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 IV PAGES 358-531 359 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 25 360 1 ALSO PRESENT: 2 Frank Nearhoos Douglas Gilbert 3 * * * * * 4 INDEX 5 (VOLUME IV) 6 ITEM PAGE 7 DEPOSITION CONTINUED . . . . . . . . . . . . 361 8 CROSS EXAMINATION. . . . . . . . . . . . . . 452 9 DEPOSITION CONTINUED . . . . . . . . . . . . 529 10 CERTIFICATE OF REPORTER. . . . . . . . . . . 531 11 12 * * * * * 13 14 15 16 17 18 19 20 21 22 23 24 25 361 1 2 DIRECT EXAMINATION (Continued) 3 4 BY MR. KILLINGER: 5 (WHEREUPON, DR. ROSS WAS PRESENT IN THE 6 ROOM, AND MR. NEARHOOS AND MR. GILBERT WERE NOT 7 PRESENT.) 8 Q Okay. Well, was there any work that 9 wasn't done? 10 A Yes. 11 Q What work would that have been? 12 A There were, you know, several things 13 I think that, you know, weren't done. They were -- 14 we had originally thought about putting in, 15 you know, Hester-Dendy samplers in the Refuge, and 16 that wasn't done. 17 We thought about putting in, you know, 18 redox probes, which wasn't done, but I wish we had 19 have done it. Quite frankly, I don't remember if 20 we proposed to do lead 210 or not, but if we did, 21 we didn't do that. 22 I'd have to really go back and look at, 23 you know, what the entry order -- 24 Q Okay. 25 A -- said, and tell you what we didn't do. 362 1 Q Why didn't you put the Hester-Dendies out? 2 A Because, you know, they require a, 3 you know, 28-day, you know, incubation period. And 4 we figured that given the kind of logistical 5 problems we anticipated relative to scheduling 6 with, you know, District personnel and helicopter 7 and weather and that sort of thing, it would just 8 make it extremely difficult to, you know, maintain 9 that level of regularity with the sampling. 10 Q What were you -- what would you have been 11 looking for with Hester-Dendies if you had put them 12 out? 13 A The biological integrity standard, 14 you know, requires data from Hester-Dendies in 15 order to apply that standard. 16 And we simply wanted to see if the data 17 would, you know, indicate that that standard, 18 you know, was, you know, violated or not. 19 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.) 20 A When we originally proposed all this work, 21 you know, some of those issues seemed to have more 22 prominence than they did in a later process. But 23 it was really one more logistical constraint is why 24 we didn't do it. 25 Plus the fact, we never could really find 363 1 any place where they really claimed that that was 2 violated out there anyway. I think some of the 3 earlier Terczak stuff had a station in a canal or 4 something or another in -- 1-A, but we felt that -- 5 that study was so flawed, it wasn't necessary to 6 sample -- 7 Q Okay. Let's talk about -- 8 A -- in -- 9 Q -- Terczak for a minute, since you've 10 brought it up. 11 I gather you've looked at Terczak's study? 12 A (Nodding head.) 13 Q And you're familiar with it? 14 A Somewhat. 15 Q Have you got any critique or criticism of 16 it? 17 A I think it was a -- an attempt to, 18 you know, perhaps go out and just kind of collect a 19 little, you know, synoptic, you know, data or 20 something like that. I assume that was the 21 purpose. 22 It certainly wasn't conducted in the 23 manner that allowed it to be used to apply the 24 biological integrity standard. It was -- 25 Q Why not? 364 1 A -- done back in -- 2 Well, like I said, the biological 3 integrity standard specifically states that you 4 use, you know, Hester-Dendies and you incubate them 5 for -- I think it actually says 28 days. It may 6 say four weeks. But anyway, it's a 28-day period. 7 And based on looking at the lab notes or 8 whatever you want to call them, it appears that the 9 samplers were in for more like ten weeks, as 10 opposed to four. So, you know, they weren't done 11 in, you know, accordance, you know, with the Rule. 12 They also didn't really set up, you know, 13 background stations to compare, you know, in an 14 impacted area. 15 The biological integrity standard is 16 designed to be used as a comparison of a -- an area 17 that might potentially be impacted with a -- an 18 unimpacted area. Because the standard is -- says 19 that you can't reduce, you know, the Shannon-Weaver 20 diversity index by more than 75 percent of 21 background. 22 Q Uh-hum. 23 A And I don't think the study really 24 adequately, you know, looked at, you know, what 25 should be background, and making sure that the 365 1 community samples were, you know, comparable and 2 this sort of thing. 3 Plus the fact that, you know, the duration 4 for the incubation period was way off the mark of 5 being in compliance with the standard. 6 Q Do you recall when the Terczak study was 7 performed? 8 A I want to say late '70s. Mid to 9 late '70s. 10 Q What effect might you suggest from having 11 Hester-Dendies incubated for a period of ten weeks 12 as you indicated these might have been? 13 A Well, there's -- you can have, you know, 14 gradation of, you know, one organism or another. 15 Some of the material, you know, you build up a lot 16 of the detritus, you know, material, and that sort 17 of thing. Some of it, you know, sluffs off, that 18 sort of thing. 19 And just, you know, the State in its 20 infinite wisdom has decreed that you use a 28-day 21 period. And presumably had a good reason for 22 that. And -- 23 Q You also critiqued the background 24 stations. Were there no background stations set up 25 in the Terczak study? 366 1 A As I recall, you know, they had some kind 2 of slough stations and -- and tried to compare 3 those perhaps with, you know, vegetated communities 4 and that sort of thing. 5 Q Well, how -- what criteria would you use 6 to select background stations for -- 7 A Well -- 8 Q -- Hester-Dendy type study? 9 A -- I would think that you would want to, 10 you know, compare, you know, like, you know, 11 communities in an unimpacted area. And an 12 impacted -- 13 Q How would you find -- 14 A -- area. 15 Q -- how would you designate an unimpacted 16 area as being unimpacted? 17 A Well, you would I think determine, 18 you know, what issue you were, you know, looking 19 at. And in this particular case, I guess we're 20 talking about phosphorus. So we would look for an 21 area where, you know, phosphorus was, you know, at, 22 you know -- you know, background levels, and 23 outside of an area that might be influenced by any 24 particular, you know, discharges that you were 25 trying to, you know, evaluate. 367 1 And then that you would, you know, select 2 areas that were, you know, similar in the community 3 structure or whatever. 4 Q Well, if you were looking for an area that 5 was at background levels of phosphorus, what would 6 you look for in the Everglades? What would be some 7 defining characteristics? 8 A Well, I think you would, you know, go to 9 an area that was remote from any obvious, you know, 10 you know, discharges, and look at, you know, 11 phosphorus levels and -- in those areas; compare 12 them to, you know, values that had been reported in 13 the literature; and select it on that basis. 14 Q So you're saying you'd go and do total 15 phosphorus analysis of the water before you put 16 your Hester-Dendy out to determine whether it was a 17 background level? 18 A If I -- if that was the impact I was 19 trying to see if -- if that was having an impact, 20 yes. 21 Q Have you -- 22 A I mean, as the control station, yes. 23 Q Right. 24 A Yeah. 25 Q But you would do some water quality 368 1 analysis before you set it up as your control? 2 A I think that you would want to, you know, 3 try to select an area, like I said, that was remote 4 from those areas and -- and do some analysis to see 5 if they were in the range of, you know, accepted 6 ranges for, you know, background conditions. 7 I think to go out and select something 8 without some -- some basis would be a mistake. 9 Q Could you do it visually? 10 A I've never been able to measure phosphorus 11 by looking at the water. 12 Q Could you select a background site 13 visually? 14 A You could, for instance, you know, fly 15 over an area in a helicopter and, you know, look 16 for an area that was, you know, remote from any, 17 you know, discharges, flow paths. 18 As a, you know, guide in where to try to 19 put your samples in, yes. 20 Q Have you put out Hester-Dendies in the 21 Everglades? 22 A Yes. 23 Q In connection with what? 24 A This kind of work. 25 Q How'd you select your background sites? 369 1 A We basically looked at the areas that the, 2 you know, the District and others had called, 3 you know, unimpacted or background areas. And put 4 a set of stations in the area. 5 Q So you used District's, what, water 6 quality analyses to show what background areas were 7 background areas for controls? 8 A Well, what we basically did was looked at 9 the -- the literature, the data -- you know, the 10 data that -- you know, the publications, and 11 recognize that, you know, the District and others 12 had stated that the -- basically the vicinity of 13 the 217 gauge in 2-A was an, you know, unimpacted, 14 you know, background area. And we selected, 15 you know, that as a place to look at. 16 Q Could you describe for me the 17 Hester-Dendies that you use, physical description. 18 A They're just standard, you know, 19 Hester-Dendies that consist of, you know, a series 20 of kind of Masonite disks that are approximately, I 21 don't know, 3 inches in diameter; bolted together; 22 and have spacers between them. Different numbers 23 of spacers to provide different spacing of the 24 disks. 25 And they're identified in, you know, 370 1 supply, you know, catalog or -- 2 Q I was going to ask: Where did you get 3 them? 4 A Pardon? 5 Q Do you know where you got them? 6 A I think they were -- some of them were 7 purchased already assembled from, like, Wildco 8 probably, or maybe Parser supply or, you know, one 9 of those places that supply that, you know, 10 material. 11 Then we -- but we also buy the disks in 12 bulk and assemble our own. Because they were 13 basically cheaper that way. 14 Q You use the same eyebolt? 15 A Yeah. Well, I mean, stainless steel 16 eyebolt. 17 Q So do -- let me just get this straight: 18 Do you -- you build your own sometimes? 19 A We, you know, assemble by the -- the disk. 20 Q Right. 21 A Okay. And physically, you know, take the, 22 you know, the disk and put them together in 23 accordance with the description I think in standard 24 methods. 25 Q Right. But do you put -- you buy the 371 1 eyebolt that holds them together and sort of put it 2 together -- 3 A Yes. 4 Q -- in a kit, or do you use an eyebolt from 5 prior Hester-Dendies which are no longer functional 6 or something? 7 A We've done both. Because we bring all the 8 Hester-Dendies back in and -- and, you know, 9 disassemble the old Hester-Dendies and -- and clean 10 the bolt and sterilize them, that sort of thing, 11 and then reuse some of the stainless steel bolt. 12 Q Right. 13 What's the surface area of the 14 Hester-Dendies that you use? 15 A Whatever it is that's prescribed in the 16 Rule. I don't remember now. I think it's a third 17 of a meter, something like that comes to mind. 18 Q If the Rule -- 19 A Might be a tenth of a meter, whatever. 20 Q I think the Rule describes a range, 21 doesn't it? 22 A Actually I don't recall. 23 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.) 24 Q Well, actually, we can look at it if we 25 want to. It's 17-302. I believe it's -- 372 1 MR. HYDE: I think it's five six oh. 2 (WHEREUPON, A BRIEF OFF-THE-RECORD 3 DISCUSSION WAS HELD.) 4 A Here it is, it's on -- right here. Says 5 .1 to .15 square meter. 6 Q So do you know what the surface area of 7 yours is? 8 A Actually, I don't. 9 Q Okay. Is there a standard Hester-Dendy 10 that -- 11 A The one that we've always used is the one, 12 like I said, that we, you know, bought from, 13 you know, the supply houses. And they're, 14 you know, all the same. 15 Q Okay. 16 A I mean, all the ones we bought are the 17 same. Put it that way. 18 And the same, you know, type, size, and 19 everything would have been, you know, used at every 20 station. 21 Q Okay. I'm going to come back to this in a 22 minute. I want to go back -- 23 A I -- I was going to say, I'll be glad to 24 supply you one if you want to -- 25 Q I've seen them. I'm just trying to find 373 1 out what's -- 2 I wanted to go back -- we sort of got off 3 the Terczak critique a little bit. 4 Is your primary critique of that Terczak 5 study that background stations weren't 6 appropriately set up, and that the incubation 7 period was in-- inappropriate? 8 A I think so. Those are the main -- main 9 things. I didn't spend a lot of time with it 10 because -- since it didn't meet the criteria in the 11 Rule, I didn't think it was appropriate, it wasn't 12 necessary to spend a lot of time. 13 MR. HYDE: It's also a bit dated. 14 Fifteen years old. 15 Q Do you think that the -- the data that 16 were obtained in the Terczak study have any value? 17 A Not in applying the biological integrity 18 standard, no. 19 Q Did they have any data for any other 20 purposes? 21 A They, you know, provide, you know, some 22 idea of -- of what organisms were, you know, at 23 those locations that point in time. 24 Q Are there any other Hester-Dendy data from 25 that same time period? 374 1 A Not that I'm aware of. 2 Well, let's see. There is some data that 3 was after that where the District took some -- some 4 samples in some of the canals themselves. 5 Q You have -- 6 A But I've never -- 7 Q -- a sample? 8 A -- I've seen -- I've never seen the 9 District use that data for anything. 10 Q Okay. You said you didn't -- didn't put 11 out redox probes as part of the work that wasn't 12 done for that Loxahatchee sampling. 13 A Uh-hum. 14 Q Why didn't you? 15 A We decided to just simply rely on -- on 16 redox probes and stuff that was put out in the 17 Water Conservation Areas, and didn't want to go 18 through, you know, the additional, you know, hassle 19 of -- of trying to get that done and have the 20 additional time each month to do all that stuff 21 since we were trying to get our work accomplished 22 in, you know, a day or two days at the most. And 23 were trying to not add on additional things that we 24 could get by without. 25 Q I said -- I think you also said you wished 375 1 you had put out redox probes. 2 A Right. 3 Q Why is that? 4 A Because, you know, since then, I've heard, 5 you know, Dr. Jones claim that the, you know, 6 Everglades soils never become anoxic or have 7 reducing conditions, and I think that's -- definite 8 inaccurate statement. 9 And I wish we had the -- some data from 10 Loxahatchee to demonstrate that. 11 Q Why do you think it's inaccurate? 12 A Because I think that in order for, 13 you know, peat soils to, you know, build up, you 14 have to have those kind of conditions for one 15 thing. 16 I think it's established throughout the 17 literature that wetland soils are, you know, 18 anaerobic, and have, you know, reducing conditions. 19 The measurements that we obtained in the 20 stations in 2-A clearly show, you know, reduced 21 conditions. 22 And I've also talked about this with 23 Dr. Reddy, and he, you know, says that there's, 24 you know, there are reducing conditions in the 25 Everglades. 376 1 Talked about it with, you know, 2 Dr. Richardson. He has some redox measurements out 3 there, and he also believes the conditions are 4 reducing. 5 I've talked to Dr. Patrick about it, who 6 also is absolutely convinced there are, you know, 7 reducing conditions in the Everglades. 8 Q Where have you heard Dr. Jones make the 9 statements you attributed to him? 10 A He made the statement during a couple of 11 the trips that we were on jointly taking samples, 12 either in the Park or maybe during the -- their DOJ 13 entry into the EAA. 14 He -- Dr. Richardson, Curtis Richardson, 15 told me that Jones had made that statement to him 16 out -- on a trip that he was with him on in 17 Loxahatchee, and he also stated during his 18 deposition in Miami a couple weeks ago. 19 Q Is he relying on any data that you know 20 of? 21 A He cites a little paper that he and 22 Bachoon I guess -- 23 THE WITNESS: B-a-c-h-o-o-n I think? 24 A -- wrote. Based on some work, you know, 25 down in the Park. 377 1 Q Have you reviewed that paper? 2 A Yes. 3 Q You got any critique of that? 4 A Yes. 5 Q What's your critique of it? 6 A That the -- the information on -- on redox 7 is just a part of that, you know, paper. And it's 8 not discussed in any -- any real detail of the 9 table. I think it shows some of the values. But 10 he does discuss how he took the measurements. 11 He also discusses the conditions in the 12 Park under which those, you know, measurements were 13 made. And he admits that the data was taken during 14 a drought period; that the water was, you know, 15 below -- or -- the surface during a portion of 16 those measurements. And which means that the soils 17 were oxygenated, which means, you know, they were 18 reducing. 19 And, you know, his -- his study was a 20 very, you know, limited duration, I don't remember 21 how long, several months. But during that drought 22 period. And that he tried to extrapolate data 23 taken during a drought period over, you know, 24 conditions that are atypical. 25 He even discusses in the paper that where 378 1 he took the samples, it's normally wet, and makes a 2 point that the conditions are atypical when he was 3 doing his measurements. 4 Q Do you intend to offer any testimony at 5 the hearing about redox or reducing conditions in 6 the soil in the Everglades? 7 A Quite frankly, I intend to let people 8 with, you know, more experience in that area, 9 you know, deal with it. 10 Q Okay. Did that Loxahatchee sampling 11 foray -- I assume it provided you with data. 12 A Yes. 13 (WHEREUPON, MR. GILBERT EXITED THE ROOM.) 14 Q Has that data been analyzed? 15 A The data, you know, has been analyzed to a 16 certain extent and, you know, it's still being 17 analyzed. 18 Q How much -- to what extent has it been 19 analyzed? 20 A We put the data in kind of -- you know, 21 tabular format on a monthly basis. And we 22 calculated -- well, we -- we took, you know, three 23 replicate phosphorus samples each time we sampled, 24 we calculated a mean based on those. 25 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.) 379 1 A We -- after all the, you know, sampling 2 was complete, we combined all that data into, 3 you know, a spreadsheet, and also added the 4 District's data that we had. They did a split 5 sampling I guess in the September I believe it 6 was. We also had the Department of Justice, 7 you know, or Refuge data in there. 8 We, you know, plotted the data by station 9 to, you know, look at, you know, how it varied over 10 time and how the different data sets compared. 11 Q Have you provided all of the calculations 12 and spreadsheets and the plots? 13 A I don't think we provided the plots. We 14 provided the -- the data and the spreadsheets 15 I think. 16 Q Why didn't you provide the plots? 17 A I didn't really think about it. It was 18 just something we did that, you know, plot the data 19 up to -- to look at it. And obviously since you've 20 got the actual data, you can do exactly the same 21 thing. 22 Simple matter of, you know, going in there 23 and highlighting the columns in the spreadsheet, 24 and pushing a couple buttons, and it comes out. 25 Q Have you got copies of the plots? 380 1 A Not with me. I mean, they're probably 2 around the office somewhere. 3 Q Okay. Was any data that was collected 4 excluded from the calculations or the spreadsheet 5 or the plots? 6 A I went through the -- the data, and 7 compared it to our notes in the field notes to see 8 of any values that, you know, looked like they 9 were, you know, high or out of line with all the 10 other data; should be, you know, removed, you know, 11 based on some note we made in the -- in the field 12 notes. 13 And am considering saying that those 14 values need to be, you know, deleted as -- as, 15 you know, an outlier or because of, you know, notes 16 that were made, you know, during the sampling. 17 Q Did you, in fact, exclude any data based 18 on that review? 19 A I didn't exclude any data from the sheet 20 that was turned over to you. Okay. I simply, 21 you know, identified some points I thought might be 22 questionable. 23 For instance, there were a couple of times 24 when there was very little water at a sampling 25 station. And, for instance, we'd have written in 381 1 the field notes that, you know, the water's 2 essentially at the surface, and the sample was 3 taken out of a, you know, a gator trail or a gator 4 hole. 5 Or that it was very difficult to get a 6 good sample and the sample had a lot of detritus in 7 it, for instance. And those are the kind of 8 samples I think that probably should be excluded 9 from an analysis. 10 However, the data gave -- turned over to 11 y'all has all of that in it. Okay. I didn't get 12 rid of, you know, any data. Somebody else can go 13 through and make their own judgments as to whether 14 or not, you know, they would concur with that or 15 wouldn't. 16 Q Is there any standard for determining what 17 should be considered to be some kind of an errant 18 data bit? 19 A There are, you know, statistical 20 procedures which you can go through and, you know, 21 identify, you know, outliers, for instance. 22 I think that, you know, it's, you know, 23 valid and, you know, common practice to, you know, 24 exclude data that you know there's some reason you 25 suspect is bad. Like, for instance, notes taken 382 1 during the time of sampling that says, you know, 2 there's a lot of sediment in this sample. 3 Or that this sample was taken, you know, 4 in a gator hole or -- or whatever. 5 Q Well, what statistical procedures do you 6 use? 7 A Well, you can do use -- use, for instance, 8 a trimmed means, you can go through and do, 9 you know, regression to identify outliers. 10 There's, you know, several different kind of, 11 you know, procedures that are outlined in -- 12 Q At what -- what stage of working with your 13 data do you do that? 14 A You know, prior to doing your, you know, 15 final analysis. 16 Q Prior to doing your final analysis? 17 A Or, you know, the first thing you should 18 do is screen the data for, you know, questionable 19 values before you start the analysis. 20 Q How do you do that? 21 A By, you know, going back and -- you know, 22 the procedure I use, let's say, is to, 23 for instance, plot the data and see if there are 24 any points on there that look, you know, out of 25 line with all the rest of them. 383 1 And then see if there's a reason for that 2 point to be out of line, like something that was 3 written in the fields notes. 4 Q Okay. 5 A And if it wasn't, then you can't exclude 6 it on that basis. Then you can run, you know, 7 outlier analysis for whatever you want to do, or 8 decide to use trimmed means or geometric means. 9 You're not excluding -- if you use trimmed 10 means, you're actually excluding some on either end 11 of the data set. 12 If you use something like geometric means 13 or a median, then you're not really excluding those 14 things, but you're changing the emphasis placed on 15 the extreme values on either end. 16 Q Well, do you intend to offer any of the 17 data analysis that you've performed at hearing in 18 this matter to support your testimony? 19 A Actually, I don't -- 20 MR. HYDE: We're talking here about the 21 entry and access data on the Refuge? 22 MR. KILLINGER: (Nodding head.) 23 THE WITNESS: Right. 24 MR. HYDE: Okay. 25 A I don't anticipate right now giving 384 1 testimony relative to analysis of that data. 2 Q Do you know if anyone is anticipating 3 giving testimony of analysis of that data? 4 A Yes. 5 Q Who would that be? 6 A Dr. Millard and probably Dr. Lettenmaier. 7 Q Whose analysis are Dr. Millard and 8 Lettenmaier going to testify about? 9 A Theirs. 10 Q Their own? 11 A (Nodding head.) 12 Q Do they use the same procedures as you use 13 for analyzing the data and -- and the outliers that 14 appear? 15 A They intend to use their own procedures. 16 Q Do you know what their procedures are? 17 A Not specifically, no. 18 Q Have you seen any plots or other analysis 19 of that data produced by them? 20 A I've seen a preliminary analysis for, 21 you know, outliers and whether or not the data 22 would comply with the limits as currently proposed 23 in the SWIM Plan. 24 Q What did their preliminary analysis show? 25 A I think one value -- or maybe a couple 385 1 values, were identified as outliers. 2 And the outlier procedure that was used in 3 that particular analysis was the one I believe that 4 was identified in the SWIM Plan as an outlier 5 procedure. 6 Q Did you produce a copy of that preliminary 7 outlier analysis? 8 A I produced it to the attorneys. 9 MR. FitzGERALD: With one box to go, 10 Counsel, I can tell you that it's not in the 11 materials. That's subject to final screening 12 of the last box. 13 MR. HYDE: Is this by Lettenmaier or 14 Millard? 15 THE WITNESS: It was by Millard. 16 A I think the correspondence might not have 17 been -- it might have been directed directly to one 18 of the attorneys. They just showed me a copy. 19 Q What other analysis have you -- have 20 you -- have you performed about this data? You 21 drawn any conclusions from it, as to what it means? 22 A I have, you know, basically concluded 23 that, you know, you have to be extremely careful 24 in, you know, collecting your sample out in the 25 Refuge -- or out in any kind of, you know, marsh 386 1 system. 2 Especially ones like, you know, the Refuge 3 where you have a lot of vegetation, you know, 4 basically throughout the water column. 5 That the variation exhibited among the, 6 you know, replicates at a given station needs to be 7 considered in, you know, any formulation of, 8 you know, limits; that using a, you know, single 9 value or a -- you know, single, you know, sample is 10 not a good way to go, because you don't have any 11 idea of that, you know, variation you have in your 12 sampling procedure. 13 Q Okay. Those are conclusions about 14 analytical methods. 15 A Right. 16 Q What are your conclusions about what the 17 data show? 18 A The data, you know, indicate that there 19 hasn't been -- that -- that the water from the 20 perimeter canals and stuff doesn't penetrate, 21 you know, very far, apparently, you know, into 22 the -- the Refuge. 23 Q What would you say very far means? 24 A Well, you can't tell exactly how far 25 because of the distribution of the stations. So 387 1 you have to use some other ways to -- to try and 2 look at that. 3 Q How do you -- how do you draw the 4 conclusion that the water from the perimeter 5 doesn't penetrate very far into the Refuge? 6 A Well, for one thing, when you're sampling 7 out there, and there's, you know, you know, water 8 out in the canals and that sort of thing, and the 9 pump stations are running, but the stations are dry 10 out in the Refuge, pretty obvious that that water's 11 not moving from the perimeter canal, you know, out 12 to those areas. 13 Q Uh-hum. 14 A Also, you know, when the water is, 15 you know, a, you know, inch or less, you know, 16 deep, you know, in various areas, you have, 17 you know, I guess, you know, on-site verification 18 that those areas are, you know, higher than, 19 you know, other parts of the Refuge, and are not, 20 you know, likely to receive run-off onto those 21 areas. 22 Q Is it a safe topographical statement to 23 say that Loxahatchee Refuge is mounded in the 24 center? 25 A Well, higher in the center, yeah. That -- 388 1 Q Would that, therefore, tend to argue in 2 favor of a -- in favor of the center of Loxahatchee 3 being primarily rainfall -- 4 A Yes. 5 Q -- driven? 6 A Yes. 7 Q Well, if the water doesn't penetrate very 8 far into the marsh, but there's no real way to tell 9 how far it got in there -- I mean, there were no 10 tracers used to determine how far water was 11 penetrating into the marsh? 12 A No. Our ability to take samples out in 13 the -- the Refuge were severely, you know, 14 restricted, you know, by the specifics of the entry 15 order. 16 Q I understand. 17 A We were not allowed to go out and sample 18 as we might want -- have wanted to in order to, 19 you know, look at the kind of issues you're talking 20 about here now. 21 But, you know, I didn't say that there was 22 no way to determine it. I just said you couldn't 23 determine it from, you know, the distribution of 24 water samples, actually how far it was. 25 Q Could you get an idea of -- that it goes 389 1 to some degree to some -- towards the middle of the 2 Refuge? 3 A Well, to the -- to the extent that you, 4 you know, measured -- I think from the standpoint 5 of the water itself, it would be, you know, 6 difficult to show that simply with the, you know, 7 the phosphorus data. 8 Q Okay. Then I'll go back to my question 9 before: What do you think the data show? 10 A They show, you know, what the, you know, 11 values are at those, you know, particular stations 12 during the time period that we sampled. And the 13 values are -- are the values. They show that, 14 you know, as a general rule that, you know, 15 phosphorus in the Refuge is -- is low. 16 I don't recall offhand, you know, what the 17 averages, you know, at the stations are. I mean, 18 if we want to look at, you know, one of the 19 spreadsheets that we provided, I'll be glad to do 20 that and talk about specific stations and what 21 those values are. 22 But -- 23 Q What about phosphorus around the perimeter 24 of the Refuge? 25 A On the canals, it's obviously higher than 390 1 it is in the center. Basically probably on order 2 of magnitude or so. 3 Q Can you give that to me in ppb estimates? 4 A You know, out in the Refuge, I think, 5 you know, the numbers were, let's just say in 6 the -- I don't know -- bracketing it, say 5 to 7 15 range -- 8 Q Uh-hum. 9 A -- maybe. 10 In the perimeter canal, it's probably 100 11 to 200. 12 Q But you again don't intend to offer any 13 testimony about the interpretation of that data? 14 You're going to leave that to others, like Millard? 15 A That's correct. 16 Q Okay. Let's go on. 17 What other sampling or study programs have 18 you done? You listed some, and I'm not sure how 19 they divide up. So I'm going to ask you to do it 20 for me as we go through them. I took this as a 21 discrete sampling -- 22 A Oh, we didn't talk about the sediment 23 sampling in Loxahatchee, but -- 24 Q Okay. 25 A -- I didn't mention -- 391 1 Q Let's talk about -- 2 A -- that. 3 Q -- that. 4 (WHEREUPON, DR. ROSS EXITED THE ROOM.) 5 A As I indicated earlier, we took some 6 samples at several of the stations in Loxahatchee. 7 We took three or four samples in conjunction with 8 Dr. Curtis Richardson. Then I took, oh, I don't 9 know, 20 samples or so with Dr. Bill Patrick. 10 The, you know, station locations are 11 shown, you know, on one of the maps. They were 12 basically kind of a west to east transect across 13 the center in a -- 14 Q Are they shown -- 15 I'm sorry, go ahead. 16 A -- south to north transect on the southern 17 end. 18 Q Are they shown on one of the maps that was 19 produced here today? 20 A I'd have to look at them -- 21 Q Have a look -- 22 A -- and see. 23 Q -- at that, if you would, that would be 24 great. 25 (WHEREUPON, A BRIEF OFF-THE-RECORD 392 1 DISCUSSION WAS HELD.) 2 (WHEREUPON, DR. ROSS ENTERED THE ROOM.) 3 MR. KILLINGER: Okay. Okay. Let's go 4 back on. 5 Q So you took three or four samples with 6 Richardson, and twenty or so with Patrick, and the 7 station locations are on one of your maps. 8 What were you -- what was the purpose of 9 that study? 10 A To look at the amount of -- of phosphorus 11 in the sediments. And -- 12 Q What -- 13 A -- the accumulation rates. 14 Q Now, what do you mean by "accumulation 15 rates?" 16 A As you're probably no doubt aware, 17 several, you know, investigators have dated their 18 cores using cesium dating, and these cores were 19 treated in the same way. 20 Technique essentially identical to that 21 used by, you know, Dr. Reddy. 22 Q Why would that be useful information? 23 A Well, it allows you to, you know, compare, 24 for instance, how, you know, phosphorus has, 25 you know, accumulated in the Refuge, versus how 393 1 it's accumulated in other parts of the Everglades. 2 And it also is useful in, you know, 3 establishing some, you know, background levels for 4 those particular areas. 5 There's different kinds of peat, you know, 6 throughout the Everglades, different kinds of peat, 7 different kinds of -- of areas have different 8 accumulation rates in it. 9 Q Have you done any analysis of the sediment 10 samples? 11 A No. 12 Q Do you know if anyone has done the 13 analysis of the sediment samples? 14 A Yes. 15 Q Who did that analysis? 16 A The actual, you know, samples were 17 analyzed, you know, by the, you know, laboratory at 18 Duke for the Richardson stations -- or samples. 19 And the laboratory at LSU for the, 20 you know, Patrick samples. Each one of those 21 individuals, you know, tabulated the data, and 22 calculated accumulation rates. And presumably are 23 in the process of, you know, analyzing that data. 24 Q Have you seen any of the data that were 25 generated from that? 394 1 A Yes. 2 Q Have you seen any of the analyses? 3 A When I say I've seen the data, what I'm 4 talking about is the result of -- the results of 5 the analyses, you know, like, for instance, so many 6 grams, you know, of phosphorus. 7 But I don't really understand your 8 question -- 9 Q Okay. 10 A -- your differentiation between the two 11 I guess. 12 Q Have you seen any data analysis? 13 A I've seen plots of the phosphorus contents 14 with distance from the canals, and actually we may 15 have actually generated some of those. 16 Q Have you produced those plots? 17 A I'm sure they were produced to the 18 attorneys. 19 Q Okay. Do you know what those plots 20 showed? 21 A They showed, you know, the phosphorus and 22 the sediments being, you know, higher right 23 adjacent to -- or at the station closest to the 24 canal, and then dropping off rapidly, almost 25 instantaneously, to basically background levels. 395 1 Q As you went which direction, away from the 2 canal? 3 A Away from the canal. In one case, going 4 east; in the other case, going north. 5 But we're not through with that analysis, 6 that's the reason we wanted to go back and take 7 some additional samples in the Refuge in order to 8 better define that relationship. As I understand 9 it, we're supposed to do that on March the 28th. 10 Q What were the levels of phosphorus in the 11 sediment adjacent to the canals? 12 A I don't recall exactly what the values 13 were. I mean -- 14 Q Do you recall the range? 15 A -- the data's here somewhere, we could 16 look at it. 17 Q Do you recall a range? 18 A I think it -- it was -- this is a range. 19 Q Uh-hum. 20 A But maybe 700 to 1500 maybe, something 21 like that. I mean, it was, say, 1,000, plus or 22 minus a couple hundred I think. 23 Q And do you recall what the -- the 24 background that it dropped off to was? 25 A I think it was in the range of three to 396 1 five hundred. I mean, the plots were pretty 2 dramatic. There was basically a high point next to 3 it, it dropped down immediately to this level, and 4 then it was a straight line for the rest of the 5 graph. 6 Q Are you able to draw any conclusions from 7 the data or the analysis of that data? 8 A I believe it, you know, shows that, 9 you know, the phosphorus is higher for, you know, 10 whatever reason in the station, you know, closest 11 to the canal. And then, you know, immediately 12 drops off. 13 On one of our transects, we want to take a 14 station closer to the canal, and the other one 15 between the first one and the second station. 16 Q Are you able to generate any opinions 17 about the ecosystem implications of the data or the 18 analysis of it? 19 A I haven't been asked to do that. I 20 haven't really given it much thought. 21 Q Do you know if anyone is -- is working on 22 that issue? 23 A It's my understanding that, you know, 24 Dr. Patrick has been, you know, charged with, 25 you know, interpreting these sediment data that's 397 1 collected in the Loxahatchee. 2 Q You indicated that the -- the water 3 quality data analysis and the sediment analysis 4 hasn't been completed yet. Is that correct? 5 A Well, I'm saying -- I'm not working on 6 it -- 7 Q I understand. 8 A -- okay, so I don't know what stage these 9 other people are. I know that, for instance, the 10 sediment analysis isn't complete since we don't 11 have all the data yet. 12 I also know that the analysis of the 13 Loxahatchee water data isn't complete yet, because 14 we haven't been able to obtain the replicate data 15 that Dr. Jones took. 16 And the people wanting to work on that 17 want to have all the data together in order to, 18 you know, do the complete analysis at one time. 19 MR. FitzGERALD: For the record, that data 20 was turned over last week. 21 THE WITNESS: Maybe -- I don't know if we 22 want to talk about this here and now, or what, 23 but we couldn't read hardly any of that. 24 And I asked the attorneys to contact y'all 25 and see if there was a way of either getting a 398 1 look at the originals or better copy. 2 MR. FitzGERALD: Oh, you mean the Xeroxes 3 were bad? 4 MR. HYDE: Right. 5 THE WITNESS: I don't know if it's the 6 Xeroxes -- I don't know if it's the fault of 7 the Xerox, or the fact that the original was 8 such a poor copy. 9 Because obviously the sheets are from a -- 10 like a dot matrix or thermal printer off of 11 instrumentation. And the values are extremely 12 difficult at best to read. 13 And I would challenge anybody to go down 14 and read them. I mean, there's hundreds of 15 numbers there, and you'd be guessing at a high 16 percentage of them, 30, 40 percent, maybe 17 50 percent of them. 18 MR. KILLINGER: Outliers. 19 THE WITNESS: No. No. I mean, just -- 20 you can't read the number. You don't know what 21 it is. 22 MR. FitzGERALD: By some numbers it says 23 BPJ all those places. 24 Who's -- who's handling that, Bill? 25 MR. HYDE: Do you know to whom you sent 399 1 them? 2 MR. FitzGERALD: It was hand delivered to 3 Mark. 4 MR. HYDE: Mark? I presume Mark has 5 them. I'll ask him about it. 6 MR. FitzGERALD: It's -- I spent the last 7 week up here, so I don't know if anybody has 8 even heard there was a problem yet. When I'm 9 on the phone with him, I'll ask if anyone's 10 aware. 11 THE WITNESS: I think -- I don't know if 12 we want to do this on the record or not. But I 13 think -- 14 MR. KILLINGER: Might as well. 15 THE WITNESS: You know, the easiest way 16 to -- to deal with it is if we could get the 17 originals for, like, 24 hours or something like 18 that to just, you know, enter them in and, 19 you know, make the best copy we could. 20 MR. FitzGERALD: Like your attorneys, you 21 never give them your originals, we never give 22 our originals. I mean, just -- 23 THE WITNESS: I have no problem if -- 24 MR. FitzGERALD: I'm sure we don't have 25 the original. 400 1 THE WITNESS: -- if you want to, you know, 2 get a decent copy we can read, or we can have 3 Dr. Jones attempt to read from the Xerox copy 4 into the record. But I think it's going to be 5 just like we tried to read the stuff before, 6 he's not going to be able to read it either. 7 So we can send, you know, somebody down to 8 sit down with him if that's acceptable, and, 9 you know, go through the numbers and try to get 10 them and put them into a spreadsheet that are 11 readable. 12 MR. FitzGERALD: Acceptable or not doesn't 13 sound very efficient. There ought to be a 14 better way to do it. 15 MR. HYDE: I -- I think -- 16 MR. FitzGERALD: We'll look into it. 17 MR. HYDE: -- we need to examine this 18 issue by trying to come up with a good adequate 19 copy of the replicate data. 20 MR. FitzGERALD: I think that's the easy 21 way. 22 MR. HYDE: And if that can be done in a 23 very simple fashion perhaps by just adjusting 24 the copy machine, maybe that's all that's 25 necessary. If -- if it isn't because of the 401 1 nature of the material being copied, then maybe 2 some additional steps will have to be 3 undertaken, such as those suggested by 4 Dr. Davis. But -- 5 MR. GILBERT: Just give him a disc. 6 MR. FitzGERALD: It's not on a disc. This 7 is a read-out from -- 8 MR. GILBERT: So the information's never 9 been entered into a computer in any format? 10 THE WITNESS: Allegedly not. 11 MR. HYDE: Dr. Jones seems to be one of 12 the few people in the scientific community that 13 doesn't like to use his computers very much. 14 Q I guess the best way to sort of continue 15 on with this is to -- just to do it sort of area by 16 area down there. Trying to have a hard time 17 getting around where you've done things, and how 18 far that expands. 19 Does that represent -- the discussion 20 we've just had about the soil and water samples, 21 does that represent all of the scientific study or 22 research that you've conducted or been a part of in 23 Loxahatchee? 24 A During a couple of the trips, 25 Dr. Mike Dennis went along on the trip, and took 402 1 notes relative to the vegetative communities. 2 Q He took notes? 3 A Yes. 4 Q Maybe it's so obvious I don't see, but 5 what -- is that -- you mean literally notes on a 6 clipboard or something about what he saw? 7 A Yes. 8 Q Okay. 9 A He had a form that he followed to try to 10 make his collection of data, you know, uniform at 11 all the stations, and, you know, he was basically 12 there to characterize the communities around, 13 you know, the sampling stations and -- 14 Q So what -- do you know what his purpose in 15 doing that was? Was it to characterize the 16 communities around the sampling points? 17 A Right. 18 Q Okay. 19 A And to get a better understanding of -- of 20 what the communities were in the Refuge. I think 21 you need to ask him what his total purpose was. 22 But -- 23 Q I understand. 24 Was that a project you were working with 25 him on, or was he simply accompanying you on your 403 1 trip, and -- 2 A He was there with me. While I collected 3 the water sample, he collected his notes, and took 4 some photographs. 5 Q Do you have a copy of his notes? 6 A Yes. 7 Q Have you -- 8 MR. HYDE: Dr. Dennis is being deposed 9 today by someone from your firm. 10 MR. KILLINGER: I'm sure he is. 11 MR. HYDE: He'll have the same 12 documents -- 13 MR. KILLINGER: Sure is -- 14 MR. HYDE: -- since it is there. 15 MR. KILLINGER: That's -- I'm just trying 16 to see how far afield the -- 17 THE WITNESS: Okay. 18 MR. KILLINGER: -- they go. 19 Q Have you looked at those notes? 20 A Briefly. 21 Q Are they in your documents as far as 22 you know? 23 A Yes. 24 Q Do you know whether there's been any 25 analysis or any compilation of those notes into any 404 1 kind of a report or summary? 2 A We extracted out of the field notes 3 some -- some information on, like, water depth, and 4 I think on one of the trips at least he took some 5 of the in situ measurements. 6 And so we extracted, you know, that part 7 of it out. I don't know what he's done with, 8 you know, the vegetation data per se. 9 (WHEREUPON, MR. NEARHOOS ENTERED THE 10 ROOM.) 11 Q When you say he took some of the in situ 12 measurements, what are you referring to? 13 A I mean he took the DO meter and took a 14 probe in the water column and read the DO value off 15 of the meter. 16 Q Is that a technical term? 17 Do you have that DO data? 18 A Yes. 19 Q Was that part of your -- 20 A We incorporated it -- 21 Q -- study program? 22 A -- into our spreadsheet -- 23 Q Okay. 24 A -- for the water quality data. 25 I mean, basically it was a situation where 405 1 normally myself and another member of my staff went 2 down and took the data, and we divided the task 3 where I would, you know, collect the water sample, 4 and he would collect the in situ measurements. 5 When Dr. Dennis or someone else went, we 6 had to leave the person that normally assisted me 7 at home, or back at the vehicle, because there's 8 limited space in the helicopter. So that person 9 kind of assumed some of the responsibility for 10 taking the in situ measurements. 11 Q Have you analyzed that DO data 12 independently of the other data in the spreadsheet? 13 A No. 14 Q Okay. Anything else, have you done 15 anything else in Loxahatchee? 16 A We took some photographs. 17 Q Are those the photos that were produced to 18 us? 19 A Yes. 20 Q Okay. 21 MR. KILLINGER: Which we do have. 22 MR. HYDE: Twice. 23 A Also I guess I one time went on a trip 24 with the attorneys in Loxahatchee where we put a, 25 you know, standard kind of motorboat, you know, 406 1 with an outboard motor in the canal, and tried to 2 go down the canal to see, you know, whatever you 3 could see from -- from the canal itself. That was 4 prior to being able to obtain actual entry. 5 We didn't collect any samples or -- 6 basically a -- 7 Q Field trip? 8 A -- field trip. Visual tour. 9 Q Simply took -- 10 A We took photographs. Took photographs. 11 MR. GILBERT: A windshield -- 12 THE WITNESS: Pardon? 13 MR. GILBERT: A windshield survey. 14 THE WITNESS: A windshield survey. 15 Q Okay. What did -- 16 THE WITNESS: We didn't get very far. The 17 canal was choked with water hyacinth. 18 Q Choked with water hyacinth. 19 A And water lettuce. 20 Q Have you done any work in 2-A? 21 A Yes. 22 Q What have you done in 2-A? 23 A I've indicated earlier, we took some, 24 you know, water samples -- there wasn't any 25 long-term program for that. Just, you know, took 407 1 some here and there to kind of get a feel for what 2 the values were, various locations. 3 We established a -- a group of stations in 4 2-A where we collected macroinvertebrate data; some 5 DO dye was collected at those stations; you know, 6 water levels; and we installed a couple of water 7 level monitors at a couple of those stations. 8 Q Okay. You established a group of stations 9 to collect macroinvertebrate data. 10 What kind of stations did you install? 11 A Well, I mean, basically what we did is 12 back at the beginning of the project, Dr. Dennis, 13 myself -- I'd have to go back and look at the field 14 notes to see who else was there, there were a 15 couple other people -- Rus Rader may have been 16 along on one of them, I can't remember actually. 17 We went out and -- and tried to locate a 18 set of stations, kind of what we called paired 19 stations, in some various zones of -- of 2-A. And 20 also down in 3-A near the S-5 structures. 21 Q What do you mean by "paired stations?" 22 A We tried to select a cattail community and 23 a saw grass community, and where sloughs or kind of 24 open water areas were present, a kind of slough 25 station in each one of the areas. 408 1 Q And what kind of station did you set up in 2 each of those areas? 3 A I don't know if -- if set up is the right 4 term. We, you know, marked the station with a PVC 5 or bicycle flag, flagging, that sort of thing; 6 attained, you know, GPS coordinates for that 7 station. 8 As I recall, we took some kind of in situ 9 measurements, and some phosphorus values for 10 that -- samples for phosphorus analysis at those 11 stations. 12 And what we were doing was establishing, 13 you know, these station locations so that we'd come 14 back in the future, and, you know, collect data on 15 those stations on macroinvertebrates. And someone 16 else collected some DO values at those stations. 17 I believe Dr. Dennis's group used some of 18 those stations, collect some periphyte data, but 19 you'd have to check with him on that. 20 And we also took some sediment cores at 21 those stations. 22 Q That kind of ran the gamut. 23 A I guess -- 24 Q Did you go -- I'm sorry. Go ahead. 25 A Near some of those stations, we also 409 1 installed some of the redox probes later, but not 2 at that particular time. It's probably easier to 3 talk about those in a separate discussion. 4 Q Okay. Did you go back and do some 5 macroinvert sampling? 6 A Yes. 7 Q When did you -- what'd you do? How did 8 you do that, did you put out Hester-Dendies? 9 A When we originally established the 10 stations, I had, you know, one of the people that 11 went with us was one of our, you know, field 12 technicians. And while we were at the station, we 13 selected, you know, individual, you know, spots at 14 those stations to install, you know, the actual 15 Hester-Dendies. And to collect kind of timed 16 qualitative samples. 17 We did not try to put out the samplers at 18 the same time we were establishing all the 19 stations -- 20 Q Okay. 21 A -- because it would take, you know, so 22 long to get done, and we had -- as Bill Hyde said, 23 a gaggle of people there. So -- 24 Q What about -- I'm sorry. 25 A I'm sorry. 410 1 No, I was simply saying, we identified the 2 stations and -- 3 Q Okay. Back -- 4 A -- discussed the stations among us. And 5 then I basically sent a technician back to, 6 you know, put the Hester-Dendies. 7 Q Okay. Did -- so I mean, is it -- you had 8 three basic kinds of sites -- 9 A Yes. 10 Q -- you had open water sites, you had 11 cattail sites, and saw grass sites. 12 A Correct. 13 Q Was the vegetation type the sort of 14 discriminate in selecting the site? Was that the 15 main -- 16 A Our -- 17 Q -- selecting criteria? 18 A At the time, you know, those stations were 19 started, there was -- were a lot of allegations 20 that, you know, you know, cattail communities were 21 just, you know, a biological desert I guess. 22 They were just, you know, the worst thing 23 in the world, that they caused when those came in, 24 you know, everything just, you know, went to 25 whatever -- 411 1 Q Peat. 2 A And, you know, part of our, you know, goal 3 was to, you know, see if there was any difference 4 in macroinvertebrate communities, for instance, and 5 a cattail community adjacent to a saw grass 6 community that would be subject to, you know, the 7 same, you know, hydroperiods and conditions. 8 Q Uh-hum. 9 A One of the purposes of having Dr. Dennis 10 there, his speciality is, you know, vegetation, 11 botany, and the plant ecology was to try to select 12 sites that had similar stem counts, densities, so 13 that, you know, as many of the physical features of 14 the sites were similar. 15 Q Can we just take a quick segue? 16 In the photographs that you produced -- 17 I don't have them with me, and I think the Xeroxes 18 aren't very readable -- there is a photograph of a 19 gentleman standing next to a piece of rebar with 20 some wire that were -- 21 A That was the redox stations. 22 Q Okay. Never mind. We'll talk about that 23 later. I wasn't sure what that was about. 24 Well, did you do -- you said you took some 25 phosphorus samples. Were the phosphorus samples -- 412 1 are the analyses from that used in site selection 2 at all? 3 A No. 4 Q Okay. 5 A I mean, we took the samples at the time we 6 established the sites -- 7 Q So could you -- 8 A -- and we'd like to have them analyzed. 9 Q Right. Well, that's what I thought. 10 A So they weren't used to establish -- we 11 just wanted to see, you know, what the phosphorus 12 values were. 13 MR. HYDE: They were an after the fact 14 confirmation of what the site appeared to be. 15 MR. KILLINGER: Thank you, Mr. Hyde. 16 MR. FitzGERALD: Wait. Can we go back and 17 get him sworn in for that -- 18 MR. HYDE: I was just restating the 19 answer. 20 MR. KILLINGER: Is that sworn in or sworn 21 out? 22 MR. HYDE: As an officer of the Court, I 23 am bound to respond honorably and accurately. 24 MR. KILLINGER: I think we'll move on 25 quickly. 413 1 (WHEREUPON, A BRIEF OFF-THE-RECORD 2 DISCUSSION WAS HELD.) 3 Q Let me see. So I guess someone did go 4 back and put out Hester-Dendies. 5 A Correct. 6 Q You said -- 7 A And they did that approximately every 8 two months. 9 Q Every two months. 10 A For approximately two years. 11 Q And that was not you. You did not do that 12 yourself? 13 A I don't think I actually ever put any of 14 those samples out, no. 15 Q Okay. Every two months you -- did you go 16 and switch them out, put a new one in? 17 A No. What we did was we -- as I said 18 before, you know, they were -- the biological 19 integrity rule requires that they incubate for 20 28 days. 21 So every 28 days, we went and collected 22 the samplers that had been installed the month 23 before. We would not put out new samplers then, we 24 would wait, you know, approximately a month or so, 25 and go out and put in another set. 414 1 So you ended up with six samples per year, 2 but you visited the site, you know, every month. 3 Q Why would you not put out new ones there? 4 I mean -- 5 A Well, because it costs a fair amount of 6 money to process those samplers once you get them 7 back to the lab. 8 Q Okay. 9 A And it was an economic decision. You're 10 just doubling your costs to do it every month, as 11 opposed to every other month. 12 Q Okay. Did you have any control sites? 13 A Well, you know, part of the -- the goal 14 was to see if there was any difference between 15 cattails and saw grass -- 16 Q Right. 17 A -- in a given location. So you could look 18 at the saw grass -- you know, one of the 19 allegations were that cattails was causing, 20 you know, the biological integrity standard to be 21 violated. 22 So we would take the saw grass site and 23 let it serve as a control for, you know, the 24 cattail site in the same vicinity at that given 25 location. Okay. 415 1 Q And then -- 2 A So that -- that was one set of analyses. 3 Q Okay. So you were sort of assuming that 4 the saw grass marsh was the natural status quo? 5 A No. No. No. We were assuming -- see, 6 our, you know, you know, question was: Are the two 7 sites different? 8 Okay. So what you're testing is: Is the 9 cattail -- are the macroinvertebrates in a cattail 10 community at this location different from a 11 saw grass community at that location. That 12 doesn't -- 13 Q Right. 14 A -- necessarily assume that either one of 15 them is better than the other, or, you know, 16 natural and the other one unnatural. They could 17 both be, you know, natural communities. 18 Q Okay. 19 A They could both be unnatural communities. 20 All we're doing is saying, if you were to 21 compare these two communities at a given location, 22 are they different. Do you see what I'm saying? 23 Q Yes. I think I do. 24 A Now -- 25 Q I'm sorry. Go ahead. 416 1 A As I said earlier, we established, 2 you know, stations in, you know, different zones 3 within the conservation area. 4 Okay. We established one set of the 5 stations, I don't know, within a half a mile or so 6 of the 10-C structure. Okay. Then we established 7 another set of paired stations down about, 8 you know, 3 or 4 miles below that. I guess what 9 people might consider the transition zone from 10 the -- what people have termed -- incorrectly I 11 think -- the cattail monoculture. 12 And then we established another set of 13 stations down around the 217 gauge where people 14 have alleged the, you know, unenriched, you know, 15 background, you know, type station. 16 But we were, you know, comparing, 17 you know, the communities at each one of those 18 locations. 19 Then we also looked at, well, is there a 20 difference between a cattail community at the 21 background station, for instance, and a cattail 22 community up at the 10-C location. And then also 23 at the intermediate location. 24 Then we compared, you know, the saw grass 25 at each one of those communities also. 417 1 So there was a, you know, two-way, 2 you know, comparison. Going there, comparing 3 different communities each location, and then 4 comparing the same kind of communities at different 5 locations. 6 Q Okay. So you had sort of three categories 7 of sites, and then within each category of site, 8 you had sort of three community -- 9 A Right. If the three communities -- 10 Q -- pairs. 11 A -- were there. Like, if the -- the sites 12 closest to the 10 structure, there was no slough 13 site, no open water site. So we weren't able to 14 take a site there. 15 And at the middle station, there was a 16 site, it was kind of characterized as a slough. 17 But it was really just kind of a place where the 18 airboats had made a little bit of open water, and I 19 wouldn't really characterize it as a slough 20 station. But we just went ahead since we were 21 there, and just, you know, put samplers out there. 22 Q Were you able to -- would you consider 23 that area -- was it 10-C, is that what you said? 24 A Right south of 10-C. 25 Q Would that be an area that you would 418 1 consider to be phosphorus enriched? 2 A Yes. 3 Q Did you have any difficulty finding a 4 saw grass community out there to place the samples 5 in? 6 A I don't recall it being particularly 7 difficult. I mean, we established all the stations 8 I think in a single day. So -- we might have spent 9 two days on it, I can't remember. But I mean -- we 10 didn't spend a day looking for it if that's what 11 you mean. 12 Q Who actually deployed the Hester-Dendies? 13 A Various people that work for us. Or the 14 individuals would be identified in the field notes. 15 Q Are the people who deployed them 16 experienced in deploying Hester-Dendies? 17 A Oh, yes. 18 Q How were they deployed? 19 A They were basically attached to a 20 Styrofoam float, and, you know, anchored either by, 21 you know, blocks or tied to, you know, some kind of 22 vegetation. 23 If -- if there was any, you know, 24 possibility of them, you know, floating away or 25 blowing -- getting blown away or there was likely 419 1 to be any flow through the area. 2 Q How big are the floats that you used to 3 float your Hester-Dendies? 4 A Probably 6 inches square, something like 5 that maybe. Sometimes they're larger. 6 Q So they're not all the same size? 7 A I think probably on -- on this one, they 8 were all in the -- in the 6-inch -- 6-inch range. 9 But those large ones I'm thinking about are -- are 10 I think some that were used on -- on a 11 Suwannee River project one time. 12 Q How many Hester-Dendies did you suspend -- 13 Is it correct they were suspended? 14 A Yes. 15 Q -- from each float? Did you suspend one 16 per float, or -- 17 A Yes. 18 Q How many replicates did you -- 19 A Three. 20 Q -- deploy? 21 Can you sort of explain to me how this 22 physically worked. If you had the saw grass 23 community you're putting the Hester-Dendies in, did 24 you put three in that saw grass community -- 25 A Yes. 420 1 Q -- each with the floats? 2 A Yes. But they would be within maybe a -- 3 a radius of, you know, a couple meters. There are 4 photographs I think of the -- of the sampling sites 5 in -- in several of the things. 6 Q Where in the water column were they 7 suspended? 8 A Essentially, you know, more or less right 9 at the surface in all the locations where, 10 you know, the water depths were, you know, 11 fluctuating and likely to go to zero because we 12 didn't want the samplers to end up laying -- or 13 lying on the bottom, if we could help it. 14 Sometimes you couldn't do that. 15 And when that happens, there was notes 16 made in the field notes that the samplers were, 17 you know, found lying on the bottom, or -- or 18 whatever. In some cases where the water wasn't 19 deep enough when they were installed, there were 20 notes put in the field notes that said, you know, 21 the samplers are -- are, you know, lying on the 22 bottom, or the bottom of it is touching the 23 bottom. 24 I mean, I -- ideally you don't want those 25 things to occur. But, you know, it's better to, 421 1 you know, put the sampler out there and get 2 something than just not get it. 3 Q Did you have a -- 4 A I guess I should say, too, that there was 5 a -- I think I mentioned, there was a timed 6 qualitative sample taken at each one of the 7 locations. 8 Q Explain that to me a little bit. 9 A Basically they, you know, go out and -- 10 and collect organisms from as many different, 11 you know, habitats as they can in a, you know, 12 specified, you know, time interval. 13 Q How was that done? 14 A They use, you know, a dip net and forceps, 15 and -- 16 We also take a core sample as part of 17 that, and -- 18 Q Did any of the sites change vegetatively 19 over the course of the study? 20 A No. 21 Q Are there any sort of standard protocols 22 for Hester-Dendy deployment and use, about whether 23 things lie on the bottom, or anything like that? 24 A I think that, you know, most studies I'm 25 familiar with, you know, end up suspending the 422 1 Hester-Dendies, you know, from floats. There are 2 some studies where they try to set them, you know, 3 a set distance above the bottom of the -- of the 4 water column. 5 Q Do you think one method is preferable over 6 the other? 7 A I personally think that, you know, having 8 them, you know, suspended is -- is probably better, 9 because especially in, you know, deeper areas, you 10 can put them right above, you know, the bottom, 11 you know, they're more subject to increased 12 sedimentation, that sort of thing. 13 Q Do you know of any differences in the 14 results you get from Hester-Dendy deployment where 15 they're suspended from a float as opposed to 16 supported from below? 17 A I think there are differences. 18 Q What would those differences be? 19 A You can get just a, you know, different 20 kind of species composition. 21 Q Is it dependent upon where in the water 22 column they're suspended. 23 A That can have an effect on it, when you're 24 dealing with a lot of drift organisms, and that 25 sort of thing. 423 1 Q Is the shading-out of the Hester-Dendy by 2 a float a potential factor in what you might wind 3 up with? 4 A I think you have to, you know, consider, 5 you know, the shading factor when you're doing 6 these kind of analyses and that sort of thing. 7 I think that in, you know, these 8 particular areas, it wasn't as much of a factor 9 because you're putting them in kind of dense, 10 you know, vegetation anyway that is creating its 11 own, you know, shade. 12 So you've got that additional factor to 13 contend with. But I think that when you use the 14 exact same method in two areas you're trying to 15 compare, but that effect cancels itself out. 16 Kind of like if I weighed you and Frank 17 and had both of you holding 25 pound weights, 18 you know, your relative weights would still be the 19 same, because you're both holding the same weight. 20 You use the same, you know, technique of 21 suspending things in both, you know, communities. 22 Then those effects cancel each other out. 23 MR. HYDE: I'd like to just note for the 24 record that the Rule itself does not specify 25 whether one is to suspend or to use a different 424 1 method of deploying the Hester-Dendies -- 2 MR. KILLINGER: I'm not suggesting that it 3 does. 4 A I mean, I could add that, you know, the 5 method we use is a method that was, you know, 6 worked out and approved in conjunction with EPA on 7 several studies we did in conjunction with them. 8 Q It leads me back to a question that sticks 9 in my mind because of the photographs you produced. 10 As I recall, the floats from which you 11 suspended the Hester-Dendies were not uniformly 12 shaped and not uniformly sized. 13 Do you have any data that show exactly 14 what sizes or shapes they were? 15 A No. 16 Q The -- I guess you called it a timed 17 qualitative sample at each station that y'all -- 18 A Right. 19 Q -- took? Did you use any standard methods 20 for taking those samples? 21 A We used the same method that we had, 22 you know, worked out with, you know, EPA on, 23 you know, a project that we did in conjunction with 24 them. The method is specifically stated in our 25 I guess generic QA/QC, you know, comp plan that's 425 1 been approved by DER. 2 Q Generically stated. You talked about 3 using a dip net. Do you know what size mesh? 4 A It would be I think it's -- I want to say 5 30 mesh. I believe is what it is. Whatever the -- 6 I think it's half a millimeter size -- 7 Q Okay. 8 A -- just the standard ones that are 9 specified for defining, you know, 10 macroinvertebrates. I think it might even say in 11 the Rule that you use a number -- 12 Q U.S. -- 13 A -- 30 sieve -- 14 Q Yes. 15 A -- or something or another? 16 Q It does. 17 A And it -- and that's the size mesh screen 18 that was used. 19 Q How many sweeps did you take? 20 A I don't think there was a set number. 21 I think they basically, you know, go in and 22 collect, like I said, for a specific, you know, 23 period of time at each one of the stations. 24 It's at best, you know, a semi-- 25 semi-quantitative method. It's not the method that 426 1 we used to evaluate, you know, whether the 2 biological integrity rule was violated or not. 3 There's always a criticism that 4 Hester-Dendy samplers don't, you know, adequately 5 collect, you know, the species or representing at a 6 given station. And we simply took those samples 7 since we were there in addition to, you know, the 8 Hester-Dendy samples. 9 Q How -- how do you do sweeps in heavily 10 vegetated area? 11 A You basically have to use a -- you know, a 12 dip net, and these things have little meshes on 13 them, little nets with a handle, and you just -- 14 THE WITNESS: Well, I guess you can't -- 15 MR. FitzGERALD: That's going to be hard 16 to get on to -- 17 THE WITNESS: I -- 18 MR. FitzGERALD: -- the record. 19 THE WITNESS: I was going to say -- 20 MR. FitzGERALD: Let the record reflect 21 the witness has made a uniform -- a nonuniform 22 series of jerky motions with his hands, 23 simulating the presence of a stick. Or 24 something of that nature. 25 MR. HYDE: Counsel is just being facetious 427 1 in that comment. 2 MR. FitzGERALD: I saw the witness shaking 3 his head yes. That's sort of what he was 4 doing. 5 A I mean, basically, you know, you go in 6 there and, you know, take the net and -- and move 7 it around in between the vegetation, and attempt 8 to, you know, scrape off, dislodge, you know, any 9 organisms that are adjacent to -- or attached to 10 the stems of vegetation there. 11 I mean, it's kind of a -- an aggressive, 12 you know, effort to, you know, collect whatever 13 organisms are there. Like I say, it's at best 14 semi-quantitative -- 15 Q Uh-hum. 16 A -- because you're doing it for a specified 17 amount of time at each location. 18 Q Well -- 19 A It's just additional information. It's 20 not information that we used to determine 21 compliance with the biological integrity standard. 22 Q How big are these nets? 23 A I think they use a little kind of hand net 24 for -- for part of it when they can. And that's 25 what they would use at these stations. 428 1 Q What would be, like, the mouth opening 2 diameter of a net like that? 3 A I think the ones that were used on this 4 were in the neighborhood of 6 inches or so, 5 something like that. 6 Q Okay. Where do you get such a standard 7 net as -- 8 A They were ordered from one of the 9 biological supply houses or whatever. 10 Q Do you reuse the nets? 11 A Certainly. 12 Q Okay. 13 A And make sure they're cleaned in between 14 uses, they were used. I don't know any 15 macroinvertebrate collector that uses a new net 16 every time he collects a station. 17 Q I wasn't trying to imply that was 18 necessary. I was just asking the question. 19 Is current a factor in colonization of 20 Hester-Dendies? 21 A Yes. 22 (WHEREUPON, DR. ROSS EXITED THE ROOM.) 23 Q What role does it play? 24 A It obviously brings drift organisms to 25 Hester-Dendies if organisms, you know, drift. It 429 1 can also provide, you know, detritus and that sort 2 of thing to Hester-Dendies. 3 If it's too strong, you know, it might, 4 you know, preclude anything from attaching on it. 5 I don't think current, you know, at these 6 particular stations, would affect Hester-Dendies in 7 that manner. But it could. 8 Q Was current a site selection criteria? 9 A No. 10 Q Did you take any current data or 11 calculations from the sites that you actually 12 selected? 13 A No. 14 Q Do you know if any of the Hester-Dendies 15 dried out? 16 A Yes. 17 Q Did any dry out? 18 A Yes. 19 MR. KILLINGER: Nothing is easy. 20 Q Did any -- I guess you said some were 21 touching the bottom I guess when deployed. 22 A Yes. 23 Q Do you know -- do you have any reliable 24 data that would show what the -- sort of -- I don't 25 know if we'd call it microhabitat, but the specific 430 1 location where the Hester-Dendies were was like in 2 the period when people weren't there looking at it? 3 A No. 4 Q Do you have any -- did you deploy any 5 meters or samplers that would show whether the 6 water level fluctuated or went up or went down or 7 dried out? 8 A At some of the stations. 9 Q At some of the stations. But not all of 10 them. 11 A Actually, I think there was one at each 12 one of the -- at generally -- at -- you know, these 13 stations were relatively close together. 14 Q Uh-hum. 15 A And my recollection is that we had a water 16 level recorder, continuous water level recorder at 17 each set of paired stations. 18 Q I don't think -- 19 Back up a second. Do we have the data 20 from the timed qualitative samples that you took? 21 A Yes. 22 Q Was that provided in the context of the 23 documents that you gave us? 24 A I don't remember if we provided you hard 25 copy or just electronic copies. There may just be 431 1 electronic copies of it. But they're in 2 spreadsheet format, standard, you know, XL 3 format -- 4 Q Okay. 5 A -- you just go to XL, print them out. 6 Q What was your reason for doing that? 7 A Doing what? 8 Q Those timed qualitative sampling. 9 A Just to have the data in case, you know, 10 we ran up into, you know, arguments that the 11 Hester-Dendies weren't appropriate, and that you 12 should have looked at it this other way also. 13 Q Okay. I guess back to where -- 14 A Excessive caution. 15 Q -- back to where I was? 16 MR. HYDE: You may recall that the 17 United States seemed to be thinking that 18 non-new methodologies were better with the 19 biological integrity standard reflected. 20 MR. KILLINGER: Oh, far be it from me to 21 cast any aspersions on Hester-Dendy 22 methodology. 23 MR. HYDE: We stand behind the 24 Hester-Dendies. As does the Department -- 25 MR. KILLINGER: I -- you know -- 432 1 MR. HYDE: -- and Dr. Ross. 2 MR. KILLINGER: -- you know, I don't -- 3 I'm not trying to make any value judgments here 4 about what's better or not. 5 MR. FitzGERALD: Time out. 6 (WHEREUPON, A BRIEF OFF-THE-RECORD 7 DISCUSSION WAS HELD.) 8 MR. KILLINGER: I'm not trying to get at 9 any, you know, value judgment about what's 10 better or not, I'm just trying to find out what 11 we did. 12 THE WITNESS: Can we go off the record 13 just for a second? 14 THE WITNESS: Yeah. 15 (WHEREUPON, A BRIEF OFF-THE-RECORD 16 DISCUSSION WAS HELD.) 17 (Recess.) 18 (WHEREUPON, MR. NEARHOOS WAS NOT PRESENT 19 IN THE ROOM.) 20 MR. KILLINGER: Okay. I guess we're back 21 on. 22 Q I keep coming back to the timed 23 qualitative sample. I guess I don't understand 24 that very well. 25 Can you explain to me what that is and how 433 1 it's done? What the timed element of it is? I -- 2 A They collect for a specified period of 3 time. Let's just say they collect for one hour. 4 Q What does mean though, they collect for 5 1 hour? 6 A They collect -- if there's two people, 7 they both may collect for 30 minutes so that you 8 have a total of a 1-hour collection effort -- 9 Q I see. 10 A -- at that location. 11 Q So that is why you told me that you 12 couldn't give me a set number of sweeps. 13 A Right. 14 Q Okay. 15 A Because they're -- it was more set to the 16 time, you know, period. 17 Q Okay. 18 A And, like I said, it's a semi-- 19 semi-qualitative, you know, estimate at best. 20 Q So if -- 21 MR. HYDE: I think you used the word 22 qualitative, you meant quantitative? 23 THE WITNESS: Semi-quantitative. 24 A I mean it is a qualitative method. That's 25 the reason we call them qualitative samples. 434 1 I'm saying it's semi-quantitative, because 2 you do try to expend the same relative amounts of 3 efforts -- 4 Q Just -- 5 A -- at each place so that you're better 6 able to compare the data. 7 Q But if you have a relatively open slough 8 site, for instance, aren't you going to wind up 9 with a much easier -- 10 A Yes. 11 Q -- time, and more sweeps than you are at a 12 highly vegetative site. 13 (WHEREUPON, MR. FRYDENBORG ENTERED THE 14 ROOM.) 15 A Absolutely. I mean, I don't think they 16 are as good in comparing different kinds of -- of 17 sites as they are, you know, similar kind. 18 And like I said, the -- 19 Q So -- I'm sorry. Go ahead. 20 A I was going to say, the -- the methodology 21 and, you know, equipment used and that sort of 22 thing are explicitly laid out in our approved QA/QC 23 plan. 24 Q So what value do you get from timed 25 qualitative analysis if the number of sweeps isn't 435 1 predictable and, therefore, I assume the number of 2 organisms that you collect is not the same 3 relatively sampling session to sampling session 4 or -- 5 A Well -- 6 Q -- site to site. 7 A -- you can, you know, pick up species 8 that, you know, you might not pick up on 9 Hester-Dendies. And again, we just did it mainly 10 as a fall-back -- 11 Q Uh-hum. 12 A -- given what we, you know, anticipated 13 as, you know, arguments from other people that, 14 you know, you should use, you know, Hester-Dendies 15 in these kind of systems. 16 Q Well, what can you use the data for to 17 tell, what, relative abundances of organisms or -- 18 I mean, is that an appropriate thing or -- 19 A Well, I mean, you can calculate, you know, 20 diversity, you know, on these. There's some of the 21 diversity indices that are, you know, claimed to 22 be, you know, sample size independent. 23 Q Okay. 24 A So if you use, you know, indices that are, 25 you know, sample size, you know, independent, then 436 1 you can, you know, calculate diversities from those 2 things. 3 I believe Shannon-Weaver diversity, 4 that's, you know, one of the things they, you know, 5 claim for that. 6 Q Did -- what'd you do with the -- the stuff 7 you got in your sweeps, did you analyze it? 8 A Sure. 9 Q How was it analyzed? 10 A I mean, we basically collect, you know, 11 all the organisms in the field, put them in a 12 bottle, preserve them; take them back to the lab 13 where we have a technician that, you know, pours 14 them out of the bottle and enumerates them. 15 Well, wait a minute. We have a -- a 16 technician takes the material that's in the bottle, 17 which is also going to have some detrital material 18 in it and stuff since you're using the sweep 19 method, and that sort of thing. 20 And picks the organisms from the detritus, 21 and puts it in another little vial. And then we 22 have those samples, you know, identified. Then we 23 take the name of the organism, the number of 24 individuals that were found in that organism, put 25 them into a computer program that generates a -- a 437 1 printed table of, you know, the genus and species; 2 the taxa, whatever; the number of organisms; the 3 percent, frequency that that organism appeared; 4 calculates the Shannon-Weaver diversity; tabulates 5 the number of taxa, the number of organisms. And 6 I think it also calculates an equitability index. 7 Q What's an equitability index? 8 A Just another one of the indices that, 9 you know, EPA was promoting at one time and we were 10 doing some work for EPA, so we included that index 11 in a computer program. 12 Q When you get the samples analyzed, they 13 sample -- I mean, identified every organism, or 14 just representative? 15 A We attempt to analyze, you know, the 16 entire sample. On occasions, you know, if there's 17 just so much, you know, material in a sample that 18 it's, you know, impractical to do that, they, 19 you know, subset, you know, the sample using the 20 procedures that are laid out in the QA/QC plan. 21 Q Did you calculate from the data that you 22 got any measures of -- of community health? 23 A No. Well, other than -- 24 Q Is that metrics? 25 A -- other than, you know, the diversity 438 1 indices -- 2 Q Okay. 3 A -- and I would assume you would consider 4 that to be a measure of community health. I'm not 5 really familiar with the term community health. 6 Q What's -- does the data that you have on 7 this -- you said that the computer printed out a 8 number of different things. 9 A Uh-hum. 10 Q Did you give us all those printouts? 11 A Yes. 12 Q Okay. 13 A Well -- well, I didn't give you hard copy, 14 they're electronic file. 15 Q Okay. 16 A And they're just text files -- 17 Q Okay. 18 A -- any text out of a printer. Because 19 there's, you know, I don't know, this much of them 20 probably, a foot of them. I just didn't see any 21 reason to kill that many more trees. 22 MR. FitzGERALD: Off the record for a 23 second? 24 MR. KILLINGER: Off the record. 25 (WHEREUPON, A BRIEF OFF-THE-RECORD 439 1 DISCUSSION WAS HELD.) 2 MR. KILLINGER: Back on the record 3 I guess. 4 Q Does the either electronic or hard copy 5 printout that we have give any record of how many 6 sweeps you were able to do in your timed period? 7 A No. 8 Q Was any record of that kept that you know 9 of? 10 A You'd have to check the field notes and 11 see. 12 Q That normally a practice, to keep a record 13 of that? 14 A I'm not sure that that would have been 15 recorded, the actual number. They record, 16 you know, the time that was spent doing it. But I 17 don't think they record, you know, the number of 18 sweeps or the number of -- of, you know, things 19 they looked at to try to, you know, pick organisms 20 off. 21 Q Is a timed qualitative analysis a standard 22 method for this type of organism collection? 23 A It's used by other people, you know, how 24 standardized it is, I don't know. 25 Well, we basically came up with it on a 440 1 project we had in conjunction with EPA as a way of 2 collecting, you know, additional data -- 3 Q Right. Right. 4 A -- to be used, you know, in conjunction 5 with, or whatever, you know, looking at the 6 Hester-Dendy data. 7 Q How do you know, for instance, if the sort 8 of -- if you don't know the number of sweeps that 9 you took, how do you have any assurance that the 10 relative area that you sampled from one spot to the 11 next was even remotely close. 12 A You don't. 13 Q Okay. 14 A I'm not saying this is a quantitative 15 method -- 16 Q I understand. 17 A -- I've said it three or four times, it's 18 not. 19 Q I'm just trying -- 20 A You can't do -- 21 Q -- to get a feel -- 22 A -- those things. 23 Q Okay. And the only thing you did with 24 this data, as I understand it, was just to do 25 Shannon-Weaver? 441 1 A We basically just fit it into the same 2 program used for the Hester-Dendy data. All the 3 same things are spit out, because that's an easy 4 way to get, you know, printed, you know, names of 5 all the organisms and -- 6 Q Right. 7 A -- you know, the number you found, and all 8 these other things. So we just treat both sets of 9 data the same way as far as computer program. 10 Q Did you with regard to those samples, or 11 your Hester-Dendies, do any analysis of -- of 12 species or taxa composition? 13 A Not really. I did just briefly look at 14 when I was reviewing I believe it was 15 Frank Nearhoos' little report where he discusses 16 I guess the Department's, you know, basis for 17 assuming that the biological integrity standard 18 was, you know, violated -- or -- or maybe it was in 19 the balance part. And he mentioned a couple of 20 species that I guess Terczak had decided were, 21 you know, indicative of, you know, enrichment or -- 22 or whatever. 23 And I just took the same species that 24 were, you know, looked at in those, and looked at 25 our data briefly to see if we came up with similar 442 1 results, and they weren't. 2 Q Okay. 3 But that's the extent of looking at 4 individual species. 5 Q Okay. I guess I left off on something 6 that I need to go back to. 7 We talked before about some of the 8 Hester-Dendies perhaps touching the bottom or lying 9 on their sides or drying out at some point during 10 the process. 11 A Uh-hum. 12 Q What effect does contact of the 13 Hester-Dendy with substrate or anything else have 14 on the results that you get from it? 15 A Well, I think it'll distinctly change the 16 type and, you know, number of organisms that you 17 get on the sample. 18 Q Does it invalidate it if the