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?