1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA, ROTH FARMS, INC., )
and WEDGEWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., )
5 and UNITED STATES SUGAR )
CORPORATION, )
6 -and- )
FLORIDA FRUIT AND VEGETABLE )
7 ASSOCIATION, LEWIS POPE FARMS, )
W. E. SCHLECHTER & SONS, )
8 INC., and HUNDLEY FARMS, INC., )
Petitioners, )
9 vs. ) DOAH CASE NO.:
SOUTH FLORIDA WATER ) 92-3038
10 MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
MICCOSUKEE TRIBE OF INDIANS, )
12 THE UNITED STATES OF AMERICA, )
FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, )
and FLORIDA WILDLIFE ASSOCIATION,)
14 Intervenors. )
)
15
DEPOSITION OF: JOHN A. DAVIS, Ph.D.
16
TAKEN AT
17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
18
DATE: MARCH 16, 1994
19
TIME: COMMENCED: 9:11 A.M.
20 CONCLUDED: 5:18 P.M.
21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.
2600 BLAIR STONE ROAD
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: LAURIE L. GILBERT
REGISTERED PROFESSIONAL REPORTER
24 NOTARY PUBLIC
25 VOLUME III
PAGES 259-357
260
1 APPEARANCES:
2 Representing Petitioners, Florida Sugar
Cane League, Inc., and United States
3 Sugar Corporation:
4 WILLIAM L. HYDE, ESQUIRE
Earl, Blank, Kavanaugh & Stotts, P.A.
5 Suite 350
215 South Monroe Street
6 Tallahassee, Florida 32301
(904) 681-1900
7
Representing Intervenor Miccosukee Tribe
8 of Indians:
9 TRUMAN E. DUNCAN, ESQUIRE
Water Resources Director
10 Miccosukee Tribe of Indians
Post Office Box 440021
11 Tamiami Station
Miami, Florida 33144
12 (305) 223-8380
13 Representing Intervenor
The United States of America:
14
THOMAS A. WATTS FitzGERALD, ESQUIRE
15 Assistant United States Attorney
Southern District of Florida
16 99 Northeast Fourth Street
Miami, Florida 33132
17 (305) 536-5927
18 Representing Intervenor Florida
Department of Environmental Protection:
19
LEE M. KILLINGER, ESQUIRE
20 Assistant General Counsel
Department of Environmental Protection
21 640 Twin Towers Office Building
2600 Blair Stone Road
22 Tallahassee, Florida 32399-2400
(904) 488-9730
23
24
25
261
1 ALSO PRESENT:
2 Frank Nearhoos
Douglas Gilbert
3
* * * * *
4
INDEX
5 (VOLUME III)
6 ITEM PAGE
7 DEPOSITION CONTINUED . . . . . . . . . . . . 262
8 LUNCHEON RECESS. . . . . . . . . . . . . . . 348
9 CERTIFICATE OF REPORTER. . . . . . . . . . . 357
10
11
12 * * * * *
13
14
15
16
17
18
19
20
21
22
23
24
25
262
1 DIRECT EXAMINATION
(Continued)
2
3 BY MR. KILLINGER:
4 (WHEREUPON, THE DEPOSITION WAS CONTINUED
5 AT 9:11 A.M.)
6 MR. KILLINGER: Okay. I guess we're back
7 on the record.
8 Q I think that yesterday we left off looking
9 at exhibit number 4. And I guess we'll go back to
10 that, pick up again.
11 I guess I'll hand you that, Dr. Davis, and
12 ask if you can flip open to page 13, which is about
13 where we left off last time.
14 A Right.
15 I wanted to go back and -- and amend the
16 answer to 15, too. Because last night I went back
17 and looked at the appendix in the SWIM Plan
18 relative to the Park limits.
19 And the response I had given yesterday
20 about the ONRW period was incorrect. I was
21 thinking about a different draft that I'd seen --
22 Q Okay.
23 A -- earlier.
24 So --
25 Except but they did use the -- the correct
263
1 period anyway.
2 So if you want to pursue that some more,
3 you can.
4 Q Well, if your answer sort of is amended to
5 state that they used the correct period, then
6 that -- that will correct that aspect of it, and
7 that's fine.
8 A Okay.
9 Q We may get into it on looking at
10 number 16, which I'd like to ask you to do.
11 Do you have an opinion about the issue as
12 stated in number 16?
13 A To be honest, I haven't really done an
14 analysis that compares the -- the present day water
15 quality with that of that '78 to '79 period.
16 MR. HYDE: I think that Dr. Davis might
17 simply be listed under this particular issue
18 because of the need to introduce what the data
19 was. Not necessarily that he will make a
20 comparison, but rather just to lay the
21 foundation for others, such as, for example,
22 David Schindler, who -- who makes the
23 opinion -- or renders the opinion itself.
24 MR. KILLINGER: Okay.
25 MR. HYDE: And it -- it gets into the
264
1 difference between expert opinions and fact
2 opinions, and what are foundational evidence.
3 MR. KILLINGER: I understand.
4 MR. HYDE: I can tell you that Dr. Davis
5 will be offering testimony as to what the water
6 quality data were in terms of what our records
7 reflect.
8 And I think I mentioned that yesterday
9 when I alluded to the various categories of his
10 testimony.
11 Q Okay. Dr. Davis, would you by any chance
12 have any opinion or knowledge about what the water
13 quality data were for 1978-1979, for the Park and
14 Refuge?
15 What the data -- maybe it's present
16 tense -- what the data are for that period?
17 A I guess I don't think of, you know, data
18 in that term as far as having an opinion of what
19 the data are. I mean, they are, you know, what the
20 values are.
21 Q Right. That's why I asked, do you have
22 any knowledge or opinion about -- do you have --
23 A Well, I have --
24 Q -- any knowledge about that?
25 A -- knowledge about them, yes.
265
1 Q What's your -- from what is your knowledge
2 derived?
3 A The data which we had received from the
4 South Florida Water Management District.
5 Q So your knowledge is based on
6 Water Management District data?
7 A Correct.
8 Q Is there any other --
9 A They're --
10 Q I'm sorry. Go ahead.
11 A There are some additional data that were
12 collected by the Park I believe, and I believe the
13 Corps may have collected some data. And the USGS,
14 you know, maybe collected some data that has been
15 appended, too.
16 Q Has you -- have you looked at all that
17 data?
18 A At one time or another.
19 Q Can you give me an idea what the -- what
20 the data show regarding water quality with regard
21 to phosphorus, for instance?
22 A I hesitate to, you know, quote values,
23 you know, for these things, because I've looked at
24 so many numbers --
25 Q Okay.
266
1 A -- and they kind of all run together.
2 Q Well then, can you give me an idea of
3 whether you think the data accurately reflect the
4 ambient water quality for that period.
5 A I think that the data at the
6 12 structures, for instance, represent, you know,
7 some measure of what the water quality was going
8 through the 12 structures.
9 That doesn't necessarily reflect what the,
10 you know, ambient water quality was in the Park,
11 for instance.
12 The Park has a, you know, network of what
13 they call marsh stations or the slough which may,
14 you know, more accurately reflect what the
15 conditions in the Park itself are.
16 Q What differences might you expect between
17 water quality data obtained at the S-12 structures,
18 and water quality data obtained in slough or in
19 more interior marsh stations?
20 A The -- the data at the, you know, the
21 structures themselves, you know, reflect, as I
22 said, you know, what the concentration was in the
23 water as it passed through those stations.
24 As that water moves out and spreads out,
25 you know, over the -- the Park and mixes with the
267
1 water that's already in the Park that may have come
2 from, you know, rainfall or -- or other sources,
3 it's obviously going to change the concentration.
4 The vegetation obviously takes some of the
5 phosphorus out.
6 So there is going to be, you know, several
7 factors that'll change the phosphorus concentration
8 in the water after it goes through the
9 12 structures.
10 Q So you would expect that the phosphorus
11 concentrations of -- of water samples taken at more
12 interior sites, or sites further from the
13 discharges, would be lower in phosphorus?
14 A As a general rule. But I don't think you
15 could necessarily make that conclusion on a,
16 you know, day-by-day basis.
17 Q Okay. What might keep you from making
18 that conclusion on a day-by-day basis?
19 A The operation of the structures
20 themselves, you know, by the Corps -- I guess the
21 Water Management District pursuant to instructions
22 from the Corps, can influence, you know, the
23 quality of water that, you know, goes into the
24 Park. There's several papers that talk about that.
25 If, for instance, water was, you know,
268
1 shunted down L-67 canal and out through one of the
2 structures and dumped, let's say, higher phosphorus
3 waters into the Park, and then they closed off
4 those structures and let water from, say, the
5 12-8 structure, which is mainly influenced by the
6 marsh --
7 Q Uh-hum.
8 A -- flow in there, the concentrations going
9 through that structure would be lower than the
10 water that might already be out in the marsh, then
11 they mix, they would be higher than what's going
12 through the 8 structure.
13 So there are, you know, circumstances like
14 that --
15 Q Are those normal --
16 A -- that would --
17 Q -- circumstances or occurrences?
18 A I'm not sure I'm the one to define what's
19 normal for the District. So --
20 Q In your range of experience and knowledge
21 of the District's operations, would occurrences
22 like that be a routine daily --
23 A Not a routine daily thing. But they
24 obviously do occur.
25 Q Okay.
269
1 A And who knows what they're going to do in
2 the future.
3 Q Well, okay. But is it safe to say then
4 that generally speaking, absent --
5 A Like, I said --
6 Q -- taking a water sample downstream from a
7 rookie, for instance, or something that also might
8 affect it or some operation of the District that --
9 that is unusual, is it a safe thing to say that a
10 phosphorus sample -- or water samples from more
11 interior sites would generally be expected to be
12 lower in phosphorus than those from the pumps?
13 A That's generally the case.
14 Q And the reason for that is -- is mixing of
15 the water being discharged with waters that perhaps
16 came from rainfall, or perhaps have had the
17 phosphorus content lowered by some removal of
18 phosphorus in the water by either flora or fauna?
19 A Generally I think.
20 Q Okay.
21 A But there's also the influence obviously
22 of the Miccosukee, you know, tribes I guess that
23 have their -- some homes and facilities there that
24 can affect, you know, concentrations of, you know,
25 phosphorus downstream of the 12 structures, too.
270
1 Q Okay. Do you have any knowledge about the
2 water quality that is coming from the Miccosukee
3 lands?
4 A No, not really.
5 Q Do you know of any data that illustrate
6 what the water quality is coming from the
7 Miccosukee lands?
8 A No.
9 Q Do you have any anecdotal observations
10 about the water quality from the Miccosukee?
11 A Well, I mean, obviously when you fly over
12 there, you see, you know, a lot of activity in that
13 area. They have, you know, a school and tourist,
14 you know, facilities. Obviously a lot of people go
15 through there.
16 They obviously have some waste water,
17 you know, treatment facility there, which is bound
18 to discharge some phosphorus out into, you know,
19 the Park. Where it goes in, I don't know.
20 But I believe it's reasonable to assume
21 they have, you know, septic tanks. There's -- I've
22 driven through there, there are animal pens right
23 next to the canals that go along old 41 there.
24 Any time you have, you know, humans
25 involved, you're going to have some, you know,
271
1 phosphorus being generated, and there is a lot of,
2 you know, human activity in that area.
3 Q Have -- have you discussed this issue
4 about the water quality for '78, '79, and whether
5 or not it's -- has been or is being degraded with
6 any other experts?
7 A Yes.
8 Q Who have you discussed it with?
9 A I guess Dr. Lettenmaier.
10 Q Do you know what his opinion is about --
11 A No.
12 Q -- whether the waters are being degraded?
13 A No.
14 Q What was the context of your discussions
15 with Dr. Lettenmaier?
16 A He was -- has been asked by the attorneys
17 to look specifically at the -- the data from the
18 structures that discharge into the Park; compare,
19 you know, his end results with those obtained by
20 others. And look at trends, if any, of phosphorus
21 from those structures.
22 Q Do you know what his results show?
23 A No.
24 MR. HYDE: Lee, just for purposes of the
25 record, it might well be that Dr. Lettenmaier
272
1 should be included under this issue as well.
2 I think that if you look back a few pages, you
3 see that Dr. Lettenmaier is used on some other
4 areas such as number 20, which seems to address
5 in a certain sense, the very same issue.
6 MR. KILLINGER: I have utter confidence
7 that at hearing, the -- a number of witnesses
8 will be called in areas which people object to
9 they're not being designated for.
10 Q All right. If you could flip to page 14,
11 please.
12 A (Witness complying.)
13 Q And review issue number 17 as it's framed
14 in the exhibit.
15 Do you have any opinion about the issue as
16 framed in that statement?
17 A Yes.
18 Q What's your opinion?
19 A Does not.
20 Q Can you tell me why it does not, or
21 specific shortcomings that it has in your
22 perception?
23 A It's my recollection that the -- the
24 SWIM Plan proposes only to address, you know,
25 phosphorus, you know, content of, you know, waters
273
1 leaving the EAA. It doesn't accept, you know,
2 very, you know, superficially even mention things
3 like, you know, fire; you know, hydroperiod,
4 disturbances; mismanagement of water; you know,
5 frost; use of species; or I guess other factors.
6 The SWIM Plan has almost a, you know,
7 single minded, you know, goal I guess of -- of
8 addressing simply reduction of phosphorus.
9 Q Do you have an opinion about why that is
10 the case, if that is, in fact, the case?
11 A I mean, it'd be speculation.
12 Q I'm asking you to speculate. I'm asking
13 you if you have an idea.
14 A I believe part of it is, you know,
15 political expediency that, you know, the
16 Water Management District felt a lot of pressure
17 to, you know, correct, you know, a perceived
18 problem; that doing something with phosphorus is
19 perhaps easier than addressing some of the larger
20 and I think more real problems that are related to
21 the design, you know, and operation of the -- of
22 the project. And the need to change their,
23 you know, water allocation, you know, practices
24 perhaps, deal with the water supply issues, the --
25 the minimum flows and levels analysis that they're,
274
1 you know, being forced into now.
2 MR. KILLINGER: Boy, if this is easier
3 than -- I'd hate to see what the other
4 proceeding would be like.
5 Q If you could turn to page 15, please.
6 A (Witness complying.)
7 Q I believe you're listed in -- as a witness
8 for number 18, which the list starts on 15 and
9 carries over to 16.
10 Do you consider yourself an expert in the
11 issue framed in that statement?
12 A I would say in, you know, certain,
13 you know, aspects of it.
14 Q Okay. Which aspects?
15 A The, you know, interpretation of the,
16 you know, biological integrity standard.
17 The dissolved oxygen. Perhaps the,
18 you know, nuisance species area.
19 Q Okay. Do you have an opinion about the --
20 whether the ecosystem of the
21 Everglades Protection Area has been adversely
22 impacted?
23 A Relative to issues that we just discussed,
24 yes.
25 Q Okay. What do you think the adverse
275
1 impact is?
2 A I don't think that, for instance, in terms
3 of, you know, the biological integrity standard,
4 there has been any adverse impact.
5 (WHEREUPON, A BRIEF OFF-THE-RECORD
6 DISCUSSION WAS HELD.)
7 (Recess.)
8 Q Okay. Let's -- let's go back to -- you
9 were saying that with regard to biological
10 integrity standard, I think, that you don't know of
11 any adverse impact in your opinion; is that
12 correct?
13 A Right.
14 Q Okay. Well, I think I already had that
15 from your prior testimony --
16 A Right.
17 Q -- but you said you thought there had been
18 adverse impacts. I'm trying --
19 A Now, I don't --
20 Q -- to ask you -- I'm trying to ask you
21 what the adverse impacts might be, not
22 necessarily --
23 A I guess I misunderstood --
24 Q Okay.
25 A -- your question.
276
1 I thought you asked me did I have an
2 opinion as to whether or not there were. I said
3 yes.
4 Q Okay.
5 A I don't think I said that I thought there
6 were adverse impacts.
7 Q Okay.
8 A If I did, I misspoke.
9 Q Okay. Then thank you for the
10 clarification. It might have been my perception of
11 it.
12 Do you have an opinion that there are
13 any -- any adverse impacts in the
14 Everglades Protection Area?
15 MR. HYDE: Let me ask for a clarification
16 of that question. Do you mean adverse impacts
17 in the sense of violations of water quality
18 standards, or just --
19 MR. KILLINGER: No. I realize this --
20 MR. HYDE: -- some greater ecosystem.
21 MR. KILLINGER: -- I realize -- I realize
22 this is about as broad a question as it could
23 possibly be, but I thought I'd start that way
24 and then try to narrow it down.
25 (WHEREUPON, DR. FRYDENBORG ENTERED THE
277
1 ROOM.)
2 Q Do you know of any adverse impacts to the
3 natural Everglades ecosystem which have occurred or
4 are continuing?
5 MR. HYDE: I'm going to object to the form
6 of the question, in that it postulates a -- a
7 standard, if you will, that has no meaning to
8 it, adverse impacts in a general sense, without
9 reference to any specific criteria.
10 MR. KILLINGER: That's fine.
11 Q I'll ask you to answer, if you can.
12 A I think we talked yesterday about the fact
13 that, you know, I believe that there had been
14 fairly extensive, you know, adverse impacts related
15 to, you know, hydroperiod alteration.
16 Q Okay.
17 A And we also talked about the concept of
18 having to apply something like this, you know,
19 based on some aerial extent. If you, you know,
20 select a small enough area in an area of issue,
21 then certainly you can find something that's
22 adverse over some time period.
23 Q Okay. Is hydroperiod the sole adverse
24 impact for the Everglades Protection Area in your
25 opinion?
278
1 A No.
2 Q Okay. What other adverse impacts are you
3 aware of?
4 A Well, again, I think it -- it depends on,
5 you know, how you define, you know, the area you're
6 talking about and, you know, whether or not you're
7 talking about, you know, adverse impacts related
8 to, you know, water quality standards and that sort
9 of thing.
10 Q Okay. Well --
11 A There are changes that occur out there in,
12 you know, all these things, you know, are temporal
13 as well as a spatial element.
14 Q So is your -- is your opinion based -- is
15 it that you can't answer the question unless I give
16 you an -- an aerial or temporal extent to allow you
17 to focus on what I mean by adverse impact?
18 A Well, and maybe a definition a little bit
19 more of, you know, an adverse impact.
20 Q Okay. I'll -- I'll come back to it.
21 Let's get through this.
22 MR. KILLINGER: Bill, I'm trying to get at
23 the substance of what this issue is, because
24 that's the way it's worded. It's worded
25 adverse impacts to the ecosystem in the
279
1 Everglades Protection Area, and I'm -- I'm
2 struggling trying to find out what the heck
3 that means.
4 MR. HYDE: Well, I understand what you're
5 saying in the context of the language chosen
6 here.
7 I think it would be our position that
8 adverse impacts have to be measured by
9 relationship to some specific criteria. One
10 just doesn't think about adverse impacts and
11 then blame a discharger for them. They have to
12 be considered in the context of, for example, a
13 violation of a State water quality standard. A
14 narrative nutrient standard, a nuisance
15 species, dissolved oxygen, or biological
16 integrity.
17 And I don't -- I don't think that Florida
18 law in general, or any of the statutes
19 considered here in particular, just make an
20 adverse impact without defining somehow a
21 criteria by which this proceeding is to be
22 evaluated, or the SWIM Plan is to be
23 considered.
24 MR. KILLINGER: I was trying to get at the
25 witness's scientific --
280
1 MR. HYDE: Right.
2 MR. KILLINGER: -- or technical definition
3 of what adverse impact might be from a
4 biological standpoint for what the system can
5 suffer before it collapses.
6 But apparently he can't do that without
7 interfacing that to a rule or standard with
8 which someone has to comply as a matter of --
9 of legal review. So what I'll -- I'll just go
10 on and come back to it more specifically later.
11 MR. HYDE: Well, I don't -- I don't think
12 that's an accurate characterization of what
13 Dr. Davis was saying. I think one can have
14 opinions as to what adverse impacts are, in a
15 general theoretical sense.
16 But I -- I don't know that one can
17 describe Dr. Davis's testimony in the manner in
18 which you have just done. But I think I'll let
19 the testimony speak for itself.
20 MR. KILLINGER: That's fine.
21 Q Can you turn to page 17, please. Oh,
22 I guess you're already there.
23 Do you have an opinion about whether the
24 SWIM Plan's phosphorus limiting standards for the
25 EPA are necessary to -- or will prevent violations
281
1 of State water quality standards?
2 A Yes.
3 Q What is that opinion?
4 A I don't think that the SWIM Plan,
5 you know, actually establishes, you know, any
6 standards to start with.
7 Q That was my next question. So thank you.
8 Okay. What does the SWIM Plan establish
9 in your mind? Does it establish anything with
10 regard to phosphorus?
11 A It -- I think that the SWIM Plan attempts
12 to I guess establish some criteria limits, I don't
13 know exactly, you know, what they should be called,
14 for closed going through the 12 structures, and for
15 the -- I guess interior, you know, Loxahatchee,
16 you know, Refuge station.
17 It -- my recollection is is that,
18 you know, it talks about the 50, you know, parts
19 per billion that we always talk about as being some
20 kind of, you know, long-term, you know, goal that
21 the STAs are going to produce.
22 It's my understanding that in order for
23 water quality standards to be established, that the
24 DER has to do that. I don't think they've gone
25 through that process.
282
1 Q Well, what -- what criteria or goals do
2 you think the SWIM Plan establishes for phosphorus
3 discharges, is that the 50 you're referring to?
4 A I think, and my recollection is that,
5 you know, the SWIM Plan, you know, basically tried
6 to size the STAs, so to speak, to give a, quote,
7 long-term, you know, average concentration of 50.
8 And that they went out of their way to
9 talk about that as being I guess an interim value.
10 Q Why do you say "they went out of their
11 way" to talk about this interim value?
12 A Because I guess they didn't want to give
13 anybody the false impression that that was going to
14 be, you know, it. And to put them on notice that
15 they were going to attempt to lower that value in
16 the future.
17 The SWIM Plan talks about needing to do,
18 you know, research to establish a, quote,
19 threshold, you know, limit for phosphorus.
20 Q Right.
21 A And the SWIM Plan is pretty candid about
22 the fact that no one knows what that value is.
23 Q Let me just sort of clarify something for
24 a second here before I go on.
25 You're not going to be testifying about
283
1 the sizing or -- or ability of the STAs to achieve
2 50, are you?
3 A I haven't been asked to at this time.
4 Q Okay. Assuming all things in the
5 SWIM Plan are -- are unimpeachable, and they
6 produce water at 50 ppb --
7 A Okay.
8 Q -- do you have an opinion about the
9 appropriateness of a concentration such as that in
10 a -- even as an interim --
11 A Yes.
12 Q -- at improving or protecting the
13 ecosystem?
14 A Yes.
15 Q What is your opinion?
16 A That it's almost totally arbitrary.
17 Q Do you have an opinion about whether
18 phosphorus in waters discharged to the
19 Everglades Protection Area is causing or
20 contributing to any changes in the ecosystem in the
21 areas of the discharge?
22 MR. HYDE: I'm going to object to the
23 question to the extent that it doesn't have a
24 specific reference to a change --
25 MR. KILLINGER: Okay.
284
1 MR. HYDE: -- contemplated by the State
2 water quality standard.
3 MR. KILLINGER: Okay.
4 Q Let's start off with macrophytes.
5 A I don't really intend to, you know, offer
6 any opinion relative to, you know, the macrophyte,
7 you know --
8 Q Okay.
9 A -- issues, unless, you know, asked to.
10 That's somebody else's area.
11 Q Okay. Have you got any opinion about
12 whether or not it is -- phosphorus is causing or
13 contributing to any changes in the chemical
14 composition of the waters downstream --
15 MR. HYDE: Objection.
16 Q -- of the discharge areas?
17 MR. HYDE: Same objection.
18 A The chemical composition?
19 Q The chemical constituents.
20 A I mean, I guess to the extent that,
21 you know, phosphorus is, you know, higher going in
22 than it is at some point interior, obviously it
23 would increase that level.
24 Q Does that phosphorus increase have any
25 effect in your opinion on -- well, let's just pick
285
1 one -- dissolved oxygen?
2 A It could.
3 Q What effect could it have?
4 A It could cause it to be, you know,
5 increased or, you know, decreased.
6 Q How might it cause it to be increased?
7 A Causes the, you know, production of more
8 algae, for instance, which, you know, produces
9 oxygen, releases it to the water.
10 Q Do you have any personal knowledge of any
11 studies which examine whether the addition of
12 phosphorus is raising or lowering dissolved oxygen?
13 A I don't know of any studies that were,
14 you know, specifically targeted to, for instance,
15 you know, raised phosphorus and see what affect it
16 had on -- on dissolved oxygen, anything like that.
17 Q How might the addition of phosphorus cause
18 DO to drop?
19 A If it, you know, causes a, you know,
20 significant additional production of -- of algae so
21 that the population builds to, you know, say, very,
22 you know, high levels, it'll cause the oxygen to go
23 up real high in the afternoon; and then when the
24 sun goes down, all those organisms consume oxygen
25 and will lower it during the nighttime period via
286
1 respiration and will lower it during that period.
2 If you have cloudy days and there's not
3 enough sunlight where you have a net respiration
4 opposed to photosynthesis --
5 Q Are you talking about --
6 A -- it will lower.
7 Q -- light and dark cycles of
8 photosynthesis?
9 A Yeah.
10 Q What about when all that -- all that
11 nutritious and enriched algae dies and decomposes,
12 does that have any effect on DO?
13 A Sure.
14 Q What does that do?
15 A Lower the DO.
16 Q You said you don't know of any studies to
17 determine -- determine by addition of phosphorus,
18 you know, what effects --
19 A Uh-hum.
20 Q -- it had on -- on DO. Are you going to
21 offer an opinion at trial on this matter about what
22 actual effects are occurring with regard to DO in
23 the Everglades Protection Area?
24 A I, you know, have been asked to address,
25 you know, whether or not the DO standard, you know,
287
1 has been violated, you know, in the Everglades.
2 So I need -- I intend to, you know,
3 address, you know, the DO standard and whether or
4 not, you know, applicable to these type areas.
5 Q Okay. We'll move on down the road here a
6 little bit.
7 Could you look at page 25, please, of the
8 exhibit.
9 A (Witness complying.)
10 Q Item number 32 states an issue. Do you
11 intend to offer testimony about that issue?
12 A That's a distinct possibility I guess.
13 Q Have you got an opinion on that issue?
14 A Yes.
15 Q What is the opinion?
16 A That, you know, the, you know, phosphorus
17 budgets, you know, offering the SWIM Plan could be,
18 you know, improved.
19 Q In what respect?
20 A Over I guess -- approximately I guess I
21 should say, you know, half the phosphorus that's
22 included in the budget for all the areas is,
23 you know, based on rainfall.
24 And there's been a lot of question as to,
25 you know, what are the appropriate, you know,
288
1 values for the phosphorus concentration of that
2 rainfall. I --
3 Q Do you -- I'm sorry, go ahead, I don't
4 want to cut you off.
5 A I was just going to say, I expect,
6 you know, better numbers are going to be developed
7 relative to that, and those would be incorporated
8 into the budgets.
9 Q Do you think that better numbers are
10 available now?
11 A It's my understanding the people are
12 working on developing better numbers.
13 Q Who would that be?
14 A Well, I think -- I understand
15 Bill Walker's doing some work in that area.
16 I think the District is reassessing their rainfall
17 collection, you know, network. Allen LeFohn is
18 doing some work for, you know, the League relative
19 to that.
20 Q Your opinion was that the phosphorus
21 budgets could be improved.
22 A Uh-hum.
23 Q How far off do you think they are?
24 A I think that's, you know, hard to say when
25 there's so much, you know, question about the,
289
1 you know, rainfall, you know, component of that.
2 Q Okay. You said there was a lot of dispute
3 about the appropriate rain values --
4 A Uh-hum.
5 Q -- and you thought better numbers would be
6 developed. Have you got an opinion about what
7 appropriate rain values for phosphorus are?
8 A I honestly don't.
9 Q Okay. Could you look at page 26.
10 A (Witness complying.)
11 Q Number 33.
12 Do you have an opinion about whether the
13 SWIM Plan sets interim and long-term phosphorus
14 concentration limits? This may be duplicative of
15 what we've already discussed.
16 A (Nodding head.)
17 Q Is it your opinion that it does not in
18 itself?
19 A Correct.
20 Q Okay. What do you suppose is --
21 A Wait, wait. Let me see now.
22 I guess what I'm saying is is I believe
23 that, you know, the SWIM Plan, the interim and
24 long-term phosphorus concentration limits, are,
25 you know, arbitrary.
290
1 I'm not sure exactly what practical
2 means. But I think they are impractical in some
3 respects.
4 Q Okay. Well, let's start at the
5 base line. What do you think --
6 A Okay.
7 Q -- the SWIM Plan's interim and long-term
8 phosphorus concentration limits are?
9 A I ass-- would assume that this question is
10 related to the interim and long-term, you know,
11 limits for the Refuge and for the Park. It may
12 also be referring to, you know, the interim STA
13 goal.
14 Q Okay. Do you know -- can you put any
15 numbers with what those limits are, limits, levels,
16 goals?
17 A I would have to go back and look at,
18 you know, the appendix in the SWIM Plan to see
19 exactly what the numbers are.
20 In the Refuge, you know, it's a range of
21 numbers depending on what the stage is. Because
22 they tied the, you know, the limits to, you know,
23 stage levels by an equation. So there's not a
24 single number.
25 Q What about the Park?
291
1 A In the Park, it's also not a single
2 number. It's tied to the volume of water that goes
3 through the structures.
4 Q Well, do you anticipate that you'll go
5 back and look at the appendix to the SWIM Plan
6 before hearing so that you can testify about what
7 those numbers are?
8 A Sure. I expect that at trial I would have
9 a demonstrative exhibit that would, you know, help
10 keep all those, you know, values, you know,
11 crystallized.
12 Anybody that's going to sit here and tell
13 you that they remember every number on all this
14 data --
15 Q Oh, I understand.
16 A -- is foolish --
17 Q I understand.
18 A -- in my opinion.
19 MR. HYDE: I think that the -- the Plan
20 and the numbers contained in the Plan are
21 obviously the best evidence of that anyway.
22 Q I'm not trying to box you in, I'm trying
23 to find out what you're going to testify about.
24 A Sure.
25 Q Even without knowing the specific numbers
292
1 and having them --
2 A Sure.
3 Q -- leap to the forefront of your mind, can
4 you tell me whether you think they're arbitrary?
5 A I think that certainly, you know, the --
6 the 50 number for the STA goal is, you know,
7 arbitrary. I think the Plan itself almost states
8 that. Maybe not exactly, as this number's
9 arbitrary. But I haven't seen any clear evidence
10 of how that number was -- was derived at.
11 Q Do you think the number has any validity?
12 A For what purpose?
13 Q For the purpose for which it is proposed
14 in the SWIM Plan?
15 A I don't -- I'm not sure that, you know, I
16 can tell you exactly what the purpose of the 50,
17 you know, number was, other than to give, you know,
18 somebody, you know, a basis for, you know, trying
19 to, you know, make some calculation relative to,
20 you know, sizing of the STAs.
21 The SWIM Plan I think states that they
22 have no idea whether that number is the threshold
23 number or not. It talks repeatedly about having to
24 do extensive and long-term, you know, research to
25 determine what that number is.
293
1 The number, you know, conceivably could be
2 higher, could be, you know, lower. To pick,
3 you know, some number in between, you know, where
4 they think it might fall out is -- is certainly,
5 you know, arbitrary.
6 Q Well, what do you think the number's
7 intended to -- to do? Intended to start a process
8 of -- of what?
9 A Reducing phosphorus I guess.
10 Q Okay. Do you think it is an arbitrary
11 start at that?
12 A I think any time you just, you know, pick
13 a number, that it's somewhat arbitrary.
14 Q Okay. Do you think that the 50 is a
15 reasonable start at that?
16 A If your, you know, goal is simply to,
17 you know, reduce, you know, phosphorus for the sake
18 of reducing phosphorus; and you're starting at,
19 you know, numbers that are at, you know, 100 or
20 200; and if you make the assumption, which is not
21 necessarily valid I think, that you're going to
22 reach some number, you know, lower than that, and
23 it's -- it's a number. I mean, how reasonable it
24 is I think is in the eyes of the beholder.
25 Q Okay. Do you think that -- stay on the 50
294
1 for a while.
2 Is the 50 practical?
3 A I guess it depends on -- well, I don't
4 think that you can really, you know, necessarily --
5 well, won't put it that way.
6 To me, you know, spending, you know,
7 400 million dollars to get to a somewhat, you know,
8 arbitrary number is irrational. Okay.
9 Especially when the system that's being
10 proposed is, you know, not being designed to give,
11 you know, really a number. The SWIM Plan, as I
12 recall, talks about, you know, our, you know,
13 general, you know, goal is to reach, you know,
14 50 as a long-term average, with long-term being
15 undefined in the SWIM Plan.
16 I have heard people say that long-term is
17 at least ten years, maybe twenty years. There's
18 been a lot of recognition that the numbers coming
19 out of the STAs are going to fluctuate wildly from
20 year-to-year. Some years, it's going to be 100,
21 150 maybe, some years it's going to be lower.
22 And whether or not all of those, you know,
23 ups and downs are going to, you know, balance out
24 and reach 50 is a lot of guesswork right now.
25 Especially when they haven't, you know,
295
1 designed the system to treat all of the water
2 that's going to be going south. The SWIM Plan, as
3 I recall, clearly says that they're not going to
4 treat bypass water, it wasn't designed, they
5 weren't sized to treat that, it wasn't designed or
6 sized to treat the, you know, lake release water.
7 Especially the additional lake release
8 water that I understand the Park now wants, which
9 is on the order of several hundred thousand acre
10 feet additional water.
11 So I don't think the system that's been
12 designed is practical in terms of meeting people's
13 perception of what this Plan is going to do.
14 Q Okay.
15 A You shouldn't allow me to get on my
16 soapbox.
17 Q No. That's -- I'm trying to figure out
18 what the word practical means because --
19 A Well --
20 Q -- it's -- it's a --
21 A I agree. That's --
22 Q -- rather subjective --
23 A Drafted by an attorney.
24 Q -- determination -- well, I understand
25 that you didn't draft it.
296
1 MR. HYDE: Derived from the statute.
2 MR. KILLINGER: Yeah. Also drafted by an
3 attorney I expect.
4 Q Well, having said that, do you think that
5 the 50 is achievable?
6 A I don't think it's achievable based on the
7 design put forth in the SWIM Plan. Given that,
8 they haven't considered the real volumes of water
9 that they, as I understand it, now intend to put
10 through the STAs.
11 Q Is this -- is that an area where you
12 intend to testify? I mean, is that mainly an
13 engineering question that you have about it, or is
14 that based on --
15 A I --
16 Q -- discussions -- I know this is a
17 compound question. I'm trying to flush out whether
18 that's an area of your expert testimony.
19 A I think that I will probably be asked to
20 provide, you know, data that shows what the volume
21 of the empty make up water might be; what the
22 volume of, you know, lake releases might be; what
23 the volume of additional water that the Park
24 want -- might be. And to point out that those
25 volumes were not considered in the design of the
297
1 STA.
2 I don't intend at this time to offer any
3 testimony as to whether or not the K factor or
4 uptake rate is appropriate or not.
5 Q Okay.
6 A I expect someone else to address that
7 issue.
8 But I do expect to offer testimony on --
9 as to the, you know, quantity concentration and
10 loads that would be going to the Water Conservation
11 Areas, and perhaps what percent of that would be
12 treated by the STAs.
13 Also would probably compare and contrast
14 the period of record that the STAs were designed on
15 with, you know, the longer term record and -- and
16 what perhaps passed through the structures during
17 1993.
18 Q Do you think the 50 ppb is ecologically
19 significant?
20 A No.
21 Well, maybe I should ask you to explain
22 what you mean by ecologically, you know,
23 significant.
24 Q Well --
25 A I'm --
298
1 Q -- whether this was a three-way
2 deposition, because I'd ask Mr. Hyde what
3 ecologically significant means.
4 Is it your opinion then that --
5 A I --
6 Q -- reducing phosphorus discharged into the
7 EPA to a level of 50 will have no effect?
8 A I think that reducing the concentration of
9 50 is not going to change the systems you have out
10 there today hardly at all.
11 Q Okay. Why do you think it will not?
12 A Because I don't think that, you know,
13 phosphorus alone is the cause of the systems that
14 are out there today. Unless you make, you know,
15 significant changes to, you know, the hydroperiod
16 and -- and the way the system's operated, I don't
17 think, for instance, you know, the cattails are
18 going to go away or, you know, the fauna's going
19 to -- populations are going to all of a sudden,
20 you know, change or -- or any of that.
21 Q You think phosphorus is -- plays a role in
22 ecosystem changes that are occurring?
23 A I think, you know, phosphorus plays a role
24 in all life.
25 Q Well, doesn't answer my question. What do
299
1 you --
2 A Okay.
3 Q -- think that it plays a role -- you said
4 you didn't think it would have any effect unless
5 you also did something with the hydroperiod.
6 A Right.
7 Q That being the case, that I think implies
8 that phosphorus does play a role in changes to the
9 ecosystem. Is that correct?
10 A Like I said, you know, phosphorus
11 definitely plays, you know, a role in the way,
12 you know, organisms, you know, react I guess.
13 I guess what I'm trying to say is is that,
14 you know, people appear to be concerned about,
15 you know, the cattails south of 10 structure.
16 Q Uh-hum.
17 A I think if you reduced phosphorus to zero,
18 those cattails are still going to be there for a
19 long, long time.
20 Q Okay.
21 A Unless you do other things to, you know,
22 change the system.
23 Q Do you think they had any role in those
24 cattails becoming established?
25 A I think they, you know, helped, you know,
300
1 the cattails and everything else out there to grow,
2 and phosphorus is a fertilizer.
3 Q Okay. I guess I better make some time
4 here. Let's leave that alone and go on to page 27.
5 Have you got an opinion about number 34?
6 A Yes.
7 Q What's the opinion?
8 A I don't think -- as I said before, I don't
9 think the biological integrity standard is
10 violated. So I don't think changing, you know,
11 phosphorus concentrations are going to affect that
12 standard at all.
13 I think, as I said before, establishing,
14 you know, some of these limits are obviously
15 arbitrary.
16 I also say that I didn't think that the
17 way the limits were, you know, developed was valid.
18 Q Okay. Well, that'll take me on to
19 number 35 there.
20 A Okay.
21 Q You just said you don't think they're
22 valid. The issue is whether they've been correctly
23 determined. Have you got an opinion about that?
24 A Are we -- when we're talking about interim
25 and long-term standards here, are we going to be
301
1 talking about the 50 related to the, you know, the
2 STA, or are we talking about the limits established
3 in I guess Appendix E, I think it is, of the
4 SWIM Plan.
5 Q Well, this issue framed in number 35 would
6 appear to address both. I'll let you qualify your
7 answer whatever way you feel. I'm trying to --
8 A Well, the only reason --
9 Q You --
10 A -- I mean, to me we've already talked
11 about, you know, the problems and the fact that
12 I think some of these things were very arbitrary.
13 It seems like we're just going to repeat the same
14 things. I don't mind doing that. But don't you
15 see this as very similar to the discussions we've
16 just had --
17 Q Yes, I do.
18 A -- and maybe --
19 Q And I -- I'm wondering why I think a lot
20 of these things are very similar and I wonder why a
21 lot of them are listed as -- as ostensibly separate
22 issues. But the fact is they were, so I'm trying
23 to find out what testimony there's going to be on
24 it as a separate issue.
25 You know, there's a lot of --
302
1 A Well --
2 Q -- stuff to --
3 A -- let's talk about the Refuge limits.
4 Q Okay.
5 A You know, we talked yesterday about the
6 fact that -- that we didn't think that the -- that
7 there may be some, you know, question as to whether
8 or not the historical samples collected were,
9 you know, valid or represent what they, you know --
10 Q Right.
11 A -- are alleged to.
12 All right. Also I think that the,
13 you know, correlation between the stage and the
14 concentration is -- is very questionable. I also
15 think that any relationship that you might have
16 established, you know, back then is going to be
17 invalid under the new regulatory, you know,
18 schedule that the Refuge is trying to have
19 adopted. And I think may have been adopted,
20 you know, for the Refuge.
21 Someone else is going to, you know,
22 provide the statistical, you know, rationale and
23 the arguments related to those issues.
24 We also, you know, talked about the fact
25 that the interior of the Refuge is kind of a
303
1 separate system from the perimeter --
2 Q Uh-hum.
3 A -- and that issue -- and also need to have
4 been considered, you know, by the District.
5 In terms of the Park, we talked about the
6 fact that the limits were set based on
7 concentrations at the structures themselves as
8 opposed to out in the marsh. My understanding of
9 the OFW limits are that it's a -- more of a
10 receiving, you know, water body, you know,
11 standard, as opposed to a -- kind of a discharge
12 limit.
13 I think that the Water Management District
14 and Corps have a lot of control over whether -- how
15 the water is delivered to these points. And to
16 that extent, how the power or control to
17 significantly affect the concentrations of waters
18 in these areas. And I don't think there's really
19 any dispute about that.
20 Q Let me just pursue that for a second.
21 How would the District's delivery of water
22 to the areas affect the levels of phosphorus --
23 A All right.
24 Q -- in the water delivered.
25 A Let's take the Park for an example. There
304
1 are several, you know, studies that were actually
2 done by Park personnel that point out that when
3 they receive water that comes across the marsh in
4 3-A, that the concentrations are very low.
5 And they contrast that with periods where
6 the water comes down via the canal system, doesn't
7 get out into the marsh, and that concentrations are
8 higher during those periods. I mean, it's --
9 it's -- I don't think even a disputed fact.
10 Q Well --
11 A So to the extent that the
12 Water Management District never sent water down the
13 canal, always let it go into 3-A, for instance, the
14 concentrations are going to be lower.
15 Q Is that because going through the marsh in
16 3-A will clean it up?
17 A It could be because of a lot of reasons.
18 Maybe because that more of the water that's going
19 into the Park when it comes through 3-A is rainfall
20 water, as opposed to Lake Okeechobee water.
21 Obviously --
22 Q But if we're talking about the same number
23 of acre feet, it either gets in there via the canal
24 or via the marsh.
25 A That's correct. But we're talking about
305
1 potentially two different sources from that water.
2 One, rainfall; the other being Lake Okeechobee
3 water.
4 The Park, as I understand it, are -- is in
5 the process of trying to get more water allocated
6 to them. The only place -- and that water they
7 expect to receive is water that the District
8 normally releases to tide.
9 Q Uh-hum.
10 A So that water would be coming from
11 Lake Okeechobee, not from, you know, 3-A marsh.
12 And if the District chose to release that water
13 down the canal system, for instance, it is going to
14 be, you know, higher, for whatever reason.
15 If, you know, the gates, you know, were,
16 you know, left open all the time, and -- and every
17 time it rained in 3-A, you know, all that water
18 went down to the thing, a different set of
19 circumstances are going to exist.
20 Q So you --
21 A And how they blend those is going to
22 affect it.
23 Q So, is your statement that running water
24 as opposed to through the canals, through 3-A might
25 have the affect of -- of putting more rainwater
306
1 from 3-A into the Park?
2 A Could.
3 Q Why would that be --
4 A It could also put more water from
5 Lake Okeechobee that has been flowing across the
6 marshes in there, do both.
7 Q If you run water across 3-A, will it come
8 out with a lower phosphorus concentration at the
9 end.
10 A I would expect it to, yes.
11 Q Okay. That's -- if you could flip to
12 page 29, please.
13 A (Witness complying.)
14 Q And look at issue number 3.
15 Have you got an opinion about whether the
16 SWIM Plan or its implementation will be harmful to
17 the water resources of the District?
18 A Yes.
19 Q What's your opinion?
20 A I think that, you know, the District
21 should have, you know, completed their flows and
22 levels and their water supply planning process,
23 you know, prior to, you know, jumping into,
24 you know, this issue so that they would know where
25 they were going to, you know, allocate their water
307
1 and how they were going to route it and all that
2 sort of thing, prior to deciding to build,
3 you know, 40,000 acres of, you know, STAs, and that
4 sort of thing.
5 And that there's a, you know, distinct,
6 you know, possibility that after they get through
7 with their allocation process, that they would have
8 to, you know, go back and -- and modify, you know,
9 all of these things. They should have done that
10 first.
11 There's also some, you know, analyses that
12 show that, you know, the STAs are going to
13 potentially ET a little bit more water than -- than
14 occurs now. So there would be, you know, some loss
15 of water. How much it is, I don't recall right
16 now.
17 Q So is your answer that the SWIM Plan or
18 its implementation will be harmful to the water
19 resources --
20 A I think --
21 Q -- of the District?
22 A -- I think could be --
23 Q Okay.
24 A -- might be --
25 Q What are the potential ways it could be
308
1 harmful to the water resources of the District?
2 You just mentioned perhaps loss of water for ET.
3 Is that one of them?
4 A That would be one of them.
5 Q Okay. Can you think of any other --
6 A It could, you know, potentially influence,
7 you know, the timing and certainly the -- and
8 delivery of that water to specific places, because
9 these STAs are going to be built in specific
10 locations and they're going to, you know, route
11 water, you know, to those, and then, you know,
12 release them from those areas.
13 It may be that as part of the water
14 allocation and their, you know, hydroperiod
15 restoration park, that they would want that water
16 somewhere else.
17 Q But isn't -- is that -- isn't that purely
18 hypothetical speculation on your part, because you
19 don't know what those processes are yet?
20 A Some of that would be hypothetical
21 speculations, yes.
22 Q Okay. Can you think of any other reason
23 it would be harmful to the water resources of the
24 District?
25 A There is a hypothesis out there that,
309
1 you know, the STAs may actually end up generating
2 mercury. There's also a possibility that the STAs
3 themselves will, you know, generate, you know,
4 excess phosphorus for, you know, an extended period
5 of time.
6 Q I think --
7 MR. KILLINGER: And maybe, Bill, you can
8 answer this.
9 Q -- I think it's been stated, you're not
10 going to be testifying about the potential
11 mercury --
12 A No, I'm not.
13 Q -- interface on this?
14 A I'm just --
15 Q Okay.
16 A -- you asked me if --
17 Q No. I understand. I just --
18 A -- I'm saying --
19 Q -- don't want to --
20 A -- those are reasons.
21 Q Okay.
22 A And those are issues that should be
23 addressed, you know, prior to deciding on a course
24 of action.
25 Q Have you got any --
310
1 MR. HYDE: Lee, just for purposes of the
2 record, mercury is not part of our theory of
3 the case, and we're not raising it here.
4 I think Dr. Davis is being candid in giving you
5 some ideas about what might be some
6 deficiencies in this respect.
7 MR. KILLINGER: I understand. But I'm --
8 I'm still going to ask about it, simply because
9 it indicates he'll testify about whether it
10 will be harmful to the District. And whether
11 he testifies about the mercury or not.
12 Q Have you got an opinion about the mercury
13 issue, about whether the STAs are going to generate
14 mercury?
15 A I think it's something that would need to
16 be investigated.
17 Q Have you investigated it any?
18 A Not at all.
19 Q Okay. Have you got an opinion about
20 whether the STAs will generate phosphorus for a
21 while?
22 A Yes.
23 Q What's the opinion?
24 A I think they will.
25 Q Do you know how much phosphorus?
311
1 A No.
2 Q Do you know for how long?
3 A No.
4 Q What's your opinion based on?
5 A Dr., you know, Reddy had taken several
6 soil samples and I guess from Knight's Farm area,
7 and did some absorption, desorption, you know,
8 experiments, and, you know, showed that the
9 phosphorus was, you know, high in those soils and
10 that, you know, it would be released, you know, for
11 some period.
12 I don't think he concluded how much would
13 be released or how long. But we, you know, know
14 that a lot of these STAs are going to be built on
15 previous farmland which, you know, had been
16 fertilized and, you know, have phosphorus in them.
17 Simple, you know, phosphorus, you know,
18 equilibria considerations indicate that there's
19 clearly a potential for phosphorus to be released
20 from those soils, especially if you operate them at
21 a couple feet deep, and create reducing conditions
22 at the sediment, you know, water interface,
23 phosphorus is going to be released. It's always
24 released under a release -- reducing conditions.
25 Q Why's the phosphorus available in the soil
312
1 where the STAs are going to be built?
2 A Why is it available?
3 Q Yeah.
4 Has it always been there and available?
5 A Not all of it. A part of it is -- is from
6 the fertilizer that's been, you know, applied to
7 these areas.
8 Q Okay. Was it there and available
9 historically before the central and south Florida
10 project?
11 A Some of it would have been, certainly.
12 Q Was it released then in the same manner
13 you're speaking about now?
14 A If the, you know, water levels in the
15 area, you know, increase and they -- and it
16 became -- you had to reduce the conditions in those
17 areas, it would be.
18 When the area's dried out and burned, the
19 phosphorus would be released. If it -- during
20 drought periods, the sediment dried out, it was
21 oxidized, you're going to have, you know,
22 phosphorus released under those conditions.
23 So certainly under natural conditions,
24 you know, phosphorus can be released from,
25 you know, pristine, you know, soils that have
313
1 phosphorus.
2 Q Does cultivation of the EAA soils operate
3 to make more -- make I think phosphorus available
4 from the soils?
5 A The -- the -- I guess it depends on,
6 you know, what you consider in cultivation.
7 I mean, if you're just saying plowing, I don't know
8 that that necessarily would.
9 If you could define cultivation for me,
10 maybe I could answer that better.
11 Q Well, I think I would -- what I'm trying
12 to get at is is --
13 A If you're asking if farming practices --
14 Q Yes. That's -- might have been the words
15 I was going to use, in fact.
16 A You know, the farming practices are
17 designed to make the -- the areas, you know, more
18 productive for, you know, raising crops.
19 Q Yeah.
20 A And part of that practice is -- is
21 controlling the water table and, you know, adding
22 phosphorus, and, you know, those things make that
23 phosphorus available to the crops that are going on
24 them.
25 That doesn't necessarily mean that it,
314
1 you know, makes it, you know, available to,
2 you know, be discharged, you know, off-site. But
3 obviously the whole intent is to make, you know,
4 the nutrients available to the crops you're trying
5 to grow.
6 Q Can you think of any other potential harm
7 to the water resources of the District other than
8 the potential for mercury and the potential for
9 generating phosphorus when their STAs are initially
10 flooded?
11 A We talked about the reduction and the
12 quantity of water --
13 Q Okay.
14 A -- increased ET.
15 Q Does the SWIM Plan contemplate some kind
16 of a start-up period, or a break-in period for the
17 STAs?
18 A I quite frankly can't tell you whether the
19 SWIM Plan contemplates that or not. I know that
20 the District does contemplate it --
21 Q Okay.
22 A Whether or not it's stated in the
23 SWIM Plan or not, I don't know.
24 Q And do you think that biological
25 assimilation, by whatever, you know, within the
315
1 STAs can -- can negate that potential soil
2 phosphorus release?
3 MR. HYDE: I'm going to object to your
4 question to the extent it leaves undefined the
5 phrase biological assimilation. That's a term
6 that I certainly am not accustomed to common
7 parlance of these proceedings.
8 But he may answer it, if he knows how to.
9 MR. FitzGERALD: I'm not sure the
10 standard, Counsel, is if he knows how to. That
11 applies to certain something that we hope is
12 not going on here.
13 MR. HYDE: I think you understood the
14 intent of my objection, Tom.
15 MR. FitzGERALD: Actually I'm not sure I
16 did.
17 A I don't have any problem with the,
18 you know, term biologically assimilated.
19 But I think that it's possible, but I
20 don't think that it's known whether or not that --
21 that will occur because it -- it depends on,
22 you know, what the concentrations are, you know, in
23 the sediments; you know, how deep, you know, the
24 water might be; whether or not it's dried out;
25 you know, what the concentrations of the water
316
1 coming in there; how dense the plants are;
2 you know, what the plants are.
3 So I'm saying that theoretically it's
4 possible --
5 Q Uh-hum.
6 A -- but I don't think that that question
7 has been addressed.
8 Q Have you looked at any -- any -- are you
9 familiar with any other wetland nutrient removal
10 systems?
11 A I'm, yeah, familiar with some of them,
12 yes.
13 Q What -- which ones?
14 A Well, I have some, you know, familiarity
15 with the, you know, Iron Bridge facility, and the
16 Orange County I think it is easterly area, I forget
17 what they call it now.
18 The --
19 Q Have you -- have you looked at any data
20 from any of those facilities on this issue of
21 potential soils, phosphorus release?
22 A At different points in time, yes.
23 Q Are you able to draw any conclusions from
24 that data?
25 A I don't think those, you know, systems
317
1 are, you know, applicable to this kind of system.
2 Q Why is that?
3 A Well, number 1, most of those systems are
4 constructed wetlands on, you know, mineral soils.
5 So basically places where they constructed wetlands
6 in a, you know, maybe a pasture or, you know,
7 whatever.
8 Q Uh-hum.
9 A Entirely different from the EAA organic,
10 you know, type soils.
11 Those were also planted areas normally
12 where they went in and intensively, you know,
13 planted the areas. They also, you know, managed
14 the, you know, water going into them very
15 carefully, and they didn't bring, you know, them
16 on-line and, you know, start, you know, putting all
17 the stuff through them.
18 For instance, the easterly -- I forget
19 what size of plant that was, they were going to
20 send the water through there. But I know that for
21 a couple years, they put really minuscule amounts
22 of the capacity of that plant, you know, through
23 there to, you know, encourage, you know, the
24 development of the area and all that sort of thing.
25 And as I recall, you know, looking at the
318
1 data, there were, you know, periods when even under
2 that scenario, there were some, you know, higher
3 levels that went out. But not significantly.
4 Plus they have -- you know, those are,
5 you know, waste water treatment plans. And the
6 flows from those are, you know, consistent pretty
7 much, you know, day in, day out. They're not
8 subject to the surges that we're going to see in
9 these STAs.
10 Q Do you intend to offer any comparisons
11 between any other wetland treatment systems and the
12 STAs as a part of your testimony in the case?
13 A I haven't been asked to at this point in
14 time.
15 Q Okay. You looked at any data from ENR
16 project?
17 A Like I said, I looked at some of the
18 earlier, you know, soils work that Dr. Reddy did.
19 Q Have you looked at any data on -- on this
20 topic?
21 A Which topic?
22 Q The phosphorus soils release?
23 A Like I said, I looked at his, you know,
24 absorption, desorption --
25 Q Okay.
319
1 A -- you know, studies and that sort of
2 thing.
3 Q Were those studies before or after the
4 place was flooded?
5 A They were before.
6 Q Okay.
7 A I mean, all he did is went in and took
8 samples where they were going to build the thing --
9 Q Right.
10 A -- and ran these tests in the lab.
11 Q Right.
12 Have you looked at any data since they
13 flooded the ENR project to look --
14 A I don't recall having that done.
15 Q Okay.
16 A I think that data's been requested from
17 the District; when and if we get it, I would intend
18 to look at it.
19 Q Okay. Let me see.
20 This may be the second or third time I've
21 asked the question. But do you know of any other
22 potential harm to the water resources of the
23 District that the SWIM Plan or its implementation
24 might cause, other than the mercury and perhaps the
25 phosphorus release and the ET question that you
320
1 mentioned before.
2 A Well, they're obviously going to spend a
3 significant amount of the District's resources,
4 okay. So those resources are not going to be
5 available to spend in other ways which might be
6 much more beneficial to, you know, the system and
7 the taxpayers of Florida.
8 Q Okay.
9 A I'm not going to offer any economic
10 testimony. But obviously, I mean, I think that's
11 an easy conclusion to draw.
12 If the District's going to commit,
13 you know, several hundred thousand dollars -- or
14 million dollars. Several hundred million dollars
15 for this system, they're not going to have several
16 hundred million dollars to spend on other projects
17 which would clearly be more beneficial to both the
18 system and the taxpayers.
19 Q What particular -- do you have any
20 particular projects in mind?
21 A Well, the hydroperiod restoration.
22 Q Okay. What would you contemplate would be
23 an appropriate thing to do for hydroperiod
24 restoration?
25 A The construction of, you know, spreader
321
1 canals, for instance, to, you know, spread the
2 water out better. The -- just a study to look at,
3 you know, the -- the options relative to, you know,
4 their timing and the release of the water and that
5 sort of thing.
6 As I understand it, the Corps is either
7 undertaking or about to, you know, undertake,
8 you know, a -- a big study to, you know, look at
9 the overall, you know, operation of the system.
10 And to perhaps change, you know, some of the
11 emphasis, I don't know, on, you know, flood control
12 versus, you know, the natural systems, support, and
13 this sort of thing.
14 And obviously those kind of studies often
15 results in recommendations or mandates that have to
16 be carried out. And all those things require,
17 you know, dollars.
18 Q Well, if -- if you're talking about a
19 study, I don't know, you know, how much that costs
20 in comparison to what the District is doing. You
21 mentioned the construction, for instance, of -- of
22 spreader canals.
23 Have you got any specific locations you
24 think that would be an appropriate thing to do?
25 A Well, I think the SWIM Plan -- or
322
1 actually -- I guess it's not the -- the mediated
2 plan anyway, proposed spreader canals across the
3 northern end of 3-A, and across the I guess
4 northern end of 2-A.
5 Q Okay. Do you think that's a good
6 location?
7 A Obviously -- well, the -- the SWIM Plan,
8 you know, has in it a -- a figure that shows,
9 you know, over-drained sections of the Water
10 Conservation Areas --
11 Q Uh-hum.
12 A -- and to the extent that you wanted to,
13 you know, restore the hydroperiod to those areas,
14 I think that would be reasonable places to put it.
15 Q Does any water get in there now?
16 A Yes.
17 Q Do you know where that water comes from?
18 A Well, some of it comes from rain.
19 Q Okay.
20 A There's some water that gets in to the top
21 of 3-A through the -- the structures of the outlets
22 from the Holey Land --
23 Q I think they are G-200 through G-205, or
24 something like that. Something like that. Also
25 some water comes in from S-7. S-8, you know, water
323
1 mainly goes down the Miami Canal. But -- and
2 they've got a spreader structure down there to try
3 to force it out into the 3-A, but it's marginally
4 effective.
5 I believe L-3 also dumps out into the
6 western edge of 3-A.
7 I misspoke. S-7 doesn't go into 3. It
8 goes -- 1 -- S-150 goes into 3. S-7 goes into 2-A.
9 Q I think --
10 A And also S-10e goes into the northern part
11 of 2-A.
12 Q I think we touched on this yesterday
13 some. But I'll -- I guess I'll just reask it if
14 we've covered it before, beg your indulgence.
15 Do you think it'd be in a -- a beneficial
16 thing to -- to introduce via a spreader canal,
17 water with high levels of phosphorus, for instance,
18 water from the EAA, into areas which are not
19 receiving that water right now?
20 A I think it would be, you know, beneficial,
21 yes.
22 Q In what ways would it benefit the area?
23 A It would, you know, reverse the, you know,
24 over, you know, drained problems that they have
25 there now.
324
1 Q And would it also supply more nutrients?
2 A It would supply more nutrients.
3 Q You think that's a good thing?
4 A Makes it grow better. Make things grow
5 better.
6 Q Okay.
7 A Get rid of the -- the drier, you know,
8 more upland species that have invaded some of these
9 areas.
10 Q But that would be a function of the
11 increased --
12 A Hydroperiod.
13 Q -- hydroperiod --
14 A Right.
15 Q -- rather than the nutrients.
16 A Right.
17 Q This sort of leads into I guess what's on
18 page 32 --
19 THE WITNESS: Okay. Could we just take a
20 short restroom break?
21 MR. KILLINGER: That is fine.
22 (Recess.)
23 (WHEREUPON, MR. FRYDENBORG WAS NOT PRESENT
24 IN THE ROOM.)
25 MR. KILLINGER: Okay. Let's go back on
325
1 the record.
2 Q I think we left off on page 32. And item
3 number 8.
4 Have you got an opinion about the
5 statement that's set forth in number 8 there?
6 A Yes.
7 Q What's the opinion?
8 A I don't think the District really
9 addressed the particular issue to any real extent.
10 And, therefore, if they didn't address it, they
11 couldn't correctly determine the conclusions stated
12 in item (e).
13 Q Do you think that the SWIM Plan, its
14 implementation, will have adverse impacts on
15 wildlife in the planning areas?
16 A I just don't think that the SWIM Plan has,
17 you know, adequately addressed that. And --
18 Q I understand that.
19 A -- I haven't been asked to, you know, form
20 an opinion as to whether it would or wouldn't. At
21 one time, I was just asked to look at the SWIM Plan
22 and see if, you know, the District had addressed
23 that, what we thought was an adequate manner --
24 Q Okay.
25 A -- the answer was no.
326
1 Typically in an EIS type process,
2 you know, you're required to look at, you know,
3 proposed action and alternatives of those proposed
4 actions and evaluate and contrast those, you know,
5 alternatives and -- and preferred alternatives.
6 And the SWIM Plan doesn't do that.
7 Q When you say "EIS," do you mean Economic
8 Impact Statement --
9 A Environmental --
10 Q -- or Environmental Impact Statement?
11 A -- Impact Statement. But I don't think
12 they did an economic one either. But that's not my
13 area.
14 Q So your response to this is basically what
15 you said the first time, that they didn't --
16 A They didn't do it.
17 Q -- do enough of it, therefore, you don't
18 think it could have been correctly done?
19 A Right.
20 Q If you turn to page 35, please.
21 A Have you got an opinion about item 13?
22 A Yes.
23 Q What's your opinion?
24 A That the, you know, SWIM Plan incorrectly
25 identifies, you know, phosphorus as the, you know,
327
1 source of, you know, all alleged problems in the
2 Everglades. And that that, you know, is
3 incorrect. And that, you know, it did not address,
4 you know, the -- you know, the hydroperiod water
5 supply, minimum flows and levels issues reasonably
6 and appropriately.
7 The SWIM Plan doesn't really offer any I
8 don't think guidance as to exactly what the
9 applicable water stand-- water quality standards
10 are. And --
11 Q Do you think it should?
12 A To the extent that they are, you know,
13 requiring, you know, someone to spend, you know,
14 significant, you know, resources, I think it's
15 incumbent upon that agency to, you know, identify,
16 you know, clearly, you know, what the problem is,
17 what the extent of that problem is, what the cause
18 of that problem is. And then, you know, what the,
19 you know, remedies of those problems are. And I
20 don't think the SWIM Plan, you know, does that.
21 I think that they, you know, need to,
22 you know, clearly state what the, you know,
23 standards violated are, and how those standards
24 should be interpreted.
25 I think they, you know, state -- or infer
328
1 in places that the biological integrity standard,
2 for instance, has been violated. But quite
3 frankly, you know, I have difficulty finding out
4 exactly where that standard is violated and what
5 the aerial extent that that, you know, violation is
6 alleged to occur in.
7 Q Okay.
8 A I don't think the SWIM Plan did any of
9 that.
10 Q Assuming for the purposes of this
11 deposition -- or this question anyway, that
12 there -- that the violations that are implicated in
13 the SWIM Plan are, in fact, just that, violations,
14 do you think the SWIM Plan -- do you have an
15 opinion about whether the SWIM Plan contains a
16 reasonable and appropriate strategy to remedy those
17 violations?
18 A Which -- which violations are you talking
19 about?
20 Q Any violations you've seen. I was going
21 to go into that a little bit later. I mean, we can
22 do that now if you want.
23 You've alleged -- you've heard the
24 biological integrity and I --
25 A Right.
329
1 Q -- I'm presuming you're familiar with any
2 other ones that are referenced in the SWIM Plan.
3 A Well, as I indicated to you I guess
4 numerous times, I don't think the biological
5 integrity standard is violated.
6 Q I understand that. I'm asking you to
7 assume that --
8 A That it is?
9 Q -- it is violated. And if it is then, are
10 the standards inappropriate?
11 MR. HYDE: I don't understand how you can
12 make an assumption like that if it's not been
13 violated at all. And you -- to assume that
14 it's being violated, and then to say because
15 the standards are appropriate, really kind of
16 misses the whole point.
17 MR. KILLINGER: I think we've had a number
18 of hypotheticals just exactly like this asked
19 of Department witness. And I'm trying to do
20 the same thing.
21 Q If you assume that there's a biological
22 integrity violation that's cited as it is in -- in
23 the SWIM Plan, and just accept the validity of that
24 determination of the violation.
25 A Well, then I guess you'd have to tell me
330
1 what the, you know, hypothetical cause of that
2 violation is.
3 Q You're just not going to answer this at
4 all, are you?
5 A Well, I -- I'm not really trying to avoid
6 it so much, as I'm trying to frame it in my own
7 mind as to how, you know, you would address that
8 question.
9 Q So I -- is --
10 A But --
11 Q -- would it be an accurate representation
12 of your opinion that you believe there are no
13 facilities that are not in compliance with
14 applicable water quality standards?
15 A No facilities --
16 Q I'll take all those negatives out.
17 Are there any facilities that are not in
18 compliance with applicable water quality standards
19 in your opinion?
20 A You're going to think I'm trying to avoid
21 your question, but I'm not. But I don't know
22 exactly what you mean by "facilities."
23 Q Well, I believe the statute uses the word
24 facilities.
25 A Yes.
331
1 Q So I guess what I'll do is have you take
2 your best shot with the qualification that by
3 facilities, I think we should refer to any
4 discharger, and let's start with the EAA.
5 MR. HYDE: Could you re-- reiterate the
6 question? I'm not sure what the --
7 Q In your --
8 MR. HYDE: -- question's really pending.
9 Q -- opinion, are there any dischargers in
10 the Everglades Agricultural Area discharging into
11 the Agricultural Area, which are not in compliance
12 with applicable water quality standards.
13 MR. HYDE: Discharging into the EAA?
14 MR. KILLINGER: Yes.
15 MR. HYDE: Okay. What you're looking at
16 is within the EAA.
17 MR. KILLINGER: Yes.
18 MR. HYDE: Okay. I just want to make
19 sure.
20 THE WITNESS: What -- what was that now?
21 MR. HYDE: Well, I was trying to
22 differentiate between whether he was talking
23 about dischargers from the EAA to the EPA --
24 THE WITNESS: Right.
25 MR. HYDE: -- or discharges from the EAA
332
1 to waters within the EAA.
2 THE WITNESS: And what was the answer?
3 MR. HYDE: The latter.
4 THE WITNESS: The latter.
5 Q Is the question clear?
6 A Not really.
7 Q Shall I ask it again?
8 A It might be good.
9 Q In your opinion, are there any dischargers
10 which discharge water into the
11 Everglades Agricultural Area, for instance --
12 A The EAA.
13 Q -- the canals.
14 Yes.
15 Which are not in compliance with
16 applicable water quality standards.
17 A I don't really have information related
18 to, you know, all the, you know, the dischargers
19 that discharge, you know, into, you know, the
20 canal.
21 So I don't really know if I could,
22 you know, answer your question.
23 MR. HYDE: I think your question also
24 assumes that there may be violations in the
25 canals, for example. And that the land owners
333
1 within the EAA may be causing those
2 violations.
3 So there's two assumptions there that may
4 not be --
5 MR. KILLINGER: I --
6 MR. HYDE: -- completely --
7 MR. KILLINGER: -- I think it's a --
8 MR. HYDE: -- accurate --
9 MR. KILLINGER: -- fair question, I think
10 it's a pretty clear question.
11 Q If you don't have the --
12 A Well, how about a specific date.
13 Q -- data to tell me the answer, then I
14 understand that, you may not have looked at that.
15 I'm trying to find out what the scope of
16 your knowledge is about water quality violations in
17 the Everglades Agricultural Area and in the EPA. I
18 haven't gotten to the EPA yet, but I will.
19 Have you looked at any water quality data
20 from any discharger which discharges into a
21 Water Management District EAA canal?
22 A Are you identifying -- are you equating a
23 discharger with farm pumps?
24 Q Any discharger.
25 A The only data that I recall, you know, at
334
1 this point are, you know, data that are related to,
2 you know, farm pump, you know, dischargers.
3 Q Okay. What's your familiarity with farm
4 pump dischargers?
5 A I've looked at, you know, data from,
6 you know, several of the, you know, farm pumps.
7 Q Are -- do any of those data show that the
8 discharge does not comply with applicable water
9 quality standards in the receiving body of water?
10 A The, you know, data that I've seen from
11 the farm pumps I believe has only been, you know,
12 phosphorus data.
13 Q Uh-hum.
14 A And since there's no, you know, numerical,
15 you know, phosphorus, you know, limit, you know, I
16 couldn't conclude that, you know, there was any,
17 you know, violation of, you know, standards,
18 you know, in the canal.
19 Q Okay.
20 A I think I've also seen a little bit of
21 chloride data. But even the values don't even,
22 you know, come to me right now.
23 Q Okay. Have you looked at discharge data
24 from pumps which discharge into the
25 Everglades Protection Area?
335
1 A If you're referring to, like, you know,
2 the 5-A, 6, and 7 pumps --
3 Q That'll be fine --
4 A -- yes.
5 Q You have?
6 A Yes.
7 Q In your opinion, does that data show that
8 those discharges are in compliance with applicable
9 water quality standards?
10 A What are the applicable water quality
11 standards?
12 Q Well, I'm asking you for your expert
13 opinion about it.
14 Are those discharges in violation, or
15 causing or contributing to any violations?
16 A I mean, the pumps are simply conveying
17 water, you know, from a canal on, you know, one
18 side to the other side.
19 Q Uh-hum.
20 A And I don't think the pump in and of
21 itself is doing anything to, you know, change that
22 water. So basically, you know, the water that's on
23 the inside of the canal is -- or the upstream side
24 of the pump is the same as the water on the
25 downstream side of the pump.
336
1 So -- I mean --
2 Q Would you --
3 A -- the water's the same.
4 Q Well, I don't think it answered my
5 question about whether or not the discharges are in
6 compliance with applicable water quality standards.
7 MR. HYDE: I think there's a confusing
8 nature to your question when you talk about the
9 discharges themselves being in compliance with
10 water quality standards. You mean the moment
11 it enters into?
12 Q I'll ask you a different way.
13 Does the water coming through those
14 structures comply with applicable water quality
15 standards in the receiving body?
16 A In order -- the only, you know, parameter
17 that, you know, immediately comes to mind that
18 someone, you know, might argue is, you know, not
19 met, for instance, would be DO.
20 But then I don't think that, you know, the
21 DO standard, as it's written, is appropriate to,
22 you know, apply.
23 If you were to ask me if the water
24 quality -- if the dissolved oxygen to those pumps
25 exceeds 5 milligrams per liter all the time, the
337
1 answer is no, I do not. But I also don't think
2 that standard is, you know, applicable in this
3 particular instance.
4 Q Okay. Fair enough.
5 What about non-numeric water quality
6 standards?
7 A I think that the, you know, non-numeric,
8 you know, water quality standards are, you know,
9 vague and poorly defined. And that depends on,
10 you know, I guess how someone wants to, you know,
11 try to interpret those.
12 That when you interpret them considering,
13 you know, the, you know, aerial extent, that sort
14 of thing, like we talked about yesterday, the
15 answer would be no.
16 Q Okay. Turn to page 36, please.
17 A (Witness complying.)
18 Q Item number 14 has you listed as a witness
19 underneath that.
20 Do you have an opinion about the statement
21 in number 14?
22 A Yes.
23 Q What -- what's your opinion?
24 A That the -- the SWIM Plan I don't think
25 really addressed this issue except to say that the
338
1 District was going to develop programs. It may
2 have had some, you know, preliminary discussion of
3 that. But I don't think the Plan itself really did
4 that, no.
5 Q Okay. Can you flip to page 38, please?
6 A (Witness complying.)
7 Q Well, here we are again.
8 Number 22 talks about applicable water
9 quality standards.
10 A Uh-hum.
11 Q And lo and behold, it's --
12 MR. FitzGERALD: Off the record for a
13 second.
14 (WHEREUPON, A BRIEF OFF-THE-RECORD
15 DISCUSSION WAS HELD.)
16 Q Actually, I've just gotten a news flash.
17 Let's back up to page 36 for a second.
18 On number 14, what strategy would you
19 recommend for establishing research programs?
20 A I think that you would get a group of
21 interested parties and also combined with that -- I
22 hesitate to use the word disinterested -- but
23 perhaps unassociated, you know, parties together
24 and clearly, you know, try to outline what the,
25 you know, ultimate, you know, goal was.
339
1 And then determine the questions that
2 needed to be addressed, you know, prior to -- or in
3 order to reach that goal. And then develop data
4 collection or research, you know, strategies to
5 deal with each one of those. And keep the lawyers
6 out of it.
7 Q Is the SWIM Plan silent about --
8 A Balanced?
9 Q -- about how they're going to establish a
10 research program? I mean, I think your testimony
11 was that -- that it just -- it didn't address the
12 issue, except to say they were going to develop
13 programs.
14 A Right.
15 Q It seems to me that -- that -- well, I
16 don't want to say what it seems to me, it's not
17 relevant.
18 But how does what you say --
19 A Well --
20 Q -- differ from --
21 A -- part of my problem is is that the
22 Water Management District has gone through a -- a
23 relatively extensive effort to develop a, you know,
24 research and monitoring program --
25 Q Uh-hum.
340
1 A -- after the SWIM Plan was -- was
2 finalized. It's gone through several revisions.
3 The concepts have -- have changed.
4 When the SWIM Plan I believe was written,
5 the concept was to, you know, establish the ENR
6 project; you know, collect data on that; and then,
7 you know, use it to help, you know, design,
8 you know, the STAs. Or at least that was a concept
9 that was talked about at one time.
10 Subsequent to that, the concept is we're
11 just going to do the ENR project to determine how
12 better to perhaps optimize the management of the
13 STAs.
14 So -- and that it was going to be run kind
15 of concurrently, you know, with building those
16 STAs.
17 Typically when you're talking about,
18 you know, 400 million dollar projects, you do a
19 much better, you know, scoping process, you know,
20 research and design process on the front end to
21 answer, you know, several of these questions before
22 you commit the funds and resources to, you know,
23 construct it.
24 So, you know, the District subsequent to
25 the SWIM Plan has, you know, improved, you know,
341
1 their -- their, you know, research and stuff. But
2 the -- after the SWIM Plan, you know, they went and
3 started looking at alternatives, because they
4 didn't do that ahead of time.
5 You know, in the SWIM plan, they should
6 have, you know, looked at, you know, alternatives
7 to decide is this, you know, that best approach to
8 do that.
9 That process got started, you know, well
10 after the SWIM Plan was finalized. And it kind of
11 got stopped because of the mediation. And I don't
12 know that it's been completed or resumed, you know,
13 since then.
14 Q Do you know of any alternatives that might
15 be better than the alternatives of the strategies
16 proposed in the SWIM Plan?
17 A Well, from -- I think that there are,
18 you know, several, you know, alternatives that
19 needed to be, you know, studied. And the District
20 committed to, you know, look at some of those, one
21 of them being the chemical treatment.
22 They actually, as I recall, authorized
23 some, you know, money for, you know, pilot,
24 you know, project -- field pilot project study that
25 was going to happen, and I believe, you know, it
342
1 was put on hold, maybe ultimately canceled, because
2 of the mediation process starting.
3 Those are the kind of things that should
4 have been done and should have been part of the,
5 you know, research, you know, plan, in order to
6 make sure that you are designing the, you know,
7 optimum, you know, cost effective, you know,
8 project to accomplish, you know, the goal that
9 you'd set out there.
10 Q Are you going to offer any testimony about
11 alternatives or other strategies?
12 A I don't recall, you know, being asked to,
13 you know, specifically go through and list
14 alternatives that need to be looked at, or,
15 you know, evaluate other alternatives. I --
16 Q So is it --
17 A -- might be --
18 Q -- is it safe to say that your testimony
19 as you contemplate it now will be with regard to --
20 A More along --
21 Q -- lack of completeness of evaluation?
22 A I think that would be a good
23 characterization. And the fact that alternatives
24 should have been, you know, looked at.
25 Q Okay. Okay. We can go back -- back to 38
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1 I guess.
2 Item 22 talks about violations.
3 A Uh-hum.
4 Q Have you looked at a report that
5 Doug Gilbert wrote recently about water quality
6 standards review and the EAA?
7 A I probably spent a total of 5 minutes
8 looking at it.
9 Q Okay.
10 A Maybe not that much.
11 Q I don't know if it has a name. I think
12 it's a draft report but --
13 A No, I know the one you're --
14 Q -- you know what I'm talking --
15 A -- talking about.
16 Q -- about. Okay.
17 A The one where the Department went through
18 and I guess enumerated exceedances, not necessarily
19 characterized violations.
20 Q Does that report from your brief review of
21 it indicate any exceedances of --
22 A Yes.
23 Q -- water quality standards?
24 A Yes.
25 Q In your opinion, would any of those
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1 exceedances indicate violations?
2 A Quite frankly, I did not, you know, look
3 at it in enough detail probably to, you know, offer
4 a -- an opinion relative to that.
5 Q Okay. I understand.
6 A I mean, I just --
7 Q What exceedances did you note that it
8 noted when you went through it?
9 A As I recall, it enumerated, you know,
10 some -- I don't know if exceedance is the right
11 word -- but that the DO standard of 5 was not met.
12 I guess that's a -- whatever the reverse of
13 exceedance is.
14 I think it talked about, you know, BOD.
15 It might have talked about the specific
16 conductivity, but I don't remember specifically.
17 Q Anything else you can think of?
18 A That's all I -- I mean, if I were to give
19 you any more, it'd be simply I was speculating on
20 what I -- because I just didn't look at it that
21 closely. I just looked at it mainly to see if --
22 if it had -- you know, you know, talked about,
23 you know, you know, pesticides and --
24 Q Uh-hum.
25 A -- you know, metals and things that you
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1 don't -- commonly are thought about. And my
2 recollection was there -- there wasn't much there
3 that -- along that line.
4 Q All right. I think that actually winds up
5 this exhibit for now.
6 (WHEREUPON, A BRIEF OFF-THE-RECORD
7 DISCUSSION WAS HELD.)
8 Q About that report, I think, and I'm not
9 sure, I'll have to get to this later. Was that
10 report listed as a document on which you might
11 base --
12 A I think we --
13 Q -- your opinion?
14 A -- listed it at the last minute, because
15 we just got it at the last minute, which is the
16 reason I haven't spent very much time looking at
17 it.
18 Q Okay. Do you --
19 A And I put it on there because I thought
20 I'd probably have to look at it.
21 Q You anticipate that you'll be looking at
22 it --
23 A In more detail --
24 Q -- further?
25 A -- yeah.
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1 MR. KILLINGER: Okay. I don't know how we
2 handle that. I mean, it -- it's just
3 available. And nobody's had a chance to look
4 at it a lot. I guess if it comes up as --
5 MR. HYDE: Well, remember, we have another
6 day I presume that you guys want to do at some
7 point after this week --
8 MR. KILLINGER: Yeah. Yeah. Yeah. I
9 just -- I guess we can try to work on it that
10 way.
11 MR. HYDE: And I think that this is a
12 problem that's probably going to carry in other
13 contexts, too, with other witnesses --
14 MR. KILLINGER: I agree. Okay.
15 MR. HYDE: -- nobody's told their
16 witnesses to stop thinking once they took their
17 deposition. But --
18 MR. KILLINGER: It's usually just before.
19 MR. FitzGERALD: I think you have to just
20 exercise more control over your witness lists.
21 MR. HYDE: But in any event, I think that
22 the appropriate thing that we'll have to do is
23 looking at what our witnesses are going to be
24 saying, and whether they have anything new to
25 say since their deposition. And if so, we need
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1 to tell other parties about what those new
2 things are going to be.
3 And that may or may not justify a
4 follow-up deposition. It may be so minimal
5 that it wouldn't, the mere recitation of what
6 the new matter is would be sufficient.
7 If someone's developed a whole new theory
8 or important opinion, that may be something
9 altogether different.
10 MR. KILLINGER: I guess that's -- I guess
11 that's what I'm thinking, is that we -- we need
12 to have a discussion at some point about
13 I guess a lot of witnesses that they've
14 developed --
15 MR. HYDE: I mean --
16 MR. KILLINGER: -- new concepts or
17 theories based on stuff they've just gotten in
18 their hands, and we'll have to decide how we
19 handle that.
20 THE WITNESS: I think relative to that
21 particular report, it'd be more likely that,
22 you know, my comments would be based on
23 probably a rebuttal type stuff anyway.
24 MR. KILLINGER: Right. See, I told you
25 so, kind of comment or --
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1 THE WITNESS: Well, I mean, I assume that,
2 you know, Doug or somebody else is going to
3 provide testimony relative to what's in that,
4 and then we would deal with that appropriate
5 manner.
6 Q Okay. I'm wondering --
7 MR. KILLINGER: We can just go off the
8 record.
9 (WHEREUPON, A BRIEF OFF-THE-RECORD
10 DISCUSSION WAS HELD AT 11:31 A.M.)
11 (WHEREUPON, THE LUNCHEON RECESS WAS TAKEN
12 UNTIL 12:45 P.M.)
13 MR. HYDE: I just wanted to note that
14 we're making available some recently created
15 documents dated I guess, what -- says March 11,
16 1994.
17 They are maps, if you will, or charts of
18 the following: South Florida Reddy, R-e-d-d-y,
19 Data Stations, two of them; the third one is
20 ESP Sediment Sampling Stations; the fourth
21 looks like an isopleth map, reflecting an
22 estimation of zero phosphorus and topography in
23 what appears to be WCA-2A.
24 And the fifth is something, which you
25 already have, which is figure 16 from the
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1 March 13, 1992, SWIM Plan Document.
2 And then also we have here a -- a bevy of
3 mercury related documents, which I'm not going
4 to identify by --
5 MR. KILLINGER: Bevy, is that a legal --
6 (WHEREUPON, A BRIEF OFF-THE-RECORD
7 DISCUSSION WAS HELD.)
8 MR. HYDE: But in any event, a bunch of
9 mercury related documents that are responsive
10 to your request.
11 I think it's -- I noted earlier, this is
12 not a part -- portion of our case, and
13 I think -- here they are.
14 MR. KILLINGER: Are these copies for our
15 retention?
16 MR. HYDE: Yes. You can keep them.
17 MR. KILLINGER: May I make the assumption
18 that the United States would like a duplicate
19 of this?
20 MR. FitzGERALD: You may so assume.
21 MR. KILLINGER: It shall be assumed.
22 MR. HYDE: I think the first --
23 MR. KILLINGER: And the maps I assume.
24 MR. FitzGERALD: (Indicating.)
25 MR. HYDE: The first documents are a
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1 little more germane to Dr. Davis's deposition.
2 MR. FitzGERALD: That remains to be seen.
3 MR. HYDE: Oh.
4 MR. KILLINGER: Okay. I'm just going
5 to --
6 (WHEREUPON, A BRIEF OFF-THE-RECORD
7 DISCUSSION WAS HELD.)
8 Q Okay. Let's start back up.
9 We've touched on some of the things I'm
10 going to ask you about already in the depo, but we
11 haven't covered some of them in much detail. So
12 I'm -- it seems like I'm trying to cover things
13 we've already talked about, but I'm not.
14 Can you enumerate for me every study that
15 you have participated in or completed in the
16 Everglades.
17 A I suppose I can try.
18 Q Maybe I can help it along a little bit.
19 We discussed some of the stuff you'd done
20 for Earl, Blank before, and you said there were
21 separate billing things for them, and -- and you
22 described some of the contracts or arrangements you
23 had for work with other -- other parties.
24 A Uh-hum.
25 Q What I'd like to do is try to take those
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1 as discrete scientific efforts, and ask you what
2 programs of study you have performed in the
3 Everglades, and -- and go through them in a bit
4 more detail.
5 A Okay. As I'm sure everyone is aware, we
6 sampled in the Loxahatchee Wildlife Refuge as part
7 of the League's entry, you know, into the Refuge.
8 We collected water samples at -- routinely at the
9 16 stations that were identified in I guess
10 Appendix E of the SWIM Plan.
11 We also collected water at -- in the
12 perimeter canals just downstream of the S5-A and 6
13 pump stations.
14 We collected sediment samples at some of
15 those stations.
16 Q What else did you do in connection with
17 that study? Is that -- is that it in terms of
18 sampling?
19 A I -- I believe that's correct.
20 We took some, you know, miscellaneous
21 I guess, you know, water samples back earlier on in
22 the process in the Water Conservation Areas. They
23 were, you know, mainly analyzed for, you know,
24 phosphorus, and maybe dissolved phosphorus, I don't
25 recall right now.
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1 I guess I should have said in the
2 Loxahatchee, we also took some in situ
3 measurements, dissolved oxygen, pH conductivity.
4 We have also, you know, taken those kind
5 of samples -- measurements at some of the stations
6 kind of in the Water Conservation Areas.
7 Q Uh-hum.
8 A We also have taken sediment samples at,
9 you know, several, you know, stations in the
10 Water Conservation Areas.
11 We measured redox potential at, you know,
12 a few stations in 2-A and -- and 3-A I guess. And
13 the never-never land perhaps between L-67 canals, I
14 don't know exactly what that is.
15 Q All of the things you've been listing, is
16 that -- would that all be grouped in by you to this
17 sampling program? Could you -- or would you
18 consider those to be sort of separate
19 independent --
20 A They were --
21 Q -- projects?
22 A -- separate. They were separate. Like I
23 said, all the Loxahatchee stuff was one thing.
24 Q Okay.
25 A Okay. And then all of this other sampling
353
1 that was done was, you know, part of, you know,
2 work we were doing for, you know, Earl, Blank over,
3 you know, a span of time. I'm not --
4 Q Okay. Well, let's start off talking about
5 Loxahatchee I guess.
6 What was the -- the purpose of doing that
7 study?
8 A We wanted to take our own measurements at
9 the stations that were identified in Appendix E as
10 a basis for establishing the Refuge limits.
11 Q Did you have a written proposal for that
12 study?
13 A Not that I recall. I think the details of
14 what was done was laid out in various petitions,
15 hearing orders, you know, rebuttal to petitions,
16 and, you know, all this kind of mess.
17 Q Did you have any correspondence or
18 writings with the client at all about what you were
19 to do?
20 A We provided I guess an -- an outline of --
21 of what kind of parameters we thought we may want
22 to measure.
23 It was really more developed in
24 conjunction with the attorneys as opposed to,
25 you know, us going and just, you know, designing
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1 you know, the program. It was more of a group
2 effort I guess I should say.
3 And we did, you know, provide I guess cost
4 estimates for some of the different scenarios that
5 were proposed.
6 Q Did you do a plan of study?
7 A Like I said, I don't, you know, recall if
8 there was much in the way of a plan of study
9 beyond, you know, what was, you know, laid out in
10 the petitions for the entry.
11 Q Okay.
12 A And I don't recall offhand, you know, a
13 plan of study, per se. Been a couple years.
14 Q So basically, you and the attorneys worked
15 out sort of a structure of what was going to be
16 tested for, and how you were going to go about it.
17 A Yes.
18 Q Okay.
19 A Like I said, they were -- a couple other
20 people that were involved in -- in letting out some
21 of the proposed work. I would also I guess point
22 out that there was actually additional work that
23 was proposed that wasn't actually done.
24 Q I'm sorry. One more time. I just --
25 THE WITNESS: You want to wait?
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1 (WHEREUPON, A BRIEF OFF-THE-RECORD
2 DISCUSSION WAS HELD.)
3 (Recess.)
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1 CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA )
4 COUNTY OF LEON )
5 I, LAURIE L. GILBERT, Registered
6 Professional Reporter, and Notary Public in and for
7 the State of Florida at Large:
8 DO HEREBY CERTIFY that JOHN A. DAVIS,
9 Ph.D., was duly sworn by me.
10 WITNESS MY HAND AND OFFICIAL SEAL THIS
11 21ST DAY OF MARCH, A.D. 1994, IN THE CITY OF
12 TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.
13
14
15
16 LAURIE L. GILBERT
17 Notary #CC 000172
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