1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

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. )

)

DEPOSITION OF: JOHN A. DAVIS, Ph.D.

TAKEN AT

17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

DATE: MARCH 16, 1994

TIME: COMMENCED: 9:11 A.M.

20 CONCLUDED: 5:18 P.M.

21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.

2600 BLAIR STONE ROAD

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: LAURIE L. GILBERT

REGISTERED PROFESSIONAL REPORTER

24 NOTARY PUBLIC

25 VOLUME III

PAGES 259-357

260

1 APPEARANCES:

2 Representing Petitioners, Florida Sugar

Cane League, Inc., and United States

3 Sugar Corporation:

4 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts, P.A.

5 Suite 350

215 South Monroe Street

6 Tallahassee, Florida 32301

(904) 681-1900

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:

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:

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

261

1 ALSO PRESENT:

2 Frank Nearhoos

Douglas Gilbert

* * * * *

INDEX

5 (VOLUME III)

6 ITEM PAGE

7 DEPOSITION CONTINUED . . . . . . . . . . . . 262

8 LUNCHEON RECESS. . . . . . . . . . . . . . . 348

9 CERTIFICATE OF REPORTER. . . . . . . . . . . 357

12 * * * * *

262

1 DIRECT EXAMINATION

(Continued)

3 BY MR. KILLINGER:

4 (WHEREUPON, THE DEPOSITION WAS CONTINUED

5 AT 9:11 A.M.)

6 MR. KILLINGER: Okay. I guess we're back

7 on the record.

8 Q I think that yesterday we left off looking

9 at exhibit number 4. And I guess we'll go back to

10 that, pick up again.

11 I guess I'll hand you that, Dr. Davis, and

12 ask if you can flip open to page 13, which is about

13 where we left off last time.

14 A Right.

15 I wanted to go back and -- and amend the

16 answer to 15, too. Because last night I went back

17 and looked at the appendix in the SWIM Plan

18 relative to the Park limits.

19 And the response I had given yesterday

20 about the ONRW period was incorrect. I was

21 thinking about a different draft that I'd seen --

22 Q Okay.

23 A -- earlier.

24 So --

25 Except but they did use the -- the correct

263

1 period anyway.

2 So if you want to pursue that some more,

3 you can.

4 Q Well, if your answer sort of is amended to

5 state that they used the correct period, then

6 that -- that will correct that aspect of it, and

7 that's fine.

8 A Okay.

9 Q We may get into it on looking at

10 number 16, which I'd like to ask you to do.

11 Do you have an opinion about the issue as

12 stated in number 16?

13 A To be honest, I haven't really done an

14 analysis that compares the -- the present day water

15 quality with that of that '78 to '79 period.

16 MR. HYDE: I think that Dr. Davis might

17 simply be listed under this particular issue

18 because of the need to introduce what the data

19 was. Not necessarily that he will make a

20 comparison, but rather just to lay the

21 foundation for others, such as, for example,

22 David Schindler, who -- who makes the

23 opinion -- or renders the opinion itself.

24 MR. KILLINGER: Okay.

25 MR. HYDE: And it -- it gets into the

264

1 difference between expert opinions and fact

2 opinions, and what are foundational evidence.

3 MR. KILLINGER: I understand.

4 MR. HYDE: I can tell you that Dr. Davis

5 will be offering testimony as to what the water

6 quality data were in terms of what our records

7 reflect.

8 And I think I mentioned that yesterday

9 when I alluded to the various categories of his

10 testimony.

11 Q Okay. Dr. Davis, would you by any chance

12 have any opinion or knowledge about what the water

13 quality data were for 1978-1979, for the Park and

14 Refuge?

15 What the data -- maybe it's present

16 tense -- what the data are for that period?

17 A I guess I don't think of, you know, data

18 in that term as far as having an opinion of what

19 the data are. I mean, they are, you know, what the

20 values are.

21 Q Right. That's why I asked, do you have

22 any knowledge or opinion about -- do you have --

23 A Well, I have --

24 Q -- any knowledge about that?

25 A -- knowledge about them, yes.

265

1 Q What's your -- from what is your knowledge

2 derived?

3 A The data which we had received from the

4 South Florida Water Management District.

5 Q So your knowledge is based on

6 Water Management District data?

7 A Correct.

8 Q Is there any other --

9 A They're --

10 Q I'm sorry. Go ahead.

11 A There are some additional data that were

12 collected by the Park I believe, and I believe the

13 Corps may have collected some data. And the USGS,

14 you know, maybe collected some data that has been

15 appended, too.

16 Q Has you -- have you looked at all that

17 data?

18 A At one time or another.

19 Q Can you give me an idea what the -- what

20 the data show regarding water quality with regard

21 to phosphorus, for instance?

22 A I hesitate to, you know, quote values,

23 you know, for these things, because I've looked at

24 so many numbers --

25 Q Okay.

266

1 A -- and they kind of all run together.

2 Q Well then, can you give me an idea of

3 whether you think the data accurately reflect the

4 ambient water quality for that period.

5 A I think that the data at the

6 12 structures, for instance, represent, you know,

7 some measure of what the water quality was going

8 through the 12 structures.

9 That doesn't necessarily reflect what the,

10 you know, ambient water quality was in the Park,

11 for instance.

12 The Park has a, you know, network of what

13 they call marsh stations or the slough which may,

14 you know, more accurately reflect what the

15 conditions in the Park itself are.

16 Q What differences might you expect between

17 water quality data obtained at the S-12 structures,

18 and water quality data obtained in slough or in

19 more interior marsh stations?

20 A The -- the data at the, you know, the

21 structures themselves, you know, reflect, as I

22 said, you know, what the concentration was in the

23 water as it passed through those stations.

24 As that water moves out and spreads out,

25 you know, over the -- the Park and mixes with the

267

1 water that's already in the Park that may have come

2 from, you know, rainfall or -- or other sources,

3 it's obviously going to change the concentration.

4 The vegetation obviously takes some of the

5 phosphorus out.

6 So there is going to be, you know, several

7 factors that'll change the phosphorus concentration

8 in the water after it goes through the

9 12 structures.

10 Q So you would expect that the phosphorus

11 concentrations of -- of water samples taken at more

12 interior sites, or sites further from the

13 discharges, would be lower in phosphorus?

14 A As a general rule. But I don't think you

15 could necessarily make that conclusion on a,

16 you know, day-by-day basis.

17 Q Okay. What might keep you from making

18 that conclusion on a day-by-day basis?

19 A The operation of the structures

20 themselves, you know, by the Corps -- I guess the

21 Water Management District pursuant to instructions

22 from the Corps, can influence, you know, the

23 quality of water that, you know, goes into the

24 Park. There's several papers that talk about that.

25 If, for instance, water was, you know,

268

1 shunted down L-67 canal and out through one of the

2 structures and dumped, let's say, higher phosphorus

3 waters into the Park, and then they closed off

4 those structures and let water from, say, the

5 12-8 structure, which is mainly influenced by the

6 marsh --

7 Q Uh-hum.

8 A -- flow in there, the concentrations going

9 through that structure would be lower than the

10 water that might already be out in the marsh, then

11 they mix, they would be higher than what's going

12 through the 8 structure.

13 So there are, you know, circumstances like

14 that --

15 Q Are those normal --

16 A -- that would --

17 Q -- circumstances or occurrences?

18 A I'm not sure I'm the one to define what's

19 normal for the District. So --

20 Q In your range of experience and knowledge

21 of the District's operations, would occurrences

22 like that be a routine daily --

23 A Not a routine daily thing. But they

24 obviously do occur.

25 Q Okay.

269

1 A And who knows what they're going to do in

2 the future.

3 Q Well, okay. But is it safe to say then

4 that generally speaking, absent --

5 A Like, I said --

6 Q -- taking a water sample downstream from a

7 rookie, for instance, or something that also might

8 affect it or some operation of the District that --

9 that is unusual, is it a safe thing to say that a

10 phosphorus sample -- or water samples from more

11 interior sites would generally be expected to be

12 lower in phosphorus than those from the pumps?

13 A That's generally the case.

14 Q And the reason for that is -- is mixing of

15 the water being discharged with waters that perhaps

16 came from rainfall, or perhaps have had the

17 phosphorus content lowered by some removal of

18 phosphorus in the water by either flora or fauna?

19 A Generally I think.

20 Q Okay.

21 A But there's also the influence obviously

22 of the Miccosukee, you know, tribes I guess that

23 have their -- some homes and facilities there that

24 can affect, you know, concentrations of, you know,

25 phosphorus downstream of the 12 structures, too.

270

1 Q Okay. Do you have any knowledge about the

2 water quality that is coming from the Miccosukee

3 lands?

4 A No, not really.

5 Q Do you know of any data that illustrate

6 what the water quality is coming from the

7 Miccosukee lands?

8 A No.

9 Q Do you have any anecdotal observations

10 about the water quality from the Miccosukee?

11 A Well, I mean, obviously when you fly over

12 there, you see, you know, a lot of activity in that

13 area. They have, you know, a school and tourist,

14 you know, facilities. Obviously a lot of people go

15 through there.

16 They obviously have some waste water,

17 you know, treatment facility there, which is bound

18 to discharge some phosphorus out into, you know,

19 the Park. Where it goes in, I don't know.

20 But I believe it's reasonable to assume

21 they have, you know, septic tanks. There's -- I've

22 driven through there, there are animal pens right

23 next to the canals that go along old 41 there.

24 Any time you have, you know, humans

25 involved, you're going to have some, you know,

271

1 phosphorus being generated, and there is a lot of,

2 you know, human activity in that area.

3 Q Have -- have you discussed this issue

4 about the water quality for '78, '79, and whether

5 or not it's -- has been or is being degraded with

6 any other experts?

7 A Yes.

8 Q Who have you discussed it with?

9 A I guess Dr. Lettenmaier.

10 Q Do you know what his opinion is about --

11 A No.

12 Q -- whether the waters are being degraded?

13 A No.

14 Q What was the context of your discussions

15 with Dr. Lettenmaier?

16 A He was -- has been asked by the attorneys

17 to look specifically at the -- the data from the

18 structures that discharge into the Park; compare,

19 you know, his end results with those obtained by

20 others. And look at trends, if any, of phosphorus

21 from those structures.

22 Q Do you know what his results show?

23 A No.

24 MR. HYDE: Lee, just for purposes of the

25 record, it might well be that Dr. Lettenmaier

272

1 should be included under this issue as well.

2 I think that if you look back a few pages, you

3 see that Dr. Lettenmaier is used on some other

4 areas such as number 20, which seems to address

5 in a certain sense, the very same issue.

6 MR. KILLINGER: I have utter confidence

7 that at hearing, the -- a number of witnesses

8 will be called in areas which people object to

9 they're not being designated for.

10 Q All right. If you could flip to page 14,

11 please.

12 A (Witness complying.)

13 Q And review issue number 17 as it's framed

14 in the exhibit.

15 Do you have any opinion about the issue as

16 framed in that statement?

17 A Yes.

18 Q What's your opinion?

19 A Does not.

20 Q Can you tell me why it does not, or

21 specific shortcomings that it has in your

22 perception?

23 A It's my recollection that the -- the

24 SWIM Plan proposes only to address, you know,

25 phosphorus, you know, content of, you know, waters

273

1 leaving the EAA. It doesn't accept, you know,

2 very, you know, superficially even mention things

3 like, you know, fire; you know, hydroperiod,

4 disturbances; mismanagement of water; you know,

5 frost; use of species; or I guess other factors.

6 The SWIM Plan has almost a, you know,

7 single minded, you know, goal I guess of -- of

8 addressing simply reduction of phosphorus.

9 Q Do you have an opinion about why that is

10 the case, if that is, in fact, the case?

11 A I mean, it'd be speculation.

12 Q I'm asking you to speculate. I'm asking

13 you if you have an idea.

14 A I believe part of it is, you know,

15 political expediency that, you know, the

16 Water Management District felt a lot of pressure

17 to, you know, correct, you know, a perceived

18 problem; that doing something with phosphorus is

19 perhaps easier than addressing some of the larger

20 and I think more real problems that are related to

21 the design, you know, and operation of the -- of

22 the project. And the need to change their,

23 you know, water allocation, you know, practices

24 perhaps, deal with the water supply issues, the --

25 the minimum flows and levels analysis that they're,

274

1 you know, being forced into now.

2 MR. KILLINGER: Boy, if this is easier

3 than -- I'd hate to see what the other

4 proceeding would be like.

5 Q If you could turn to page 15, please.

6 A (Witness complying.)

7 Q I believe you're listed in -- as a witness

8 for number 18, which the list starts on 15 and

9 carries over to 16.

10 Do you consider yourself an expert in the

11 issue framed in that statement?

12 A I would say in, you know, certain,

13 you know, aspects of it.

14 Q Okay. Which aspects?

15 A The, you know, interpretation of the,

16 you know, biological integrity standard.

17 The dissolved oxygen. Perhaps the,

18 you know, nuisance species area.

19 Q Okay. Do you have an opinion about the --

20 whether the ecosystem of the

21 Everglades Protection Area has been adversely

22 impacted?

23 A Relative to issues that we just discussed,

24 yes.

25 Q Okay. What do you think the adverse

275

1 impact is?

2 A I don't think that, for instance, in terms

3 of, you know, the biological integrity standard,

4 there has been any adverse impact.

5 (WHEREUPON, A BRIEF OFF-THE-RECORD

6 DISCUSSION WAS HELD.)

7 (Recess.)

8 Q Okay. Let's -- let's go back to -- you

9 were saying that with regard to biological

10 integrity standard, I think, that you don't know of

11 any adverse impact in your opinion; is that

12 correct?

13 A Right.

14 Q Okay. Well, I think I already had that

15 from your prior testimony --

16 A Right.

17 Q -- but you said you thought there had been

18 adverse impacts. I'm trying --

19 A Now, I don't --

20 Q -- to ask you -- I'm trying to ask you

21 what the adverse impacts might be, not

22 necessarily --

23 A I guess I misunderstood --

24 Q Okay.

25 A -- your question.

276

1 I thought you asked me did I have an

2 opinion as to whether or not there were. I said

3 yes.

4 Q Okay.

5 A I don't think I said that I thought there

6 were adverse impacts.

7 Q Okay.

8 A If I did, I misspoke.

9 Q Okay. Then thank you for the

10 clarification. It might have been my perception of

11 it.

12 Do you have an opinion that there are

13 any -- any adverse impacts in the

14 Everglades Protection Area?

15 MR. HYDE: Let me ask for a clarification

16 of that question. Do you mean adverse impacts

17 in the sense of violations of water quality

18 standards, or just --

19 MR. KILLINGER: No. I realize this --

20 MR. HYDE: -- some greater ecosystem.

21 MR. KILLINGER: -- I realize -- I realize

22 this is about as broad a question as it could

23 possibly be, but I thought I'd start that way

24 and then try to narrow it down.

25 (WHEREUPON, DR. FRYDENBORG ENTERED THE

277

1 ROOM.)

2 Q Do you know of any adverse impacts to the

3 natural Everglades ecosystem which have occurred or

4 are continuing?

5 MR. HYDE: I'm going to object to the form

6 of the question, in that it postulates a -- a

7 standard, if you will, that has no meaning to

8 it, adverse impacts in a general sense, without

9 reference to any specific criteria.

10 MR. KILLINGER: That's fine.

11 Q I'll ask you to answer, if you can.

12 A I think we talked yesterday about the fact

13 that, you know, I believe that there had been

14 fairly extensive, you know, adverse impacts related

15 to, you know, hydroperiod alteration.

16 Q Okay.

17 A And we also talked about the concept of

18 having to apply something like this, you know,

19 based on some aerial extent. If you, you know,

20 select a small enough area in an area of issue,

21 then certainly you can find something that's

22 adverse over some time period.

23 Q Okay. Is hydroperiod the sole adverse

24 impact for the Everglades Protection Area in your

25 opinion?

278

1 A No.

2 Q Okay. What other adverse impacts are you

3 aware of?

4 A Well, again, I think it -- it depends on,

5 you know, how you define, you know, the area you're

6 talking about and, you know, whether or not you're

7 talking about, you know, adverse impacts related

8 to, you know, water quality standards and that sort

9 of thing.

10 Q Okay. Well --

11 A There are changes that occur out there in,

12 you know, all these things, you know, are temporal

13 as well as a spatial element.

14 Q So is your -- is your opinion based -- is

15 it that you can't answer the question unless I give

16 you an -- an aerial or temporal extent to allow you

17 to focus on what I mean by adverse impact?

18 A Well, and maybe a definition a little bit

19 more of, you know, an adverse impact.

20 Q Okay. I'll -- I'll come back to it.

21 Let's get through this.

22 MR. KILLINGER: Bill, I'm trying to get at

23 the substance of what this issue is, because

24 that's the way it's worded. It's worded

25 adverse impacts to the ecosystem in the

279

1 Everglades Protection Area, and I'm -- I'm

2 struggling trying to find out what the heck

3 that means.

4 MR. HYDE: Well, I understand what you're

5 saying in the context of the language chosen

6 here.

7 I think it would be our position that

8 adverse impacts have to be measured by

9 relationship to some specific criteria. One

10 just doesn't think about adverse impacts and

11 then blame a discharger for them. They have to

12 be considered in the context of, for example, a

13 violation of a State water quality standard. A

14 narrative nutrient standard, a nuisance

15 species, dissolved oxygen, or biological

16 integrity.

17 And I don't -- I don't think that Florida

18 law in general, or any of the statutes

19 considered here in particular, just make an

20 adverse impact without defining somehow a

21 criteria by which this proceeding is to be

22 evaluated, or the SWIM Plan is to be

23 considered.

24 MR. KILLINGER: I was trying to get at the

25 witness's scientific --

280

1 MR. HYDE: Right.

2 MR. KILLINGER: -- or technical definition

3 of what adverse impact might be from a

4 biological standpoint for what the system can

5 suffer before it collapses.

6 But apparently he can't do that without

7 interfacing that to a rule or standard with

8 which someone has to comply as a matter of --

9 of legal review. So what I'll -- I'll just go

10 on and come back to it more specifically later.

11 MR. HYDE: Well, I don't -- I don't think

12 that's an accurate characterization of what

13 Dr. Davis was saying. I think one can have

14 opinions as to what adverse impacts are, in a

15 general theoretical sense.

16 But I -- I don't know that one can

17 describe Dr. Davis's testimony in the manner in

18 which you have just done. But I think I'll let

19 the testimony speak for itself.

20 MR. KILLINGER: That's fine.

21 Q Can you turn to page 17, please. Oh,

22 I guess you're already there.

23 Do you have an opinion about whether the

24 SWIM Plan's phosphorus limiting standards for the

25 EPA are necessary to -- or will prevent violations

281

1 of State water quality standards?

2 A Yes.

3 Q What is that opinion?

4 A I don't think that the SWIM Plan,

5 you know, actually establishes, you know, any

6 standards to start with.

7 Q That was my next question. So thank you.

8 Okay. What does the SWIM Plan establish

9 in your mind? Does it establish anything with

10 regard to phosphorus?

11 A It -- I think that the SWIM Plan attempts

12 to I guess establish some criteria limits, I don't

13 know exactly, you know, what they should be called,

14 for closed going through the 12 structures, and for

15 the -- I guess interior, you know, Loxahatchee,

16 you know, Refuge station.

17 It -- my recollection is is that,

18 you know, it talks about the 50, you know, parts

19 per billion that we always talk about as being some

20 kind of, you know, long-term, you know, goal that

21 the STAs are going to produce.

22 It's my understanding that in order for

23 water quality standards to be established, that the

24 DER has to do that. I don't think they've gone

25 through that process.

282

1 Q Well, what -- what criteria or goals do

2 you think the SWIM Plan establishes for phosphorus

3 discharges, is that the 50 you're referring to?

4 A I think, and my recollection is that,

5 you know, the SWIM Plan, you know, basically tried

6 to size the STAs, so to speak, to give a, quote,

7 long-term, you know, average concentration of 50.

8 And that they went out of their way to

9 talk about that as being I guess an interim value.

10 Q Why do you say "they went out of their

11 way" to talk about this interim value?

12 A Because I guess they didn't want to give

13 anybody the false impression that that was going to

14 be, you know, it. And to put them on notice that

15 they were going to attempt to lower that value in

16 the future.

17 The SWIM Plan talks about needing to do,

18 you know, research to establish a, quote,

19 threshold, you know, limit for phosphorus.

20 Q Right.

21 A And the SWIM Plan is pretty candid about

22 the fact that no one knows what that value is.

23 Q Let me just sort of clarify something for

24 a second here before I go on.

25 You're not going to be testifying about

283

1 the sizing or -- or ability of the STAs to achieve

2 50, are you?

3 A I haven't been asked to at this time.

4 Q Okay. Assuming all things in the

5 SWIM Plan are -- are unimpeachable, and they

6 produce water at 50 ppb --

7 A Okay.

8 Q -- do you have an opinion about the

9 appropriateness of a concentration such as that in

10 a -- even as an interim --

11 A Yes.

12 Q -- at improving or protecting the

13 ecosystem?

14 A Yes.

15 Q What is your opinion?

16 A That it's almost totally arbitrary.

17 Q Do you have an opinion about whether

18 phosphorus in waters discharged to the

19 Everglades Protection Area is causing or

20 contributing to any changes in the ecosystem in the

21 areas of the discharge?

22 MR. HYDE: I'm going to object to the

23 question to the extent that it doesn't have a

24 specific reference to a change --

25 MR. KILLINGER: Okay.

284

1 MR. HYDE: -- contemplated by the State

2 water quality standard.

3 MR. KILLINGER: Okay.

4 Q Let's start off with macrophytes.

5 A I don't really intend to, you know, offer

6 any opinion relative to, you know, the macrophyte,

7 you know --

8 Q Okay.

9 A -- issues, unless, you know, asked to.

10 That's somebody else's area.

11 Q Okay. Have you got any opinion about

12 whether or not it is -- phosphorus is causing or

13 contributing to any changes in the chemical

14 composition of the waters downstream --

15 MR. HYDE: Objection.

16 Q -- of the discharge areas?

17 MR. HYDE: Same objection.

18 A The chemical composition?

19 Q The chemical constituents.

20 A I mean, I guess to the extent that,

21 you know, phosphorus is, you know, higher going in

22 than it is at some point interior, obviously it

23 would increase that level.

24 Q Does that phosphorus increase have any

25 effect in your opinion on -- well, let's just pick

285

1 one -- dissolved oxygen?

2 A It could.

3 Q What effect could it have?

4 A It could cause it to be, you know,

5 increased or, you know, decreased.

6 Q How might it cause it to be increased?

7 A Causes the, you know, production of more

8 algae, for instance, which, you know, produces

9 oxygen, releases it to the water.

10 Q Do you have any personal knowledge of any

11 studies which examine whether the addition of

12 phosphorus is raising or lowering dissolved oxygen?

13 A I don't know of any studies that were,

14 you know, specifically targeted to, for instance,

15 you know, raised phosphorus and see what affect it

16 had on -- on dissolved oxygen, anything like that.

17 Q How might the addition of phosphorus cause

18 DO to drop?

19 A If it, you know, causes a, you know,

20 significant additional production of -- of algae so

21 that the population builds to, you know, say, very,

22 you know, high levels, it'll cause the oxygen to go

23 up real high in the afternoon; and then when the

24 sun goes down, all those organisms consume oxygen

25 and will lower it during the nighttime period via

286

1 respiration and will lower it during that period.

2 If you have cloudy days and there's not

3 enough sunlight where you have a net respiration

4 opposed to photosynthesis --

5 Q Are you talking about --

6 A -- it will lower.

7 Q -- light and dark cycles of

8 photosynthesis?

9 A Yeah.

10 Q What about when all that -- all that

11 nutritious and enriched algae dies and decomposes,

12 does that have any effect on DO?

13 A Sure.

14 Q What does that do?

15 A Lower the DO.

16 Q You said you don't know of any studies to

17 determine -- determine by addition of phosphorus,

18 you know, what effects --

19 A Uh-hum.

20 Q -- it had on -- on DO. Are you going to

21 offer an opinion at trial on this matter about what

22 actual effects are occurring with regard to DO in

23 the Everglades Protection Area?

24 A I, you know, have been asked to address,

25 you know, whether or not the DO standard, you know,

287

1 has been violated, you know, in the Everglades.

2 So I need -- I intend to, you know,

3 address, you know, the DO standard and whether or

4 not, you know, applicable to these type areas.

5 Q Okay. We'll move on down the road here a

6 little bit.

7 Could you look at page 25, please, of the

8 exhibit.

9 A (Witness complying.)

10 Q Item number 32 states an issue. Do you

11 intend to offer testimony about that issue?

12 A That's a distinct possibility I guess.

13 Q Have you got an opinion on that issue?

14 A Yes.

15 Q What is the opinion?

16 A That, you know, the, you know, phosphorus

17 budgets, you know, offering the SWIM Plan could be,

18 you know, improved.

19 Q In what respect?

20 A Over I guess -- approximately I guess I

21 should say, you know, half the phosphorus that's

22 included in the budget for all the areas is,

23 you know, based on rainfall.

24 And there's been a lot of question as to,

25 you know, what are the appropriate, you know,

288

1 values for the phosphorus concentration of that

2 rainfall. I --

3 Q Do you -- I'm sorry, go ahead, I don't

4 want to cut you off.

5 A I was just going to say, I expect,

6 you know, better numbers are going to be developed

7 relative to that, and those would be incorporated

8 into the budgets.

9 Q Do you think that better numbers are

10 available now?

11 A It's my understanding the people are

12 working on developing better numbers.

13 Q Who would that be?

14 A Well, I think -- I understand

15 Bill Walker's doing some work in that area.

16 I think the District is reassessing their rainfall

17 collection, you know, network. Allen LeFohn is

18 doing some work for, you know, the League relative

19 to that.

20 Q Your opinion was that the phosphorus

21 budgets could be improved.

22 A Uh-hum.

23 Q How far off do you think they are?

24 A I think that's, you know, hard to say when

25 there's so much, you know, question about the,

289

1 you know, rainfall, you know, component of that.

2 Q Okay. You said there was a lot of dispute

3 about the appropriate rain values --

4 A Uh-hum.

5 Q -- and you thought better numbers would be

6 developed. Have you got an opinion about what

7 appropriate rain values for phosphorus are?

8 A I honestly don't.

9 Q Okay. Could you look at page 26.

10 A (Witness complying.)

11 Q Number 33.

12 Do you have an opinion about whether the

13 SWIM Plan sets interim and long-term phosphorus

14 concentration limits? This may be duplicative of

15 what we've already discussed.

16 A (Nodding head.)

17 Q Is it your opinion that it does not in

18 itself?

19 A Correct.

20 Q Okay. What do you suppose is --

21 A Wait, wait. Let me see now.

22 I guess what I'm saying is is I believe

23 that, you know, the SWIM Plan, the interim and

24 long-term phosphorus concentration limits, are,

25 you know, arbitrary.

290

1 I'm not sure exactly what practical

2 means. But I think they are impractical in some

3 respects.

4 Q Okay. Well, let's start at the

5 base line. What do you think --

6 A Okay.

7 Q -- the SWIM Plan's interim and long-term

8 phosphorus concentration limits are?

9 A I ass-- would assume that this question is

10 related to the interim and long-term, you know,

11 limits for the Refuge and for the Park. It may

12 also be referring to, you know, the interim STA

13 goal.

14 Q Okay. Do you know -- can you put any

15 numbers with what those limits are, limits, levels,

16 goals?

17 A I would have to go back and look at,

18 you know, the appendix in the SWIM Plan to see

19 exactly what the numbers are.

20 In the Refuge, you know, it's a range of

21 numbers depending on what the stage is. Because

22 they tied the, you know, the limits to, you know,

23 stage levels by an equation. So there's not a

24 single number.

25 Q What about the Park?

291

1 A In the Park, it's also not a single

2 number. It's tied to the volume of water that goes

3 through the structures.

4 Q Well, do you anticipate that you'll go

5 back and look at the appendix to the SWIM Plan

6 before hearing so that you can testify about what

7 those numbers are?

8 A Sure. I expect that at trial I would have

9 a demonstrative exhibit that would, you know, help

10 keep all those, you know, values, you know,

11 crystallized.

12 Anybody that's going to sit here and tell

13 you that they remember every number on all this

14 data --

15 Q Oh, I understand.

16 A -- is foolish --

17 Q I understand.

18 A -- in my opinion.

19 MR. HYDE: I think that the -- the Plan

20 and the numbers contained in the Plan are

21 obviously the best evidence of that anyway.

22 Q I'm not trying to box you in, I'm trying

23 to find out what you're going to testify about.

24 A Sure.

25 Q Even without knowing the specific numbers

292

1 and having them --

2 A Sure.

3 Q -- leap to the forefront of your mind, can

4 you tell me whether you think they're arbitrary?

5 A I think that certainly, you know, the --

6 the 50 number for the STA goal is, you know,

7 arbitrary. I think the Plan itself almost states

8 that. Maybe not exactly, as this number's

9 arbitrary. But I haven't seen any clear evidence

10 of how that number was -- was derived at.

11 Q Do you think the number has any validity?

12 A For what purpose?

13 Q For the purpose for which it is proposed

14 in the SWIM Plan?

15 A I don't -- I'm not sure that, you know, I

16 can tell you exactly what the purpose of the 50,

17 you know, number was, other than to give, you know,

18 somebody, you know, a basis for, you know, trying

19 to, you know, make some calculation relative to,

20 you know, sizing of the STAs.

21 The SWIM Plan I think states that they

22 have no idea whether that number is the threshold

23 number or not. It talks repeatedly about having to

24 do extensive and long-term, you know, research to

25 determine what that number is.

293

1 The number, you know, conceivably could be

2 higher, could be, you know, lower. To pick,

3 you know, some number in between, you know, where

4 they think it might fall out is -- is certainly,

5 you know, arbitrary.

6 Q Well, what do you think the number's

7 intended to -- to do? Intended to start a process

8 of -- of what?

9 A Reducing phosphorus I guess.

10 Q Okay. Do you think it is an arbitrary

11 start at that?

12 A I think any time you just, you know, pick

13 a number, that it's somewhat arbitrary.

14 Q Okay. Do you think that the 50 is a

15 reasonable start at that?

16 A If your, you know, goal is simply to,

17 you know, reduce, you know, phosphorus for the sake

18 of reducing phosphorus; and you're starting at,

19 you know, numbers that are at, you know, 100 or

20 200; and if you make the assumption, which is not

21 necessarily valid I think, that you're going to

22 reach some number, you know, lower than that, and

23 it's -- it's a number. I mean, how reasonable it

24 is I think is in the eyes of the beholder.

25 Q Okay. Do you think that -- stay on the 50

294

1 for a while.

2 Is the 50 practical?

3 A I guess it depends on -- well, I don't

4 think that you can really, you know, necessarily --

5 well, won't put it that way.

6 To me, you know, spending, you know,

7 400 million dollars to get to a somewhat, you know,

8 arbitrary number is irrational. Okay.

9 Especially when the system that's being

10 proposed is, you know, not being designed to give,

11 you know, really a number. The SWIM Plan, as I

12 recall, talks about, you know, our, you know,

13 general, you know, goal is to reach, you know,

14 50 as a long-term average, with long-term being

15 undefined in the SWIM Plan.

16 I have heard people say that long-term is

17 at least ten years, maybe twenty years. There's

18 been a lot of recognition that the numbers coming

19 out of the STAs are going to fluctuate wildly from

20 year-to-year. Some years, it's going to be 100,

21 150 maybe, some years it's going to be lower.

22 And whether or not all of those, you know,

23 ups and downs are going to, you know, balance out

24 and reach 50 is a lot of guesswork right now.

25 Especially when they haven't, you know,

295

1 designed the system to treat all of the water

2 that's going to be going south. The SWIM Plan, as

3 I recall, clearly says that they're not going to

4 treat bypass water, it wasn't designed, they

5 weren't sized to treat that, it wasn't designed or

6 sized to treat the, you know, lake release water.

7 Especially the additional lake release

8 water that I understand the Park now wants, which

9 is on the order of several hundred thousand acre

10 feet additional water.

11 So I don't think the system that's been

12 designed is practical in terms of meeting people's

13 perception of what this Plan is going to do.

14 Q Okay.

15 A You shouldn't allow me to get on my

16 soapbox.

17 Q No. That's -- I'm trying to figure out

18 what the word practical means because --

19 A Well --

20 Q -- it's -- it's a --

21 A I agree. That's --

22 Q -- rather subjective --

23 A Drafted by an attorney.

24 Q -- determination -- well, I understand

25 that you didn't draft it.

296

1 MR. HYDE: Derived from the statute.

2 MR. KILLINGER: Yeah. Also drafted by an

3 attorney I expect.

4 Q Well, having said that, do you think that

5 the 50 is achievable?

6 A I don't think it's achievable based on the

7 design put forth in the SWIM Plan. Given that,

8 they haven't considered the real volumes of water

9 that they, as I understand it, now intend to put

10 through the STAs.

11 Q Is this -- is that an area where you

12 intend to testify? I mean, is that mainly an

13 engineering question that you have about it, or is

14 that based on --

15 A I --

16 Q -- discussions -- I know this is a

17 compound question. I'm trying to flush out whether

18 that's an area of your expert testimony.

19 A I think that I will probably be asked to

20 provide, you know, data that shows what the volume

21 of the empty make up water might be; what the

22 volume of, you know, lake releases might be; what

23 the volume of additional water that the Park

24 want -- might be. And to point out that those

25 volumes were not considered in the design of the

297

1 STA.

2 I don't intend at this time to offer any

3 testimony as to whether or not the K factor or

4 uptake rate is appropriate or not.

5 Q Okay.

6 A I expect someone else to address that

7 issue.

8 But I do expect to offer testimony on --

9 as to the, you know, quantity concentration and

10 loads that would be going to the Water Conservation

11 Areas, and perhaps what percent of that would be

12 treated by the STAs.

13 Also would probably compare and contrast

14 the period of record that the STAs were designed on

15 with, you know, the longer term record and -- and

16 what perhaps passed through the structures during

17 1993.

18 Q Do you think the 50 ppb is ecologically

19 significant?

20 A No.

21 Well, maybe I should ask you to explain

22 what you mean by ecologically, you know,

23 significant.

24 Q Well --

25 A I'm --

298

1 Q -- whether this was a three-way

2 deposition, because I'd ask Mr. Hyde what

3 ecologically significant means.

4 Is it your opinion then that --

5 A I --

6 Q -- reducing phosphorus discharged into the

7 EPA to a level of 50 will have no effect?

8 A I think that reducing the concentration of

9 50 is not going to change the systems you have out

10 there today hardly at all.

11 Q Okay. Why do you think it will not?

12 A Because I don't think that, you know,

13 phosphorus alone is the cause of the systems that

14 are out there today. Unless you make, you know,

15 significant changes to, you know, the hydroperiod

16 and -- and the way the system's operated, I don't

17 think, for instance, you know, the cattails are

18 going to go away or, you know, the fauna's going

19 to -- populations are going to all of a sudden,

20 you know, change or -- or any of that.

21 Q You think phosphorus is -- plays a role in

22 ecosystem changes that are occurring?

23 A I think, you know, phosphorus plays a role

24 in all life.

25 Q Well, doesn't answer my question. What do

299

1 you --

2 A Okay.

3 Q -- think that it plays a role -- you said

4 you didn't think it would have any effect unless

5 you also did something with the hydroperiod.

6 A Right.

7 Q That being the case, that I think implies

8 that phosphorus does play a role in changes to the

9 ecosystem. Is that correct?

10 A Like I said, you know, phosphorus

11 definitely plays, you know, a role in the way,

12 you know, organisms, you know, react I guess.

13 I guess what I'm trying to say is is that,

14 you know, people appear to be concerned about,

15 you know, the cattails south of 10 structure.

16 Q Uh-hum.

17 A I think if you reduced phosphorus to zero,

18 those cattails are still going to be there for a

19 long, long time.

20 Q Okay.

21 A Unless you do other things to, you know,

22 change the system.

23 Q Do you think they had any role in those

24 cattails becoming established?

25 A I think they, you know, helped, you know,

300

1 the cattails and everything else out there to grow,

2 and phosphorus is a fertilizer.

3 Q Okay. I guess I better make some time

4 here. Let's leave that alone and go on to page 27.

5 Have you got an opinion about number 34?

6 A Yes.

7 Q What's the opinion?

8 A I don't think -- as I said before, I don't

9 think the biological integrity standard is

10 violated. So I don't think changing, you know,

11 phosphorus concentrations are going to affect that

12 standard at all.

13 I think, as I said before, establishing,

14 you know, some of these limits are obviously

15 arbitrary.

16 I also say that I didn't think that the

17 way the limits were, you know, developed was valid.

18 Q Okay. Well, that'll take me on to

19 number 35 there.

20 A Okay.

21 Q You just said you don't think they're

22 valid. The issue is whether they've been correctly

23 determined. Have you got an opinion about that?

24 A Are we -- when we're talking about interim

25 and long-term standards here, are we going to be

301

1 talking about the 50 related to the, you know, the

2 STA, or are we talking about the limits established

3 in I guess Appendix E, I think it is, of the

4 SWIM Plan.

5 Q Well, this issue framed in number 35 would

6 appear to address both. I'll let you qualify your

7 answer whatever way you feel. I'm trying to --

8 A Well, the only reason --

9 Q You --

10 A -- I mean, to me we've already talked

11 about, you know, the problems and the fact that

12 I think some of these things were very arbitrary.

13 It seems like we're just going to repeat the same

14 things. I don't mind doing that. But don't you

15 see this as very similar to the discussions we've

16 just had --

17 Q Yes, I do.

18 A -- and maybe --

19 Q And I -- I'm wondering why I think a lot

20 of these things are very similar and I wonder why a

21 lot of them are listed as -- as ostensibly separate

22 issues. But the fact is they were, so I'm trying

23 to find out what testimony there's going to be on

24 it as a separate issue.

25 You know, there's a lot of --

302

1 A Well --

2 Q -- stuff to --

3 A -- let's talk about the Refuge limits.

4 Q Okay.

5 A You know, we talked yesterday about the

6 fact that -- that we didn't think that the -- that

7 there may be some, you know, question as to whether

8 or not the historical samples collected were,

9 you know, valid or represent what they, you know --

10 Q Right.

11 A -- are alleged to.

12 All right. Also I think that the,

13 you know, correlation between the stage and the

14 concentration is -- is very questionable. I also

15 think that any relationship that you might have

16 established, you know, back then is going to be

17 invalid under the new regulatory, you know,

18 schedule that the Refuge is trying to have

19 adopted. And I think may have been adopted,

20 you know, for the Refuge.

21 Someone else is going to, you know,

22 provide the statistical, you know, rationale and

23 the arguments related to those issues.

24 We also, you know, talked about the fact

25 that the interior of the Refuge is kind of a

303

1 separate system from the perimeter --

2 Q Uh-hum.

3 A -- and that issue -- and also need to have

4 been considered, you know, by the District.

5 In terms of the Park, we talked about the

6 fact that the limits were set based on

7 concentrations at the structures themselves as

8 opposed to out in the marsh. My understanding of

9 the OFW limits are that it's a -- more of a

10 receiving, you know, water body, you know,

11 standard, as opposed to a -- kind of a discharge

12 limit.

13 I think that the Water Management District

14 and Corps have a lot of control over whether -- how

15 the water is delivered to these points. And to

16 that extent, how the power or control to

17 significantly affect the concentrations of waters

18 in these areas. And I don't think there's really

19 any dispute about that.

20 Q Let me just pursue that for a second.

21 How would the District's delivery of water

22 to the areas affect the levels of phosphorus --

23 A All right.

24 Q -- in the water delivered.

25 A Let's take the Park for an example. There

304

1 are several, you know, studies that were actually

2 done by Park personnel that point out that when

3 they receive water that comes across the marsh in

4 3-A, that the concentrations are very low.

5 And they contrast that with periods where

6 the water comes down via the canal system, doesn't

7 get out into the marsh, and that concentrations are

8 higher during those periods. I mean, it's --

9 it's -- I don't think even a disputed fact.

10 Q Well --

11 A So to the extent that the

12 Water Management District never sent water down the

13 canal, always let it go into 3-A, for instance, the

14 concentrations are going to be lower.

15 Q Is that because going through the marsh in

16 3-A will clean it up?

17 A It could be because of a lot of reasons.

18 Maybe because that more of the water that's going

19 into the Park when it comes through 3-A is rainfall

20 water, as opposed to Lake Okeechobee water.

21 Obviously --

22 Q But if we're talking about the same number

23 of acre feet, it either gets in there via the canal

24 or via the marsh.

25 A That's correct. But we're talking about

305

1 potentially two different sources from that water.

2 One, rainfall; the other being Lake Okeechobee

3 water.

4 The Park, as I understand it, are -- is in

5 the process of trying to get more water allocated

6 to them. The only place -- and that water they

7 expect to receive is water that the District

8 normally releases to tide.

9 Q Uh-hum.

10 A So that water would be coming from

11 Lake Okeechobee, not from, you know, 3-A marsh.

12 And if the District chose to release that water

13 down the canal system, for instance, it is going to

14 be, you know, higher, for whatever reason.

15 If, you know, the gates, you know, were,

16 you know, left open all the time, and -- and every

17 time it rained in 3-A, you know, all that water

18 went down to the thing, a different set of

19 circumstances are going to exist.

20 Q So you --

21 A And how they blend those is going to

22 affect it.

23 Q So, is your statement that running water

24 as opposed to through the canals, through 3-A might

25 have the affect of -- of putting more rainwater

306

1 from 3-A into the Park?

2 A Could.

3 Q Why would that be --

4 A It could also put more water from

5 Lake Okeechobee that has been flowing across the

6 marshes in there, do both.

7 Q If you run water across 3-A, will it come

8 out with a lower phosphorus concentration at the

9 end.

10 A I would expect it to, yes.

11 Q Okay. That's -- if you could flip to

12 page 29, please.

13 A (Witness complying.)

14 Q And look at issue number 3.

15 Have you got an opinion about whether the

16 SWIM Plan or its implementation will be harmful to

17 the water resources of the District?

18 A Yes.

19 Q What's your opinion?

20 A I think that, you know, the District

21 should have, you know, completed their flows and

22 levels and their water supply planning process,

23 you know, prior to, you know, jumping into,

24 you know, this issue so that they would know where

25 they were going to, you know, allocate their water

307

1 and how they were going to route it and all that

2 sort of thing, prior to deciding to build,

3 you know, 40,000 acres of, you know, STAs, and that

4 sort of thing.

5 And that there's a, you know, distinct,

6 you know, possibility that after they get through

7 with their allocation process, that they would have

8 to, you know, go back and -- and modify, you know,

9 all of these things. They should have done that

10 first.

11 There's also some, you know, analyses that

12 show that, you know, the STAs are going to

13 potentially ET a little bit more water than -- than

14 occurs now. So there would be, you know, some loss

15 of water. How much it is, I don't recall right

16 now.

17 Q So is your answer that the SWIM Plan or

18 its implementation will be harmful to the water

19 resources --

20 A I think --

21 Q -- of the District?

22 A -- I think could be --

23 Q Okay.

24 A -- might be --

25 Q What are the potential ways it could be

308

1 harmful to the water resources of the District?

2 You just mentioned perhaps loss of water for ET.

3 Is that one of them?

4 A That would be one of them.

5 Q Okay. Can you think of any other --

6 A It could, you know, potentially influence,

7 you know, the timing and certainly the -- and

8 delivery of that water to specific places, because

9 these STAs are going to be built in specific

10 locations and they're going to, you know, route

11 water, you know, to those, and then, you know,

12 release them from those areas.

13 It may be that as part of the water

14 allocation and their, you know, hydroperiod

15 restoration park, that they would want that water

16 somewhere else.

17 Q But isn't -- is that -- isn't that purely

18 hypothetical speculation on your part, because you

19 don't know what those processes are yet?

20 A Some of that would be hypothetical

21 speculations, yes.

22 Q Okay. Can you think of any other reason

23 it would be harmful to the water resources of the

24 District?

25 A There is a hypothesis out there that,

309

1 you know, the STAs may actually end up generating

2 mercury. There's also a possibility that the STAs

3 themselves will, you know, generate, you know,

4 excess phosphorus for, you know, an extended period

5 of time.

6 Q I think --

7 MR. KILLINGER: And maybe, Bill, you can

8 answer this.

9 Q -- I think it's been stated, you're not

10 going to be testifying about the potential

11 mercury --

12 A No, I'm not.

13 Q -- interface on this?

14 A I'm just --

15 Q Okay.

16 A -- you asked me if --

17 Q No. I understand. I just --

18 A -- I'm saying --

19 Q -- don't want to --

20 A -- those are reasons.

21 Q Okay.

22 A And those are issues that should be

23 addressed, you know, prior to deciding on a course

24 of action.

25 Q Have you got any --

310

1 MR. HYDE: Lee, just for purposes of the

2 record, mercury is not part of our theory of

3 the case, and we're not raising it here.

4 I think Dr. Davis is being candid in giving you

5 some ideas about what might be some

6 deficiencies in this respect.

7 MR. KILLINGER: I understand. But I'm --

8 I'm still going to ask about it, simply because

9 it indicates he'll testify about whether it

10 will be harmful to the District. And whether

11 he testifies about the mercury or not.

12 Q Have you got an opinion about the mercury

13 issue, about whether the STAs are going to generate

14 mercury?

15 A I think it's something that would need to

16 be investigated.

17 Q Have you investigated it any?

18 A Not at all.

19 Q Okay. Have you got an opinion about

20 whether the STAs will generate phosphorus for a

21 while?

22 A Yes.

23 Q What's the opinion?

24 A I think they will.

25 Q Do you know how much phosphorus?

311

1 A No.

2 Q Do you know for how long?

3 A No.

4 Q What's your opinion based on?

5 A Dr., you know, Reddy had taken several

6 soil samples and I guess from Knight's Farm area,

7 and did some absorption, desorption, you know,

8 experiments, and, you know, showed that the

9 phosphorus was, you know, high in those soils and

10 that, you know, it would be released, you know, for

11 some period.

12 I don't think he concluded how much would

13 be released or how long. But we, you know, know

14 that a lot of these STAs are going to be built on

15 previous farmland which, you know, had been

16 fertilized and, you know, have phosphorus in them.

17 Simple, you know, phosphorus, you know,

18 equilibria considerations indicate that there's

19 clearly a potential for phosphorus to be released

20 from those soils, especially if you operate them at

21 a couple feet deep, and create reducing conditions

22 at the sediment, you know, water interface,

23 phosphorus is going to be released. It's always

24 released under a release -- reducing conditions.

25 Q Why's the phosphorus available in the soil

312

1 where the STAs are going to be built?

2 A Why is it available?

3 Q Yeah.

4 Has it always been there and available?

5 A Not all of it. A part of it is -- is from

6 the fertilizer that's been, you know, applied to

7 these areas.

8 Q Okay. Was it there and available

9 historically before the central and south Florida

10 project?

11 A Some of it would have been, certainly.

12 Q Was it released then in the same manner

13 you're speaking about now?

14 A If the, you know, water levels in the

15 area, you know, increase and they -- and it

16 became -- you had to reduce the conditions in those

17 areas, it would be.

18 When the area's dried out and burned, the

19 phosphorus would be released. If it -- during

20 drought periods, the sediment dried out, it was

21 oxidized, you're going to have, you know,

22 phosphorus released under those conditions.

23 So certainly under natural conditions,

24 you know, phosphorus can be released from,

25 you know, pristine, you know, soils that have

313

1 phosphorus.

2 Q Does cultivation of the EAA soils operate

3 to make more -- make I think phosphorus available

4 from the soils?

5 A The -- the -- I guess it depends on,

6 you know, what you consider in cultivation.

7 I mean, if you're just saying plowing, I don't know

8 that that necessarily would.

9 If you could define cultivation for me,

10 maybe I could answer that better.

11 Q Well, I think I would -- what I'm trying

12 to get at is is --

13 A If you're asking if farming practices --

14 Q Yes. That's -- might have been the words

15 I was going to use, in fact.

16 A You know, the farming practices are

17 designed to make the -- the areas, you know, more

18 productive for, you know, raising crops.

19 Q Yeah.

20 A And part of that practice is -- is

21 controlling the water table and, you know, adding

22 phosphorus, and, you know, those things make that

23 phosphorus available to the crops that are going on

24 them.

25 That doesn't necessarily mean that it,

314

1 you know, makes it, you know, available to,

2 you know, be discharged, you know, off-site. But

3 obviously the whole intent is to make, you know,

4 the nutrients available to the crops you're trying

5 to grow.

6 Q Can you think of any other potential harm

7 to the water resources of the District other than

8 the potential for mercury and the potential for

9 generating phosphorus when their STAs are initially

10 flooded?

11 A We talked about the reduction and the

12 quantity of water --

13 Q Okay.

14 A -- increased ET.

15 Q Does the SWIM Plan contemplate some kind

16 of a start-up period, or a break-in period for the

17 STAs?

18 A I quite frankly can't tell you whether the

19 SWIM Plan contemplates that or not. I know that

20 the District does contemplate it --

21 Q Okay.

22 A Whether or not it's stated in the

23 SWIM Plan or not, I don't know.

24 Q And do you think that biological

25 assimilation, by whatever, you know, within the

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1 STAs can -- can negate that potential soil

2 phosphorus release?

3 MR. HYDE: I'm going to object to your

4 question to the extent it leaves undefined the

5 phrase biological assimilation. That's a term

6 that I certainly am not accustomed to common

7 parlance of these proceedings.

8 But he may answer it, if he knows how to.

9 MR. FitzGERALD: I'm not sure the

10 standard, Counsel, is if he knows how to. That

11 applies to certain something that we hope is

12 not going on here.

13 MR. HYDE: I think you understood the

14 intent of my objection, Tom.

15 MR. FitzGERALD: Actually I'm not sure I

16 did.

17 A I don't have any problem with the,

18 you know, term biologically assimilated.

19 But I think that it's possible, but I

20 don't think that it's known whether or not that --

21 that will occur because it -- it depends on,

22 you know, what the concentrations are, you know, in

23 the sediments; you know, how deep, you know, the

24 water might be; whether or not it's dried out;

25 you know, what the concentrations of the water

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1 coming in there; how dense the plants are;

2 you know, what the plants are.

3 So I'm saying that theoretically it's

4 possible --

5 Q Uh-hum.

6 A -- but I don't think that that question

7 has been addressed.

8 Q Have you looked at any -- any -- are you

9 familiar with any other wetland nutrient removal

10 systems?

11 A I'm, yeah, familiar with some of them,

12 yes.

13 Q What -- which ones?

14 A Well, I have some, you know, familiarity

15 with the, you know, Iron Bridge facility, and the

16 Orange County I think it is easterly area, I forget

17 what they call it now.

18 The --

19 Q Have you -- have you looked at any data

20 from any of those facilities on this issue of

21 potential soils, phosphorus release?

22 A At different points in time, yes.

23 Q Are you able to draw any conclusions from

24 that data?

25 A I don't think those, you know, systems

317

1 are, you know, applicable to this kind of system.

2 Q Why is that?

3 A Well, number 1, most of those systems are

4 constructed wetlands on, you know, mineral soils.

5 So basically places where they constructed wetlands

6 in a, you know, maybe a pasture or, you know,

7 whatever.

8 Q Uh-hum.

9 A Entirely different from the EAA organic,

10 you know, type soils.

11 Those were also planted areas normally

12 where they went in and intensively, you know,

13 planted the areas. They also, you know, managed

14 the, you know, water going into them very

15 carefully, and they didn't bring, you know, them

16 on-line and, you know, start, you know, putting all

17 the stuff through them.

18 For instance, the easterly -- I forget

19 what size of plant that was, they were going to

20 send the water through there. But I know that for

21 a couple years, they put really minuscule amounts

22 of the capacity of that plant, you know, through

23 there to, you know, encourage, you know, the

24 development of the area and all that sort of thing.

25 And as I recall, you know, looking at the

318

1 data, there were, you know, periods when even under

2 that scenario, there were some, you know, higher

3 levels that went out. But not significantly.

4 Plus they have -- you know, those are,

5 you know, waste water treatment plans. And the

6 flows from those are, you know, consistent pretty

7 much, you know, day in, day out. They're not

8 subject to the surges that we're going to see in

9 these STAs.

10 Q Do you intend to offer any comparisons

11 between any other wetland treatment systems and the

12 STAs as a part of your testimony in the case?

13 A I haven't been asked to at this point in

14 time.

15 Q Okay. You looked at any data from ENR

16 project?

17 A Like I said, I looked at some of the

18 earlier, you know, soils work that Dr. Reddy did.

19 Q Have you looked at any data on -- on this

20 topic?

21 A Which topic?

22 Q The phosphorus soils release?

23 A Like I said, I looked at his, you know,

24 absorption, desorption --

25 Q Okay.

319

1 A -- you know, studies and that sort of

2 thing.

3 Q Were those studies before or after the

4 place was flooded?

5 A They were before.

6 Q Okay.

7 A I mean, all he did is went in and took

8 samples where they were going to build the thing --

9 Q Right.

10 A -- and ran these tests in the lab.

11 Q Right.

12 Have you looked at any data since they

13 flooded the ENR project to look --

14 A I don't recall having that done.

15 Q Okay.

16 A I think that data's been requested from

17 the District; when and if we get it, I would intend

18 to look at it.

19 Q Okay. Let me see.

20 This may be the second or third time I've

21 asked the question. But do you know of any other

22 potential harm to the water resources of the

23 District that the SWIM Plan or its implementation

24 might cause, other than the mercury and perhaps the

25 phosphorus release and the ET question that you

320

1 mentioned before.

2 A Well, they're obviously going to spend a

3 significant amount of the District's resources,

4 okay. So those resources are not going to be

5 available to spend in other ways which might be

6 much more beneficial to, you know, the system and

7 the taxpayers of Florida.

8 Q Okay.

9 A I'm not going to offer any economic

10 testimony. But obviously, I mean, I think that's

11 an easy conclusion to draw.

12 If the District's going to commit,

13 you know, several hundred thousand dollars -- or

14 million dollars. Several hundred million dollars

15 for this system, they're not going to have several

16 hundred million dollars to spend on other projects

17 which would clearly be more beneficial to both the

18 system and the taxpayers.

19 Q What particular -- do you have any

20 particular projects in mind?

21 A Well, the hydroperiod restoration.

22 Q Okay. What would you contemplate would be

23 an appropriate thing to do for hydroperiod

24 restoration?

25 A The construction of, you know, spreader

321

1 canals, for instance, to, you know, spread the

2 water out better. The -- just a study to look at,

3 you know, the -- the options relative to, you know,

4 their timing and the release of the water and that

5 sort of thing.

6 As I understand it, the Corps is either

7 undertaking or about to, you know, undertake,

8 you know, a -- a big study to, you know, look at

9 the overall, you know, operation of the system.

10 And to perhaps change, you know, some of the

11 emphasis, I don't know, on, you know, flood control

12 versus, you know, the natural systems, support, and

13 this sort of thing.

14 And obviously those kind of studies often

15 results in recommendations or mandates that have to

16 be carried out. And all those things require,

17 you know, dollars.

18 Q Well, if -- if you're talking about a

19 study, I don't know, you know, how much that costs

20 in comparison to what the District is doing. You

21 mentioned the construction, for instance, of -- of

22 spreader canals.

23 Have you got any specific locations you

24 think that would be an appropriate thing to do?

25 A Well, I think the SWIM Plan -- or

322

1 actually -- I guess it's not the -- the mediated

2 plan anyway, proposed spreader canals across the

3 northern end of 3-A, and across the I guess

4 northern end of 2-A.

5 Q Okay. Do you think that's a good

6 location?

7 A Obviously -- well, the -- the SWIM Plan,

8 you know, has in it a -- a figure that shows,

9 you know, over-drained sections of the Water

10 Conservation Areas --

11 Q Uh-hum.

12 A -- and to the extent that you wanted to,

13 you know, restore the hydroperiod to those areas,

14 I think that would be reasonable places to put it.

15 Q Does any water get in there now?

16 A Yes.

17 Q Do you know where that water comes from?

18 A Well, some of it comes from rain.

19 Q Okay.

20 A There's some water that gets in to the top

21 of 3-A through the -- the structures of the outlets

22 from the Holey Land --

23 Q I think they are G-200 through G-205, or

24 something like that. Something like that. Also

25 some water comes in from S-7. S-8, you know, water

323

1 mainly goes down the Miami Canal. But -- and

2 they've got a spreader structure down there to try

3 to force it out into the 3-A, but it's marginally

4 effective.

5 I believe L-3 also dumps out into the

6 western edge of 3-A.

7 I misspoke. S-7 doesn't go into 3. It

8 goes -- 1 -- S-150 goes into 3. S-7 goes into 2-A.

9 Q I think --

10 A And also S-10e goes into the northern part

11 of 2-A.

12 Q I think we touched on this yesterday

13 some. But I'll -- I guess I'll just reask it if

14 we've covered it before, beg your indulgence.

15 Do you think it'd be in a -- a beneficial

16 thing to -- to introduce via a spreader canal,

17 water with high levels of phosphorus, for instance,

18 water from the EAA, into areas which are not

19 receiving that water right now?

20 A I think it would be, you know, beneficial,

21 yes.

22 Q In what ways would it benefit the area?

23 A It would, you know, reverse the, you know,

24 over, you know, drained problems that they have

25 there now.

324

1 Q And would it also supply more nutrients?

2 A It would supply more nutrients.

3 Q You think that's a good thing?

4 A Makes it grow better. Make things grow

5 better.

6 Q Okay.

7 A Get rid of the -- the drier, you know,

8 more upland species that have invaded some of these

9 areas.

10 Q But that would be a function of the

11 increased --

12 A Hydroperiod.

13 Q -- hydroperiod --

14 A Right.

15 Q -- rather than the nutrients.

16 A Right.

17 Q This sort of leads into I guess what's on

18 page 32 --

19 THE WITNESS: Okay. Could we just take a

20 short restroom break?

21 MR. KILLINGER: That is fine.

22 (Recess.)

23 (WHEREUPON, MR. FRYDENBORG WAS NOT PRESENT

24 IN THE ROOM.)

25 MR. KILLINGER: Okay. Let's go back on

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1 the record.

2 Q I think we left off on page 32. And item

3 number 8.

4 Have you got an opinion about the

5 statement that's set forth in number 8 there?

6 A Yes.

7 Q What's the opinion?

8 A I don't think the District really

9 addressed the particular issue to any real extent.

10 And, therefore, if they didn't address it, they

11 couldn't correctly determine the conclusions stated

12 in item (e).

13 Q Do you think that the SWIM Plan, its

14 implementation, will have adverse impacts on

15 wildlife in the planning areas?

16 A I just don't think that the SWIM Plan has,

17 you know, adequately addressed that. And --

18 Q I understand that.

19 A -- I haven't been asked to, you know, form

20 an opinion as to whether it would or wouldn't. At

21 one time, I was just asked to look at the SWIM Plan

22 and see if, you know, the Dist