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 16, 1994 19 TIME: COMMENCED: 9:11 A.M. 20 CONCLUDED: 5:18 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 III PAGES 259-357 260 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, ESQUIRE 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 25 261 1 ALSO PRESENT: 2 Frank Nearhoos Douglas Gilbert 3 * * * * * 4 INDEX 5 (VOLUME III) 6 ITEM PAGE 7 DEPOSITION CONTINUED . . . . . . . . . . . . 262 8 LUNCHEON RECESS. . . . . . . . . . . . . . . 348 9 CERTIFICATE OF REPORTER. . . . . . . . . . . 357 10 11 12 * * * * * 13 14 15 16 17 18 19 20 21 22 23 24 25 262 1 DIRECT EXAMINATION (Continued) 2 3 BY MR. KILLINGER: 4 (WHEREUPON, THE DEPOSITION WAS CONTINUED 5 AT 9:11 A.M.) 6 MR. KILLINGER: Okay. I guess we're back 7 on the record. 8 Q I think that yesterday we left off looking 9 at exhibit number 4. And I guess we'll go back to 10 that, pick up again. 11 I guess I'll hand you that, Dr. Davis, and 12 ask if you can flip open to page 13, which is about 13 where we left off last time. 14 A Right. 15 I wanted to go back and -- and amend the 16 answer to 15, too. Because last night I went back 17 and looked at the appendix in the SWIM Plan 18 relative to the Park limits. 19 And the response I had given yesterday 20 about the ONRW period was incorrect. I was 21 thinking about a different draft that I'd seen -- 22 Q Okay. 23 A -- earlier. 24 So -- 25 Except but they did use the -- the correct 263 1 period anyway. 2 So if you want to pursue that some more, 3 you can. 4 Q Well, if your answer sort of is amended to 5 state that they used the correct period, then 6 that -- that will correct that aspect of it, and 7 that's fine. 8 A Okay. 9 Q We may get into it on looking at 10 number 16, which I'd like to ask you to do. 11 Do you have an opinion about the issue as 12 stated in number 16? 13 A To be honest, I haven't really done an 14 analysis that compares the -- the present day water 15 quality with that of that '78 to '79 period. 16 MR. HYDE: I think that Dr. Davis might 17 simply be listed under this particular issue 18 because of the need to introduce what the data 19 was. Not necessarily that he will make a 20 comparison, but rather just to lay the 21 foundation for others, such as, for example, 22 David Schindler, who -- who makes the 23 opinion -- or renders the opinion itself. 24 MR. KILLINGER: Okay. 25 MR. HYDE: And it -- it gets into the 264 1 difference between expert opinions and fact 2 opinions, and what are foundational evidence. 3 MR. KILLINGER: I understand. 4 MR. HYDE: I can tell you that Dr. Davis 5 will be offering testimony as to what the water 6 quality data were in terms of what our records 7 reflect. 8 And I think I mentioned that yesterday 9 when I alluded to the various categories of his 10 testimony. 11 Q Okay. Dr. Davis, would you by any chance 12 have any opinion or knowledge about what the water 13 quality data were for 1978-1979, for the Park and 14 Refuge? 15 What the data -- maybe it's present 16 tense -- what the data are for that period? 17 A I guess I don't think of, you know, data 18 in that term as far as having an opinion of what 19 the data are. I mean, they are, you know, what the 20 values are. 21 Q Right. That's why I asked, do you have 22 any knowledge or opinion about -- do you have -- 23 A Well, I have -- 24 Q -- any knowledge about that? 25 A -- knowledge about them, yes. 265 1 Q What's your -- from what is your knowledge 2 derived? 3 A The data which we had received from the 4 South Florida Water Management District. 5 Q So your knowledge is based on 6 Water Management District data? 7 A Correct. 8 Q Is there any other -- 9 A They're -- 10 Q I'm sorry. Go ahead. 11 A There are some additional data that were 12 collected by the Park I believe, and I believe the 13 Corps may have collected some data. And the USGS, 14 you know, maybe collected some data that has been 15 appended, too. 16 Q Has you -- have you looked at all that 17 data? 18 A At one time or another. 19 Q Can you give me an idea what the -- what 20 the data show regarding water quality with regard 21 to phosphorus, for instance? 22 A I hesitate to, you know, quote values, 23 you know, for these things, because I've looked at 24 so many numbers -- 25 Q Okay. 266 1 A -- and they kind of all run together. 2 Q Well then, can you give me an idea of 3 whether you think the data accurately reflect the 4 ambient water quality for that period. 5 A I think that the data at the 6 12 structures, for instance, represent, you know, 7 some measure of what the water quality was going 8 through the 12 structures. 9 That doesn't necessarily reflect what the, 10 you know, ambient water quality was in the Park, 11 for instance. 12 The Park has a, you know, network of what 13 they call marsh stations or the slough which may, 14 you know, more accurately reflect what the 15 conditions in the Park itself are. 16 Q What differences might you expect between 17 water quality data obtained at the S-12 structures, 18 and water quality data obtained in slough or in 19 more interior marsh stations? 20 A The -- the data at the, you know, the 21 structures themselves, you know, reflect, as I 22 said, you know, what the concentration was in the 23 water as it passed through those stations. 24 As that water moves out and spreads out, 25 you know, over the -- the Park and mixes with the 267 1 water that's already in the Park that may have come 2 from, you know, rainfall or -- or other sources, 3 it's obviously going to change the concentration. 4 The vegetation obviously takes some of the 5 phosphorus out. 6 So there is going to be, you know, several 7 factors that'll change the phosphorus concentration 8 in the water after it goes through the 9 12 structures. 10 Q So you would expect that the phosphorus 11 concentrations of -- of water samples taken at more 12 interior sites, or sites further from the 13 discharges, would be lower in phosphorus? 14 A As a general rule. But I don't think you 15 could necessarily make that conclusion on a, 16 you know, day-by-day basis. 17 Q Okay. What might keep you from making 18 that conclusion on a day-by-day basis? 19 A The operation of the structures 20 themselves, you know, by the Corps -- I guess the 21 Water Management District pursuant to instructions 22 from the Corps, can influence, you know, the 23 quality of water that, you know, goes into the 24 Park. There's several papers that talk about that. 25 If, for instance, water was, you know, 268 1 shunted down L-67 canal and out through one of the 2 structures and dumped, let's say, higher phosphorus 3 waters into the Park, and then they closed off 4 those structures and let water from, say, the 5 12-8 structure, which is mainly influenced by the 6 marsh -- 7 Q Uh-hum. 8 A -- flow in there, the concentrations going 9 through that structure would be lower than the 10 water that might already be out in the marsh, then 11 they mix, they would be higher than what's going 12 through the 8 structure. 13 So there are, you know, circumstances like 14 that -- 15 Q Are those normal -- 16 A -- that would -- 17 Q -- circumstances or occurrences? 18 A I'm not sure I'm the one to define what's 19 normal for the District. So -- 20 Q In your range of experience and knowledge 21 of the District's operations, would occurrences 22 like that be a routine daily -- 23 A Not a routine daily thing. But they 24 obviously do occur. 25 Q Okay. 269 1 A And who knows what they're going to do in 2 the future. 3 Q Well, okay. But is it safe to say then 4 that generally speaking, absent -- 5 A Like, I said -- 6 Q -- taking a water sample downstream from a 7 rookie, for instance, or something that also might 8 affect it or some operation of the District that -- 9 that is unusual, is it a safe thing to say that a 10 phosphorus sample -- or water samples from more 11 interior sites would generally be expected to be 12 lower in phosphorus than those from the pumps? 13 A That's generally the case. 14 Q And the reason for that is -- is mixing of 15 the water being discharged with waters that perhaps 16 came from rainfall, or perhaps have had the 17 phosphorus content lowered by some removal of 18 phosphorus in the water by either flora or fauna? 19 A Generally I think. 20 Q Okay. 21 A But there's also the influence obviously 22 of the Miccosukee, you know, tribes I guess that 23 have their -- some homes and facilities there that 24 can affect, you know, concentrations of, you know, 25 phosphorus downstream of the 12 structures, too. 270 1 Q Okay. Do you have any knowledge about the 2 water quality that is coming from the Miccosukee 3 lands? 4 A No, not really. 5 Q Do you know of any data that illustrate 6 what the water quality is coming from the 7 Miccosukee lands? 8 A No. 9 Q Do you have any anecdotal observations 10 about the water quality from the Miccosukee? 11 A Well, I mean, obviously when you fly over 12 there, you see, you know, a lot of activity in that 13 area. They have, you know, a school and tourist, 14 you know, facilities. Obviously a lot of people go 15 through there. 16 They obviously have some waste water, 17 you know, treatment facility there, which is bound 18 to discharge some phosphorus out into, you know, 19 the Park. Where it goes in, I don't know. 20 But I believe it's reasonable to assume 21 they have, you know, septic tanks. There's -- I've 22 driven through there, there are animal pens right 23 next to the canals that go along old 41 there. 24 Any time you have, you know, humans 25 involved, you're going to have some, you know, 271 1 phosphorus being generated, and there is a lot of, 2 you know, human activity in that area. 3 Q Have -- have you discussed this issue 4 about the water quality for '78, '79, and whether 5 or not it's -- has been or is being degraded with 6 any other experts? 7 A Yes. 8 Q Who have you discussed it with? 9 A I guess Dr. Lettenmaier. 10 Q Do you know what his opinion is about -- 11 A No. 12 Q -- whether the waters are being degraded? 13 A No. 14 Q What was the context of your discussions 15 with Dr. Lettenmaier? 16 A He was -- has been asked by the attorneys 17 to look specifically at the -- the data from the 18 structures that discharge into the Park; compare, 19 you know, his end results with those obtained by 20 others. And look at trends, if any, of phosphorus 21 from those structures. 22 Q Do you know what his results show? 23 A No. 24 MR. HYDE: Lee, just for purposes of the 25 record, it might well be that Dr. Lettenmaier 272 1 should be included under this issue as well. 2 I think that if you look back a few pages, you 3 see that Dr. Lettenmaier is used on some other 4 areas such as number 20, which seems to address 5 in a certain sense, the very same issue. 6 MR. KILLINGER: I have utter confidence 7 that at hearing, the -- a number of witnesses 8 will be called in areas which people object to 9 they're not being designated for. 10 Q All right. If you could flip to page 14, 11 please. 12 A (Witness complying.) 13 Q And review issue number 17 as it's framed 14 in the exhibit. 15 Do you have any opinion about the issue as 16 framed in that statement? 17 A Yes. 18 Q What's your opinion? 19 A Does not. 20 Q Can you tell me why it does not, or 21 specific shortcomings that it has in your 22 perception? 23 A It's my recollection that the -- the 24 SWIM Plan proposes only to address, you know, 25 phosphorus, you know, content of, you know, waters 273 1 leaving the EAA. It doesn't accept, you know, 2 very, you know, superficially even mention things 3 like, you know, fire; you know, hydroperiod, 4 disturbances; mismanagement of water; you know, 5 frost; use of species; or I guess other factors. 6 The SWIM Plan has almost a, you know, 7 single minded, you know, goal I guess of -- of 8 addressing simply reduction of phosphorus. 9 Q Do you have an opinion about why that is 10 the case, if that is, in fact, the case? 11 A I mean, it'd be speculation. 12 Q I'm asking you to speculate. I'm asking 13 you if you have an idea. 14 A I believe part of it is, you know, 15 political expediency that, you know, the 16 Water Management District felt a lot of pressure 17 to, you know, correct, you know, a perceived 18 problem; that doing something with phosphorus is 19 perhaps easier than addressing some of the larger 20 and I think more real problems that are related to 21 the design, you know, and operation of the -- of 22 the project. And the need to change their, 23 you know, water allocation, you know, practices 24 perhaps, deal with the water supply issues, the -- 25 the minimum flows and levels analysis that they're, 274 1 you know, being forced into now. 2 MR. KILLINGER: Boy, if this is easier 3 than -- I'd hate to see what the other 4 proceeding would be like. 5 Q If you could turn to page 15, please. 6 A (Witness complying.) 7 Q I believe you're listed in -- as a witness 8 for number 18, which the list starts on 15 and 9 carries over to 16. 10 Do you consider yourself an expert in the 11 issue framed in that statement? 12 A I would say in, you know, certain, 13 you know, aspects of it. 14 Q Okay. Which aspects? 15 A The, you know, interpretation of the, 16 you know, biological integrity standard. 17 The dissolved oxygen. Perhaps the, 18 you know, nuisance species area. 19 Q Okay. Do you have an opinion about the -- 20 whether the ecosystem of the 21 Everglades Protection Area has been adversely 22 impacted? 23 A Relative to issues that we just discussed, 24 yes. 25 Q Okay. What do you think the adverse 275 1 impact is? 2 A I don't think that, for instance, in terms 3 of, you know, the biological integrity standard, 4 there has been any adverse impact. 5 (WHEREUPON, A BRIEF OFF-THE-RECORD 6 DISCUSSION WAS HELD.) 7 (Recess.) 8 Q Okay. Let's -- let's go back to -- you 9 were saying that with regard to biological 10 integrity standard, I think, that you don't know of 11 any adverse impact in your opinion; is that 12 correct? 13 A Right. 14 Q Okay. Well, I think I already had that 15 from your prior testimony -- 16 A Right. 17 Q -- but you said you thought there had been 18 adverse impacts. I'm trying -- 19 A Now, I don't -- 20 Q -- to ask you -- I'm trying to ask you 21 what the adverse impacts might be, not 22 necessarily -- 23 A I guess I misunderstood -- 24 Q Okay. 25 A -- your question. 276 1 I thought you asked me did I have an 2 opinion as to whether or not there were. I said 3 yes. 4 Q Okay. 5 A I don't think I said that I thought there 6 were adverse impacts. 7 Q Okay. 8 A If I did, I misspoke. 9 Q Okay. Then thank you for the 10 clarification. It might have been my perception of 11 it. 12 Do you have an opinion that there are 13 any -- any adverse impacts in the 14 Everglades Protection Area? 15 MR. HYDE: Let me ask for a clarification 16 of that question. Do you mean adverse impacts 17 in the sense of violations of water quality 18 standards, or just -- 19 MR. KILLINGER: No. I realize this -- 20 MR. HYDE: -- some greater ecosystem. 21 MR. KILLINGER: -- I realize -- I realize 22 this is about as broad a question as it could 23 possibly be, but I thought I'd start that way 24 and then try to narrow it down. 25 (WHEREUPON, DR. FRYDENBORG ENTERED THE 277 1 ROOM.) 2 Q Do you know of any adverse impacts to the 3 natural Everglades ecosystem which have occurred or 4 are continuing? 5 MR. HYDE: I'm going to object to the form 6 of the question, in that it postulates a -- a 7 standard, if you will, that has no meaning to 8 it, adverse impacts in a general sense, without 9 reference to any specific criteria. 10 MR. KILLINGER: That's fine. 11 Q I'll ask you to answer, if you can. 12 A I think we talked yesterday about the fact 13 that, you know, I believe that there had been 14 fairly extensive, you know, adverse impacts related 15 to, you know, hydroperiod alteration. 16 Q Okay. 17 A And we also talked about the concept of 18 having to apply something like this, you know, 19 based on some aerial extent. If you, you know, 20 select a small enough area in an area of issue, 21 then certainly you can find something that's 22 adverse over some time period. 23 Q Okay. Is hydroperiod the sole adverse 24 impact for the Everglades Protection Area in your 25 opinion? 278 1 A No. 2 Q Okay. What other adverse impacts are you 3 aware of? 4 A Well, again, I think it -- it depends on, 5 you know, how you define, you know, the area you're 6 talking about and, you know, whether or not you're 7 talking about, you know, adverse impacts related 8 to, you know, water quality standards and that sort 9 of thing. 10 Q Okay. Well -- 11 A There are changes that occur out there in, 12 you know, all these things, you know, are temporal 13 as well as a spatial element. 14 Q So is your -- is your opinion based -- is 15 it that you can't answer the question unless I give 16 you an -- an aerial or temporal extent to allow you 17 to focus on what I mean by adverse impact? 18 A Well, and maybe a definition a little bit 19 more of, you know, an adverse impact. 20 Q Okay. I'll -- I'll come back to it. 21 Let's get through this. 22 MR. KILLINGER: Bill, I'm trying to get at 23 the substance of what this issue is, because 24 that's the way it's worded. It's worded 25 adverse impacts to the ecosystem in the 279 1 Everglades Protection Area, and I'm -- I'm 2 struggling trying to find out what the heck 3 that means. 4 MR. HYDE: Well, I understand what you're 5 saying in the context of the language chosen 6 here. 7 I think it would be our position that 8 adverse impacts have to be measured by 9 relationship to some specific criteria. One 10 just doesn't think about adverse impacts and 11 then blame a discharger for them. They have to 12 be considered in the context of, for example, a 13 violation of a State water quality standard. A 14 narrative nutrient standard, a nuisance 15 species, dissolved oxygen, or biological 16 integrity. 17 And I don't -- I don't think that Florida 18 law in general, or any of the statutes 19 considered here in particular, just make an 20 adverse impact without defining somehow a 21 criteria by which this proceeding is to be 22 evaluated, or the SWIM Plan is to be 23 considered. 24 MR. KILLINGER: I was trying to get at the 25 witness's scientific -- 280 1 MR. HYDE: Right. 2 MR. KILLINGER: -- or technical definition 3 of what adverse impact might be from a 4 biological standpoint for what the system can 5 suffer before it collapses. 6 But apparently he can't do that without 7 interfacing that to a rule or standard with 8 which someone has to comply as a matter of -- 9 of legal review. So what I'll -- I'll just go 10 on and come back to it more specifically later. 11 MR. HYDE: Well, I don't -- I don't think 12 that's an accurate characterization of what 13 Dr. Davis was saying. I think one can have 14 opinions as to what adverse impacts are, in a 15 general theoretical sense. 16 But I -- I don't know that one can 17 describe Dr. Davis's testimony in the manner in 18 which you have just done. But I think I'll let 19 the testimony speak for itself. 20 MR. KILLINGER: That's fine. 21 Q Can you turn to page 17, please. Oh, 22 I guess you're already there. 23 Do you have an opinion about whether the 24 SWIM Plan's phosphorus limiting standards for the 25 EPA are necessary to -- or will prevent violations 281 1 of State water quality standards? 2 A Yes. 3 Q What is that opinion? 4 A I don't think that the SWIM Plan, 5 you know, actually establishes, you know, any 6 standards to start with. 7 Q That was my next question. So thank you. 8 Okay. What does the SWIM Plan establish 9 in your mind? Does it establish anything with 10 regard to phosphorus? 11 A It -- I think that the SWIM Plan attempts 12 to I guess establish some criteria limits, I don't 13 know exactly, you know, what they should be called, 14 for closed going through the 12 structures, and for 15 the -- I guess interior, you know, Loxahatchee, 16 you know, Refuge station. 17 It -- my recollection is is that, 18 you know, it talks about the 50, you know, parts 19 per billion that we always talk about as being some 20 kind of, you know, long-term, you know, goal that 21 the STAs are going to produce. 22 It's my understanding that in order for 23 water quality standards to be established, that the 24 DER has to do that. I don't think they've gone 25 through that process. 282 1 Q Well, what -- what criteria or goals do 2 you think the SWIM Plan establishes for phosphorus 3 discharges, is that the 50 you're referring to? 4 A I think, and my recollection is that, 5 you know, the SWIM Plan, you know, basically tried 6 to size the STAs, so to speak, to give a, quote, 7 long-term, you know, average concentration of 50. 8 And that they went out of their way to 9 talk about that as being I guess an interim value. 10 Q Why do you say "they went out of their 11 way" to talk about this interim value? 12 A Because I guess they didn't want to give 13 anybody the false impression that that was going to 14 be, you know, it. And to put them on notice that 15 they were going to attempt to lower that value in 16 the future. 17 The SWIM Plan talks about needing to do, 18 you know, research to establish a, quote, 19 threshold, you know, limit for phosphorus. 20 Q Right. 21 A And the SWIM Plan is pretty candid about 22 the fact that no one knows what that value is. 23 Q Let me just sort of clarify something for 24 a second here before I go on. 25 You're not going to be testifying about 283 1 the sizing or -- or ability of the STAs to achieve 2 50, are you? 3 A I haven't been asked to at this time. 4 Q Okay. Assuming all things in the 5 SWIM Plan are -- are unimpeachable, and they 6 produce water at 50 ppb -- 7 A Okay. 8 Q -- do you have an opinion about the 9 appropriateness of a concentration such as that in 10 a -- even as an interim -- 11 A Yes. 12 Q -- at improving or protecting the 13 ecosystem? 14 A Yes. 15 Q What is your opinion? 16 A That it's almost totally arbitrary. 17 Q Do you have an opinion about whether 18 phosphorus in waters discharged to the 19 Everglades Protection Area is causing or 20 contributing to any changes in the ecosystem in the 21 areas of the discharge? 22 MR. HYDE: I'm going to object to the 23 question to the extent that it doesn't have a 24 specific reference to a change -- 25 MR. KILLINGER: Okay. 284 1 MR. HYDE: -- contemplated by the State 2 water quality standard. 3 MR. KILLINGER: Okay. 4 Q Let's start off with macrophytes. 5 A I don't really intend to, you know, offer 6 any opinion relative to, you know, the macrophyte, 7 you know -- 8 Q Okay. 9 A -- issues, unless, you know, asked to. 10 That's somebody else's area. 11 Q Okay. Have you got any opinion about 12 whether or not it is -- phosphorus is causing or 13 contributing to any changes in the chemical 14 composition of the waters downstream -- 15 MR. HYDE: Objection. 16 Q -- of the discharge areas? 17 MR. HYDE: Same objection. 18 A The chemical composition? 19 Q The chemical constituents. 20 A I mean, I guess to the extent that, 21 you know, phosphorus is, you know, higher going in 22 than it is at some point interior, obviously it 23 would increase that level. 24 Q Does that phosphorus increase have any 25 effect in your opinion on -- well, let's just pick 285 1 one -- dissolved oxygen? 2 A It could. 3 Q What effect could it have? 4 A It could cause it to be, you know, 5 increased or, you know, decreased. 6 Q How might it cause it to be increased? 7 A Causes the, you know, production of more 8 algae, for instance, which, you know, produces 9 oxygen, releases it to the water. 10 Q Do you have any personal knowledge of any 11 studies which examine whether the addition of 12 phosphorus is raising or lowering dissolved oxygen? 13 A I don't know of any studies that were, 14 you know, specifically targeted to, for instance, 15 you know, raised phosphorus and see what affect it 16 had on -- on dissolved oxygen, anything like that. 17 Q How might the addition of phosphorus cause 18 DO to drop? 19 A If it, you know, causes a, you know, 20 significant additional production of -- of algae so 21 that the population builds to, you know, say, very, 22 you know, high levels, it'll cause the oxygen to go 23 up real high in the afternoon; and then when the 24 sun goes down, all those organisms consume oxygen 25 and will lower it during the nighttime period via 286 1 respiration and will lower it during that period. 2 If you have cloudy days and there's not 3 enough sunlight where you have a net respiration 4 opposed to photosynthesis -- 5 Q Are you talking about -- 6 A -- it will lower. 7 Q -- light and dark cycles of 8 photosynthesis? 9 A Yeah. 10 Q What about when all that -- all that 11 nutritious and enriched algae dies and decomposes, 12 does that have any effect on DO? 13 A Sure. 14 Q What does that do? 15 A Lower the DO. 16 Q You said you don't know of any studies to 17 determine -- determine by addition of phosphorus, 18 you know, what effects -- 19 A Uh-hum. 20 Q -- it had on -- on DO. Are you going to 21 offer an opinion at trial on this matter about what 22 actual effects are occurring with regard to DO in 23 the Everglades Protection Area? 24 A I, you know, have been asked to address, 25 you know, whether or not the DO standard, you know, 287 1 has been violated, you know, in the Everglades. 2 So I need -- I intend to, you know, 3 address, you know, the DO standard and whether or 4 not, you know, applicable to these type areas. 5 Q Okay. We'll move on down the road here a 6 little bit. 7 Could you look at page 25, please, of the 8 exhibit. 9 A (Witness complying.) 10 Q Item number 32 states an issue. Do you 11 intend to offer testimony about that issue? 12 A That's a distinct possibility I guess. 13 Q Have you got an opinion on that issue? 14 A Yes. 15 Q What is the opinion? 16 A That, you know, the, you know, phosphorus 17 budgets, you know, offering the SWIM Plan could be, 18 you know, improved. 19 Q In what respect? 20 A Over I guess -- approximately I guess I 21 should say, you know, half the phosphorus that's 22 included in the budget for all the areas is, 23 you know, based on rainfall. 24 And there's been a lot of question as to, 25 you know, what are the appropriate, you know, 288 1 values for the phosphorus concentration of that 2 rainfall. I -- 3 Q Do you -- I'm sorry, go ahead, I don't 4 want to cut you off. 5 A I was just going to say, I expect, 6 you know, better numbers are going to be developed 7 relative to that, and those would be incorporated 8 into the budgets. 9 Q Do you think that better numbers are 10 available now? 11 A It's my understanding the people are 12 working on developing better numbers. 13 Q Who would that be? 14 A Well, I think -- I understand 15 Bill Walker's doing some work in that area. 16 I think the District is reassessing their rainfall 17 collection, you know, network. Allen LeFohn is 18 doing some work for, you know, the League relative 19 to that. 20 Q Your opinion was that the phosphorus 21 budgets could be improved. 22 A Uh-hum. 23 Q How far off do you think they are? 24 A I think that's, you know, hard to say when 25 there's so much, you know, question about the, 289 1 you know, rainfall, you know, component of that. 2 Q Okay. You said there was a lot of dispute 3 about the appropriate rain values -- 4 A Uh-hum. 5 Q -- and you thought better numbers would be 6 developed. Have you got an opinion about what 7 appropriate rain values for phosphorus are? 8 A I honestly don't. 9 Q Okay. Could you look at page 26. 10 A (Witness complying.) 11 Q Number 33. 12 Do you have an opinion about whether the 13 SWIM Plan sets interim and long-term phosphorus 14 concentration limits? This may be duplicative of 15 what we've already discussed. 16 A (Nodding head.) 17 Q Is it your opinion that it does not in 18 itself? 19 A Correct. 20 Q Okay. What do you suppose is -- 21 A Wait, wait. Let me see now. 22 I guess what I'm saying is is I believe 23 that, you know, the SWIM Plan, the interim and 24 long-term phosphorus concentration limits, are, 25 you know, arbitrary. 290 1 I'm not sure exactly what practical 2 means. But I think they are impractical in some 3 respects. 4 Q Okay. Well, let's start at the 5 base line. What do you think -- 6 A Okay. 7 Q -- the SWIM Plan's interim and long-term 8 phosphorus concentration limits are? 9 A I ass-- would assume that this question is 10 related to the interim and long-term, you know, 11 limits for the Refuge and for the Park. It may 12 also be referring to, you know, the interim STA 13 goal. 14 Q Okay. Do you know -- can you put any 15 numbers with what those limits are, limits, levels, 16 goals? 17 A I would have to go back and look at, 18 you know, the appendix in the SWIM Plan to see 19 exactly what the numbers are. 20 In the Refuge, you know, it's a range of 21 numbers depending on what the stage is. Because 22 they tied the, you know, the limits to, you know, 23 stage levels by an equation. So there's not a 24 single number. 25 Q What about the Park? 291 1 A In the Park, it's also not a single 2 number. It's tied to the volume of water that goes 3 through the structures. 4 Q Well, do you anticipate that you'll go 5 back and look at the appendix to the SWIM Plan 6 before hearing so that you can testify about what 7 those numbers are? 8 A Sure. I expect that at trial I would have 9 a demonstrative exhibit that would, you know, help 10 keep all those, you know, values, you know, 11 crystallized. 12 Anybody that's going to sit here and tell 13 you that they remember every number on all this 14 data -- 15 Q Oh, I understand. 16 A -- is foolish -- 17 Q I understand. 18 A -- in my opinion. 19 MR. HYDE: I think that the -- the Plan 20 and the numbers contained in the Plan are 21 obviously the best evidence of that anyway. 22 Q I'm not trying to box you in, I'm trying 23 to find out what you're going to testify about. 24 A Sure. 25 Q Even without knowing the specific numbers 292 1 and having them -- 2 A Sure. 3 Q -- leap to the forefront of your mind, can 4 you tell me whether you think they're arbitrary? 5 A I think that certainly, you know, the -- 6 the 50 number for the STA goal is, you know, 7 arbitrary. I think the Plan itself almost states 8 that. Maybe not exactly, as this number's 9 arbitrary. But I haven't seen any clear evidence 10 of how that number was -- was derived at. 11 Q Do you think the number has any validity? 12 A For what purpose? 13 Q For the purpose for which it is proposed 14 in the SWIM Plan? 15 A I don't -- I'm not sure that, you know, I 16 can tell you exactly what the purpose of the 50, 17 you know, number was, other than to give, you know, 18 somebody, you know, a basis for, you know, trying 19 to, you know, make some calculation relative to, 20 you know, sizing of the STAs. 21 The SWIM Plan I think states that they 22 have no idea whether that number is the threshold 23 number or not. It talks repeatedly about having to 24 do extensive and long-term, you know, research to 25 determine what that number is. 293 1 The number, you know, conceivably could be 2 higher, could be, you know, lower. To pick, 3 you know, some number in between, you know, where 4 they think it might fall out is -- is certainly, 5 you know, arbitrary. 6 Q Well, what do you think the number's 7 intended to -- to do? Intended to start a process 8 of -- of what? 9 A Reducing phosphorus I guess. 10 Q Okay. Do you think it is an arbitrary 11 start at that? 12 A I think any time you just, you know, pick 13 a number, that it's somewhat arbitrary. 14 Q Okay. Do you think that the 50 is a 15 reasonable start at that? 16 A If your, you know, goal is simply to, 17 you know, reduce, you know, phosphorus for the sake 18 of reducing phosphorus; and you're starting at, 19 you know, numbers that are at, you know, 100 or 20 200; and if you make the assumption, which is not 21 necessarily valid I think, that you're going to 22 reach some number, you know, lower than that, and 23 it's -- it's a number. I mean, how reasonable it 24 is I think is in the eyes of the beholder. 25 Q Okay. Do you think that -- stay on the 50 294 1 for a while. 2 Is the 50 practical? 3 A I guess it depends on -- well, I don't 4 think that you can really, you know, necessarily -- 5 well, won't put it that way. 6 To me, you know, spending, you know, 7 400 million dollars to get to a somewhat, you know, 8 arbitrary number is irrational. Okay. 9 Especially when the system that's being 10 proposed is, you know, not being designed to give, 11 you know, really a number. The SWIM Plan, as I 12 recall, talks about, you know, our, you know, 13 general, you know, goal is to reach, you know, 14 50 as a long-term average, with long-term being 15 undefined in the SWIM Plan. 16 I have heard people say that long-term is 17 at least ten years, maybe twenty years. There's 18 been a lot of recognition that the numbers coming 19 out of the STAs are going to fluctuate wildly from 20 year-to-year. Some years, it's going to be 100, 21 150 maybe, some years it's going to be lower. 22 And whether or not all of those, you know, 23 ups and downs are going to, you know, balance out 24 and reach 50 is a lot of guesswork right now. 25 Especially when they haven't, you know, 295 1 designed the system to treat all of the water 2 that's going to be going south. The SWIM Plan, as 3 I recall, clearly says that they're not going to 4 treat bypass water, it wasn't designed, they 5 weren't sized to treat that, it wasn't designed or 6 sized to treat the, you know, lake release water. 7 Especially the additional lake release 8 water that I understand the Park now wants, which 9 is on the order of several hundred thousand acre 10 feet additional water. 11 So I don't think the system that's been 12 designed is practical in terms of meeting people's 13 perception of what this Plan is going to do. 14 Q Okay. 15 A You shouldn't allow me to get on my 16 soapbox. 17 Q No. That's -- I'm trying to figure out 18 what the word practical means because -- 19 A Well -- 20 Q -- it's -- it's a -- 21 A I agree. That's -- 22 Q -- rather subjective -- 23 A Drafted by an attorney. 24 Q -- determination -- well, I understand 25 that you didn't draft it. 296 1 MR. HYDE: Derived from the statute. 2 MR. KILLINGER: Yeah. Also drafted by an 3 attorney I expect. 4 Q Well, having said that, do you think that 5 the 50 is achievable? 6 A I don't think it's achievable based on the 7 design put forth in the SWIM Plan. Given that, 8 they haven't considered the real volumes of water 9 that they, as I understand it, now intend to put 10 through the STAs. 11 Q Is this -- is that an area where you 12 intend to testify? I mean, is that mainly an 13 engineering question that you have about it, or is 14 that based on -- 15 A I -- 16 Q -- discussions -- I know this is a 17 compound question. I'm trying to flush out whether 18 that's an area of your expert testimony. 19 A I think that I will probably be asked to 20 provide, you know, data that shows what the volume 21 of the empty make up water might be; what the 22 volume of, you know, lake releases might be; what 23 the volume of additional water that the Park 24 want -- might be. And to point out that those 25 volumes were not considered in the design of the 297 1 STA. 2 I don't intend at this time to offer any 3 testimony as to whether or not the K factor or 4 uptake rate is appropriate or not. 5 Q Okay. 6 A I expect someone else to address that 7 issue. 8 But I do expect to offer testimony on -- 9 as to the, you know, quantity concentration and 10 loads that would be going to the Water Conservation 11 Areas, and perhaps what percent of that would be 12 treated by the STAs. 13 Also would probably compare and contrast 14 the period of record that the STAs were designed on 15 with, you know, the longer term record and -- and 16 what perhaps passed through the structures during 17 1993. 18 Q Do you think the 50 ppb is ecologically 19 significant? 20 A No. 21 Well, maybe I should ask you to explain 22 what you mean by ecologically, you know, 23 significant. 24 Q Well -- 25 A I'm -- 298 1 Q -- whether this was a three-way 2 deposition, because I'd ask Mr. Hyde what 3 ecologically significant means. 4 Is it your opinion then that -- 5 A I -- 6 Q -- reducing phosphorus discharged into the 7 EPA to a level of 50 will have no effect? 8 A I think that reducing the concentration of 9 50 is not going to change the systems you have out 10 there today hardly at all. 11 Q Okay. Why do you think it will not? 12 A Because I don't think that, you know, 13 phosphorus alone is the cause of the systems that 14 are out there today. Unless you make, you know, 15 significant changes to, you know, the hydroperiod 16 and -- and the way the system's operated, I don't 17 think, for instance, you know, the cattails are 18 going to go away or, you know, the fauna's going 19 to -- populations are going to all of a sudden, 20 you know, change or -- or any of that. 21 Q You think phosphorus is -- plays a role in 22 ecosystem changes that are occurring? 23 A I think, you know, phosphorus plays a role 24 in all life. 25 Q Well, doesn't answer my question. What do 299 1 you -- 2 A Okay. 3 Q -- think that it plays a role -- you said 4 you didn't think it would have any effect unless 5 you also did something with the hydroperiod. 6 A Right. 7 Q That being the case, that I think implies 8 that phosphorus does play a role in changes to the 9 ecosystem. Is that correct? 10 A Like I said, you know, phosphorus 11 definitely plays, you know, a role in the way, 12 you know, organisms, you know, react I guess. 13 I guess what I'm trying to say is is that, 14 you know, people appear to be concerned about, 15 you know, the cattails south of 10 structure. 16 Q Uh-hum. 17 A I think if you reduced phosphorus to zero, 18 those cattails are still going to be there for a 19 long, long time. 20 Q Okay. 21 A Unless you do other things to, you know, 22 change the system. 23 Q Do you think they had any role in those 24 cattails becoming established? 25 A I think they, you know, helped, you know, 300 1 the cattails and everything else out there to grow, 2 and phosphorus is a fertilizer. 3 Q Okay. I guess I better make some time 4 here. Let's leave that alone and go on to page 27. 5 Have you got an opinion about number 34? 6 A Yes. 7 Q What's the opinion? 8 A I don't think -- as I said before, I don't 9 think the biological integrity standard is 10 violated. So I don't think changing, you know, 11 phosphorus concentrations are going to affect that 12 standard at all. 13 I think, as I said before, establishing, 14 you know, some of these limits are obviously 15 arbitrary. 16 I also say that I didn't think that the 17 way the limits were, you know, developed was valid. 18 Q Okay. Well, that'll take me on to 19 number 35 there. 20 A Okay. 21 Q You just said you don't think they're 22 valid. The issue is whether they've been correctly 23 determined. Have you got an opinion about that? 24 A Are we -- when we're talking about interim 25 and long-term standards here, are we going to be 301 1 talking about the 50 related to the, you know, the 2 STA, or are we talking about the limits established 3 in I guess Appendix E, I think it is, of the 4 SWIM Plan. 5 Q Well, this issue framed in number 35 would 6 appear to address both. I'll let you qualify your 7 answer whatever way you feel. I'm trying to -- 8 A Well, the only reason -- 9 Q You -- 10 A -- I mean, to me we've already talked 11 about, you know, the problems and the fact that 12 I think some of these things were very arbitrary. 13 It seems like we're just going to repeat the same 14 things. I don't mind doing that. But don't you 15 see this as very similar to the discussions we've 16 just had -- 17 Q Yes, I do. 18 A -- and maybe -- 19 Q And I -- I'm wondering why I think a lot 20 of these things are very similar and I wonder why a 21 lot of them are listed as -- as ostensibly separate 22 issues. But the fact is they were, so I'm trying 23 to find out what testimony there's going to be on 24 it as a separate issue. 25 You know, there's a lot of -- 302 1 A Well -- 2 Q -- stuff to -- 3 A -- let's talk about the Refuge limits. 4 Q Okay. 5 A You know, we talked yesterday about the 6 fact that -- that we didn't think that the -- that 7 there may be some, you know, question as to whether 8 or not the historical samples collected were, 9 you know, valid or represent what they, you know -- 10 Q Right. 11 A -- are alleged to. 12 All right. Also I think that the, 13 you know, correlation between the stage and the 14 concentration is -- is very questionable. I also 15 think that any relationship that you might have 16 established, you know, back then is going to be 17 invalid under the new regulatory, you know, 18 schedule that the Refuge is trying to have 19 adopted. And I think may have been adopted, 20 you know, for the Refuge. 21 Someone else is going to, you know, 22 provide the statistical, you know, rationale and 23 the arguments related to those issues. 24 We also, you know, talked about the fact 25 that the interior of the Refuge is kind of a 303 1 separate system from the perimeter -- 2 Q Uh-hum. 3 A -- and that issue -- and also need to have 4 been considered, you know, by the District. 5 In terms of the Park, we talked about the 6 fact that the limits were set based on 7 concentrations at the structures themselves as 8 opposed to out in the marsh. My understanding of 9 the OFW limits are that it's a -- more of a 10 receiving, you know, water body, you know, 11 standard, as opposed to a -- kind of a discharge 12 limit. 13 I think that the Water Management District 14 and Corps have a lot of control over whether -- how 15 the water is delivered to these points. And to 16 that extent, how the power or control to 17 significantly affect the concentrations of waters 18 in these areas. And I don't think there's really 19 any dispute about that. 20 Q Let me just pursue that for a second. 21 How would the District's delivery of water 22 to the areas affect the levels of phosphorus -- 23 A All right. 24 Q -- in the water delivered. 25 A Let's take the Park for an example. There 304 1 are several, you know, studies that were actually 2 done by Park personnel that point out that when 3 they receive water that comes across the marsh in 4 3-A, that the concentrations are very low. 5 And they contrast that with periods where 6 the water comes down via the canal system, doesn't 7 get out into the marsh, and that concentrations are 8 higher during those periods. I mean, it's -- 9 it's -- I don't think even a disputed fact. 10 Q Well -- 11 A So to the extent that the 12 Water Management District never sent water down the 13 canal, always let it go into 3-A, for instance, the 14 concentrations are going to be lower. 15 Q Is that because going through the marsh in 16 3-A will clean it up? 17 A It could be because of a lot of reasons. 18 Maybe because that more of the water that's going 19 into the Park when it comes through 3-A is rainfall 20 water, as opposed to Lake Okeechobee water. 21 Obviously -- 22 Q But if we're talking about the same number 23 of acre feet, it either gets in there via the canal 24 or via the marsh. 25 A That's correct. But we're talking about 305 1 potentially two different sources from that water. 2 One, rainfall; the other being Lake Okeechobee 3 water. 4 The Park, as I understand it, are -- is in 5 the process of trying to get more water allocated 6 to them. The only place -- and that water they 7 expect to receive is water that the District 8 normally releases to tide. 9 Q Uh-hum. 10 A So that water would be coming from 11 Lake Okeechobee, not from, you know, 3-A marsh. 12 And if the District chose to release that water 13 down the canal system, for instance, it is going to 14 be, you know, higher, for whatever reason. 15 If, you know, the gates, you know, were, 16 you know, left open all the time, and -- and every 17 time it rained in 3-A, you know, all that water 18 went down to the thing, a different set of 19 circumstances are going to exist. 20 Q So you -- 21 A And how they blend those is going to 22 affect it. 23 Q So, is your statement that running water 24 as opposed to through the canals, through 3-A might 25 have the affect of -- of putting more rainwater 306 1 from 3-A into the Park? 2 A Could. 3 Q Why would that be -- 4 A It could also put more water from 5 Lake Okeechobee that has been flowing across the 6 marshes in there, do both. 7 Q If you run water across 3-A, will it come 8 out with a lower phosphorus concentration at the 9 end. 10 A I would expect it to, yes. 11 Q Okay. That's -- if you could flip to 12 page 29, please. 13 A (Witness complying.) 14 Q And look at issue number 3. 15 Have you got an opinion about whether the 16 SWIM Plan or its implementation will be harmful to 17 the water resources of the District? 18 A Yes. 19 Q What's your opinion? 20 A I think that, you know, the District 21 should have, you know, completed their flows and 22 levels and their water supply planning process, 23 you know, prior to, you know, jumping into, 24 you know, this issue so that they would know where 25 they were going to, you know, allocate their water 307 1 and how they were going to route it and all that 2 sort of thing, prior to deciding to build, 3 you know, 40,000 acres of, you know, STAs, and that 4 sort of thing. 5 And that there's a, you know, distinct, 6 you know, possibility that after they get through 7 with their allocation process, that they would have 8 to, you know, go back and -- and modify, you know, 9 all of these things. They should have done that 10 first. 11 There's also some, you know, analyses that 12 show that, you know, the STAs are going to 13 potentially ET a little bit more water than -- than 14 occurs now. So there would be, you know, some loss 15 of water. How much it is, I don't recall right 16 now. 17 Q So is your answer that the SWIM Plan or 18 its implementation will be harmful to the water 19 resources -- 20 A I think -- 21 Q -- of the District? 22 A -- I think could be -- 23 Q Okay. 24 A -- might be -- 25 Q What are the potential ways it could be 308 1 harmful to the water resources of the District? 2 You just mentioned perhaps loss of water for ET. 3 Is that one of them? 4 A That would be one of them. 5 Q Okay. Can you think of any other -- 6 A It could, you know, potentially influence, 7 you know, the timing and certainly the -- and 8 delivery of that water to specific places, because 9 these STAs are going to be built in specific 10 locations and they're going to, you know, route 11 water, you know, to those, and then, you know, 12 release them from those areas. 13 It may be that as part of the water 14 allocation and their, you know, hydroperiod 15 restoration park, that they would want that water 16 somewhere else. 17 Q But isn't -- is that -- isn't that purely 18 hypothetical speculation on your part, because you 19 don't know what those processes are yet? 20 A Some of that would be hypothetical 21 speculations, yes. 22 Q Okay. Can you think of any other reason 23 it would be harmful to the water resources of the 24 District? 25 A There is a hypothesis out there that, 309 1 you know, the STAs may actually end up generating 2 mercury. There's also a possibility that the STAs 3 themselves will, you know, generate, you know, 4 excess phosphorus for, you know, an extended period 5 of time. 6 Q I think -- 7 MR. KILLINGER: And maybe, Bill, you can 8 answer this. 9 Q -- I think it's been stated, you're not 10 going to be testifying about the potential 11 mercury -- 12 A No, I'm not. 13 Q -- interface on this? 14 A I'm just -- 15 Q Okay. 16 A -- you asked me if -- 17 Q No. I understand. I just -- 18 A -- I'm saying -- 19 Q -- don't want to -- 20 A -- those are reasons. 21 Q Okay. 22 A And those are issues that should be 23 addressed, you know, prior to deciding on a course 24 of action. 25 Q Have you got any -- 310 1 MR. HYDE: Lee, just for purposes of the 2 record, mercury is not part of our theory of 3 the case, and we're not raising it here. 4 I think Dr. Davis is being candid in giving you 5 some ideas about what might be some 6 deficiencies in this respect. 7 MR. KILLINGER: I understand. But I'm -- 8 I'm still going to ask about it, simply because 9 it indicates he'll testify about whether it 10 will be harmful to the District. And whether 11 he testifies about the mercury or not. 12 Q Have you got an opinion about the mercury 13 issue, about whether the STAs are going to generate 14 mercury? 15 A I think it's something that would need to 16 be investigated. 17 Q Have you investigated it any? 18 A Not at all. 19 Q Okay. Have you got an opinion about 20 whether the STAs will generate phosphorus for a 21 while? 22 A Yes. 23 Q What's the opinion? 24 A I think they will. 25 Q Do you know how much phosphorus? 311 1 A No. 2 Q Do you know for how long? 3 A No. 4 Q What's your opinion based on? 5 A Dr., you know, Reddy had taken several 6 soil samples and I guess from Knight's Farm area, 7 and did some absorption, desorption, you know, 8 experiments, and, you know, showed that the 9 phosphorus was, you know, high in those soils and 10 that, you know, it would be released, you know, for 11 some period. 12 I don't think he concluded how much would 13 be released or how long. But we, you know, know 14 that a lot of these STAs are going to be built on 15 previous farmland which, you know, had been 16 fertilized and, you know, have phosphorus in them. 17 Simple, you know, phosphorus, you know, 18 equilibria considerations indicate that there's 19 clearly a potential for phosphorus to be released 20 from those soils, especially if you operate them at 21 a couple feet deep, and create reducing conditions 22 at the sediment, you know, water interface, 23 phosphorus is going to be released. It's always 24 released under a release -- reducing conditions. 25 Q Why's the phosphorus available in the soil 312 1 where the STAs are going to be built? 2 A Why is it available? 3 Q Yeah. 4 Has it always been there and available? 5 A Not all of it. A part of it is -- is from 6 the fertilizer that's been, you know, applied to 7 these areas. 8 Q Okay. Was it there and available 9 historically before the central and south Florida 10 project? 11 A Some of it would have been, certainly. 12 Q Was it released then in the same manner 13 you're speaking about now? 14 A If the, you know, water levels in the 15 area, you know, increase and they -- and it 16 became -- you had to reduce the conditions in those 17 areas, it would be. 18 When the area's dried out and burned, the 19 phosphorus would be released. If it -- during 20 drought periods, the sediment dried out, it was 21 oxidized, you're going to have, you know, 22 phosphorus released under those conditions. 23 So certainly under natural conditions, 24 you know, phosphorus can be released from, 25 you know, pristine, you know, soils that have 313 1 phosphorus. 2 Q Does cultivation of the EAA soils operate 3 to make more -- make I think phosphorus available 4 from the soils? 5 A The -- the -- I guess it depends on, 6 you know, what you consider in cultivation. 7 I mean, if you're just saying plowing, I don't know 8 that that necessarily would. 9 If you could define cultivation for me, 10 maybe I could answer that better. 11 Q Well, I think I would -- what I'm trying 12 to get at is is -- 13 A If you're asking if farming practices -- 14 Q Yes. That's -- might have been the words 15 I was going to use, in fact. 16 A You know, the farming practices are 17 designed to make the -- the areas, you know, more 18 productive for, you know, raising crops. 19 Q Yeah. 20 A And part of that practice is -- is 21 controlling the water table and, you know, adding 22 phosphorus, and, you know, those things make that 23 phosphorus available to the crops that are going on 24 them. 25 That doesn't necessarily mean that it, 314 1 you know, makes it, you know, available to, 2 you know, be discharged, you know, off-site. But 3 obviously the whole intent is to make, you know, 4 the nutrients available to the crops you're trying 5 to grow. 6 Q Can you think of any other potential harm 7 to the water resources of the District other than 8 the potential for mercury and the potential for 9 generating phosphorus when their STAs are initially 10 flooded? 11 A We talked about the reduction and the 12 quantity of water -- 13 Q Okay. 14 A -- increased ET. 15 Q Does the SWIM Plan contemplate some kind 16 of a start-up period, or a break-in period for the 17 STAs? 18 A I quite frankly can't tell you whether the 19 SWIM Plan contemplates that or not. I know that 20 the District does contemplate it -- 21 Q Okay. 22 A Whether or not it's stated in the 23 SWIM Plan or not, I don't know. 24 Q And do you think that biological 25 assimilation, by whatever, you know, within the 315 1 STAs can -- can negate that potential soil 2 phosphorus release? 3 MR. HYDE: I'm going to object to your 4 question to the extent it leaves undefined the 5 phrase biological assimilation. That's a term 6 that I certainly am not accustomed to common 7 parlance of these proceedings. 8 But he may answer it, if he knows how to. 9 MR. FitzGERALD: I'm not sure the 10 standard, Counsel, is if he knows how to. That 11 applies to certain something that we hope is 12 not going on here. 13 MR. HYDE: I think you understood the 14 intent of my objection, Tom. 15 MR. FitzGERALD: Actually I'm not sure I 16 did. 17 A I don't have any problem with the, 18 you know, term biologically assimilated. 19 But I think that it's possible, but I 20 don't think that it's known whether or not that -- 21 that will occur because it -- it depends on, 22 you know, what the concentrations are, you know, in 23 the sediments; you know, how deep, you know, the 24 water might be; whether or not it's dried out; 25 you know, what the concentrations of the water 316 1 coming in there; how dense the plants are; 2 you know, what the plants are. 3 So I'm saying that theoretically it's 4 possible -- 5 Q Uh-hum. 6 A -- but I don't think that that question 7 has been addressed. 8 Q Have you looked at any -- any -- are you 9 familiar with any other wetland nutrient removal 10 systems? 11 A I'm, yeah, familiar with some of them, 12 yes. 13 Q What -- which ones? 14 A Well, I have some, you know, familiarity 15 with the, you know, Iron Bridge facility, and the 16 Orange County I think it is easterly area, I forget 17 what they call it now. 18 The -- 19 Q Have you -- have you looked at any data 20 from any of those facilities on this issue of 21 potential soils, phosphorus release? 22 A At different points in time, yes. 23 Q Are you able to draw any conclusions from 24 that data? 25 A I don't think those, you know, systems 317 1 are, you know, applicable to this kind of system. 2 Q Why is that? 3 A Well, number 1, most of those systems are 4 constructed wetlands on, you know, mineral soils. 5 So basically places where they constructed wetlands 6 in a, you know, maybe a pasture or, you know, 7 whatever. 8 Q Uh-hum. 9 A Entirely different from the EAA organic, 10 you know, type soils. 11 Those were also planted areas normally 12 where they went in and intensively, you know, 13 planted the areas. They also, you know, managed 14 the, you know, water going into them very 15 carefully, and they didn't bring, you know, them 16 on-line and, you know, start, you know, putting all 17 the stuff through them. 18 For instance, the easterly -- I forget 19 what size of plant that was, they were going to 20 send the water through there. But I know that for 21 a couple years, they put really minuscule amounts 22 of the capacity of that plant, you know, through 23 there to, you know, encourage, you know, the 24 development of the area and all that sort of thing. 25 And as I recall, you know, looking at the 318 1 data, there were, you know, periods when even under 2 that scenario, there were some, you know, higher 3 levels that went out. But not significantly. 4 Plus they have -- you know, those are, 5 you know, waste water treatment plans. And the 6 flows from those are, you know, consistent pretty 7 much, you know, day in, day out. They're not 8 subject to the surges that we're going to see in 9 these STAs. 10 Q Do you intend to offer any comparisons 11 between any other wetland treatment systems and the 12 STAs as a part of your testimony in the case? 13 A I haven't been asked to at this point in 14 time. 15 Q Okay. You looked at any data from ENR 16 project? 17 A Like I said, I looked at some of the 18 earlier, you know, soils work that Dr. Reddy did. 19 Q Have you looked at any data on -- on this 20 topic? 21 A Which topic? 22 Q The phosphorus soils release? 23 A Like I said, I looked at his, you know, 24 absorption, desorption -- 25 Q Okay. 319 1 A -- you know, studies and that sort of 2 thing. 3 Q Were those studies before or after the 4 place was flooded? 5 A They were before. 6 Q Okay. 7 A I mean, all he did is went in and took 8 samples where they were going to build the thing -- 9 Q Right. 10 A -- and ran these tests in the lab. 11 Q Right. 12 Have you looked at any data since they 13 flooded the ENR project to look -- 14 A I don't recall having that done. 15 Q Okay. 16 A I think that data's been requested from 17 the District; when and if we get it, I would intend 18 to look at it. 19 Q Okay. Let me see. 20 This may be the second or third time I've 21 asked the question. But do you know of any other 22 potential harm to the water resources of the 23 District that the SWIM Plan or its implementation 24 might cause, other than the mercury and perhaps the 25 phosphorus release and the ET question that you 320 1 mentioned before. 2 A Well, they're obviously going to spend a 3 significant amount of the District's resources, 4 okay. So those resources are not going to be 5 available to spend in other ways which might be 6 much more beneficial to, you know, the system and 7 the taxpayers of Florida. 8 Q Okay. 9 A I'm not going to offer any economic 10 testimony. But obviously, I mean, I think that's 11 an easy conclusion to draw. 12 If the District's going to commit, 13 you know, several hundred thousand dollars -- or 14 million dollars. Several hundred million dollars 15 for this system, they're not going to have several 16 hundred million dollars to spend on other projects 17 which would clearly be more beneficial to both the 18 system and the taxpayers. 19 Q What particular -- do you have any 20 particular projects in mind? 21 A Well, the hydroperiod restoration. 22 Q Okay. What would you contemplate would be 23 an appropriate thing to do for hydroperiod 24 restoration? 25 A The construction of, you know, spreader 321 1 canals, for instance, to, you know, spread the 2 water out better. The -- just a study to look at, 3 you know, the -- the options relative to, you know, 4 their timing and the release of the water and that 5 sort of thing. 6 As I understand it, the Corps is either 7 undertaking or about to, you know, undertake, 8 you know, a -- a big study to, you know, look at 9 the overall, you know, operation of the system. 10 And to perhaps change, you know, some of the 11 emphasis, I don't know, on, you know, flood control 12 versus, you know, the natural systems, support, and 13 this sort of thing. 14 And obviously those kind of studies often 15 results in recommendations or mandates that have to 16 be carried out. And all those things require, 17 you know, dollars. 18 Q Well, if -- if you're talking about a 19 study, I don't know, you know, how much that costs 20 in comparison to what the District is doing. You 21 mentioned the construction, for instance, of -- of 22 spreader canals. 23 Have you got any specific locations you 24 think that would be an appropriate thing to do? 25 A Well, I think the SWIM Plan -- or 322 1 actually -- I guess it's not the -- the mediated 2 plan anyway, proposed spreader canals across the 3 northern end of 3-A, and across the I guess 4 northern end of 2-A. 5 Q Okay. Do you think that's a good 6 location? 7 A Obviously -- well, the -- the SWIM Plan, 8 you know, has in it a -- a figure that shows, 9 you know, over-drained sections of the Water 10 Conservation Areas -- 11 Q Uh-hum. 12 A -- and to the extent that you wanted to, 13 you know, restore the hydroperiod to those areas, 14 I think that would be reasonable places to put it. 15 Q Does any water get in there now? 16 A Yes. 17 Q Do you know where that water comes from? 18 A Well, some of it comes from rain. 19 Q Okay. 20 A There's some water that gets in to the top 21 of 3-A through the -- the structures of the outlets 22 from the Holey Land -- 23 Q I think they are G-200 through G-205, or 24 something like that. Something like that. Also 25 some water comes in from S-7. S-8, you know, water 323 1 mainly goes down the Miami Canal. But -- and 2 they've got a spreader structure down there to try 3 to force it out into the 3-A, but it's marginally 4 effective. 5 I believe L-3 also dumps out into the 6 western edge of 3-A. 7 I misspoke. S-7 doesn't go into 3. It 8 goes -- 1 -- S-150 goes into 3. S-7 goes into 2-A. 9 Q I think -- 10 A And also S-10e goes into the northern part 11 of 2-A. 12 Q I think we touched on this yesterday 13 some. But I'll -- I guess I'll just reask it if 14 we've covered it before, beg your indulgence. 15 Do you think it'd be in a -- a beneficial 16 thing to -- to introduce via a spreader canal, 17 water with high levels of phosphorus, for instance, 18 water from the EAA, into areas which are not 19 receiving that water right now? 20 A I think it would be, you know, beneficial, 21 yes. 22 Q In what ways would it benefit the area? 23 A It would, you know, reverse the, you know, 24 over, you know, drained problems that they have 25 there now. 324 1 Q And would it also supply more nutrients? 2 A It would supply more nutrients. 3 Q You think that's a good thing? 4 A Makes it grow better. Make things grow 5 better. 6 Q Okay. 7 A Get rid of the -- the drier, you know, 8 more upland species that have invaded some of these 9 areas. 10 Q But that would be a function of the 11 increased -- 12 A Hydroperiod. 13 Q -- hydroperiod -- 14 A Right. 15 Q -- rather than the nutrients. 16 A Right. 17 Q This sort of leads into I guess what's on 18 page 32 -- 19 THE WITNESS: Okay. Could we just take a 20 short restroom break? 21 MR. KILLINGER: That is fine. 22 (Recess.) 23 (WHEREUPON, MR. FRYDENBORG WAS NOT PRESENT 24 IN THE ROOM.) 25 MR. KILLINGER: Okay. Let's go back on 325 1 the record. 2 Q I think we left off on page 32. And item 3 number 8. 4 Have you got an opinion about the 5 statement that's set forth in number 8 there? 6 A Yes. 7 Q What's the opinion? 8 A I don't think the District really 9 addressed the particular issue to any real extent. 10 And, therefore, if they didn't address it, they 11 couldn't correctly determine the conclusions stated 12 in item (e). 13 Q Do you think that the SWIM Plan, its 14 implementation, will have adverse impacts on 15 wildlife in the planning areas? 16 A I just don't think that the SWIM Plan has, 17 you know, adequately addressed that. And -- 18 Q I understand that. 19 A -- I haven't been asked to, you know, form 20 an opinion as to whether it would or wouldn't. At 21 one time, I was just asked to look at the SWIM Plan 22 and see if, you know, the District had addressed 23 that, what we thought was an adequate manner -- 24 Q Okay. 25 A -- the answer was no. 326 1 Typically in an EIS type process, 2 you know, you're required to look at, you know, 3 proposed action and alternatives of those proposed 4 actions and evaluate and contrast those, you know, 5 alternatives and -- and preferred alternatives. 6 And the SWIM Plan doesn't do that. 7 Q When you say "EIS," do you mean Economic 8 Impact Statement -- 9 A Environmental -- 10 Q -- or Environmental Impact Statement? 11 A -- Impact Statement. But I don't think 12 they did an economic one either. But that's not my 13 area. 14 Q So your response to this is basically what 15 you said the first time, that they didn't -- 16 A They didn't do it. 17 Q -- do enough of it, therefore, you don't 18 think it could have been correctly done? 19 A Right. 20 Q If you turn to page 35, please. 21 A Have you got an opinion about item 13? 22 A Yes. 23 Q What's your opinion? 24 A That the, you know, SWIM Plan incorrectly 25 identifies, you know, phosphorus as the, you know, 327 1 source of, you know, all alleged problems in the 2 Everglades. And that that, you know, is 3 incorrect. And that, you know, it did not address, 4 you know, the -- you know, the hydroperiod water 5 supply, minimum flows and levels issues reasonably 6 and appropriately. 7 The SWIM Plan doesn't really offer any I 8 don't think guidance as to exactly what the 9 applicable water stand-- water quality standards 10 are. And -- 11 Q Do you think it should? 12 A To the extent that they are, you know, 13 requiring, you know, someone to spend, you know, 14 significant, you know, resources, I think it's 15 incumbent upon that agency to, you know, identify, 16 you know, clearly, you know, what the problem is, 17 what the extent of that problem is, what the cause 18 of that problem is. And then, you know, what the, 19 you know, remedies of those problems are. And I 20 don't think the SWIM Plan, you know, does that. 21 I think that they, you know, need to, 22 you know, clearly state what the, you know, 23 standards violated are, and how those standards 24 should be interpreted. 25 I think they, you know, state -- or infer 328 1 in places that the biological integrity standard, 2 for instance, has been violated. But quite 3 frankly, you know, I have difficulty finding out 4 exactly where that standard is violated and what 5 the aerial extent that that, you know, violation is 6 alleged to occur in. 7 Q Okay. 8 A I don't think the SWIM Plan did any of 9 that. 10 Q Assuming for the purposes of this 11 deposition -- or this question anyway, that 12 there -- that the violations that are implicated in 13 the SWIM Plan are, in fact, just that, violations, 14 do you think the SWIM Plan -- do you have an 15 opinion about whether the SWIM Plan contains a 16 reasonable and appropriate strategy to remedy those 17 violations? 18 A Which -- which violations are you talking 19 about? 20 Q Any violations you've seen. I was going 21 to go into that a little bit later. I mean, we can 22 do that now if you want. 23 You've alleged -- you've heard the 24 biological integrity and I -- 25 A Right. 329 1 Q -- I'm presuming you're familiar with any 2 other ones that are referenced in the SWIM Plan. 3 A Well, as I indicated to you I guess 4 numerous times, I don't think the biological 5 integrity standard is violated. 6 Q I understand that. I'm asking you to 7 assume that -- 8 A That it is? 9 Q -- it is violated. And if it is then, are 10 the standards inappropriate? 11 MR. HYDE: I don't understand how you can 12 make an assumption like that if it's not been 13 violated at all. And you -- to assume that 14 it's being violated, and then to say because 15 the standards are appropriate, really kind of 16 misses the whole point. 17 MR. KILLINGER: I think we've had a number 18 of hypotheticals just exactly like this asked 19 of Department witness. And I'm trying to do 20 the same thing. 21 Q If you assume that there's a biological 22 integrity violation that's cited as it is in -- in 23 the SWIM Plan, and just accept the validity of that 24 determination of the violation. 25 A Well, then I guess you'd have to tell me 330 1 what the, you know, hypothetical cause of that 2 violation is. 3 Q You're just not going to answer this at 4 all, are you? 5 A Well, I -- I'm not really trying to avoid 6 it so much, as I'm trying to frame it in my own 7 mind as to how, you know, you would address that 8 question. 9 Q So I -- is -- 10 A But -- 11 Q -- would it be an accurate representation 12 of your opinion that you believe there are no 13 facilities that are not in compliance with 14 applicable water quality standards? 15 A No facilities -- 16 Q I'll take all those negatives out. 17 Are there any facilities that are not in 18 compliance with applicable water quality standards 19 in your opinion? 20 A You're going to think I'm trying to avoid 21 your question, but I'm not. But I don't know 22 exactly what you mean by "facilities." 23 Q Well, I believe the statute uses the word 24 facilities. 25 A Yes. 331 1 Q So I guess what I'll do is have you take 2 your best shot with the qualification that by 3 facilities, I think we should refer to any 4 discharger, and let's start with the EAA. 5 MR. HYDE: Could you re-- reiterate the 6 question? I'm not sure what the -- 7 Q In your -- 8 MR. HYDE: -- question's really pending. 9 Q -- opinion, are there any dischargers in 10 the Everglades Agricultural Area discharging into 11 the Agricultural Area, which are not in compliance 12 with applicable water quality standards. 13 MR. HYDE: Discharging into the EAA? 14 MR. KILLINGER: Yes. 15 MR. HYDE: Okay. What you're looking at 16 is within the EAA. 17 MR. KILLINGER: Yes. 18 MR. HYDE: Okay. I just want to make 19 sure. 20 THE WITNESS: What -- what was that now? 21 MR. HYDE: Well, I was trying to 22 differentiate between whether he was talking 23 about dischargers from the EAA to the EPA -- 24 THE WITNESS: Right. 25 MR. HYDE: -- or discharges from the EAA 332 1 to waters within the EAA. 2 THE WITNESS: And what was the answer? 3 MR. HYDE: The latter. 4 THE WITNESS: The latter. 5 Q Is the question clear? 6 A Not really. 7 Q Shall I ask it again? 8 A It might be good. 9 Q In your opinion, are there any dischargers 10 which discharge water into the 11 Everglades Agricultural Area, for instance -- 12 A The EAA. 13 Q -- the canals. 14 Yes. 15 Which are not in compliance with 16 applicable water quality standards. 17 A I don't really have information related 18 to, you know, all the, you know, the dischargers 19 that discharge, you know, into, you know, the 20 canal. 21 So I don't really know if I could, 22 you know, answer your question. 23 MR. HYDE: I think your question also 24 assumes that there may be violations in the 25 canals, for example. And that the land owners 333 1 within the EAA may be causing those 2 violations. 3 So there's two assumptions there that may 4 not be -- 5 MR. KILLINGER: I -- 6 MR. HYDE: -- completely -- 7 MR. KILLINGER: -- I think it's a -- 8 MR. HYDE: -- accurate -- 9 MR. KILLINGER: -- fair question, I think 10 it's a pretty clear question. 11 Q If you don't have the -- 12 A Well, how about a specific date. 13 Q -- data to tell me the answer, then I 14 understand that, you may not have looked at that. 15 I'm trying to find out what the scope of 16 your knowledge is about water quality violations in 17 the Everglades Agricultural Area and in the EPA. I 18 haven't gotten to the EPA yet, but I will. 19 Have you looked at any water quality data 20 from any discharger which discharges into a 21 Water Management District EAA canal? 22 A Are you identifying -- are you equating a 23 discharger with farm pumps? 24 Q Any discharger. 25 A The only data that I recall, you know, at 334 1 this point are, you know, data that are related to, 2 you know, farm pump, you know, dischargers. 3 Q Okay. What's your familiarity with farm 4 pump dischargers? 5 A I've looked at, you know, data from, 6 you know, several of the, you know, farm pumps. 7 Q Are -- do any of those data show that the 8 discharge does not comply with applicable water 9 quality standards in the receiving body of water? 10 A The, you know, data that I've seen from 11 the farm pumps I believe has only been, you know, 12 phosphorus data. 13 Q Uh-hum. 14 A And since there's no, you know, numerical, 15 you know, phosphorus, you know, limit, you know, I 16 couldn't conclude that, you know, there was any, 17 you know, violation of, you know, standards, 18 you know, in the canal. 19 Q Okay. 20 A I think I've also seen a little bit of 21 chloride data. But even the values don't even, 22 you know, come to me right now. 23 Q Okay. Have you looked at discharge data 24 from pumps which discharge into the 25 Everglades Protection Area? 335 1 A If you're referring to, like, you know, 2 the 5-A, 6, and 7 pumps -- 3 Q That'll be fine -- 4 A -- yes. 5 Q You have? 6 A Yes. 7 Q In your opinion, does that data show that 8 those discharges are in compliance with applicable 9 water quality standards? 10 A What are the applicable water quality 11 standards? 12 Q Well, I'm asking you for your expert 13 opinion about it. 14 Are those discharges in violation, or 15 causing or contributing to any violations? 16 A I mean, the pumps are simply conveying 17 water, you know, from a canal on, you know, one 18 side to the other side. 19 Q Uh-hum. 20 A And I don't think the pump in and of 21 itself is doing anything to, you know, change that 22 water. So basically, you know, the water that's on 23 the inside of the canal is -- or the upstream side 24 of the pump is the same as the water on the 25 downstream side of the pump. 336 1 So -- I mean -- 2 Q Would you -- 3 A -- the water's the same. 4 Q Well, I don't think it answered my 5 question about whether or not the discharges are in 6 compliance with applicable water quality standards. 7 MR. HYDE: I think there's a confusing 8 nature to your question when you talk about the 9 discharges themselves being in compliance with 10 water quality standards. You mean the moment 11 it enters into? 12 Q I'll ask you a different way. 13 Does the water coming through those 14 structures comply with applicable water quality 15 standards in the receiving body? 16 A In order -- the only, you know, parameter 17 that, you know, immediately comes to mind that 18 someone, you know, might argue is, you know, not 19 met, for instance, would be DO. 20 But then I don't think that, you know, the 21 DO standard, as it's written, is appropriate to, 22 you know, apply. 23 If you were to ask me if the water 24 quality -- if the dissolved oxygen to those pumps 25 exceeds 5 milligrams per liter all the time, the 337 1 answer is no, I do not. But I also don't think 2 that standard is, you know, applicable in this 3 particular instance. 4 Q Okay. Fair enough. 5 What about non-numeric water quality 6 standards? 7 A I think that the, you know, non-numeric, 8 you know, water quality standards are, you know, 9 vague and poorly defined. And that depends on, 10 you know, I guess how someone wants to, you know, 11 try to interpret those. 12 That when you interpret them considering, 13 you know, the, you know, aerial extent, that sort 14 of thing, like we talked about yesterday, the 15 answer would be no. 16 Q Okay. Turn to page 36, please. 17 A (Witness complying.) 18 Q Item number 14 has you listed as a witness 19 underneath that. 20 Do you have an opinion about the statement 21 in number 14? 22 A Yes. 23 Q What -- what's your opinion? 24 A That the -- the SWIM Plan I don't think 25 really addressed this issue except to say that the 338 1 District was going to develop programs. It may 2 have had some, you know, preliminary discussion of 3 that. But I don't think the Plan itself really did 4 that, no. 5 Q Okay. Can you flip to page 38, please? 6 A (Witness complying.) 7 Q Well, here we are again. 8 Number 22 talks about applicable water 9 quality standards. 10 A Uh-hum. 11 Q And lo and behold, it's -- 12 MR. FitzGERALD: Off the record for a 13 second. 14 (WHEREUPON, A BRIEF OFF-THE-RECORD 15 DISCUSSION WAS HELD.) 16 Q Actually, I've just gotten a news flash. 17 Let's back up to page 36 for a second. 18 On number 14, what strategy would you 19 recommend for establishing research programs? 20 A I think that you would get a group of 21 interested parties and also combined with that -- I 22 hesitate to use the word disinterested -- but 23 perhaps unassociated, you know, parties together 24 and clearly, you know, try to outline what the, 25 you know, ultimate, you know, goal was. 339 1 And then determine the questions that 2 needed to be addressed, you know, prior to -- or in 3 order to reach that goal. And then develop data 4 collection or research, you know, strategies to 5 deal with each one of those. And keep the lawyers 6 out of it. 7 Q Is the SWIM Plan silent about -- 8 A Balanced? 9 Q -- about how they're going to establish a 10 research program? I mean, I think your testimony 11 was that -- that it just -- it didn't address the 12 issue, except to say they were going to develop 13 programs. 14 A Right. 15 Q It seems to me that -- that -- well, I 16 don't want to say what it seems to me, it's not 17 relevant. 18 But how does what you say -- 19 A Well -- 20 Q -- differ from -- 21 A -- part of my problem is is that the 22 Water Management District has gone through a -- a 23 relatively extensive effort to develop a, you know, 24 research and monitoring program -- 25 Q Uh-hum. 340 1 A -- after the SWIM Plan was -- was 2 finalized. It's gone through several revisions. 3 The concepts have -- have changed. 4 When the SWIM Plan I believe was written, 5 the concept was to, you know, establish the ENR 6 project; you know, collect data on that; and then, 7 you know, use it to help, you know, design, 8 you know, the STAs. Or at least that was a concept 9 that was talked about at one time. 10 Subsequent to that, the concept is we're 11 just going to do the ENR project to determine how 12 better to perhaps optimize the management of the 13 STAs. 14 So -- and that it was going to be run kind 15 of concurrently, you know, with building those 16 STAs. 17 Typically when you're talking about, 18 you know, 400 million dollar projects, you do a 19 much better, you know, scoping process, you know, 20 research and design process on the front end to 21 answer, you know, several of these questions before 22 you commit the funds and resources to, you know, 23 construct it. 24 So, you know, the District subsequent to 25 the SWIM Plan has, you know, improved, you know, 341 1 their -- their, you know, research and stuff. But 2 the -- after the SWIM Plan, you know, they went and 3 started looking at alternatives, because they 4 didn't do that ahead of time. 5 You know, in the SWIM plan, they should 6 have, you know, looked at, you know, alternatives 7 to decide is this, you know, that best approach to 8 do that. 9 That process got started, you know, well 10 after the SWIM Plan was finalized. And it kind of 11 got stopped because of the mediation. And I don't 12 know that it's been completed or resumed, you know, 13 since then. 14 Q Do you know of any alternatives that might 15 be better than the alternatives of the strategies 16 proposed in the SWIM Plan? 17 A Well, from -- I think that there are, 18 you know, several, you know, alternatives that 19 needed to be, you know, studied. And the District 20 committed to, you know, look at some of those, one 21 of them being the chemical treatment. 22 They actually, as I recall, authorized 23 some, you know, money for, you know, pilot, 24 you know, project -- field pilot project study that 25 was going to happen, and I believe, you know, it 342 1 was put on hold, maybe ultimately canceled, because 2 of the mediation process starting. 3 Those are the kind of things that should 4 have been done and should have been part of the, 5 you know, research, you know, plan, in order to 6 make sure that you are designing the, you know, 7 optimum, you know, cost effective, you know, 8 project to accomplish, you know, the goal that 9 you'd set out there. 10 Q Are you going to offer any testimony about 11 alternatives or other strategies? 12 A I don't recall, you know, being asked to, 13 you know, specifically go through and list 14 alternatives that need to be looked at, or, 15 you know, evaluate other alternatives. I -- 16 Q So is it -- 17 A -- might be -- 18 Q -- is it safe to say that your testimony 19 as you contemplate it now will be with regard to -- 20 A More along -- 21 Q -- lack of completeness of evaluation? 22 A I think that would be a good 23 characterization. And the fact that alternatives 24 should have been, you know, looked at. 25 Q Okay. Okay. We can go back -- back to 38 343 1 I guess. 2 Item 22 talks about violations. 3 A Uh-hum. 4 Q Have you looked at a report that 5 Doug Gilbert wrote recently about water quality 6 standards review and the EAA? 7 A I probably spent a total of 5 minutes 8 looking at it. 9 Q Okay. 10 A Maybe not that much. 11 Q I don't know if it has a name. I think 12 it's a draft report but -- 13 A No, I know the one you're -- 14 Q -- you know what I'm talking -- 15 A -- talking about. 16 Q -- about. Okay. 17 A The one where the Department went through 18