 21 Water Conservation Areas and EAA, and that sort of 22 thing, I do have a pretty good knowledge base on 23 that. 24 Q Okay. Do you know if the District 25 presently has a water budget for those areas? 213 1 A There is one laid out in the SWIM Plan. 2 Q Do you think it is correct? 3 A I think that the, you know, water budgets 4 for the Water Conservation Areas is kind of in the 5 ballpark. But like many, you know, water budgets, 6 they, you know, add up what they can measure going 7 in, and what they can measure going out. And they 8 make up the difference between, you know, rainfall 9 and ET and seepage. 10 So, you know, mathematically, everything 11 balances. 12 Q Okay. Well, I realize it is what it is. 13 A Right. Right. 14 Q Restoration of hydroperiod that we've 15 discussed as being a good restoration goal, how 16 would that effect the present water budget for 17 those areas? 18 A Well, I'm not sure if what we're talking 19 about is, you know, water budget or water 20 allocation. To the extent that they put more water 21 into Water Conservation Areas, it would increase, 22 you know, the amount of water going to that, 23 you know, conservation area. 24 Q Okay. 25 Well, let me ask it a different way I 214 1 suppose. In your opinion, would hydro-- Everglades 2 hydroperiod restoration involve putting more water 3 in the natural areas of the Everglades? 4 Or should it? I guess a maybe more 5 appropriate answer -- question. 6 A It would require, you know, looking at the 7 amount and timing that the water was, you know, put 8 into the area and how long it was allowed to, 9 you know, stay in those areas. It also addressed 10 the method of delivery of that water. 11 Q What do you mean by "method of delivery?" 12 A Well, for instance, the, you know, 13 northern part of 3-A is identified as being 14 over-drained in the SWIM Plan. That's largely 15 because they put water in at the pump stations, 16 there are canals that carry that water away from 17 those pump stations, so a lot of the water is -- is 18 prevented from, you know, flowing over the marsh. 19 If you had a spreader canal, which was one 20 of the things contemplated in the mediated plan 21 anyway, to spread that water across the entire 22 marsh, that would obviously, you know, benefit that 23 hydroperiod of all these areas that are identified 24 in the SWIM Plan as being over-drained due to the 25 Corps project. 215 1 Q So it would take -- correct me if I'm 2 wrong, would it -- it would take more water -- 3 A Well, not -- 4 Q -- delivered in the -- 5 A -- necessarily. 6 Q -- appropriate way? 7 A The solution is not always more. The 8 solution could be in terms of, you know, supplying 9 perhaps the same amount of water in a different 10 way, and over a different time period. 11 I mean, it -- I think part of the analysis 12 for hydroperiod restoration would have to include, 13 does it need more water, and then -- or does it 14 need perhaps the same amount of water just 15 distributed temporally better and spatially 16 better. 17 I mean, part of the water in the past in 18 2-A was too much water. Okay. So it's -- the 19 historic hydroperiod doesn't necessarily mean 20 more. In some instances it could be, you know, 21 less. 22 Q Okay. Well, if -- if the northern part of 23 3-A is presently identified as being over-drained, 24 and you put more water in there, for instance, 25 through a spreader canal -- 216 1 A Uh-hum. 2 Q -- and the water was of a phosphorus 3 concentration or provided a phosphorus load 4 equivalent to that in the water that's in the EAA 5 now; i.e., without any treatments, would you 6 expect -- would -- would that in your opinion be a 7 worthwhile restoration project? 8 A Yes. 9 Q Would you expect to see any impacts from 10 that increased and redirected flow into 3-A from 11 that water? 12 A Yes. 13 Q What kind of impact would you expect? 14 A I would expect to see more, for instance, 15 open water, you know, areas, some kind of sloughs 16 in that area since there would be water there to 17 fill in the dry potholes that are out there now. 18 I would expect to see probably more, 19 you know, wetland species there perhaps, a lot of 20 the northern 3-A have got a lot of, you know, 21 willow, and kind of weedy, kind of drier, you know, 22 species in there, I'd expect to see some of those 23 disappear. 24 I expect to see, you know, all of the, 25 you know, the plants in there be a little more, 217 1 you know, robust, and healthier, if that's a good 2 term for plants out there. 3 Q Why would you expect them to be healthier 4 or more robust? 5 A For one thing, they get more water and are 6 less stressed, you know, during drought periods. 7 And I would expect that the -- you know, 8 nutrients and micronutrients in that water would 9 provide them a better diet. 10 Q Would you expect to see any community 11 shifts of, say, macrophytes? 12 MR. HYDE: Simply as -- 13 A I doubt -- 14 MR. HYDE: -- a result of the additional 15 water? 16 Q With the hypothetical I gave you, more 17 water going into 3-A through the spreader canal 18 scenario that you've talked about, but without any 19 treatment of it in the nature of an STA or 20 something -- 21 A Yes. 22 Q -- present concentrations or load. 23 A Yes. 24 Q You would expect to see some community 25 shifts? 218 1 A Yes. 2 Q To what? Or from what to what. 3 A Like I said, I would expect to see some of 4 the species that are adapted to the drier 5 conditions drop out of the area. And, you know, 6 those more -- the wetland species to -- to come in. 7 Q What wetland species might you expect? 8 A Oh, I don't know. Some of those, 9 you know, the -- the rushes and sedges and maybe 10 even grasses. And in the slough areas, probably, 11 you know, a phase of water lillies, things like 12 this. There would probably even be some cattails 13 one day. 14 Q Do you think saw grass would come in? 15 A I think that, you know, there is some 16 saw grass there now, and I think that would do 17 better and expand. 18 Q After the initial I guess -- I don't know 19 if die-off would be an appropriate term -- but 20 die-off of the -- the species that are thriving in 21 the drier conditions now -- 22 A Uh-hum. 23 Q -- and an initial shift to wetland 24 species, would you expect any continuing shift as 25 those wetland species compete amongst themselves? 219 1 MR. HYDE: Are you speaking simply in 2 terms of plant species or in general? 3 MR. KILLINGER: Macrophytes. Sorry. 4 MR. HYDE: Okay. 5 A I think, you know, any, you know, 6 ecosystem goes through kind of a, you know, 7 sorting, you know, process that, you know, moves 8 towards some kind of equilibrium that's established 9 for, you know, a brief period of time, and the 10 changes -- conditions change, and then they, 11 you know, have another equilibrium established. 12 So I mean, I think there would be an 13 interplay among those things. I mean, they are -- 14 Well, leave it at that. 15 Q So you really can't answer the 16 hypothetical that I've posed to you about what 17 species might become dominant down there. 18 A Oh. No, I wouldn't try to predict that. 19 Q Okay. 20 A I would simply say that you look at 21 species that are there now. And the species that 22 are dominant now that are, you know, true wetland 23 species would probably be dominant then, too. 24 Q What affect do you think the -- you may 25 have already answered this question -- but what 220 1 affect do you think the influx of additional 2 nutrients would have on the wetland species that 3 might establish themselves there? 4 A I think it would act as a fertilizer and, 5 you know, cause them to grow more vigorously if 6 you, you know, want to -- it might increase, 7 for instance, the height of the plant. 8 It might -- probably would increase, 9 you know, their lateral expansion to the extent 10 that there is, you know, room for them to expand, 11 space available. 12 Q Well, you said there -- there's some 13 saw grass there now, and you'd probably expect to 14 see some cattails there. But you -- 15 A There is some cattail there now, too. 16 Q Would you be comfortable making any 17 prediction about which might become dominant under 18 that scenario? 19 A I think it depends on, you know, how 20 the -- the water, you know, regulations were 21 you know, maintained in there. You know, how -- 22 how deep and how long and things like that. 23 Q So it'd be more related to the regulation 24 of the water than it would be to the nutrient 25 influx? 221 1 A I think so. 2 Q Okay. Can I get you to turn to page 9 of 3 this exhibit, please. 4 A (Witness complying.) 5 (WHEREUPON, A BRIEF OFF-THE-RECORD 6 DISCUSSION WAS HELD.) 7 A Nine? 8 Q Yes. 9 A Okay. 10 Q Item number 11 gives a listing for an 11 issue as the League frames it in the case. 12 Is this an area where you consider 13 yourself to be an expert? 14 A I would not hold myself out as an expert 15 on, like, you know, invertebrates, you know, fauna 16 species or, you know, necessarily, you know, 17 periphyton, you know, species. 18 I think that, you know, I have -- 19 obviously have some idea of -- of imbalance which, 20 I guess everybody does. 21 Q Okay. Well -- 22 A I think what Bill had indicated earlier, 23 and what I understood, is that I would be offering 24 expert testimony relative to, you know, biological 25 integrity which addresses, you know, the 222 1 macroinvertebrates. 2 And then, you know, probably, you know, in 3 terms of, you know, general ecological concepts 4 relative to these broader classes. But not, 5 you know, specific -- 6 Q Okay. 7 A -- taxa, for instance. 8 Q Well, I guess let me ask if you have an 9 opinion about whether any imbalances of natural 10 populations of aquatic flora and fauna exist in the 11 Everglades Protection Area. 12 A Yes. 13 Q Okay. What imbalances would you say 14 exist? 15 A I don't think that any imbalances do 16 exist. And when you look at the, you know, EPA as 17 a whole. 18 Q Okay. You said you don't think any 19 imbalances exist when you look at the EPA as a 20 whole. 21 A Right. 22 Q Is it your interpretation that an 23 imbalance determination should look at the EPA as a 24 whole? 25 A I think it definitely, you know, has a -- 223 1 an aerial extent component to it. 2 Q Can you give me your opinion as to how the 3 aerial extent component works into any decision 4 about imbalance? 5 A Well, I think that, you know, when you're, 6 trying to determine if something is in, you know, 7 balance or not, you have to, you know, define, 8 you know, what you're talking about. 9 And, you know, part of that, you know, 10 definition requires that you, you know, define the 11 extent of the area that you're dealing with here. 12 I think that concept is also borne out in 13 some definitions that the District have, you know, 14 come up with to try to deal with this same 15 question. 16 In their research plan, they talk about 17 their, quote, administrative definition of 18 imbalance and -- and there are several places in 19 the research plan, as a matter of fact, they, 20 you know, talk about the fact that you have to look 21 at, you know, aerial extents. 22 I believe Frank's document relative to 23 imbalance talks about having to look at aerial 24 extent. 25 Q What's your understanding of the way the 224 1 Department looks at the aerial extent component of 2 an imbalance determination? 3 A I think that the Department looks at it on 4 a site specific -- or case specific, you know, 5 basis. 6 Q And what's that understanding derived 7 from, where do you get that idea? 8 A Well, I think Frank may have made that 9 statement in his, you know, document, if I'm not 10 mistaken. 11 But quite frankly, I haven't been involved 12 in very many instances where, you know, the 13 Department has actually used this kind of -- of 14 language. 15 I think that it's one of those kind of 16 narrative statements that they, you know, put in 17 the regulations to give the staff, you know, 18 discretion, you know, to, you know, apply when, 19 you know, other things, you know, wouldn't, they 20 want to deny a project or whatever. My personal 21 opinion. 22 But -- 23 Q Do you think that a narrative standard is 24 inappropriate? 25 MR. HYDE: Any narrative standard -- 225 1 MR. KILLINGER: Yes. 2 MR. HYDE: -- or this one in particular. 3 MR. KILLINGER: Any. 4 A I think that they have an awful lot of 5 problems associated with them, because they allow a 6 lot of subjectivity of the individual applying the 7 standard come into play. To the extent that you 8 can have a numerical standard that everyone can 9 understand, and there is a consistent basis to 10 apply that standard, I think you're much better 11 off. 12 Q Okay. Are there any more localized areas 13 in the Everglades Protection Area that you would 14 say have an imbalance of natural populations of 15 aquatic flora and fauna? 16 A I think that if you define your area small 17 enough, you can find an area that essentially has, 18 you know, one thing in it. And to the extent you 19 do that, I would guess you would argue that it's 20 not balanced because it has all of, you know, one 21 thing. 22 Q Do you think that's been done in the case 23 of the Everglades SWIM planning process? 24 A I don't think that the SWIM Plan really 25 identifies the areas that it alleges the, you know, 226 1 violations occurred. I think they generally say 2 that, you know, imbalances have occurred without 3 any, you know, specific identification as to their, 4 you know, aerial extent. 5 Q Let's press on to page 10, please. 6 I believe that number 12, which starts on 7 page 10 and goes to page 11, I've got your name 8 listed in the litany of potential witnesses. It 9 asks whether this is an area in which you consider 10 yourself to be an expert. 11 (WHEREUPON, A BRIEF OFF-THE-RECORD 12 DISCUSSION WAS HELD.) 13 A I have I guess, you know, dealt with 14 the -- the notion of, you know, nuisance species 15 and, you know, wetland systems, for instance, as 16 part of the Department's evaluation of, you know, 17 dredge and fill permit applications and -- and the 18 reclamation demonstration projects, and this sort 19 of thing. 20 And, you know, have an understanding of, 21 you know, what they, you know, consider to be, 22 you know, nuisance species and -- and, you know, 23 the context that they, you know, consider those 24 species to be, you know, nuisances, quote, in the, 25 you know, wetland systems. 227 1 Q Well, do you have an opinion about 2 whether, where, and to what extent the elements of 3 nuisance species exists within the waters of the 4 Everglades Protection Area? 5 A Yes. 6 Q What is that opinion? 7 A That again, in order to, you know, 8 evaluate, you know, whether a -- a species is, 9 you know, a nuisance goes to the aerial extent and 10 the purpose for which, you know, the area is, 11 you know, designated or, you know, being used. 12 And to the extent that a species, 13 you know, doesn't, say, significantly interfere 14 with, you know, those usages that, you know, it 15 shouldn't be, you know, considered a, you know, 16 nuisance species in that context. 17 And when you, you know, look at the 18 various communities and the, you know, mosaic of 19 the Everglades, that -- you know, there's not 20 anything that really necessarily falls in that 21 category. 22 Q Is there anything which comes close? In 23 your opinion. 24 MR. HYDE: Are we still addressing our 25 question to merely aquatic flora and fauna, 228 1 because there's been some question in my mind 2 and to other people's mind as to whether 3 melaleuca is aquatic flora and fauna. 4 Some people say it is and some people say 5 it isn't. 6 MR. GILBERT: Is there any question as to 7 whether it's a nuisance? 8 MR. HYDE: I think I would be prepared to 9 stipulate that it is a nuisance species. I 10 just want to know the context of the question 11 whether it -- 12 MR. KILLINGER: Well, let's -- 13 MR. HYDE: -- may need some enlightenment 14 on that phrase. 15 MR. KILLINGER: Well, let's leave 16 melaleuca out of the -- the radius of the 17 question. 18 MR. HYDE: Okay. 19 Q Leave it aquatic. 20 A I think your question was did I consider 21 anything coming close to being a nuisance species? 22 Q (Nodding head.) 23 A You were to -- okay. 24 Based on the way the Department, you know, 25 looks at, you know, nuisance species and their 229 1 conditions related to, you know, reclamation 2 projects of, you know, aquatic wetlands and 3 mitigated wellness, that sort of thing, they, 4 you know, identify, for instance, a -- cattails as 5 a, you know, nuisance species when it occupies, 6 you know, I think generally more than 10 percent of 7 the area. 8 If you, you know, define the area, 9 you know, small enough, you could consider, 10 you know, cattails to be, you know, a nuisance 11 species in that context. 12 But if you look at the percent of 13 cattails, for instance, in the Everglades, it 14 wouldn't be, because you're considering, you know, 15 the mosaic of -- of the area. 16 Q So you're saying the aerial extent is a 17 factor -- 18 A Certainly. 19 Q -- in a nuisance species determination. 20 A Yes. 21 Q And in your opinion, in order to assess 22 whether cattails, for instance, re -- are present 23 to such -- in such number that they constitute a 24 nuisance species, you have to look at that in the 25 context of Water Conservation Area 1, 2-A, 2-B, 230 1 3-A, 3-B, and Everglades National Park, to find out 2 what fractions they present as a percentage of that 3 whole? 4 A I'm saying that's one way to do it. 5 Q You think it's the appropriate way to do 6 it? 7 MR. HYDE: I think that's the way that the 8 Rule says you do it. Whether it's appropriate 9 or not -- 10 MR. KILLINGER: I'm asking your witness 11 what he thinks. 12 A I think that it's appropriate to -- when 13 you're evaluating, you know, natural areas or, 14 you know, quasi, you know, natural areas that are, 15 you know, part of a system, and everyone talks 16 about the Everglades as a system, which is a large, 17 you know, geographical area, that you, you know, 18 evaluate things in that context. 19 Q So in your opinion, in the context of the 20 whole, there's not a nuisance species -- 21 A No. 22 Q -- problem. 23 A (Shaking head.) 24 I don't have that great a dislike for 25 cattails, a lot of people do. I think they provide 231 1 useful functions, too. 2 Q If you could turn to page 12, please. 3 A (Witness complying.) 4 Q Do you consider yourself an expert in the 5 issue which has been framed in number 13? 6 A Yes. 7 Q Okay. Do you have an opinion about 8 whether -- just whether -- the Shannon-Weaver 9 diversity index of benthic macroinvertebrates has 10 been reduced to less than 75 percent of background 11 levels in the EPA? 12 A Yes. 13 Q What is the opinion? 14 A That it's not. 15 Q Is it your opinion that, in fact, the 16 diversity index has gone up? 17 A In some cases. 18 MR. HYDE: I'd just note for the record, 19 that even if it does not go by, it does not 20 indicate a violation of the biointegrity 21 standard. 22 MR. KILLINGER: I think we've discussed 23 this before. 24 Q Can you state your opinion as to whether 25 the Shannon-Weaver diversity index has been reduced 232 1 any, in any areas. 2 A Yes. 3 Q What's the opinion? 4 A That it has been. 5 Q Has been. 6 Can you give me an idea about how much, 7 and where? 8 A We collected some data at several stations 9 in Water Conservation Area 2-A, and also in 3 just 10 west of the S-9 structure. And the, you know, data 11 at those locations when taken as a whole, indicate 12 that the numbers, you know, fluctuate, you know, 13 from, say, sampling period to sampling period. 14 But that when you look at those, you know, 15 over, for instance, a year period or two-year 16 period or whatever, that, you know, depending on, 17 you know, the stage of comparison, it, you know, 18 fluctuates, I don't know, 10, 15, maybe 20 percent 19 from 100 percent -- I think more of it -- maybe 20 10 percent above, 20 percent below, something like 21 that. 22 I mean, they are individual, you know, 23 sampling periods that might even fall below the 24 75 percent number. 25 But again, when you, you know, take the 233 1 date and look at it, you know, over any kind of, 2 you know, any kind of time period, the 75 percent 3 level does not drop below. 4 Q Are those the -- I think you mentioned a 5 couple of spots where you took data where you 6 noticed that fluctuation. Are those the only -- 7 was that just two locations? 8 A No. There were -- let's see. Roughly 9 there were one, two, three, four general locations 10 that were sampled. And there were different 11 communities at each of those locations, a sample. 12 Q Have you got any opinions about the causes 13 of that fluctuation? 14 A No. 15 Well, yes, I guess I should answer yes. 16 I think that a lot of it is just, 17 you know, typical; you know, random, you know, 18 fluctuations; seasonal, temporal, accuracy of the 19 method; sampling, you know, variance. 20 Natural, you know, biological cycles. 21 Q Did you do any statistical analysis of the 22 sampling that you said fluctuated? 23 A Not yet. 24 Q Are you going to? 25 A I would hope to have time to do that. 234 1 Q Do you know when you might be able to get 2 that done? 3 A No. 4 Q How long do you think it would take? 5 A Couple days. 6 Q I'm on number 14, I believe you were 7 listed -- starts on page 12 and goes to page 13 -- 8 as a testifying witness in regard to that issue. 9 Would you consider yourself to be an 10 expert in that issue? 11 A Yes. 12 Q Okay. Do you have an opinion about 13 whether a DO of less than 5 exists within the EPA? 14 A Yes. 15 Q What's your opinion? 16 A That the dissolved oxygen regularly, 17 you know, falls below 5 at any particular spot you 18 want to pick in the EPA. 19 Q Is that a natural fluctuation? 20 A Yes. 21 Q Have you done any specific work on this 22 issue, any scientific research? 23 A Yes. 24 Q Okay. Go to page 13, please. 25 A (Witness complying.) 235 1 Q Item number 15 has you listed as a 2 witness. 3 Would you consider yourself an expert in 4 that issue? 5 A Yes. 6 Q Have you got an opinion about whether or 7 not 1978, 1979 ambient water quality for the Park 8 and Refuge have been correctly determined? 9 A Yes. 10 Q What's that opinion? 11 A Have not. 12 Q What's wrong with the determination that 13 you know of. 14 A Relative to the, you know, Refuge, the 15 SWIM Plan in Appendix D looks at data which was 16 collected by District personnel back during, 17 you know, that time period. 18 And attempts to develop, you know, 19 correlations of stage, and attempts to develop a, 20 you know, predictive, you know, model or equation 21 that relates concentrations to those stages. 22 I think that the data upon which it was 23 based are questionable; I think the methodology 24 used was questionable; and that, you know, the 25 relationship as determined was -- was not 236 1 appropriate. 2 Relative to the Park, they didn't use the 3 78-79 period. They used I think it was '80 to '84 4 or '85, somewhere like that, period, which 5 presumably was a, you know, ONR Standard -- oh, it 6 doesn't even relate to this. 7 Q You said the "ONR Standard." You mean 8 Outstanding Natural Resource Water Standard -- 9 A Right. 10 Q -- or do you mean Outstanding Florida 11 Water Standard, or do you mean -- 12 A The ONR is Outstanding Natural Resource 13 water I think. 14 Q Do you know how ambient water quality is 15 determined for Outstanding Florida Water's 16 considerations? 17 MR. HYDE: That's the sixty-four thousand 18 dollar question. 19 A I don't think that there's any established 20 methodology that's been commonly accepted by the 21 Department or anybody else. 22 Q Do you know what -- what criteria the Rule 23 sets forth for that calculation? 24 A I think the Rule basically states that you 25 should consider for OFW, you know, the ambient 237 1 conditions in the OFW from March 1st, February 2 I guess 28th or 29th -- whichever the case may 3 be -- of period I guess it's March 1st, '78, 4 through I guess February 28, '79, unless you can 5 make some showing that, you know, better data 6 exists for some other period. 7 But the Rule doesn't provide any guidance 8 as to how you should go about, you know, analyzing 9 that data. 10 Q Okay. 11 MR. KILLINGER: Can we take another 12 5-minute break? 13 MR. HYDE: Glad to. 14 (Recess.) 15 Q Okay. Just a couple return questions on 16 that number 15. 17 You talked about the Refuge and said that 18 the -- not only was the data questionable, but the 19 methodology was questionable. 20 A Uh-hum. 21 Q What's questionable about the data, sort 22 of a general sense. 23 A Well -- 24 Q How much you can pinpoint specifics. 25 MR. HYDE: You were saying for the Refuge, 238 1 or the Park? 2 MR. KILLINGER: For the Refuge. 3 THE WITNESS: For the Refuge. 4 MR. KILLINGER: Yeah. 5 MR. HYDE: Okay. 6 A It is my understanding based on, you know, 7 conversations I guess with various folks that the 8 data collected in the Refuge was collected by 9 throwing a bucket out of a helicopter and 10 collecting, you know, the water sample that way. 11 Q Are you suggesting that's not a standard 12 protocol? 13 A I think that's a -- not a standard 14 protocol. 15 Q Okay. 16 A I don't think it would pass DER's quality 17 assurance program that exists today. 18 MR. FitzGERALD: Fortunately we got rid of 19 DER. 20 A And I think it's unclear as to how those 21 samples were processed. So I think there's a lot 22 of, you know, question as to the reliability. 23 There were also no -- apparently no replicate data 24 for those -- 25 Q Well, when were these buckets collected? 239 1 A The dates are laid out in Appendix E 2 I guess of the SWIM Plan. I don't recall what they 3 are right now. 4 But basically, mid to late '70s, into the 5 early '80s. 6 Q Do you know if there's other data out 7 there that might be more appropriately used to make 8 any kind of determination? 9 A There are the data that we collected over 10 the last year. 11 Q Are the -- the data that you collected 12 over the last year reflective of what the water 13 condi-- water quality was in '78, '79, 14 for instance? 15 A I doubt it. 16 Q Okay. 17 A But there are data that were collected in 18 the perimeter canal during that same period, which 19 was not -- not used. 20 Q Okay. 21 A And the perimeter canal itself is actually 22 perhaps the receiving, you know, water from those 23 pumps anyway. There are several, you know, 24 documents that point out that the Refuge itself is 25 a -- is an apotropaic, you know, system, and that 240 1 the, you know, water from the, you know, pumps do 2 not, you know, penetrate any sediment difference 3 into the marsh. 4 So I think there's some question as to 5 whether you should use, you know, data out in that 6 area at all to establish what those conditions 7 are. Or were. 8 Q So, I mean, I -- let me get clear about 9 what you're saying. 10 Do you think it's -- are you suggesting 11 that those data from the perimeter canal should be 12 factored into the data that were used, or that they 13 should be used instead of -- 14 A Probably instead of. 15 Q Okay. 16 A One alternative. 17 Q Okay. Do you think those data were 18 collected in a way that is more -- or rather, less 19 questionable? I think that's the word you used for 20 the other data. 21 A I would think that would be the case. 22 Q Do you know? 23 A No. 24 Q Okay. If the data were collected the same 25 way, and processed the same way, would you feel the 241 1 same -- 2 A I think the data, you know, collected from 3 a bucket thrown out of a helicopter into a, 4 you know, deep water body; i.e., a lake or a canal, 5 is a better sample than water collected in a bucket 6 thrown into a marsh where the water might be 7 3 inches deep, and the mouth of the bucket being 8 10 inches, which means it's obviously on the 9 bottom. 10 Or where the bucket is dropped into the 11 middle of a marsh, where there's vegetation in the 12 water column, and you're, you know, dislodging all 13 kind of things, you know, from that vegetation, 14 that sort of thing. 15 Q Well, it seems pretty clear then, there's 16 a difference in habitat between the canals, and 17 the -- and interior marsh site, if you want to call 18 it that. 19 A Uh-hum. 20 Q Would that have any -- would that 21 difference in habitat you think be significant in 22 base line determinations? 23 A If you're asking if I think the phosphorus 24 levels in the water in the canal would be different 25 than the phosphorus levels out in the marsh, 242 1 I think the answer to that's yes. 2 Q Why is that? 3 A Well, for one thing, the Refuge receives 4 roughly half, maybe over half of its water, from 5 rainfall. 6 Q Uh-hum. 7 A The center of the Refuge probably receives 8 almost all of its water from rainfall. 9 The ambient, you know, rainfall in the, 10 you know, 78-79 time period is going to be 11 obviously lower in concentration than the, 12 you know, waters -- the ambient -- well, the waters 13 in the canals or the waters at the pumps during 14 that same period. 15 So you're starting out with lower 16 phosphorus concentrations out there. You have 17 vegetation and periphyte and other organisms 18 actively competing for all that phosphorus that 19 does come out of the -- the rain out there, and 20 scrounging for the phosphorus it needs to survive, 21 and that sort of thing. 22 So phosphorus concentrations out in the 23 middle of the marsh are going to be a lot lower 24 than they are in, you know, concentrations in, 25 for instance, open water body where you don't have 243 1 all those things tying up the phosphorus and 2 biomass. 3 Q Then why wouldn't it make more sense if 4 you wanted to get a base line for a water body to 5 go to a site which was representative of the 6 background conditions of the water body, as opposed 7 to -- 8 A I don't think the OFW Standard says 9 background conditions. What the OFW Standard, 10 I believe, says, that you should -- that the -- 11 you know, conditions that existed in that water 12 body at that time. 13 Q Okay. If the -- 14 A The canals were obviously a part of the 15 water body. 16 Q Okay. 17 A So -- and at times was the sole, you know, 18 water body when the water level was below the level 19 of the surface -- 20 Q Uh-hum. 21 A -- and water stayed in the canals. So, 22 you know, the water that was in that perimeter 23 canal would have been, you know, pertinent -- 24 Q Well, would it be appropriate -- 25 A -- for analysis. 244 1 Q -- then, based on your view of it, to 2 analyze the -- the canal and the interior water 3 sites as two separate water bodies? 4 A Probably, yes. 5 Q You said that the interior of the marsh 6 was largely rainfall driven. Is that a function of 7 topography? 8 A Yes. 9 Q Because the center of the mouth -- the 10 center of the Refuge is mounded relative to -- 11 A Yes, it's -- 12 Q -- the mound? 13 A -- the topography, and in combination with 14 the resistance to flow, that vegetation, you know, 15 provides for the water in the canal, and the fact 16 that if you have, you know, water out in the -- in 17 the marsh, and you have water coming over -- 18 over -- in over here at the pumps, and they're at 19 basically the same elevation, this water is not 20 going to displace all this water out here, because 21 the water that's out there in the middle of the -- 22 the Refuge, you know, exerts pressure -- 23 Q Uh-hum. 24 A -- against that water coming in. So it 25 kind of acts as a stopgap I guess. 245 1 Q You talked about dropping a bucket out of 2 a helicopter on a rope. If, in fact, the water was 3 shallow in the area where the bucket was dropped, 4 and if, in fact, the mouth of the bucket rested on 5 the bottom or had to get its way in through 6 vegetation and, like, scrape some things off the 7 vegetation, what effect would you expect that to 8 have on any analysis of phosphorus in that water 9 that was in that bucket? 10 A It depends on how the water sample was 11 processed after it was collected. 12 Q Would you normally expect that to increase 13 the levels of phosphorus you'd find in the water 14 under any analysis? 15 A No. 16 Q Under some analyses? 17 A Yes. 18 Q Okay. Under standard methods of analyses, 19 would you expect the phosphorus level to be 20 increased if it picked up some sediments or scraped 21 off some stuff from the side of the plant that it 22 rested against? 23 A Again, it depends on how you process the 24 sample. If you were to take the sample and the 25 complete sample and acidify it, analyze it, I would 246 1 expect that to increase the phosphorus. 2 If something were done to remove part of 3 the particulate matter, either, you know, filtering 4 it or allowing it to settle or centrifuging it, 5 then it could have lowered the phosphorus. 6 Q Now, would filtering or centrifuging a 7 water sample lower the phosphorus in the water 8 itself? 9 A When you do phosphorus analyses, there is 10 a fractionation process you can go through to 11 partition the various kinds of phosphorus that you 12 have to sample. When you ultimately analyze that 13 sample, you're using, you know, the same method 14 you've -- if you were to collect a sample using a 15 bucket out of a helicopter that had a lot of 16 sediment in it, and you -- as I said, acidified 17 that sample to preserve it, and then later put it 18 through the digestion procedure that you would 19 normal do for puddled phosphorus, you increase the 20 phosphorus level because of the phosphorus 21 dissolved out of the sediment. 22 However, if you were to filter that sample 23 to remove all of that phosphorus, then what you're 24 really analyzing is, depending on the degree of 25 filtration you use, what's terminally called 247 1 dissolved phosphorus. Okay. 2 You remove some of the phosphorus that was 3 in that sample. So -- and if you reported that 4 result as total phosphorus, then you would be 5 misrepresenting, you know, what was actually in 6 the -- the sample. 7 Q Do you know how the samples were handled? 8 A No. 9 Q Do you know whether they were centrifuged? 10 A No. 11 Q Do you know whether they were acidified? 12 A Not for sure. 13 Q Do you know whether they were filtered? 14 A No. 15 Q What about the samples taken in the 16 canals? 17 A My understanding is that at least that the 18 canal samples were connected -- were collected as 19 part of the District's, you know, more standard 20 network of collecting, you know, samples as part of 21 one of their projects. 22 And my speculation is that they would 23 be -- be handled in probably the same manner, which 24 is they go out and, you know, collect a grab sample 25 from the canal and -- and preserve them, and, 248 1 you know, send them to the lab, and they're, 2 you know, analyzed at the appropriate time. 3 This sampling of the Refuge using a 4 helicopter and the bucket was a, you know, 5 separate, you know, project. And my guess is that 6 the samples were handled somewhat differently due 7 to the nature in which they were collected and -- 8 Q But you don't know for sure. 9 A No. We've been trying to find that out 10 from the District. 11 Q Do you know that they were, in fact, 12 collected with a bucket from a helicopter? 13 A I've been told that by several people. 14 Q Who's told you that? 15 A I don't recall. 16 MR. HYDE: If you have any better 17 information, we'd sure like to hear about it. 18 MR. KILLINGER: I can -- 19 Q Would you ever expect -- 20 A Well, I -- 21 Q -- a sample, for instance, collected from 22 a helicopter with a bucket in the middle of 23 Loxahatchee to have a lower total phosphorus upon 24 analysis than one collected, for instance, by a 25 different method, or a more, in your mind, 249 1 appropriate means for collection in that same area? 2 A Again, it depends on how they process that 3 sample after they collected it. 4 Q Okay. I think you mentioned some of this 5 before and -- 6 A Right. 7 Q -- excuse me for reasking it. 8 A Right. 9 Q Why would -- how -- what processes would 10 result in a lower -- 11 A If they -- 12 Q -- total phosphorus analysis? 13 A If they went through some procedure to 14 remove, you know, particulates and sediments -- 15 Q Uh-hum. 16 A -- from the sample -- 17 Q Uh-hum. 18 A -- they could have easily have removed 19 things that you would normally have reported as 20 total phosphorus in the water sample. 21 Q So -- 22 A Okay. 23 Q -- let me get -- let me get this 24 straight. 25 If you go out and do a sample in 250 1 Loxahatchee -- from an air boat or on foot or 2 whatever -- 3 A Right. 4 Q -- and you take your water, you're going 5 to wind up with some suspended particles that are 6 going to wind up in your sample -- 7 A Right. 8 Q -- by normal processes. But if you 9 centrifuge that, and those come out -- 10 A Right. 11 Q -- then you're going to wind up with a 12 lower -- 13 A No, no, no. If you treated both kinds of 14 samples the same way -- 15 Q Uh-hum. 16 A -- then you'd get essentially, you know, 17 the same kind of results. 18 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.) 19 A I mean, if you took a sample from a canal 20 and did the same, you know, filtration, and process 21 and all that sort of thing, you'd get comparable 22 results. 23 I'm just saying that -- I just suspect, 24 having collected samples out there myself, that the 25 people had to have done something or another to 251 1 remove, you know, some of those, you know, 2 particulates. 3 You know, maybe they simply, you know, set 4 the bottle on the shelf, let it sit there for, 5 you know, some period of time and you get it off 6 the top of it, I don't know. 7 But I know from having sampled out there, 8 it's very difficult to, you know, get a sample 9 without, you know, particulate material in it. And 10 that -- that problem would only be exacerbated 11 tremendously when sampling from a helicopter. 12 And the values that they report do not 13 appear to show the kind of effect that I would 14 expect to see in samples that were, you know, 15 collected that way, and then, you know, acidified 16 and digested. 17 Q Okay. 18 A So I suspect that they did something to 19 handle that sediment, you know, problem. 20 Q What -- what kind of effect don't they 21 exhibit, if that makes any sense. 22 A When you get particulate material in your 23 samples, and you do a total phosphorus analyses, 24 you get, you know, spikes, you know, in the data, 25 and higher values, depending on the amount of, 252 1 you know, sediment that you had in the sample. 2 And, you know, a lot of their -- most of 3 their numbers that they report in their appendices 4 are in the, you know, less than ten to -- you know, 5 ten to, you know, maybe fifteen, you know, parts 6 per billion, you know, range. 7 And that I suspect that if you were taking 8 a bucket and throwing it out of a helicopter, that 9 you'd have collected enough sediment in at least 10 some of those samples that you would see the effect 11 of that sediment in the sample, and you don't see 12 it. 13 So my conclusion is that they did 14 something to deal with that problem, and I don't 15 know what it was. 16 Q So basically it's your conclusion that 17 it's -- the samples are so low, you can't believe 18 it. That something must have been done to them to 19 lower them other -- you think they're lower than 20 what they otherwise would have been out there? 21 A Yes, I do. 22 Q Okay. Do you have an idea about how much 23 lower? 24 A I think that if the samples had, you know, 25 the sediment and stuff in it, they could have 253 1 easily been on the order of magnitude -- well, 2 maybe not that much. 3 Say, two to three to five times higher, 4 easily. 5 Q Okay. Do you think that would accurately 6 represent the -- if it were two to three to five 7 times higher, would that accurately represent the 8 total phosphorus in the -- 9 A No. 10 Q -- water column, or would that actually 11 represent the -- the sample plus the detritus that 12 got sucked into the mouth of the bucket when you 13 picked it up. 14 A The latter. 15 Q Do you think it's then in-- would it -- is 16 it inappropriate -- would it have been 17 inappropriate for the District to try to get some 18 of that matter out of their sample in some way? 19 A It would have been inappropriate to do 20 that and still report the value as total 21 phosphorus. Because by definition, total 22 phosphorus is the analysis of the complete water 23 sample. 24 Q Okay. And since you don't really know how 25 the samples were collected, or what was done to 254 1 them once they were collected, can you state 2 whether those samples have any relevance to what a 3 properly taken and handled sample would have shown? 4 A Maybe you could restate that one. Maybe I 5 didn't understand exactly. 6 Q Are you saying that the data are 7 worthless? 8 A I think that the data, you know, have some 9 value. I don't think the data are appropriate for 10 establishing limits that you're going to use to 11 compare samples that are taken in more appropriate 12 state of the art methodology. 13 Q Well -- 14 A Well, it's like this -- 15 Q -- maybe I didn't catch that one. 16 A -- it's like this. 17 If I take a -- a bottle that has been 18 contaminated with something out there, and take a 19 sample and measure it. And then I take another 20 bottle that's been, you know, acid washed and 21 cleansed and everything else, take another sample, 22 and, you know, compare it to that, then those 23 results aren't comparable, are they? 24 And I'm saying that, you know, the way 25 they collected their samples out there and the way 255 1 I suspect that they've been handled make the 2 comparison of that data with data that would be 3 collected now with much care to avoid, you know, 4 the sediments, for instance, and, you know, handled 5 in a certain way and compared to that 6 inappropriately. 7 Q Well, you said you thought they had some 8 relevance. What relevance do you think they have? 9 A I think they, you know, can give some, 10 you know, general, you know, idea of what the, 11 you know, phosphorus levels were out in that area. 12 Because I assume that all of the samples 13 were collected in the same manner; treated, 14 you know, pretty much in the same manner. And 15 that's again an assumption on my part. So that 16 they give, you know, some idea of what it was. 17 Q Okay. 18 MR. KILLINGER: I guess we ought to stop 19 for the day. It's about 5:00. 20 MR. HYDE: That's fine with me. 21 MR. KILLINGER: Let us all go. 22 MR. HYDE: Finished your answer? 23 THE WITNESS: Yeah, I guess. 24 MR. HYDE: Okay. 25 256 1 (WHEREUPON, THE DEPOSITION WAS CONTINUED 2 AT 4:58 P.M.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 257 1 CERTIFICATE OF REPORTER 2 3 STATE OF FLORIDA ) 4 COUNTY OF LEON ) 5 I, LAURIE L. GILBERT, Registered 6 Professional Reporter, and Notary Public in and for 7 the State of Florida at Large: 8 DO HEREBY CERTIFY that JOHN A. DAVIS, 9 Ph.D., was duly sworn by me. 10 WITNESS MY HAND AND OFFICIAL SEAL THIS 11 21ST DAY OF MARCH, A.D. 1994, IN THE CITY OF 12 TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA. 13 14 15 16 LAURIE L. GILBERT 17 Notary #CC 000172 18 19 20 21 22 23 24 25