1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA, ROTH FARMS, INC., )
and WEDGEWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., )
5 and UNITED STATES SUGAR )
CORPORATION, )
6 -and- )
FLORIDA FRUIT AND VEGETABLE )
7 ASSOCIATION, LEWIS POPE FARMS, )
W. E. SCHLECHTER & SONS, )
8 INC., and HUNDLEY FARMS, INC., )
Petitioners, )
9 vs. ) DOAH CASE NO.:
SOUTH FLORIDA WATER ) 92-3038
10 MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
MICCOSUKEE TRIBE OF INDIANS, )
12 THE UNITED STATES OF AMERICA, )
FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, )
and FLORIDA WILDLIFE ASSOCIATION,)
14 Intervenors. )
)
15
DEPOSITION OF: JOHN A. DAVIS, Ph.D.
16
TAKEN AT
17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
18
DATE: MARCH 15, 1994
19
TIME: COMMENCED: 9:18 A.M.
20 CONCLUDED: 5:05 P.M.
21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.
2600 BLAIR STONE ROAD
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: LAURIE L. GILBERT
REGISTERED PROFESSIONAL REPORTER
24 NOTARY PUBLIC
25 VOLUME II
PAGES 126-258
127
1 APPEARANCES:
2 Representing Petitioners, Florida Sugar
Cane League, Inc., and United States
3 Sugar Corporation:
4 WILLIAM L. HYDE, ESQUIRE
Earl, Blank, Kavanaugh & Stotts, P.A.
5 Suite 350
215 South Monroe Street
6 Tallahassee, Florida 32301
(904) 681-1900
7
Representing Intervenor Miccosukee Tribe
8 of Indians:
9 TRUMAN E. DUNCAN
Water Resources Director
10 Miccosukee Tribe of Indians
Post Office Box 440021
11 Tamiami Station
Miami, Florida 33144
12 (305) 223-8380
13 Representing Intervenor
The United States of America:
14
THOMAS A. WATTS FitzGERALD, ESQUIRE
15 Assistant United States Attorney
Southern District of Florida
16 99 Northeast Fourth Street
Miami, Florida 33132
17 (305) 536-5927
18 Representing Intervenor Florida
Department of Environmental Protection:
19
LEE M. KILLINGER, ESQUIRE
20 Assistant General Counsel
Department of Environmental Protection
21 640 Twin Towers Office Building
2600 Blair Stone Road
22 Tallahassee, Florida 32399-2400
(904) 488-9730
23
24
25
128
1 ALSO PRESENT:
2 Frank Nearhoos
Douglas Gilbert
3 Russell Frydenborg
4
* * * * *
5
INDEX
6 (VOLUME II)
7 ITEM PAGE
8 DEPOSITION CONTINUED . . . . . . . . . . . . 129
9 CERTIFICATE OF REPORTER. . . . . . . . . . . 258
10 * * * * *
INTERVENOR DEPARTMENT OF
11 ENVIRONMENTAL PROTECTION'S EXHIBITS
12 NUMBER DESCRIPTION PAGE
13 3 Disclosure of Expert and Fact
Witnesses of Petitioners Florida
14 Sugar Cane League, Inc., and
United States Sugar Corporation . . 170
15
4 Pretrial Disclosure of Issues
16 and Witnesses . . . . . . . . . . . 177
17
18
19 * * * * *
20
21
22
23
24
25
129
1
2 (WHEREUPON, DR. NYQUIST AND MR. STORY WERE
3 NOT PRESENT IN THE ROOM.)
4 DIRECT EXAMINATION
(Continued)
5
6
7 BY MR. KILLINGER:
8 MR. KILLINGER: Okay. I guess we're back.
9 Q Wind up this CV questioning a little bit.
10 Dr. Davis, it -- your CV indicates that
11 you're experienced in the use of a variety of
12 computer packages for statistical analyses, data
13 management, and hydrological modeling.
14 Is that an accurate statement?
15 A More or less.
16 Q Okay. Well, let's go to the more part
17 first.
18 What statistical -- what computer packages
19 are you experienced with?
20 A You know, word processing, various
21 spreadsheets, little bit of Sys Stat, I don't
22 really use SAS any more. I used to use it a good
23 bit.
24 Q What is Sys Stat?
25 A It's a statistical package -- package
130
1 that's meant to run on a -- on a PC.
2 Q What is SAS?
3 A Pardon?
4 Q What is SAS?
5 A I don't know what it stands for. But it's
6 a program that's written by some people up in
7 North Carolina I think it is. And been distributed
8 for years, used to run on mainframe, now they
9 license it for PCs. I'm sure you have it in your
10 department.
11 Q What other computer packages for
12 statistical analysis are you --
13 A For statistical.
14 Q -- experienced with?
15 A Reflex --
16 Q Do you have one --
17 A That's all that comes to mind right now.
18 Q I'm sorry.
19 Do you have one that your firm uses?
20 A We use a variety. We mainly use SAS.
21 Q Does your firm do a lot of statistical
22 analysis?
23 A Not so much statistical analysis, probably
24 as just data management.
25 Q Okay. What would you consider the
131
1 differences to be?
2 A You know, data management is more taking,
3 let's say, large volumes of data, and reformatting
4 it in ways that are conducive to quick, you know,
5 analysis and -- and understanding. Generating your
6 descriptive statistic, like, you know, number of
7 observations and min and max and mean and median,
8 and trimmed means --
9 Q Is that more?
10 A -- geometric means, stuff like that.
11 Q Is that more spreadsheet type of --
12 A Well, they're not necessarily --
13 Q -- or --
14 A -- spreadsheets will do these sort of
15 things. But, you know, SAS, for instance, does all
16 these same things, plus a lot more things.
17 Q Uh-hum.
18 A Then we, you know, graph the data and that
19 sort of thing.
20 Q Okay. So it helps you assist in doing
21 plots of data?
22 A (Nodding head.)
23 Q What computer packages do you use for data
24 management?
25 A It's the same ones. And D-Base is also
132
1 used. ARC Info is used. Fortran.
2 Q Any others, generally.
3 A Oh, we have FoxPro; Microsoft; Access;
4 Lotus 1-2-3.
5 Q What computer packages do you have
6 experience with for hydrological modeling?
7 A HSPF.
8 Q Is that an acronym?
9 A Right.
10 Q What does it --
11 A Stands for --
12 Q -- stand for?
13 A Hydrocomp Simulation Program Fortran.
14 It's a -- was a proprietary water quality and water
15 quantity model that was subsequently adopted
16 I guess by EPA, and they put out a -- I guess more
17 public domain type, you know, program that people
18 could, you know, buy and use at a reasonable cost.
19 Q Any other hydrological modeling computer
20 packages?
21 A There's a couple software programs that,
22 you know, apply the, you know, SCS, you know, type
23 little models and that sort of thing.
24 Q Can you name the --
25 A I don't recall what the --
133
1 Q -- programs?
2 A -- vendor is now. But it's the thing that
3 generates, like, TR20 and that sort of thing.
4 They're, you know, computations you can do with a
5 hand calculator and piece of paper. But people
6 have developed programs to make it easier and
7 quicker.
8 Q Do you have any -- does your firm do a lot
9 of hydrological modeling?
10 A It depends on, you know, what the need is
11 for a particular project. We also, you know, did
12 the -- the modeling, you know, for the mixings on
13 stuff.
14 Q Have you done any hydrological modeling
15 for this case?
16 A No.
17 Q Have you looked at anybody else's
18 hydrological modeling for this case?
19 A Yes.
20 Q Whose have you looked at?
21 A The District's. For instance,
22 McDonnell's, Carl Walters --
23 MR. FitzGERALD: I'm sorry. Who was the
24 name? I couldn't --
25 THE WITNESS: Carol -- I mean,
134
1 Carl Walters.
2 A The stuff that John Richardson did as part
3 of Work Order 32. May have been some others, I
4 don't recall right now.
5 Q Do you intend to offer any testimony about
6 hydrological modeling --
7 A I don't recall --
8 Q -- or hydrological --
9 A -- being asked to at this point in time.
10 Q Okay. Have you done any statistical
11 analyses in connection with this case?
12 A Not anything beyond the kind of things I
13 described a while ago as far as the, you know,
14 general descriptive statistics.
15 Q Have you reviewed statistical work done by
16 other -- other people in connection with this case?
17 A Yes.
18 Q Whose work have you reviewed?
19 A Bill Walters, I guess various people at
20 the District, the little bit that Frank did. Stuff
21 done by Dr. Lettenmaier, Dr. Millard, Dr. Loftus,
22 Dr. Reckhow.
23 Q Do you --
24 A -- Dr. Marin.
25 Q Any others?
135
1 A Dr. Robson.
2 Q Do you intend to offer any testimony about
3 statistical analysis based on your review of -- any
4 work you've done or review of other people's work?
5 A I haven't been asked to at this point in
6 time.
7 Q Did you reach any conclusions about the
8 statistical reports that you looked at or reviewed
9 that other people had done?
10 A Not really.
11 Q Okay. What about the hydrologic modeling
12 work that you've reviewed?
13 A I guess some, you know, general thoughts
14 or conclusions.
15 Q Did you reduce any of those to writing?
16 A Not that I recall.
17 Q Did you give any reports to anyone orally
18 about your conclusions about hydrologic modeling?
19 A Probably.
20 Q Probably?
21 A Yes.
22 Q Okay. Who would you probably have given
23 them to?
24 A The attorneys.
25 Q Okay. Were you instructed not to write
136
1 anything down?
2 A Not that I recall specifically, no.
3 Q What's krigging?
4 A A way of taking data -- spatial data,
5 distribute it over an area, and assigning an area
6 of influence to each one of the -- the data points,
7 and then creating isopleths, or if you like,
8 contour maps, depicting the distribution of a
9 particular parameter over a geographical area.
10 Q When you say assigning an area of
11 influence to each data point, what does that mean?
12 A You, let's say, go out into an area that's
13 100 acres --
14 Q Uh-hum.
15 A -- and you take ten points over that area.
16 Then you want to try to extrapolate the
17 data from those, you know, ten points, over the
18 whole, you know, 100 acres. Then you have to
19 decide whether all those points should, you know,
20 simply influence an area, let's say, 10 meters or
21 100 meters, you know, in all degrees or angles from
22 that point; or for some reason, it has more
23 influence in a particular direction.
24 Q So is it -- would it be a simple way to
25 put it, or perhaps a simplification, to say it's a
137
1 type of an averaging process?
2 A Well, it's not -- not simply an averaging
3 process, because you're weighting each one of the
4 points differently. That's what I mean by
5 assigning an area of influence to some points.
6 Because if the influence is not the same
7 in all directions, and the same distance in all
8 directions, then you're, you know, weighting the
9 area that particular influences. So maybe in a
10 weighted kind of average.
11 Q Okay. Does your firm do any of that?
12 A Some. But it's not an area that we
13 profess to be experts in.
14 Q Are you familiar with any computer
15 packages for analysis that -- that -- that do that?
16 A Yes.
17 Q Which ones?
18 A Surfer; there's a package, GS+; GEO EAS.
19 I believe -- we don't use it -- but I think Erdas
20 does it.
21 Q GEO PAK?
22 A GEO PAK does it.
23 And there are, you know, a lot of others
24 that do the same kind of thing.
25 Q Have you participated in any -- any
138
1 meetings where statistical analysis of data was a
2 topic with regard to the Everglades?
3 A Yes.
4 Q Can you give me sort of a general
5 description of what those meetings were about, were
6 those SAGE meetings that -- where that was
7 discussed?
8 MR. HYDE: I'm going to --
9 A I'm sorry --
10 MR. HYDE: -- object to the form of the
11 question. There's two questions --
12 MR. KILLINGER: Okay. I -- I'm trying to
13 clarify a little bit.
14 Q Was -- was that the topic of discussion at
15 some of the SAGE meetings, for instance?
16 A Yes.
17 Q Okay. Was that a topic at any other
18 meetings where you were a participant?
19 A Certainly.
20 Q How many meetings you think you've
21 attended where statistical analysis of Everglades
22 data has been discussed?
23 A I honestly have no idea.
24 Q Hundreds?
25 A I don't know if it would be hundreds. But
139
1 it would be numerous.
2 Q Okay. How about hydrological modeling?
3 A Several of those.
4 Q Okay. Have you met with other scientists
5 about statistical analysis of Everglades data?
6 A Yes.
7 Q Have you met specifically to discuss
8 statistics?
9 A Yes.
10 Q Who have you met with?
11 A Dr., you know, Reckhow, Lettenmaier,
12 Millard, Marin, Richardson, Patrick --
13 MR. FitzGERALD: I'm sorry. Could the
14 witness specify when you use Richardson, which
15 you're referring to --
16 THE WITNESS: Curtis.
17 MR. FitzGERALD: We have two.
18 Q Can you give me an idea of when you --
19 when your first meeting about statistical analysis
20 of Everglades data might have occurred with any of
21 these scientists?
22 A When?
23 Q Yes.
24 A Probably '88, '89.
25 Q Have you met with any other scientists to
140
1 discuss hydrologic modeling in the Everglades?
2 A Yes.
3 Q Who have you met with?
4 A Gherini, Curt Polman. Then, you know,
5 those -- at various meetings, like the SAGE
6 meeting, or things at the District where it was
7 discussed.
8 Q Are you familiar with Dr. Gherini's model?
9 A Not in any depth.
10 Q Okay. What contracts have you presently
11 got with anybody about the Everglades for research
12 or analysis review or any topic?
13 MR. HYDE: Lee, just for purposes of
14 clarifying your question, what do you mean by
15 saying the "Everglades?" Because that's -- can
16 mean a lot of different things.
17 For example, do you intend it to mean the
18 Everglades Protection Area, do you intend it to
19 mean the historic Everglades, the entire
20 Everglades which might even include the,
21 you know, Kissimmee River Basin? So --
22 MR. KILLINGER: Well --
23 MR. HYDE: -- I think it's kind of an
24 ambiguous question in that regard.
25 Q I suppose I will limit my question to
141
1 points south of Lake Okeechobee, and east of
2 Big Cypress.
3 MR. HYDE: Okay.
4 Q If that assists. I don't need to inquire
5 right now about the Kissimmee. I may come back to
6 it, but it's not really where I'm going.
7 MR. HYDE: West of the urban areas?
8 Southeast coast, too?
9 MR. KILLINGER: No. We're talking about
10 urbans. See what --
11 Q So what -- what contracts or proposals
12 have you got presently pending that concern that
13 geographic area?
14 A We have the work with the law firm.
15 Q Which law firm?
16 A Earl, Blank, Kavanaugh & Stotts.
17 Q And what's that related to?
18 A The SWIM litigation.
19 Q Okay. Anything else?
20 A We're doing a little work for I guess
21 Landers & Parsons.
22 Q And what's that related to?
23 A Basically just advice, you know, relative
24 to potential language litig-- and the legislation,
25 that sort of thing.
142
1 We have some work with U.S. Sugar.
2 Q What's that related to?
3 A One is related to the monitoring that
4 we're doing as part of the condition for the Corps
5 permit that we assisted them in obtaining.
6 Q What permit?
7 A It was a Corps permit for some wetland
8 issues related to their southern division ranch.
9 Q Anything else for U.S. Sugar?
10 A We are, you know, looking at some of
11 their, you know, BMP data.
12 Q Anything else?
13 A There might be some, you know, kind of
14 miscellaneous, you know, things that come up,
15 you know, from time to time. Nothing really comes
16 to mind to be honest.
17 Q Okay. Anything else for --
18 A We have a little bit of work we're doing
19 for Flo-Sun. It's more of a miscellaneous,
20 you know, nature.
21 And we're looking at some of their,
22 you know, data for, you know, BMPs, that sort of
23 thing.
24 Q Anybody else?
25 A You're talking about existing work,
143
1 right?
2 Q Yes. At the moment.
3 A I think that's basically it.
4 Q And what about the 298 work?
5 A You said south of Lake Okeechobee.
6 Q Well, they're mostly south of
7 Lake Okeechobee.
8 A Hmm?
9 Q They're mostly south of Lake Okeechobee.
10 A Well, I was thinking about you weren't
11 talking about the work coming in to
12 Lake Okeechobee. But that would be included. The
13 stuff for Parker.
14 Q And that's with the law firm?
15 A Right.
16 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.)
17 A And we were doing some work -- well, no.
18 We're just talking about existing things.
19 Well, I don't know. Some of the Closter,
20 you know, BMPS, we were doing some stuff on that.
21 I don't know whether that's still ongoing or not,
22 we haven't done anything on that for a while. But
23 it's through the Earl firm.
24 Q Have you got anything with the EAA EPD?
25 A Yes. Have that --
144
1 Q What's that?
2 A We were collecting some macroinvertebrate
3 samples in the Duke dosing study channels.
4 Q Is your contract with the EPD on that?
5 A Yes.
6 Q Anything for the -- for the Coop?
7 A No.
8 Q Directly or --
9 A (Shaking head.)
10 Q To Hopping, Boyd?
11 A Not related to this.
12 Q Okay. Anything related to the Everglades?
13 A No.
14 Q Okay. How about to the FFVA?
15 A No.
16 Q Anything for their counsel?
17 A No.
18 Q All right. I guess we'll start off and go
19 backwards.
20 What about the -- tell me about the
21 EAA EPD contract. What is it -- have you produced
22 a copy of that?
23 A Copy of what?
24 Q Do you have a written contract with
25 EAA EPD?
145
1 A I think so. But I'm not sure.
2 Q Have you produced a copy of that?
3 A No.
4 Q Have you got a copy of it?
5 A With me?
6 Q Well, I mean, in your possession, not --
7 not this second.
8 A I mean, there -- if -- if one exists, it's
9 at the office.
10 Q Okay. Do you know why you didn't produce
11 it?
12 A Because I didn't produce any contracts.
13 Q When did the contract come into existence?
14 A Approximately a year ago.
15 Q And what's its duration?
16 A It was about a year long contract. And we
17 have an extension on it, so that's the reason I say
18 it was probably about a year ago. Probably more
19 like 15 to 18 months I guess.
20 Q Under the term of the contract, what are
21 you supposed to be doing for the EPD?
22 A Basically we collected some
23 macroinvertebrate data from some of the Duke dosing
24 channels.
25 Q And what'd you do with it, the data?
146
1 A We analyzed it.
2 (WHEREUPON, MR. NEARHOOS ENTERED THE
3 ROOM.)
4 Q Have you provided that data to us?
5 A Yes.
6 Q Have you provided the analysis?
7 A I think we did. I mean, the analysis is
8 not complete. But we -- we produced what we had
9 done up to, you know, a week ago or whatever.
10 Q When will the analysis be complete?
11 A As soon as I get time to work on it.
12 Q Is the sampling completed?
13 A Yes.
14 Q How long will it take you to finish the
15 analysis?
16 A Probably a week.
17 Q Have you finished most of the analysis?
18 A Yes.
19 Q Can you tell me what your analysis of that
20 data is.
21 A I'm not sure I understand that question.
22 Q How did you analyze it, what did you
23 attempt to analyze it to show, or to reveal, or --
24 A We basically put out, you know,
25 Hester-Dendy samplers, and also took some
147
1 qualitative samples in some other areas adjacent to
2 the site. And we identified, enumerated the
3 organisms in the samplers, put them into -- put
4 that data into the computer program that generated
5 the Shannon-Weaver Diversity Index, the number of
6 taxa, the number of organisms.
7 And then we plotted that data to see if
8 there were, you know, differences between the
9 various treatment channels and, you know, the
10 adjacent areas.
11 Q Were there any differences?
12 A Yes.
13 Q Can you tell me what those differences
14 were?
15 A Basically the channels that were receiving
16 some, you know, nutrients had a higher diversity,
17 and I think generally a, you know, greater number
18 of taxa and number of organisms I think.
19 I'd have to look at the actual data sheets
20 to be more precise.
21 Q But as far as you know, those data sheets
22 have been produced --
23 A Yes.
24 Q -- and the analysis that you've done up to
25 last week has been produced.
148
1 A Yes.
2 Q What does that analysis look like? Is it
3 graphs, is it plots, is it --
4 A They were -- as I recall, they were
5 spreadsheet, and also a couple of kind of bar
6 charts, pictogram. And I believe this was stuff
7 that was produced directly to you, it was sent to
8 Bill Hyde, and I believe he turned it over to you.
9 MR. HYDE: Yeah. I turned it over.
10 THE WITNESS: I thought you did.
11 MR. FitzGERALD: Counsel, would that have
12 been in the box of materials that was produced
13 in Tallahassee?
14 MR. HYDE: Yes.
15 MR. FitzGERALD: Is that what you're
16 saying?
17 Q Just to pursue a little bit generally.
18 You recall that your analysis was that there were
19 some differences in the -- the treated, untreated
20 areas. And that the channels that were getting
21 nutrients were -- had higher diversity, generally
22 greater number of taxon organisms.
23 Can you tell me why?
24 A Not, you know, really. I mean, I -- you
25 can look at the data and see, you know, what the,
149
1 you know, treatment was. We haven't really tried
2 to do any, you know, causative, you know,
3 analysis. We haven't done any statistical
4 treatment to see if what looks like a difference is
5 even statistically a true difference. It may not
6 be. Because, you know, it's not, you know, that
7 great a difference.
8 Q If there is a difference, would you
9 attribute that to the treatment that was in the
10 treatment area, or to some other factor?
11 MR. HYDE: By treatment, do you mean the
12 phosphorus concentrations in the dose
13 channels?
14 MR. KILLINGER: Well, I -- you used the
15 treatment, and I wasn't --
16 MR. HYDE: Okay.
17 MR. KILLINGER: Okay.
18 Q What was the treatment in the treated
19 areas?
20 A I'd have to -- actually go back and look
21 at, you know, the description of the project
22 itself.
23 But, you know, basically the treatments
24 were to look at potential changes at different,
25 you know, phosphorus levels.
150
1 Q Okay. I may come back to this a little
2 bit later.
3 How much is that contract for in dollars?
4 A I honestly don't know.
5 Q Can you give me an estimate?
6 A I'm going to give you an estimate. But
7 that's what it is.
8 I think it's probably between fifteen and
9 thirty maybe.
10 Q Fifteen and thirty --
11 A Thousand.
12 Q -- thousand dollars?
13 Okay. How do you normally -- well, how is
14 this contract set up for billing, is it a fixed
15 amount?
16 A Yes.
17 Well, I believe it's a kind of
18 not-to-exceed amount.
19 Q How do you invoice for it?
20 A Monthly.
21 Q On a monthly basis?
22 A Yes.
23 Q Do you charge on an hourly basis for
24 services, or is it an item --
25 A It's an hourly charge for the -- for the
151
1 labor; and then if there are, you know, non-labor
2 expenses, that's billed at cost.
3 Q What do you charge per hour for labor?
4 A Depends.
5 Q Depends. Okay.
6 Elaborate a little bit. Depends on what?
7 The person doing the work?
8 A The person doing the work.
9 Q What's the range?
10 A For that particular, you know, contract, I
11 don't know. It's probably anywhere from 20 to,
12 say, 150.
13 Q Okay. Would someone like yourself be on
14 the 150 end?
15 A Yes.
16 Q And somebody doing -- slogging through the
17 mud would be on the 20 end perhaps?
18 A Perhaps. Maybe a little higher.
19 Q Okay. Would you consider that contract to
20 be a -- a scope of work?
21 A I mean, it has a scope of work to it, yes.
22 Q Okay. What are the deliverables under the
23 scope of work of the contract?
24 A I believe it's just a report.
25 Q When's that report due?
152
1 A I believe the original contract, it was
2 supposed to be done in -- I don't know. Like the
3 beginning of this year. And we had money left in
4 the budget, so we offered to do an additional
5 sampling, you know, at no additional cost, if they
6 would extend the time on the contract?
7 Q Uh-hum.
8 A They accepted, you know, that option. So
9 it was extended in a -- to allow for that.
10 I believe that extension, you know, called for the
11 report to be produced either at the end of February
12 or this month, one or the other. I mean, it's
13 slightly late.
14 Q It's imminent.
15 A Yes.
16 If I wasn't here, I would be working on
17 that.
18 Q Did you sign any kind of confidentiality
19 agreement about that contract or its terms with
20 anyone?
21 A I don't think so.
22 Q Can you produce a copy of that contract to
23 me together with a scope of work, or any other
24 attachments to it?
25 A I could. I guess. I mean, I need to
153
1 check with someone, but I think it's --
2 Q Who do you need to check with?
3 A The EPD has, you know, some counsel, I
4 need to check with them.
5 Q Did you produce any of the invoices that
6 you've sent regarding that contract?
7 A No.
8 Q Why not?
9 A I didn't really think that was, you know,
10 relevant. I thought it was something between,
11 you know, us and the client. If the client wanted
12 to produce them, that's fine. If they want to tell
13 us to do it, that's fine.
14 Q Well, I think that they're within the
15 scope of my request.
16 MR. KILLINGER: Bill, I don't know if this
17 is something that you have any interface with.
18 If it's an EPD deal --
19 MR. HYDE: I will inquire and see if they
20 have any objection to producing them. Assuming
21 that they don't, it will be produced.
22 MR. FitzGERALD: It seems to me that the
23 EPD is a public body of the State of Florida,
24 and this has come up a few times in the past.
25 And I know people have filed -- I know Sierra
154
1 at one point filed on them a public record
2 Sunshine issue, and got what they wanted,
3 because everybody sort of agreed on that.
4 MR. HYDE: Well, I don't think there will
5 necessarily be any problem here.
6 MR. FitzGERALD: I'm -- I'm not saying
7 that there is. It just seems to me that it's
8 just a matter of making the request. But I --
9 I do concur with counsel for DEP, that once
10 that notice is served, if any basis is asserted
11 for not providing it, that is not -- the notice
12 is not on the issue of the Subpoena DT to do
13 that leg work.
14 MR. HYDE: Okay. I said I would inquire.
15 And I think that in all likelihood there won't
16 be any problem with producing it.
17 MR. FitzGERALD: We might even get it
18 faxed in time to look at it, take care of it
19 during this depo, so we don't have to carry it
20 over.
21 Q What normally is reflected on your
22 invoices to your client?
23 I mean, on this contract. I'll leave the
24 others alone for --
25 A Well, they're all essentially the same,
155
1 just about. But we usually identify the category;
2 sometimes the person actually doing the work;
3 number of hours they charge, and times -- well, I
4 don't think it shows a rate. But it's a number of
5 hours, and then how much it would be for, you know,
6 that person --
7 Q Uh-hum.
8 A -- may show the number of hours, I don't
9 know whether it does. And then whatever non-labor
10 expenses were incurred.
11 Q That EPD contract, did you make a proposal
12 to the EPD, or did the EPD come to you or your firm
13 to request you to do the work?
14 A We responded to an RFP as I recall.
15 MR. HYDE: Lee, I'd just like to note for
16 the record that when I -- I think I discussed
17 with you about the production of documents, you
18 indicated you were primarily interested in
19 things that he would be relying upon for
20 purposes of this final hearing. And final
21 testimony at a final hearing.
22 And obviously, one doesn't typically rely
23 on contracts, invoices for basis of opinions.
24 MR. KILLINGER: No, I understand. I --
25 and I am primarily interested in -- in getting
156
1 to the ultimate opinions he has and the basis
2 for them. But I think that the work that he's
3 doing in the Everglades now and who he's doing
4 it for and -- and the reasoning and how much
5 it's all worth, and all of that sort of factors
6 into the ultimate opinions that -- that he's
7 got and is going to offer. And, you know, if
8 we don't --
9 MR. HYDE: I understand. I'm not barring
10 you from making --
11 MR. KILLINGER: Yeah. I'm just
12 thinking --
13 MR. HYDE: And I --
14 MR. KILLINGER: -- scope of work and
15 things under --
16 MR. HYDE: -- and I --
17 MR. KILLINGER: -- the contract, I think
18 it may be important for sort of analysis of the
19 breadth and scope of his Everglades knowledge.
20 So --
21 MR. HYDE: Okay.
22 MR. KILLINGER: -- I'm not trying to go
23 down rabbit trails.
24 Q Okay. I guess I need to flip back a
25 couple of pages.
157
1 Like to ask you about the contract you've
2 got with -- well, I guess I'll ask you about what
3 you -- what kind of work -- what kind of contracts
4 you have with Earl, Blank.
5 Can you tell me how many contracts you
6 have with Earl, Blank?
7 A I don't know that there -- perhaps a
8 better way of putting it is, you know, we provide
9 separate invoices I guess for I think two or three
10 different aspects of work.
11 Q Have you got a written contract with the
12 firm?
13 A No.
14 Q No written contract.
15 Do you have a scope of work, anything in
16 writing that tells you what you're supposed to be
17 doing?
18 A No.
19 Q How do you know what you're supposed to be
20 doing?
21 A They tell me.
22 Q So you get a call from the lawyer saying
23 we need you to do this?
24 A Either that, or we have a meeting and
25 discuss it, or --
158
1 Q Okay. Are the areas of your work
2 documented in writing by letter?
3 A I'm not sure I understand that question.
4 Q Do you ever document what you've been
5 asked to do, and who you're doing it for?
6 A We send a progress report, you know, with
7 the invoice. There are instances when we have
8 perhaps scoped out a particular, you know, type of
9 work or something, you know, like that, and sent,
10 you know, a little summary down of, you know, what
11 we thought, you know, we ought to do. And,
12 you know, what it might cost.
13 Q Do you normally invoice for the work that
14 you've done on a monthly basis?
15 A Yes.
16 Q Have you produced any of those invoices?
17 A No.
18 Q Have you produced any of the progress
19 reports?
20 A No.
21 Q What two or three --
22 A Well, wait a minute.
23 Q Okay.
24 A Obviously the law firm has all of those.
25 Q Uh-hum.
159
1 A Okay. But, you know, I haven't sent you
2 any of those.
3 Q Well, there -- they were available for the
4 law firm to produce; is that a fair statement?
5 A Yes.
6 Q Okay. You said you have done work -- you
7 provide services for two or three different aspects
8 of the work you're doing. What two or three
9 different aspects would that be?
10 A We had a separate project set up for what
11 we call the entry and access that was the sampling
12 we did in the Loxahatchee and the
13 Everglades National Park.
14 We had a separate invoice for work that
15 was done relative to the mediation.
16 I believe there's a separate invoice for
17 our participation in the DOJ entry into the EAA.
18 There had been a separate invoice for the
19 Closter and EPS stuff.
20 Q Anything else you can think of?
21 A That's all I can recall right now. Over
22 the, you know, period of years, there obviously may
23 have been --
24 Oh, there were obviously separate invoices
25 we did for the City's litigation back when that was
160
1 going on.
2 MR. HYDE: Lee, it was my understanding
3 that those documents, such as invoices, were to
4 be turned over to you in the files that we
5 produced in Miami. I have not reviewed all of
6 those files myself, there are many, many boxes
7 of them.
8 But with the exception of the mediation
9 invoices, which I think the Hearing Officer has
10 basically ruled off limits for reasons we all
11 understand, we will provide those documents if
12 they have not already been provided.
13 MR. KILLINGER: Okay.
14 MR. HYDE: I'm under the understanding
15 that they were provided.
16 MR. KILLINGER: Okay. I have not had the
17 opportunity to get through all the documents
18 yet myself, that's one reason I'm asking so
19 many questions to find out what should be in
20 there.
21 MR. HYDE: It's my understanding, they
22 should be in there; if they are not, they will
23 be provided.
24 MR. KILLINGER: Okay.
25 MR. FitzGERALD: I can't be conclusive on
161
1 that issue yet, because I may be -- I have
2 about a box or so to finish, which I will this
3 afternoon and this evening, but I have not come
4 across them as yet.
5 MR. HYDE: Well, I will telephone the
6 people that actually reviewed them this
7 evening, and ascertain what actually has been
8 produced. If they are not included, they will
9 be promptly available.
10 MR. FitzGERALD: None of your stuff when
11 we got it out of Miami was Bate stamped. So
12 they may have trouble figuring out where they
13 put it and tracking it down.
14 MR. HYDE: Okay. Well, what -- whatever
15 form it is, and wherever it is, I'm sure it's
16 available. And it can be made promptly
17 available.
18 Q To your knowledge, has the Earl, Blank law
19 firm hired you just because they have a lust for
20 knowledge about the Everglades, or have they hired
21 you because they represent a client who they're
22 going to use your information to assist?
23 A I would assume the latter.
24 Q Would you -- to your knowledge, does the
25 law firm include the amounts that you invoice them
162
1 to their ultimate clients?
2 A Yes.
3 MR. HYDE: I can assure you that we don't
4 pay them.
5 MR. FitzGERALD: We assumed it was
6 Mr. Earl anyway.
7 (WHEREUPON, A BRIEF OFF-THE-RECORD
8 DISCUSSION WAS HELD.)
9 Q What kind of arrangement, work
10 arrangement, have you got with Flo-Sun?
11 A What do you mean by "work arrangement?"
12 Q Have you got a written contract with
13 Flo-Sun to do work for them?
14 A No.
15 Q How do you know when they want you to do
16 work?
17 A They let me know.
18 (WHEREUPON, MR. GILBERT EXITED THE ROOM.)
19 Q Does someone call you on the telephone?
20 A Normally.
21 Q Who do you normally get a call from?
22 A Bill Tarr.
23 Q And do you on the telephone discuss what
24 you're to do, and how long it's to take, and -- and
25 how much it'll be billed?
163
1 A We generally, you know, discuss what's
2 going to be done, often they don't ask what it's
3 going to cost. If it's, you know, something that,
4 you know, they have an idea about how long it's
5 going to take and we've been doing work for them
6 for a big while, and I guess they feel like,
7 you know, what we charge them is reasonable for --
8 for product we've always delivered. So --
9 Q Do you -- do you follow-up any phone call
10 that has a request in it for you to do some work,
11 do you follow that up with a letter to document
12 that?
13 A No.
14 Q Do you set up a file at the office for the
15 specific request?
16 A Not necessarily.
17 Q Do you invoice for different requests
18 separately?
19 A No.
20 Q So does Flo-Sun then basically have an
21 account with you, and you just do whatever needs to
22 get done at the time, and you just send them an
23 invoice?
24 A Correct.
25 Q Okay. Have you produced any of those
164
1 invoices?
2 A No.
3 MR. HYDE: Might say, my representation as
4 to the earlier invoices holds true for any of
5 them, with the exception, of course, of the
6 mediation related materials.
7 MR. KILLINGER: Okay.
8 Q Let's talk about U.S. Sugar for a minute.
9 What kind of work arrangements do you have
10 with U.S. Sugar? Do you have any written contracts
11 with them for -- for work?
12 A I'm actually not sure.
13 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
14 A I don't think so.
15 Q How are work arrangements made with
16 U.S. Sugar, do you get a phone call about that,
17 too?
18 A On one of the projects where we talked
19 about the monitoring --
20 Q Uh-hum.
21 A -- for the Corps, there was a, you know,
22 work scope laid out for that that had, you know,
23 identifiable tasks and -- and dollars associated
24 with it. And there was a -- an agreed upon,
25 you know, amount related to that.
165
1 The other stuff is more on the same order
2 we talked about on the other stuff.
3 Q Okay. Have you produced a copy of that
4 scope of work or the contract that went with the
5 monitoring for the Southern Division Ranch?
6 A No.
7 Well, that -- was probably produced to
8 Earl, Blank, that information.
9 Q Okay. What about Landers & Parsons? Have
10 you got any written --
11 A No.
12 Q -- work arrangements with them?
13 A No.
14 Q Do they just pick up the phone and say,
15 figure it out?
16 A More or less.
17 Q And do you bill them directly?
18 A Yes.
19 Q Most of that is related to potential
20 legislative language; is that what you said before?
21 A It is currently, yes.
22 Q Is that all of it, or is that -- it is
23 currently. I mean, is that all the work you're
24 doing for them is that related to legislation?
25 A That I recall, yes.
166
1 Q Okay. Did you do work for them before on
2 other topics?
3 A Yes.
4 Q What other topics?
5 A We worked for them as part of the
6 Lake Okeechobee SWIM planning process.
7 Q Anything else related to this case?
8 A Not directly that I can -- well, let's
9 see. I believe we may have billed them directly
10 for some work that we were doing on the 40E-63
11 rule, the District.
12 Q All right. How much would you estimate
13 you've billed Landers & Parsons in connection with
14 issues involving this case? And if you want to
15 excerpt from that the SWIM Plan and 40E-63, that's
16 fine. I'll let you just qualify what you tell me
17 by what you would include in your answer.
18 A What period of time are we talking about?
19 Q Since, oh, I don't know, 1988.
20 A I honestly don't know. But it could be in
21 the $100,000 range, maybe two hundred. I don't
22 know.
23 Talking about five years or so.
24 Q Sure.
25 What about U.S. Sugar?
167
1 A It's probably in the same ballpark, I
2 don't know.
3 Q What about Flo-Sun?
4 A Probably less. I don't know. Maybe --
5 well, let's see.
6 My guess would be more in the order of
7 fifty.
8 Q And what about Earl, Blank?
9 A More.
10 Probably a couple million.
11 Q I asked you about contracts that you had
12 presently pending before. Can you just sort of
13 quickly -- I don't need a voluminous exposition --
14 but can you tell me what you have had contracts for
15 since, say, '88, that have been completed related
16 to the issues involved in this litigation with the
17 Everglades, and who with?
18 A How are you defining contract?
19 Q Any --
20 A Because we had talked about the fact that
21 a lot of the work didn't have a contract.
22 Q Contract can be oral as well as --
23 A Okay.
24 Q -- as written. Any proposal or request to
25 you or your firm that you do research or data
168
1 gathering or analysis on Everglades related issues?
2 A Now, what was the question?
3 Q I'm trying to find out what -- I think
4 I've asked you what you have presently on your
5 plate with regard to these issues, and --
6 A Well --
7 Q -- you made a mention that --
8 A But the numbers we just talked about over
9 five years --
10 Q I understand that.
11 A -- so that's not --
12 Q That's why I'm making -- asking you about
13 the other things.
14 What other things have you done that would
15 cover -- that expired, for instance, since '88.
16 A Like I said, we did the Lake Okeechobee,
17 you know, SWIM Plan work.
18 We did a little BMP study for U.S. Sugar.
19 We did that Corps permitting work which was
20 actually for Landers & Parsons, but their client
21 was U.S. Sugar.
22 I guess we've completed the entry and
23 access into the Park and Refuge, although I
24 understand we may get to go back in the Refuge,
25 take a couple more samples.
169
1 MR. FitzGERALD: I changed my mind since
2 yesterday.
3 A I mean, you know, there's probably little
4 miscellaneous things. But there's -- I don't
5 really think of any other --
6 Q Yeah. That's fine. I --
7 A -- total.
8 Q -- I'm not looking for, you know,
9 exhaustive exposition.
10 What percentage of your professional life
11 is spent on Everglades issues?
12 A More than I want?
13 MR. FitzGERALD: Off the record for a
14 second?
15 (WHEREUPON, A BRIEF OFF-THE-RECORD
16 DISCUSSION WAS HELD.)
17 A Obviously it, you know, varies from time
18 to time. But on an annual basis, maybe 75. I
19 don't know.
20 Q What percentage of -- well, who else at
21 your firm works on Everglades related issue, how
22 many other people at your firm?
23 A About 25.
24 Q What percentage of your firm is that?
25 A I was talking about there are 25 people
170
1 there.
2 Q There are 25 people. Okay.
3 How many of --
4 A And probably --
5 Q -- those people --
6 A -- all of them have worked on it,
7 you know, at one time or another for some,
8 you know, duration.
9 Q On an annual basis, what would you say
10 that your firm's time percentage is on Everglades
11 issues.
12 A Varies from year-to-year. But probably,
13 you know, 50 percent plus or minus 10. I don't
14 know.
15 MR. KILLINGER: I guess we can mark this
16 3. Is that what we're --
17 COURT REPORTER: Yes sir.
18 (WHEREUPON, EXHIBIT 3 WAS DULY MARKED FOR
19 IDENTIFICATION.)
20 Q I'd like you to look at what's been marked
21 as exhibit 3. And ask if you can identify it.
22 A It appears to be a document prepared by
23 the law firm that's titled Disclosure of Expert and
24 Fact Witnesses of Petitioner's
25 Florida Sugar Cane League, Inc., and the
171
1 United States Sugar Corporation.
2 Q Could you turn to -- well, have you seen
3 it before?
4 A Not that I recall.
5 Q Okay. Can you turn to page 3, please.
6 MR. KILLINGER: Off the record.
7 (WHEREUPON, A BRIEF OFF-THE-RECORD
8 DISCUSSION WAS HELD.)
9 Q On page 3, item number 4, is that an
10 identification of you?
11 A It appears to be.
12 Q Okay. On page 4, at the top of the page,
13 it -- subsection b., and it's Subject Matter of
14 Expected Testimony. Just like to sort of walk
15 through those.
16 Do you recognize this write-up, have you
17 seen this write-up before?
18 A I'm not sure. I've seen something that's
19 I guess similar to this.
20 Q Okay.
21 MR. HYDE: Lee, let me just interject here
22 for a moment. You can, if you want to, go
23 through these specific items by item. And
24 I think that might take a long time doing that.
25 Or we could -- I could outline for you the
172
1 general areas that would be the subject matter
2 of his testimony. And I think it might
3 actually be more useful than actually looking
4 at this document here.
5 MR. KILLINGER: It might be. This is so
6 broad I was going to go through it item by item
7 to try and limit down --
8 MR. HYDE: Okay.
9 MR. KILLINGER: -- where he was going to
10 be testifying.
11 So if you would like to do that for me,
12 then I can perhaps live with it, unless it's --
13 MR. HYDE: Let -- let me just give you
14 some generic categories here.
15 The first would be water quality
16 database. That would include the District's
17 database; Corps data; USGS data, although not
18 much about that; and ES&P's entry and access
19 data.
20 Another general area, levels of phosphorus
21 concentration in perspective. Compliance with
22 what I call the old memo of agreement between
23 Park and the District; violations of the
24 biological integrity standard, alleged
25 violation. Those violations of the dissolved
173
1 oxygen standard; alleged violations of the
2 narrative nutrient, slash, nuisance species
3 standard, particularly as they relate to
4 benthic macroinvertebrates.
5 Limits for the Loxahatchee Refuge, Park
6 limits, Everglades National Park limits. An
7 inundation analysis for WCA-2A.
8 THE WITNESS: And 1.
9 MR. HYDE: And 1. Excuse me. The Refuge
10 and WCA-2A.
11 THE WITNESS: Right.
12 MR. HYDE: U.S. Sugar's BMP data. Load
13 calculations for District and Corps structures.
14 Those are the general areas. And
15 that's --
16 MR. FitzGERALD: Can you repeat just the
17 last one, Counsel?
18 MR. HYDE: Sure. Load -- load
19 calculations for District and Corps structures.
20 And this is the area of his, you know,
21 these are his testimony's -- testimony --
22 strike that.
23 These will be the areas upon which he will
24 offer opinions at a final hearing during our
25 case in chief. Areas obviously could come up
174
1 in the case of your rebuttal which might
2 require his rebuttal. But I can't anticipate
3 what might be said at a final hearing at this
4 point, or the possible eventualities.
5 But this is the area that he's going to
6 testify about in broad terms.
7 MR. KILLINGER: Okay.
8 MR. HYDE: I hope that's helpful to you,
9 and I -- I don't know that going through this
10 is really going to tell you a whole lot.
11 MR. KILLINGER: Well, would you consider
12 that what you've told me should supersede this,
13 to the extent that there are differences? I
14 haven't analyzed it for them yet, but --
15 Sedimentation you didn't mention,
16 for instance.
17 MR. HYDE: You going to talk --
18 THE WITNESS: I wouldn't think so.
19 MR. HYDE: Sedimentation would not be on
20 the -- the list then. Topography and
21 inundation are obviously related to the
22 inundation analysis.
23 Everglades ecology I guess, generically
24 related to the issues we've already identified
25 here.
175
1 So sedimentation I guess would be the only
2 one that you wouldn't specifically be looking
3 at --
4 MR. FitzGERALD: That was certainly a
5 worthwhile exercise, to remove sedimentation
6 from that list.
7 You might as well have gone ahead, Lee.
8 MR. KILLINGER: What about STAs?
9 MR. HYDE: You're not going to be talking
10 about STAs, are you?
11 I guess it really depends on the scope --
12 or the relationship between the limits and the
13 STAs. I guess he would be doing that. I don't
14 think he's going to be giving any civil
15 engineering testimony about STAs --
16 THE WITNESS: Definitely not.
17 MR. HYDE: -- things like that. But
18 obviously to the extent that the limits --
19 discharge limitations and the limits for the
20 Refuge relate to the STAs, I guess there is a
21 connexity there.
22 MR. KILLINGER: All right. All right. I
23 just -- would that nexus be about whether a
24 discharge limitation was practicable from a
25 scientific standpoint, or would that be
176
1 whether -- I mean, just because of the way
2 they're going to work, or would that be whether
3 they're going to work at all, or -- I guess I
4 could explore this in -- let -- further detail
5 later. I'm just trying to --
6 MR. HYDE: I think it --
7 MR. KILLINGER: -- cut some corners.
8 MR. HYDE: -- might be better to ask those
9 specific questions --
10 MR. KILLINGER: Okay. That's fine.
11 MR. HYDE: -- to the person. I just
12 didn't want to hold John out as being our
13 supreme guru on STAs.
14 MR. KILLINGER: Okay. Who would that be?
15 MR. HYDE: There are several gurus.
16 MR. KILLINGER: I don't know what the term
17 of guru is. But -- okay.
18 MR. FitzGERALD: On the other hand --
19 THE WITNESS: I'd like to see if we could
20 take maybe a short break here.
21 (Recess.)
22 MR. HYDE: I just wanted to make a note
23 for the record that concerns the -- my earlier
24 representations as to producing invoices.
25 I want to ascertain what the current
177
1 policy is about the production of invoices.
2 I'm assuming that that policy is now to
3 disclose invoices in all circumstances, they
4 will be done so -- or it will be done. And if
5 not, I will so advise the parties.
6 (WHEREUPON, MR. DUNCAN EXITED THE ROOM.)
7 MR. HYDE: But I just wanted to make that
8 clarification of my earlier comments.
9 I know that we've had some disagreements
10 in the past over the producibility of documents
11 of that nature, and I just want to make sure
12 that I'm being consistent with what the current
13 practice is.
14 (WHEREUPON, A BRIEF OFF-THE-RECORD
15 DISCUSSION WAS HELD.)
16 (WHEREUPON, EXHIBIT 4 WAS DULY MARKED FOR
17 IDENTIFICATION.)
18 Q Like you to look at what's been marked as
19 exhibit 4, and ask if you can -- ask if you
20 recognize it.
21 A No.
22 Q No.
23 Okay. Can you tell me what you think it
24 is.
25 A I can read what's at the bottom of the
178
1 first page.
2 Q Is it Pretrial Disclosure of Issues on
3 Witnesses?
4 A Right.
5 Q You've not seen this document before?
6 A Not to my knowledge.
7 Q Okay.
8 A Or my recollection I guess I should say.
9 (WHEREUPON, MR. DUNCAN ENTERED THE ROOM.)
10 Q Well, would you like a minute to look at
11 it?
12 MR. HYDE: I think that might be a good --
13 A Not necessarily.
14 Q Okay. I guess I'll ask you to turn to
15 page 4.
16 A Okay.
17 Q Item number 3 on page 4 is a statement of
18 an issue together with some witnesses. And I'd
19 like to ask you about that issue.
20 And your name, which is listed underneath
21 it; is it not?
22 A Yes.
23 Q Do you intend at this point to testify
24 regarding the issues set forth as number 3?
25 MR. HYDE: Lee, I think that all of these
179
1 particular issues that are identified in this
2 pretrial disclosure would fall within the
3 context of those generic issues that I
4 identified earlier.
5 MR. KILLINGER: That may be. And this'll
6 serve to go through both the list you just gave
7 me and this.
8 A I've forgotten what the question was.
9 Q Do you intend to testify about the issues
10 set forth in item number 3?
11 A If asked to do so, yes.
12 Q Is the area set forth in the -- number 3
13 an area which you consider yourself to be an
14 expert?
15 A I think the issue basically goes to
16 whether or not there are sources of phosphorus that
17 are entering the EPA or Water Conservation Areas,
18 the Park, that haven't been addressed in the
19 remedies.
20 And I think that my familiarity with the
21 data and -- and the process would allow me to do
22 that.
23 Q Okay. Have you done any work under one or
24 more of your various contract assignments to
25 evaluate whether the SWIM Plan correctly identifies
180
1 all sources of phosphorus loading into the EPA?
2 A Portions of the work that we've done for,
3 you know, various reasons would be used to address
4 this, yes.
5 Q Have you got an opinion about whether the
6 SWIM Plan correctly identifies all sources of
7 phosphorus loading into the EPA?
8 A Yes.
9 Q What is that opinion?
10 A I think that the, you know, SWIM Plan
11 provides probably a reasonable approximation of,
12 you know, phosphorus loadings into the various
13 areas. It doesn't necessarily though then address
14 how all those sources are going to be treated.
15 Q Okay. That was a separate issue we can
16 deal with. I'm not trying to keep you from
17 qualifying or explaining your answer. I'm just --
18 I'm just going to take it in piecemeal so you can
19 make it more clear.
20 A Well, the second part of it is says
21 assigns remedies for --
22 Q I know.
23 A -- all sources. And that's what I was --
24 Q I was breaking the issue down to whether
25 or not, first of all, it identifies all sources of
181
1 phosphorus loading.
2 Do you think it does that?
3 A I think it identifies certainly the
4 majority of them.
5 Q Well, what sources are not identified?
6 A I don't recall offhand without looking
7 whether or not, you know, the SWIM Plan accurately
8 or -- calculates the, you know, phosphorus loading
9 from, for instance, the western basin; whether or
10 not it, you know, accurately, you know, reflects
11 the, you know, current plans for the C-51,
12 you know, basin.
13 Q Well, are the -- are the western basins
14 included in the present SWIM Plan?
15 A I don't think so.
16 Q Okay. Are they a source of phosphorus
17 into the EPA?
18 A Yes.
19 Q Are they identified as a source of
20 phosphorous into the EPA in the SWIM Plan?
21 A I would have to go back and look at the
22 SWIM Plan to see. I mean, this issue came up as
23 part of the mediated plan, which was obviously
24 subsequent to the SWIM Plan. So it's hard for me
25 to, you know, put a lot of these things in specific
182
1 boxes.
2 Q Okay.
3 A And to remember whether, you know, at a
4 particular point in time; i.e., you know, March,
5 you know --
6 Q Uh-hum.
7 A -- whenever -- '92 I guess, the SWIM Plan,
8 whether it was in there at that point in time.
9 My recollection is is that those sources
10 were identified as part of the mediated plan, and
11 there was a desire to incorporate these additional
12 areas into the process so that they could be
13 addressed.
14 Also the SWIM Plan considers the BMP
15 make-up water to bypass from -- from STAs.
16 Q I know. I'm --
17 A -- and the lake released water to be
18 bypassed from the STAs.
19 Q I'm just -- what I'm trying to do is get
20 an estimate of your opinion about whether the
21 SWIM Plan identifies all the potential sources.
22 You said you think --
23 A It may not identify --
24 Q -- you said --
25 A -- all the --
183
1 Q -- the majority. I'm trying to find out
2 which ones --
3 A Yeah.
4 Q -- you think were left out.
5 A I guess my response might be that it -- it
6 probably identifies all the sources and may not --
7 Q Okay.
8 A -- have accurately calculated quantity.
9 Q I understand that.
10 A Okay.
11 Q That may be a different question.
12 Do you have an opinion about whether the
13 SWIM Plan evaluates the impacts of sources of
14 phosphorus loading to the EPA?
15 A I don't think it does, because it didn't
16 address quantitatively all of the sources,
17 you know, coming into it.
18 Q What didn't it address?
19 A Well, like we were just talking about, the
20 loading from the C-51 basin, for instance. The
21 western basins. I think it enumerates, like the
22 loading from S-140 and over in that area.
23 But it doesn't really address the -- the
24 impacts of that on -- on the Water Conservation
25 Area.
184
1 Q Are those sources that you've just talked
2 about, western basin, C-51, the other ones, are
3 they discrete identifiable sources of phosphorus
4 you can tell precisely where they go into the EAA,
5 Everglades Protection Area, I'm sorry.
6 A More or less.
7 Q More or less.
8 Can those impacts be evaluated separately
9 from the impacts, if any, of the phosphorus that
10 comes out of the EAA?
11 A I guess I'm not clear --
12 Q Well, okay. Let me just rephrase it then.
13 You've said that you don't think that the
14 SWIM Plan correctly evaluates the impacts of the
15 sources of phosphorus because it didn't engage in a
16 quantitative analysis of where it comes from; is
17 that your answer? It didn't -- it didn't --
18 A Are we talking --
19 Q -- calculate --
20 A -- about -- are you asking me if I agree
21 with the conclusions of the SWIM Plan?
22 Q No. I'm asking you --
23 A Okay.
24 Q -- whether the SWIM Plan evaluates the
25 impacts of --
185
1 A But --
2 Q -- sources of phosphorus loading.
3 A I guess where I'm having maybe a little
4 bit of difficulty is understanding what you mean
5 by, you know, evaluate the impacts of phosphorus.
6 Q Okay.
7 A Because that goes to me more towards a
8 conclusion than, you know, what causes what.
9 Q Well, we've already -- you said already
10 that the SWIM Plan probably identifies all of the
11 sources.
12 A The sources, right.
13 Q Okay. Would you agree that there is an
14 evaluation of the impacts of phosphorus loading
15 into the EPA. Whether you agree or disagree with
16 the results is my next question.
17 But would you agree that there is an
18 evaluation of the impacts?
19 A Not of all the phosphorus. But --
20 Q Okay.
21 A -- the majority of -- of the phosphorus,
22 the Plan, you know, attempts to address, you know,
23 the loads and concentrations of phosphorus going
24 through certain structures. And it, you know,
25 alleges I guess you would call it impacts from that
186
1 phosphorus.
2 Q Okay. And again, what specific sources
3 were left out of that evaluation in your opinion?
4 A I guess to the extent that the SWIM Plan
5 addresses the total amount of phosphorus, you know,
6 going through the structures, you know, exiting the
7 EAA, they're addressing all of the phosphorus loads
8 that leave the EAA.
9 Okay. So I guess all of it is included
10 from that extent except from the stuff that comes
11 down from S-140 and maybe some of the stuff coming
12 down, I think it's L-3.
13 And then there's a couple of, you know,
14 relatively minor, you know, sources in the
15 Loxahatchee, like the Acme pumps over there --
16 Q Right.
17 A It doesn't -- I don't think the SWIM Plan
18 really addresses that much relative to impacts of
19 some of the pumps that, you know, drain the urban
20 areas over to the east.
21 Q All right. Now, I guess this is the
22 question you've been waiting for: In your opinion,
23 does the SWIM Plan correctly evaluate the impacts
24 of the total load, which is getting into the
25 Everglades Protection Area.
187
1 A No.
2 Q Okay. What in your opinion is the
3 SWIM Plan's evaluation of those impacts?
4 A You want to say that one more time?
5 Q Well, you said that you disagree that the
6 SWIM Plan --
7 A Right.
8 Q -- correctly evaluates the impacts of
9 the -- the phosphorus loading of the EPA.
10 A Right.
11 Q What is your restatement to me of what the
12 SWIM Plan's evaluation is?
13 A I guess basically that phosphorus causes
14 everything that can possibly be wrong with the
15 Everglades.
16 (WHEREUPON, A BRIEF OFF-THE-RECORD
17 DISCUSSION WAS HELD.)
18 MR. KILLINGER: Okay. Put it back.
19 Q I think your last statement was that the
20 District has concluded that phosphorus causes
21 everything wrong in the Everglades.
22 Can you be a little more specific.
23 What's wrong in the Everglades, let's
24 start with that.
25 MR. HYDE: We might be here for the next
188
1 three days on that answer.
2 Q According to the SWIM Plan.
3 A Well, the SWIM Plan does talk about the
4 fact that there are, you know, water shortages;
5 talks a little bit about, you know, hydroperiod
6 impacts; that wildlife populations have been,
7 you know, declining; that, you know, phosphorus has
8 caused community shifts, violations of various
9 water quality standards.
10 Q Okay. Is that sort of the broad brush of
11 it?
12 A I think so.
13 Q What in your opinion is incorrect about
14 the District's evaluation about the effects or the
15 impacts of phosphorus loading into the Everglades?
16 A I think they have put, you know, way too
17 much, you know, emphasis on phosphorus as being
18 the, you know, primary, you know, causative factor
19 in a lot of the alleged problems.
20 Q Okay. What -- has the District identified
21 phosphorus as being the primary causative factor?
22 Yeah. Let's -- I mean, water shortages?
23 A I don't think they've alleged that.
24 Q Okay. Community shifts?
25 A Yes.
189
1 Q Okay. What's wrong with their conclusion
2 about that?
3 A I think they have, you know, failed to,
4 you know, consider a lot of the other causative
5 factors that can essentially cause, you know,
6 shifts in -- in the communities.
7 Q Do you intend to testify at hearing about
8 whether the SWIM Plan correctly evaluates the
9 impacts of the sources -- the phosphorus loading
10 into the EPA?
11 A You said correctly identifies the
12 phosphorus loading to the EPA?
13 Q We can start with that. I didn't start
14 with that. But that's fine. Do you intend to talk
15 about whether or not it correctly identifies the
16 sources of phosphorus?
17 A I think that could be one area, yes.
18 Q Have you done any specific work to reach a
19 specific conclusion about that?
20 A Basically be predicated on the work that's
21 been done by, for instance, Burns & McDonnell,
22 Bill Walker, and other people.
23 Q But do you have an opinion as you sit here
24 today about whether the SWIM Plan correctly
25 identifies all sources of phosphorus loading into
190
1 the EPA? I mean, I know we've gone over this in --
2 A Yeah. I know. And --
3 Q -- part before.
4 A -- I'm -- I may be reading into something
5 other that, you know, you're not intending into the
6 question, I don't know.
7 I don't think that the SWIM Plan has,
8 you know, correctly apportioned, you know, where
9 various, you know, parts of the phosphorus loading
10 comes from.
11 And -- and an example was, the ones we
12 went through, like the western basin, the
13 significant, that sort of thing.
14 For instance, I believe that, you know,
15 there's been, you know, various calculations and
16 recalculations of where the water comes from to go
17 through the S-58 pump, you know, complex. And how
18 you calculate that, because it's a -- kind of a
19 complicated, you know, system.
20 Q Yeah.
21 A And they are -- it's also kind of a
22 dynamic, you know, system in that there's various
23 planning going on all the time related to how they
24 operate these systems.
25 And again, as part of the mediated planned
191
1 process, a lot of these, you know, changes were
2 really examined in more detail, and, you know, new
3 calculations were made. That basically, you know,
4 changed, for lack of a better term, you know,
5 assignment of some of the phosphorus load to
6 various areas.
7 Q Okay.
8 A I'm not trying to avoid your question
9 really, I'm --
10 Q I understand.
11 Do you intend to testify about the
12 correctness of the SWIM Plan's evaluation of
13 impacts of phosphorus loading into the EPA?
14 A To the extent that I would intend to offer
15 testimony relative to, for instance, whether or not
16 the, you know, biological integrity standard was
17 violated, for instance, in a particular area; and
18 then, whether or not, you know, phosphorus would
19 have been responsible for that, yes.
20 But not, you know, in a generic, you know,
21 broad sense.
22 Q Okay. That's what I was trying to get.
23 So with regard to what specific --
24 MR. KILLINGER: And maybe we can refer,
25 Bill, to your list, if that makes life easier.
192
1 Q -- what sp-- with regard to what specific
2 areas would you intend on offering an opinion at
3 trial about the impacts of phosphorus loading into
4 the EPA? I mean, you did mention biological
5 integrity. What else would you --
6 A I guess I don't, you know, view the
7 testimony that I would give so much in terms of is
8 it an impact of, you know, phosphorus per se as
9 much as whether or not, you know, there's a
10 violation of the particular standard.
11 And I would intend to offer testimony,
12 for instance, that would say that, you know, based
13 on the data that we've collected, the biological
14 integrity standard is not, you know, violated. And
15 to the extent it's not violated, there's no reason
16 to discuss, you know, what the cost of that might
17 have been.
18 Does that --
19 Q Okay.
20 A -- help a little bit?
21 Q Okay.
22 A I just haven't thought of my testimony in
23 terms of is it a direct impact of phosphorus
24 loading. Because in -- in several instances, it's
25 not necessary to get to that point.
193
1 Q Okay. And let's move on a little bit to
2 make some progress.
3 In your opinion, does the SWIM Plan
4 correctly assign remedies for all sources of
5 phosphorus loading into the EPA?
6 A No.
7 Q What does it -- what does it leave out,
8 what's wrong about it?
9 A Well, if phosphorus is not really the
10 cause of the problem, then phosphorus doesn't
11 necessarily provide a remedy for that problem.
12 So maybe it's a -- a chicken and egg
13 situation. I don't know.
14 Q Do you know whether it is a legal
15 requirement for the SWIM Plan to include that
16 analysis or identification?
17 A As I recall, the, you know, legislation
18 requires the Water Management District to,
19 you know, look at the, quote, alleged phosphorus