1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA, ROTH FARMS, INC., )
and WEDGEWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., )
5 and UNITED STATES SUGAR )
CORPORATION, )
6 -and- )
FLORIDA FRUIT AND VEGETABLE )
7 ASSOCIATION, LEWIS POPE FARMS, )
W. E. SCHLECHTER & SONS, )
8 INC., and HUNDLEY FARMS, INC., )
Petitioners, )
9 vs. ) DOAH CASE NO.:
SOUTH FLORIDA WATER ) 92-3038
10 MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
MICCOSUKEE TRIBE OF INDIANS, )
12 THE UNITED STATES OF AMERICA, )
FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, )
and FLORIDA WILDLIFE ASSOCIATION,)
14 Intervenors. )
)
15
DEPOSITION OF: JOHN A. DAVIS, Ph.D.
16
TAKEN AT
17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
18
DATE: MARCH 16, 1994
19
TIME: COMMENCED: 9:11 A.M.
20 CONCLUDED: 5:18 P.M.
21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.
2600 BLAIR STONE ROAD
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: LAURIE L. GILBERT
REGISTERED PROFESSIONAL REPORTER
24 NOTARY PUBLIC
25 VOLUME IV
PAGES 358-531
359
1 APPEARANCES:
2 Representing Petitioners, Florida Sugar
Cane League, Inc., and United States
3 Sugar Corporation:
4 WILLIAM L. HYDE, ESQUIRE
Earl, Blank, Kavanaugh & Stotts, P.A.
5 Suite 350
215 South Monroe Street
6 Tallahassee, Florida 32301
(904) 681-1900
7
Representing Intervenor Miccosukee Tribe
8 of Indians:
9 TRUMAN E. DUNCAN, ESQUIRE
Water Resources Director
10 Miccosukee Tribe of Indians
Post Office Box 440021
11 Tamiami Station
Miami, Florida 33144
12 (305) 223-8380
13 Representing Intervenor
The United States of America:
14
THOMAS A. WATTS FitzGERALD, ESQUIRE
15 Assistant United States Attorney
Southern District of Florida
16 99 Northeast Fourth Street
Miami, Florida 33132
17 (305) 536-5927
18 Representing Intervenor Florida
Department of Environmental Protection:
19
LEE M. KILLINGER, ESQUIRE
20 Assistant General Counsel
Department of Environmental Protection
21 640 Twin Towers Office Building
2600 Blair Stone Road
22 Tallahassee, Florida 32399-2400
(904) 488-9730
23
24
25
360
1 ALSO PRESENT:
2 Frank Nearhoos
Douglas Gilbert
3
* * * * *
4
INDEX
5 (VOLUME IV)
6 ITEM PAGE
7 DEPOSITION CONTINUED . . . . . . . . . . . . 361
8 CROSS EXAMINATION. . . . . . . . . . . . . . 452
9 DEPOSITION CONTINUED . . . . . . . . . . . . 529
10 CERTIFICATE OF REPORTER. . . . . . . . . . . 531
11
12 * * * * *
13
14
15
16
17
18
19
20
21
22
23
24
25
361
1
2 DIRECT EXAMINATION
(Continued)
3
4 BY MR. KILLINGER:
5 (WHEREUPON, DR. ROSS WAS PRESENT IN THE
6 ROOM, AND MR. NEARHOOS AND MR. GILBERT WERE NOT
7 PRESENT.)
8 Q Okay. Well, was there any work that
9 wasn't done?
10 A Yes.
11 Q What work would that have been?
12 A There were, you know, several things
13 I think that, you know, weren't done. They were --
14 we had originally thought about putting in,
15 you know, Hester-Dendy samplers in the Refuge, and
16 that wasn't done.
17 We thought about putting in, you know,
18 redox probes, which wasn't done, but I wish we had
19 have done it. Quite frankly, I don't remember if
20 we proposed to do lead 210 or not, but if we did,
21 we didn't do that.
22 I'd have to really go back and look at,
23 you know, what the entry order --
24 Q Okay.
25 A -- said, and tell you what we didn't do.
362
1 Q Why didn't you put the Hester-Dendies out?
2 A Because, you know, they require a,
3 you know, 28-day, you know, incubation period. And
4 we figured that given the kind of logistical
5 problems we anticipated relative to scheduling
6 with, you know, District personnel and helicopter
7 and weather and that sort of thing, it would just
8 make it extremely difficult to, you know, maintain
9 that level of regularity with the sampling.
10 Q What were you -- what would you have been
11 looking for with Hester-Dendies if you had put them
12 out?
13 A The biological integrity standard,
14 you know, requires data from Hester-Dendies in
15 order to apply that standard.
16 And we simply wanted to see if the data
17 would, you know, indicate that that standard,
18 you know, was, you know, violated or not.
19 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
20 A When we originally proposed all this work,
21 you know, some of those issues seemed to have more
22 prominence than they did in a later process. But
23 it was really one more logistical constraint is why
24 we didn't do it.
25 Plus the fact, we never could really find
363
1 any place where they really claimed that that was
2 violated out there anyway. I think some of the
3 earlier Terczak stuff had a station in a canal or
4 something or another in -- 1-A, but we felt that --
5 that study was so flawed, it wasn't necessary to
6 sample --
7 Q Okay. Let's talk about --
8 A -- in --
9 Q -- Terczak for a minute, since you've
10 brought it up.
11 I gather you've looked at Terczak's study?
12 A (Nodding head.)
13 Q And you're familiar with it?
14 A Somewhat.
15 Q Have you got any critique or criticism of
16 it?
17 A I think it was a -- an attempt to,
18 you know, perhaps go out and just kind of collect a
19 little, you know, synoptic, you know, data or
20 something like that. I assume that was the
21 purpose.
22 It certainly wasn't conducted in the
23 manner that allowed it to be used to apply the
24 biological integrity standard. It was --
25 Q Why not?
364
1 A -- done back in --
2 Well, like I said, the biological
3 integrity standard specifically states that you
4 use, you know, Hester-Dendies and you incubate them
5 for -- I think it actually says 28 days. It may
6 say four weeks. But anyway, it's a 28-day period.
7 And based on looking at the lab notes or
8 whatever you want to call them, it appears that the
9 samplers were in for more like ten weeks, as
10 opposed to four. So, you know, they weren't done
11 in, you know, accordance, you know, with the Rule.
12 They also didn't really set up, you know,
13 background stations to compare, you know, in an
14 impacted area.
15 The biological integrity standard is
16 designed to be used as a comparison of a -- an area
17 that might potentially be impacted with a -- an
18 unimpacted area. Because the standard is -- says
19 that you can't reduce, you know, the Shannon-Weaver
20 diversity index by more than 75 percent of
21 background.
22 Q Uh-hum.
23 A And I don't think the study really
24 adequately, you know, looked at, you know, what
25 should be background, and making sure that the
365
1 community samples were, you know, comparable and
2 this sort of thing.
3 Plus the fact that, you know, the duration
4 for the incubation period was way off the mark of
5 being in compliance with the standard.
6 Q Do you recall when the Terczak study was
7 performed?
8 A I want to say late '70s. Mid to
9 late '70s.
10 Q What effect might you suggest from having
11 Hester-Dendies incubated for a period of ten weeks
12 as you indicated these might have been?
13 A Well, there's -- you can have, you know,
14 gradation of, you know, one organism or another.
15 Some of the material, you know, you build up a lot
16 of the detritus, you know, material, and that sort
17 of thing. Some of it, you know, sluffs off, that
18 sort of thing.
19 And just, you know, the State in its
20 infinite wisdom has decreed that you use a 28-day
21 period. And presumably had a good reason for
22 that. And --
23 Q You also critiqued the background
24 stations. Were there no background stations set up
25 in the Terczak study?
366
1 A As I recall, you know, they had some kind
2 of slough stations and -- and tried to compare
3 those perhaps with, you know, vegetated communities
4 and that sort of thing.
5 Q Well, how -- what criteria would you use
6 to select background stations for --
7 A Well --
8 Q -- Hester-Dendy type study?
9 A -- I would think that you would want to,
10 you know, compare, you know, like, you know,
11 communities in an unimpacted area. And an
12 impacted --
13 Q How would you find --
14 A -- area.
15 Q -- how would you designate an unimpacted
16 area as being unimpacted?
17 A Well, you would I think determine,
18 you know, what issue you were, you know, looking
19 at. And in this particular case, I guess we're
20 talking about phosphorus. So we would look for an
21 area where, you know, phosphorus was, you know, at,
22 you know -- you know, background levels, and
23 outside of an area that might be influenced by any
24 particular, you know, discharges that you were
25 trying to, you know, evaluate.
367
1 And then that you would, you know, select
2 areas that were, you know, similar in the community
3 structure or whatever.
4 Q Well, if you were looking for an area that
5 was at background levels of phosphorus, what would
6 you look for in the Everglades? What would be some
7 defining characteristics?
8 A Well, I think you would, you know, go to
9 an area that was remote from any obvious, you know,
10 you know, discharges, and look at, you know,
11 phosphorus levels and -- in those areas; compare
12 them to, you know, values that had been reported in
13 the literature; and select it on that basis.
14 Q So you're saying you'd go and do total
15 phosphorus analysis of the water before you put
16 your Hester-Dendy out to determine whether it was a
17 background level?
18 A If I -- if that was the impact I was
19 trying to see if -- if that was having an impact,
20 yes.
21 Q Have you --
22 A I mean, as the control station, yes.
23 Q Right.
24 A Yeah.
25 Q But you would do some water quality
368
1 analysis before you set it up as your control?
2 A I think that you would want to, you know,
3 try to select an area, like I said, that was remote
4 from those areas and -- and do some analysis to see
5 if they were in the range of, you know, accepted
6 ranges for, you know, background conditions.
7 I think to go out and select something
8 without some -- some basis would be a mistake.
9 Q Could you do it visually?
10 A I've never been able to measure phosphorus
11 by looking at the water.
12 Q Could you select a background site
13 visually?
14 A You could, for instance, you know, fly
15 over an area in a helicopter and, you know, look
16 for an area that was, you know, remote from any,
17 you know, discharges, flow paths.
18 As a, you know, guide in where to try to
19 put your samples in, yes.
20 Q Have you put out Hester-Dendies in the
21 Everglades?
22 A Yes.
23 Q In connection with what?
24 A This kind of work.
25 Q How'd you select your background sites?
369
1 A We basically looked at the areas that the,
2 you know, the District and others had called,
3 you know, unimpacted or background areas. And put
4 a set of stations in the area.
5 Q So you used District's, what, water
6 quality analyses to show what background areas were
7 background areas for controls?
8 A Well, what we basically did was looked at
9 the -- the literature, the data -- you know, the
10 data that -- you know, the publications, and
11 recognize that, you know, the District and others
12 had stated that the -- basically the vicinity of
13 the 217 gauge in 2-A was an, you know, unimpacted,
14 you know, background area. And we selected,
15 you know, that as a place to look at.
16 Q Could you describe for me the
17 Hester-Dendies that you use, physical description.
18 A They're just standard, you know,
19 Hester-Dendies that consist of, you know, a series
20 of kind of Masonite disks that are approximately, I
21 don't know, 3 inches in diameter; bolted together;
22 and have spacers between them. Different numbers
23 of spacers to provide different spacing of the
24 disks.
25 And they're identified in, you know,
370
1 supply, you know, catalog or --
2 Q I was going to ask: Where did you get
3 them?
4 A Pardon?
5 Q Do you know where you got them?
6 A I think they were -- some of them were
7 purchased already assembled from, like, Wildco
8 probably, or maybe Parser supply or, you know, one
9 of those places that supply that, you know,
10 material.
11 Then we -- but we also buy the disks in
12 bulk and assemble our own. Because they were
13 basically cheaper that way.
14 Q You use the same eyebolt?
15 A Yeah. Well, I mean, stainless steel
16 eyebolt.
17 Q So do -- let me just get this straight:
18 Do you -- you build your own sometimes?
19 A We, you know, assemble by the -- the disk.
20 Q Right.
21 A Okay. And physically, you know, take the,
22 you know, the disk and put them together in
23 accordance with the description I think in standard
24 methods.
25 Q Right. But do you put -- you buy the
371
1 eyebolt that holds them together and sort of put it
2 together --
3 A Yes.
4 Q -- in a kit, or do you use an eyebolt from
5 prior Hester-Dendies which are no longer functional
6 or something?
7 A We've done both. Because we bring all the
8 Hester-Dendies back in and -- and, you know,
9 disassemble the old Hester-Dendies and -- and clean
10 the bolt and sterilize them, that sort of thing,
11 and then reuse some of the stainless steel bolt.
12 Q Right.
13 What's the surface area of the
14 Hester-Dendies that you use?
15 A Whatever it is that's prescribed in the
16 Rule. I don't remember now. I think it's a third
17 of a meter, something like that comes to mind.
18 Q If the Rule --
19 A Might be a tenth of a meter, whatever.
20 Q I think the Rule describes a range,
21 doesn't it?
22 A Actually I don't recall.
23 (WHEREUPON, MR. NEARHOOS EXITED THE ROOM.)
24 Q Well, actually, we can look at it if we
25 want to. It's 17-302. I believe it's --
372
1 MR. HYDE: I think it's five six oh.
2 (WHEREUPON, A BRIEF OFF-THE-RECORD
3 DISCUSSION WAS HELD.)
4 A Here it is, it's on -- right here. Says
5 .1 to .15 square meter.
6 Q So do you know what the surface area of
7 yours is?
8 A Actually, I don't.
9 Q Okay. Is there a standard Hester-Dendy
10 that --
11 A The one that we've always used is the one,
12 like I said, that we, you know, bought from,
13 you know, the supply houses. And they're,
14 you know, all the same.
15 Q Okay.
16 A I mean, all the ones we bought are the
17 same. Put it that way.
18 And the same, you know, type, size, and
19 everything would have been, you know, used at every
20 station.
21 Q Okay. I'm going to come back to this in a
22 minute. I want to go back --
23 A I -- I was going to say, I'll be glad to
24 supply you one if you want to --
25 Q I've seen them. I'm just trying to find
373
1 out what's --
2 I wanted to go back -- we sort of got off
3 the Terczak critique a little bit.
4 Is your primary critique of that Terczak
5 study that background stations weren't
6 appropriately set up, and that the incubation
7 period was in-- inappropriate?
8 A I think so. Those are the main -- main
9 things. I didn't spend a lot of time with it
10 because -- since it didn't meet the criteria in the
11 Rule, I didn't think it was appropriate, it wasn't
12 necessary to spend a lot of time.
13 MR. HYDE: It's also a bit dated.
14 Fifteen years old.
15 Q Do you think that the -- the data that
16 were obtained in the Terczak study have any value?
17 A Not in applying the biological integrity
18 standard, no.
19 Q Did they have any data for any other
20 purposes?
21 A They, you know, provide, you know, some
22 idea of -- of what organisms were, you know, at
23 those locations that point in time.
24 Q Are there any other Hester-Dendy data from
25 that same time period?
374
1 A Not that I'm aware of.
2 Well, let's see. There is some data that
3 was after that where the District took some -- some
4 samples in some of the canals themselves.
5 Q You have --
6 A But I've never --
7 Q -- a sample?
8 A -- I've seen -- I've never seen the
9 District use that data for anything.
10 Q Okay. You said you didn't -- didn't put
11 out redox probes as part of the work that wasn't
12 done for that Loxahatchee sampling.
13 A Uh-hum.
14 Q Why didn't you?
15 A We decided to just simply rely on -- on
16 redox probes and stuff that was put out in the
17 Water Conservation Areas, and didn't want to go
18 through, you know, the additional, you know, hassle
19 of -- of trying to get that done and have the
20 additional time each month to do all that stuff
21 since we were trying to get our work accomplished
22 in, you know, a day or two days at the most. And
23 were trying to not add on additional things that we
24 could get by without.
25 Q I said -- I think you also said you wished
375
1 you had put out redox probes.
2 A Right.
3 Q Why is that?
4 A Because, you know, since then, I've heard,
5 you know, Dr. Jones claim that the, you know,
6 Everglades soils never become anoxic or have
7 reducing conditions, and I think that's -- definite
8 inaccurate statement.
9 And I wish we had the -- some data from
10 Loxahatchee to demonstrate that.
11 Q Why do you think it's inaccurate?
12 A Because I think that in order for,
13 you know, peat soils to, you know, build up, you
14 have to have those kind of conditions for one
15 thing.
16 I think it's established throughout the
17 literature that wetland soils are, you know,
18 anaerobic, and have, you know, reducing conditions.
19 The measurements that we obtained in the
20 stations in 2-A clearly show, you know, reduced
21 conditions.
22 And I've also talked about this with
23 Dr. Reddy, and he, you know, says that there's,
24 you know, there are reducing conditions in the
25 Everglades.
376
1 Talked about it with, you know,
2 Dr. Richardson. He has some redox measurements out
3 there, and he also believes the conditions are
4 reducing.
5 I've talked to Dr. Patrick about it, who
6 also is absolutely convinced there are, you know,
7 reducing conditions in the Everglades.
8 Q Where have you heard Dr. Jones make the
9 statements you attributed to him?
10 A He made the statement during a couple of
11 the trips that we were on jointly taking samples,
12 either in the Park or maybe during the -- their DOJ
13 entry into the EAA.
14 He -- Dr. Richardson, Curtis Richardson,
15 told me that Jones had made that statement to him
16 out -- on a trip that he was with him on in
17 Loxahatchee, and he also stated during his
18 deposition in Miami a couple weeks ago.
19 Q Is he relying on any data that you know
20 of?
21 A He cites a little paper that he and
22 Bachoon I guess --
23 THE WITNESS: B-a-c-h-o-o-n I think?
24 A -- wrote. Based on some work, you know,
25 down in the Park.
377
1 Q Have you reviewed that paper?
2 A Yes.
3 Q You got any critique of that?
4 A Yes.
5 Q What's your critique of it?
6 A That the -- the information on -- on redox
7 is just a part of that, you know, paper. And it's
8 not discussed in any -- any real detail of the
9 table. I think it shows some of the values. But
10 he does discuss how he took the measurements.
11 He also discusses the conditions in the
12 Park under which those, you know, measurements were
13 made. And he admits that the data was taken during
14 a drought period; that the water was, you know,
15 below -- or -- the surface during a portion of
16 those measurements. And which means that the soils
17 were oxygenated, which means, you know, they were
18 reducing.
19 And, you know, his -- his study was a
20 very, you know, limited duration, I don't remember
21 how long, several months. But during that drought
22 period. And that he tried to extrapolate data
23 taken during a drought period over, you know,
24 conditions that are atypical.
25 He even discusses in the paper that where
378
1 he took the samples, it's normally wet, and makes a
2 point that the conditions are atypical when he was
3 doing his measurements.
4 Q Do you intend to offer any testimony at
5 the hearing about redox or reducing conditions in
6 the soil in the Everglades?
7 A Quite frankly, I intend to let people
8 with, you know, more experience in that area,
9 you know, deal with it.
10 Q Okay. Did that Loxahatchee sampling
11 foray -- I assume it provided you with data.
12 A Yes.
13 (WHEREUPON, MR. GILBERT EXITED THE ROOM.)
14 Q Has that data been analyzed?
15 A The data, you know, has been analyzed to a
16 certain extent and, you know, it's still being
17 analyzed.
18 Q How much -- to what extent has it been
19 analyzed?
20 A We put the data in kind of -- you know,
21 tabular format on a monthly basis. And we
22 calculated -- well, we -- we took, you know, three
23 replicate phosphorus samples each time we sampled,
24 we calculated a mean based on those.
25 (WHEREUPON, MR. GILBERT ENTERED THE ROOM.)
379
1 A We -- after all the, you know, sampling
2 was complete, we combined all that data into,
3 you know, a spreadsheet, and also added the
4 District's data that we had. They did a split
5 sampling I guess in the September I believe it
6 was. We also had the Department of Justice,
7 you know, or Refuge data in there.
8 We, you know, plotted the data by station
9 to, you know, look at, you know, how it varied over
10 time and how the different data sets compared.
11 Q Have you provided all of the calculations
12 and spreadsheets and the plots?
13 A I don't think we provided the plots. We
14 provided the -- the data and the spreadsheets
15 I think.
16 Q Why didn't you provide the plots?
17 A I didn't really think about it. It was
18 just something we did that, you know, plot the data
19 up to -- to look at it. And obviously since you've
20 got the actual data, you can do exactly the same
21 thing.
22 Simple matter of, you know, going in there
23 and highlighting the columns in the spreadsheet,
24 and pushing a couple buttons, and it comes out.
25 Q Have you got copies of the plots?
380
1 A Not with me. I mean, they're probably
2 around the office somewhere.
3 Q Okay. Was any data that was collected
4 excluded from the calculations or the spreadsheet
5 or the plots?
6 A I went through the -- the data, and
7 compared it to our notes in the field notes to see
8 of any values that, you know, looked like they
9 were, you know, high or out of line with all the
10 other data; should be, you know, removed, you know,
11 based on some note we made in the -- in the field
12 notes.
13 And am considering saying that those
14 values need to be, you know, deleted as -- as,
15 you know, an outlier or because of, you know, notes
16 that were made, you know, during the sampling.
17 Q Did you, in fact, exclude any data based
18 on that review?
19 A I didn't exclude any data from the sheet
20 that was turned over to you. Okay. I simply,
21 you know, identified some points I thought might be
22 questionable.
23 For instance, there were a couple of times
24 when there was very little water at a sampling
25 station. And, for instance, we'd have written in
381
1 the field notes that, you know, the water's
2 essentially at the surface, and the sample was
3 taken out of a, you know, a gator trail or a gator
4 hole.
5 Or that it was very difficult to get a
6 good sample and the sample had a lot of detritus in
7 it, for instance. And those are the kind of
8 samples I think that probably should be excluded
9 from an analysis.
10 However, the data gave -- turned over to
11 y'all has all of that in it. Okay. I didn't get
12 rid of, you know, any data. Somebody else can go
13 through and make their own judgments as to whether
14 or not, you know, they would concur with that or
15 wouldn't.
16 Q Is there any standard for determining what
17 should be considered to be some kind of an errant
18 data bit?
19 A There are, you know, statistical
20 procedures which you can go through and, you know,
21 identify, you know, outliers, for instance.
22 I think that, you know, it's, you know,
23 valid and, you know, common practice to, you know,
24 exclude data that you know there's some reason you
25 suspect is bad. Like, for instance, notes taken
382
1 during the time of sampling that says, you know,
2 there's a lot of sediment in this sample.
3 Or that this sample was taken, you know,
4 in a gator hole or -- or whatever.
5 Q Well, what statistical procedures do you
6 use?
7 A Well, you can do use -- use, for instance,
8 a trimmed means, you can go through and do,
9 you know, regression to identify outliers.
10 There's, you know, several different kind of,
11 you know, procedures that are outlined in --
12 Q At what -- what stage of working with your
13 data do you do that?
14 A You know, prior to doing your, you know,
15 final analysis.
16 Q Prior to doing your final analysis?
17 A Or, you know, the first thing you should
18 do is screen the data for, you know, questionable
19 values before you start the analysis.
20 Q How do you do that?
21 A By, you know, going back and -- you know,
22 the procedure I use, let's say, is to,
23 for instance, plot the data and see if there are
24 any points on there that look, you know, out of
25 line with all the rest of them.
383
1 And then see if there's a reason for that
2 point to be out of line, like something that was
3 written in the fields notes.
4 Q Okay.
5 A And if it wasn't, then you can't exclude
6 it on that basis. Then you can run, you know,
7 outlier analysis for whatever you want to do, or
8 decide to use trimmed means or geometric means.
9 You're not excluding -- if you use trimmed
10 means, you're actually excluding some on either end
11 of the data set.
12 If you use something like geometric means
13 or a median, then you're not really excluding those
14 things, but you're changing the emphasis placed on
15 the extreme values on either end.
16 Q Well, do you intend to offer any of the
17 data analysis that you've performed at hearing in
18 this matter to support your testimony?
19 A Actually, I don't --
20 MR. HYDE: We're talking here about the
21 entry and access data on the Refuge?
22 MR. KILLINGER: (Nodding head.)
23 THE WITNESS: Right.
24 MR. HYDE: Okay.
25 A I don't anticipate right now giving
384
1 testimony relative to analysis of that data.
2 Q Do you know if anyone is anticipating
3 giving testimony of analysis of that data?
4 A Yes.
5 Q Who would that be?
6 A Dr. Millard and probably Dr. Lettenmaier.
7 Q Whose analysis are Dr. Millard and
8 Lettenmaier going to testify about?
9 A Theirs.
10 Q Their own?
11 A (Nodding head.)
12 Q Do they use the same procedures as you use
13 for analyzing the data and -- and the outliers that
14 appear?
15 A They intend to use their own procedures.
16 Q Do you know what their procedures are?
17 A Not specifically, no.
18 Q Have you seen any plots or other analysis
19 of that data produced by them?
20 A I've seen a preliminary analysis for,
21 you know, outliers and whether or not the data
22 would comply with the limits as currently proposed
23 in the SWIM Plan.
24 Q What did their preliminary analysis show?
25 A I think one value -- or maybe a couple
385
1 values, were identified as outliers.
2 And the outlier procedure that was used in
3 that particular analysis was the one I believe that
4 was identified in the SWIM Plan as an outlier
5 procedure.
6 Q Did you produce a copy of that preliminary
7 outlier analysis?
8 A I produced it to the attorneys.
9 MR. FitzGERALD: With one box to go,
10 Counsel, I can tell you that it's not in the
11 materials. That's subject to final screening
12 of the last box.
13 MR. HYDE: Is this by Lettenmaier or
14 Millard?
15 THE WITNESS: It was by Millard.
16 A I think the correspondence might not have
17 been -- it might have been directed directly to one
18 of the attorneys. They just showed me a copy.
19 Q What other analysis have you -- have
20 you -- have you performed about this data? You
21 drawn any conclusions from it, as to what it means?
22 A I have, you know, basically concluded
23 that, you know, you have to be extremely careful
24 in, you know, collecting your sample out in the
25 Refuge -- or out in any kind of, you know, marsh
386
1 system.
2 Especially ones like, you know, the Refuge
3 where you have a lot of vegetation, you know,
4 basically throughout the water column.
5 That the variation exhibited among the,
6 you know, replicates at a given station needs to be
7 considered in, you know, any formulation of,
8 you know, limits; that using a, you know, single
9 value or a -- you know, single, you know, sample is
10 not a good way to go, because you don't have any
11 idea of that, you know, variation you have in your
12 sampling procedure.
13 Q Okay. Those are conclusions about
14 analytical methods.
15 A Right.
16 Q What are your conclusions about what the
17 data show?
18 A The data, you know, indicate that there
19 hasn't been -- that -- that the water from the
20 perimeter canals and stuff doesn't penetrate,
21 you know, very far, apparently, you know, into
22 the -- the Refuge.
23 Q What would you say very far means?
24 A Well, you can't tell exactly how far
25 because of the distribution of the stations. So
387
1 you have to use some other ways to -- to try and
2 look at that.
3 Q How do you -- how do you draw the
4 conclusion that the water from the perimeter
5 doesn't penetrate very far into the Refuge?
6 A Well, for one thing, when you're sampling
7 out there, and there's, you know, you know, water
8 out in the canals and that sort of thing, and the
9 pump stations are running, but the stations are dry
10 out in the Refuge, pretty obvious that that water's
11 not moving from the perimeter canal, you know, out
12 to those areas.
13 Q Uh-hum.
14 A Also, you know, when the water is,
15 you know, a, you know, inch or less, you know,
16 deep, you know, in various areas, you have,
17 you know, I guess, you know, on-site verification
18 that those areas are, you know, higher than,
19 you know, other parts of the Refuge, and are not,
20 you know, likely to receive run-off onto those
21 areas.
22 Q Is it a safe topographical statement to
23 say that Loxahatchee Refuge is mounded in the
24 center?
25 A Well, higher in the center, yeah. That --
388
1 Q Would that, therefore, tend to argue in
2 favor of a -- in favor of the center of Loxahatchee
3 being primarily rainfall --
4 A Yes.
5 Q -- driven?
6 A Yes.
7 Q Well, if the water doesn't penetrate very
8 far into the marsh, but there's no real way to tell
9 how far it got in there -- I mean, there were no
10 tracers used to determine how far water was
11 penetrating into the marsh?
12 A No. Our ability to take samples out in
13 the -- the Refuge were severely, you know,
14 restricted, you know, by the specifics of the entry
15 order.
16 Q I understand.
17 A We were not allowed to go out and sample
18 as we might want -- have wanted to in order to,
19 you know, look at the kind of issues you're talking
20 about here now.
21 But, you know, I didn't say that there was
22 no way to determine it. I just said you couldn't
23 determine it from, you know, the distribution of
24 water samples, actually how far it was.
25 Q Could you get an idea of -- that it goes
389
1 to some degree to some -- towards the middle of the
2 Refuge?
3 A Well, to the -- to the extent that you,
4 you know, measured -- I think from the standpoint
5 of the water itself, it would be, you know,
6 difficult to show that simply with the, you know,
7 the phosphorus data.
8 Q Okay. Then I'll go back to my question
9 before: What do you think the data show?
10 A They show, you know, what the, you know,
11 values are at those, you know, particular stations
12 during the time period that we sampled. And the
13 values are -- are the values. They show that,
14 you know, as a general rule that, you know,
15 phosphorus in the Refuge is -- is low.
16 I don't recall offhand, you know, what the
17 averages, you know, at the stations are. I mean,
18 if we want to look at, you know, one of the
19 spreadsheets that we provided, I'll be glad to do
20 that and talk about specific stations and what
21 those values are.
22 But --
23 Q What about phosphorus around the perimeter
24 of the Refuge?
25 A On the canals, it's obviously higher than
390
1 it is in the center. Basically probably on order
2 of magnitude or so.
3 Q Can you give that to me in ppb estimates?
4 A You know, out in the Refuge, I think,
5 you know, the numbers were, let's just say in
6 the -- I don't know -- bracketing it, say 5 to
7 15 range --
8 Q Uh-hum.
9 A -- maybe.
10 In the perimeter canal, it's probably 100
11 to 200.
12 Q But you again don't intend to offer any
13 testimony about the interpretation of that data?
14 You're going to leave that to others, like Millard?
15 A That's correct.
16 Q Okay. Let's go on.
17 What other sampling or study programs have
18 you done? You listed some, and I'm not sure how
19 they divide up. So I'm going to ask you to do it
20 for me as we go through them. I took this as a
21 discrete sampling --
22 A Oh, we didn't talk about the sediment
23 sampling in Loxahatchee, but --
24 Q Okay.
25 A -- I didn't mention --
391
1 Q Let's talk about --
2 A -- that.
3 Q -- that.
4 (WHEREUPON, DR. ROSS EXITED THE ROOM.)
5 A As I indicated earlier, we took some
6 samples at several of the stations in Loxahatchee.
7 We took three or four samples in conjunction with
8 Dr. Curtis Richardson. Then I took, oh, I don't
9 know, 20 samples or so with Dr. Bill Patrick.
10 The, you know, station locations are
11 shown, you know, on one of the maps. They were
12 basically kind of a west to east transect across
13 the center in a --
14 Q Are they shown --
15 I'm sorry, go ahead.
16 A -- south to north transect on the southern
17 end.
18 Q Are they shown on one of the maps that was
19 produced here today?
20 A I'd have to look at them --
21 Q Have a look --
22 A -- and see.
23 Q -- at that, if you would, that would be
24 great.
25 (WHEREUPON, A BRIEF OFF-THE-RECORD
392
1 DISCUSSION WAS HELD.)
2 (WHEREUPON, DR. ROSS ENTERED THE ROOM.)
3 MR. KILLINGER: Okay. Okay. Let's go
4 back on.
5 Q So you took three or four samples with
6 Richardson, and twenty or so with Patrick, and the
7 station locations are on one of your maps.
8 What were you -- what was the purpose of
9 that study?
10 A To look at the amount of -- of phosphorus
11 in the sediments. And --
12 Q What --
13 A -- the accumulation rates.
14 Q Now, what do you mean by "accumulation
15 rates?"
16 A As you're probably no doubt aware,
17 several, you know, investigators have dated their
18 cores using cesium dating, and these cores were
19 treated in the same way.
20 Technique essentially identical to that
21 used by, you know, Dr. Reddy.
22 Q Why would that be useful information?
23 A Well, it allows you to, you know, compare,
24 for instance, how, you know, phosphorus has,
25 you know, accumulated in the Refuge, versus how
393
1 it's accumulated in other parts of the Everglades.
2 And it also is useful in, you know,
3 establishing some, you know, background levels for
4 those particular areas.
5 There's different kinds of peat, you know,
6 throughout the Everglades, different kinds of peat,
7 different kinds of -- of areas have different
8 accumulation rates in it.
9 Q Have you done any analysis of the sediment
10 samples?
11 A No.
12 Q Do you know if anyone has done the
13 analysis of the sediment samples?
14 A Yes.
15 Q Who did that analysis?
16 A The actual, you know, samples were
17 analyzed, you know, by the, you know, laboratory at
18 Duke for the Richardson stations -- or samples.
19 And the laboratory at LSU for the,
20 you know, Patrick samples. Each one of those
21 individuals, you know, tabulated the data, and
22 calculated accumulation rates. And presumably are
23 in the process of, you know, analyzing that data.
24 Q Have you seen any of the data that were
25 generated from that?
394
1 A Yes.
2 Q Have you seen any of the analyses?
3 A When I say I've seen the data, what I'm
4 talking about is the result of -- the results of
5 the analyses, you know, like, for instance, so many
6 grams, you know, of phosphorus.
7 But I don't really understand your
8 question --
9 Q Okay.
10 A -- your differentiation between the two
11 I guess.
12 Q Have you seen any data analysis?
13 A I've seen plots of the phosphorus contents
14 with distance from the canals, and actually we may
15 have actually generated some of those.
16 Q Have you produced those plots?
17 A I'm sure they were produced to the
18 attorneys.
19 Q Okay. Do you know what those plots
20 showed?
21 A They showed, you know, the phosphorus and
22 the sediments being, you know, higher right
23 adjacent to -- or at the station closest to the
24 canal, and then dropping off rapidly, almost
25 instantaneously, to basically background levels.
395
1 Q As you went which direction, away from the
2 canal?
3 A Away from the canal. In one case, going
4 east; in the other case, going north.
5 But we're not through with that analysis,
6 that's the reason we wanted to go back and take
7 some additional samples in the Refuge in order to
8 better define that relationship. As I understand
9 it, we're supposed to do that on March the 28th.
10 Q What were the levels of phosphorus in the
11 sediment adjacent to the canals?
12 A I don't recall exactly what the values
13 were. I mean --
14 Q Do you recall the range?
15 A -- the data's here somewhere, we could
16 look at it.
17 Q Do you recall a range?
18 A I think it -- it was -- this is a range.
19 Q Uh-hum.
20 A But maybe 700 to 1500 maybe, something
21 like that. I mean, it was, say, 1,000, plus or
22 minus a couple hundred I think.
23 Q And do you recall what the -- the
24 background that it dropped off to was?
25 A I think it was in the range of three to
396
1 five hundred. I mean, the plots were pretty
2 dramatic. There was basically a high point next to
3 it, it dropped down immediately to this level, and
4 then it was a straight line for the rest of the
5 graph.
6 Q Are you able to draw any conclusions from
7 the data or the analysis of that data?
8 A I believe it, you know, shows that,
9 you know, the phosphorus is higher for, you know,
10 whatever reason in the station, you know, closest
11 to the canal. And then, you know, immediately
12 drops off.
13 On one of our transects, we want to take a
14 station closer to the canal, and the other one
15 between the first one and the second station.
16 Q Are you able to generate any opinions
17 about the ecosystem implications of the data or the
18 analysis of it?
19 A I haven't been asked to do that. I
20 haven't really given it much thought.
21 Q Do you know if anyone is -- is working on
22 that issue?
23 A It's my understanding that, you know,
24 Dr. Patrick has been, you know, charged with,
25 you know, interpreting these sediment data that's
397
1 collected in the Loxahatchee.
2 Q You indicated that the -- the water
3 quality data analysis and the sediment analysis
4 hasn't been completed yet. Is that correct?
5 A Well, I'm saying -- I'm not working on
6 it --
7 Q I understand.
8 A -- okay, so I don't know what stage these
9 other people are. I know that, for instance, the
10 sediment analysis isn't complete since we don't
11 have all the data yet.
12 I also know that the analysis of the
13 Loxahatchee water data isn't complete yet, because
14 we haven't been able to obtain the replicate data
15 that Dr. Jones took.
16 And the people wanting to work on that
17 want to have all the data together in order to,
18 you know, do the complete analysis at one time.
19 MR. FitzGERALD: For the record, that data
20 was turned over last week.
21 THE WITNESS: Maybe -- I don't know if we
22 want to talk about this here and now, or what,
23 but we couldn't read hardly any of that.
24 And I asked the attorneys to contact y'all
25 and see if there was a way of either getting a
398
1 look at the originals or better copy.
2 MR. FitzGERALD: Oh, you mean the Xeroxes
3 were bad?
4 MR. HYDE: Right.
5 THE WITNESS: I don't know if it's the
6 Xeroxes -- I don't know if it's the fault of
7 the Xerox, or the fact that the original was
8 such a poor copy.
9 Because obviously the sheets are from a --
10 like a dot matrix or thermal printer off of
11 instrumentation. And the values are extremely
12 difficult at best to read.
13 And I would challenge anybody to go down
14 and read them. I mean, there's hundreds of
15 numbers there, and you'd be guessing at a high
16 percentage of them, 30, 40 percent, maybe
17 50 percent of them.
18 MR. KILLINGER: Outliers.
19 THE WITNESS: No. No. I mean, just --
20 you can't read the number. You don't know what
21 it is.
22 MR. FitzGERALD: By some numbers it says
23 BPJ all those places.
24 Who's -- who's handling that, Bill?
25 MR. HYDE: Do you know to whom you sent
399
1 them?
2 MR. FitzGERALD: It was hand delivered to
3 Mark.
4 MR. HYDE: Mark? I presume Mark has
5 them. I'll ask him about it.
6 MR. FitzGERALD: It's -- I spent the last
7 week up here, so I don't know if anybody has
8 even heard there was a problem yet. When I'm
9 on the phone with him, I'll ask if anyone's
10 aware.
11 THE WITNESS: I think -- I don't know if
12 we want to do this on the record or not. But I
13 think --
14 MR. KILLINGER: Might as well.
15 THE WITNESS: You know, the easiest way
16 to -- to deal with it is if we could get the
17 originals for, like, 24 hours or something like
18 that to just, you know, enter them in and,
19 you know, make the best copy we could.
20 MR. FitzGERALD: Like your attorneys, you
21 never give them your originals, we never give
22 our originals. I mean, just --
23 THE WITNESS: I have no problem if --
24 MR. FitzGERALD: I'm sure we don't have
25 the original.
400
1 THE WITNESS: -- if you want to, you know,
2 get a decent copy we can read, or we can have
3 Dr. Jones attempt to read from the Xerox copy
4 into the record. But I think it's going to be
5 just like we tried to read the stuff before,
6 he's not going to be able to read it either.
7 So we can send, you know, somebody down to
8 sit down with him if that's acceptable, and,
9 you know, go through the numbers and try to get
10 them and put them into a spreadsheet that are
11 readable.
12 MR. FitzGERALD: Acceptable or not doesn't
13 sound very efficient. There ought to be a
14 better way to do it.
15 MR. HYDE: I -- I think --
16 MR. FitzGERALD: We'll look into it.
17 MR. HYDE: -- we need to examine this
18 issue by trying to come up with a good adequate
19 copy of the replicate data.
20 MR. FitzGERALD: I think that's the easy
21 way.
22 MR. HYDE: And if that can be done in a
23 very simple fashion perhaps by just adjusting
24 the copy machine, maybe that's all that's
25 necessary. If -- if it isn't because of the
401
1 nature of the material being copied, then maybe
2 some additional steps will have to be
3 undertaken, such as those suggested by
4 Dr. Davis. But --
5 MR. GILBERT: Just give him a disc.
6 MR. FitzGERALD: It's not on a disc. This
7 is a read-out from --
8 MR. GILBERT: So the information's never
9 been entered into a computer in any format?
10 THE WITNESS: Allegedly not.
11 MR. HYDE: Dr. Jones seems to be one of
12 the few people in the scientific community that
13 doesn't like to use his computers very much.
14 Q I guess the best way to sort of continue
15 on with this is to -- just to do it sort of area by
16 area down there. Trying to have a hard time
17 getting around where you've done things, and how
18 far that expands.
19 Does that represent -- the discussion
20 we've just had about the soil and water samples,
21 does that represent all of the scientific study or
22 research that you've conducted or been a part of in
23 Loxahatchee?
24 A During a couple of the trips,
25 Dr. Mike Dennis went along on the trip, and took
402
1 notes relative to the vegetative communities.
2 Q He took notes?
3 A Yes.
4 Q Maybe it's so obvious I don't see, but
5 what -- is that -- you mean literally notes on a
6 clipboard or something about what he saw?
7 A Yes.
8 Q Okay.
9 A He had a form that he followed to try to
10 make his collection of data, you know, uniform at
11 all the stations, and, you know, he was basically
12 there to characterize the communities around,
13 you know, the sampling stations and --
14 Q So what -- do you know what his purpose in
15 doing that was? Was it to characterize the
16 communities around the sampling points?
17 A Right.
18 Q Okay.
19 A And to get a better understanding of -- of
20 what the communities were in the Refuge. I think
21 you need to ask him what his total purpose was.
22 But --
23 Q I understand.
24 Was that a project you were working with
25 him on, or was he simply accompanying you on your
403
1 trip, and --
2 A He was there with me. While I collected
3 the water sample, he collected his notes, and took
4 some photographs.
5 Q Do you have a copy of his notes?
6 A Yes.
7 Q Have you --
8 MR. HYDE: Dr. Dennis is being deposed
9 today by someone from your firm.
10 MR. KILLINGER: I'm sure he is.
11 MR. HYDE: He'll have the same
12 documents --
13 MR. KILLINGER: Sure is --
14 MR. HYDE: -- since it is there.
15 MR. KILLINGER: That's -- I'm just trying
16 to see how far afield the --
17 THE WITNESS: Okay.
18 MR. KILLINGER: -- they go.
19 Q Have you looked at those notes?
20 A Briefly.
21 Q Are they in your documents as far as
22 you know?
23 A Yes.
24 Q Do you know whether there's been any
25 analysis or any compilation of those notes into any
404
1 kind of a report or summary?
2 A We extracted out of the field notes
3 some -- some information on, like, water depth, and
4 I think on one of the trips at least he took some
5 of the in situ measurements.
6 And so we extracted, you know, that part
7 of it out. I don't know what he's done with,
8 you know, the vegetation data per se.
9 (WHEREUPON, MR. NEARHOOS ENTERED THE
10 ROOM.)
11 Q When you say he took some of the in situ
12 measurements, what are you referring to?
13 A I mean he took the DO meter and took a
14 probe in the water column and read the DO value off
15 of the meter.
16 Q Is that a technical term?
17 Do you have that DO data?
18 A Yes.
19 Q Was that part of your --
20 A We incorporated it --
21 Q -- study program?
22 A -- into our spreadsheet --
23 Q Okay.
24 A -- for the water quality data.
25 I mean, basically it was a situation where
405
1 normally myself and another member of my staff went
2 down and took the data, and we divided the task
3 where I would, you know, collect the water sample,
4 and he would collect the in situ measurements.
5 When Dr. Dennis or someone else went, we
6 had to leave the person that normally assisted me
7 at home, or back at the vehicle, because there's
8 limited space in the helicopter. So that person
9 kind of assumed some of the responsibility for
10 taking the in situ measurements.
11 Q Have you analyzed that DO data
12 independently of the other data in the spreadsheet?
13 A No.
14 Q Okay. Anything else, have you done
15 anything else in Loxahatchee?
16 A We took some photographs.
17 Q Are those the photos that were produced to
18 us?
19 A Yes.
20 Q Okay.
21 MR. KILLINGER: Which we do have.
22 MR. HYDE: Twice.
23 A Also I guess I one time went on a trip
24 with the attorneys in Loxahatchee where we put a,
25 you know, standard kind of motorboat, you know,
406
1 with an outboard motor in the canal, and tried to
2 go down the canal to see, you know, whatever you
3 could see from -- from the canal itself. That was
4 prior to being able to obtain actual entry.
5 We didn't collect any samples or --
6 basically a --
7 Q Field trip?
8 A -- field trip. Visual tour.
9 Q Simply took --
10 A We took photographs. Took photographs.
11 MR. GILBERT: A windshield --
12 THE WITNESS: Pardon?
13 MR. GILBERT: A windshield survey.
14 THE WITNESS: A windshield survey.
15 Q Okay. What did --
16 THE WITNESS: We didn't get very far. The
17 canal was choked with water hyacinth.
18 Q Choked with water hyacinth.
19 A And water lettuce.
20 Q Have you done any work in 2-A?
21 A Yes.
22 Q What have you done in 2-A?
23 A I've indicated earlier, we took some,
24 you know, water samples -- there wasn't any
25 long-term program for that. Just, you know, took
407
1 some here and there to kind of get a feel for what
2 the values were, various locations.
3 We established a -- a group of stations in
4 2-A where we collected macroinvertebrate data; some
5 DO dye was collected at those stations; you know,
6 water levels; and we installed a couple of water
7 level monitors at a couple of those stations.
8 Q Okay. You established a group of stations
9 to collect macroinvertebrate data.
10 What kind of stations did you install?
11 A Well, I mean, basically what we did is
12 back at the beginning of the project, Dr. Dennis,
13 myself -- I'd have to go back and look at the field
14 notes to see who else was there, there were a
15 couple other people -- Rus Rader may have been
16 along on one of them, I can't remember actually.
17 We went out and -- and tried to locate a
18 set of stations, kind of what we called paired
19 stations, in some various zones of -- of 2-A. And
20 also down in 3-A near the S-5 structures.
21 Q What do you mean by "paired stations?"
22 A We tried to select a cattail community and
23 a saw grass community, and where sloughs or kind of
24 open water areas were present, a kind of slough
25 station in each one of the areas.
408
1 Q And what kind of station did you set up in
2 each of those areas?
3 A I don't know if -- if set up is the right
4 term. We, you know, marked the station with a PVC
5 or bicycle flag, flagging, that sort of thing;
6 attained, you know, GPS coordinates for that
7 station.
8 As I recall, we took some kind of in situ
9 measurements, and some phosphorus values for
10 that -- samples for phosphorus analysis at those
11 stations.
12 And what we were doing was establishing,
13 you know, these station locations so that we'd come
14 back in the future, and, you know, collect data on
15 those stations on macroinvertebrates. And someone
16 else collected some DO values at those stations.
17 I believe Dr. Dennis's group used some of
18 those stations, collect some periphyte data, but
19 you'd have to check with him on that.
20 And we also took some sediment cores at
21 those stations.
22 Q That kind of ran the gamut.
23 A I guess --
24 Q Did you go -- I'm sorry. Go ahead.
25 A Near some of those stations, we also
409
1 installed some of the redox probes later, but not
2 at that particular time. It's probably easier to
3 talk about those in a separate discussion.
4 Q Okay. Did you go back and do some
5 macroinvert sampling?
6 A Yes.
7 Q When did you -- what'd you do? How did
8 you do that, did you put out Hester-Dendies?
9 A When we originally established the
10 stations, I had, you know, one of the people that
11 went with us was one of our, you know, field
12 technicians. And while we were at the station, we
13 selected, you know, individual, you know, spots at
14 those stations to install, you know, the actual
15 Hester-Dendies. And to collect kind of timed
16 qualitative samples.
17 We did not try to put out the samplers at
18 the same time we were establishing all the
19 stations --
20 Q Okay.
21 A -- because it would take, you know, so
22 long to get done, and we had -- as Bill Hyde said,
23 a gaggle of people there. So --
24 Q What about -- I'm sorry.
25 A I'm sorry.
410
1 No, I was simply saying, we identified the
2 stations and --
3 Q Okay. Back --
4 A -- discussed the stations among us. And
5 then I basically sent a technician back to,
6 you know, put the Hester-Dendies.
7 Q Okay. Did -- so I mean, is it -- you had
8 three basic kinds of sites --
9 A Yes.
10 Q -- you had open water sites, you had
11 cattail sites, and saw grass sites.
12 A Correct.
13 Q Was the vegetation type the sort of
14 discriminate in selecting the site? Was that the
15 main --
16 A Our --
17 Q -- selecting criteria?
18 A At the time, you know, those stations were
19 started, there was -- were a lot of allegations
20 that, you know, you know, cattail communities were
21 just, you know, a biological desert I guess.
22 They were just, you know, the worst thing
23 in the world, that they caused when those came in,
24 you know, everything just, you know, went to
25 whatever --
411
1 Q Peat.
2 A And, you know, part of our, you know, goal
3 was to, you know, see if there was any difference
4 in macroinvertebrate communities, for instance, and
5 a cattail community adjacent to a saw grass
6 community that would be subject to, you know, the
7 same, you know, hydroperiods and conditions.
8 Q Uh-hum.
9 A One of the purposes of having Dr. Dennis
10 there, his speciality is, you know, vegetation,
11 botany, and the plant ecology was to try to select
12 sites that had similar stem counts, densities, so
13 that, you know, as many of the physical features of
14 the sites were similar.
15 Q Can we just take a quick segue?
16 In the photographs that you produced --
17 I don't have them with me, and I think the Xeroxes
18 aren't very readable -- there is a photograph of a
19 gentleman standing next to a piece of rebar with
20 some wire that were --
21 A That was the redox stations.
22 Q Okay. Never mind. We'll talk about that
23 later. I wasn't sure what that was about.
24 Well, did you do -- you said you took some
25 phosphorus samples. Were the phosphorus samples --
412
1 are the analyses from that used in site selection
2 at all?
3 A No.
4 Q Okay.
5 A I mean, we took the samples at the time we
6 established the sites --
7 Q So could you --
8 A -- and we'd like to have them analyzed.
9 Q Right. Well, that's what I thought.
10 A So they weren't used to establish -- we
11 just wanted to see, you know, what the phosphorus
12 values were.
13 MR. HYDE: They were an after the fact
14 confirmation of what the site appeared to be.
15 MR. KILLINGER: Thank you, Mr. Hyde.
16 MR. FitzGERALD: Wait. Can we go back and
17 get him sworn in for that --
18 MR. HYDE: I was just restating the
19 answer.
20 MR. KILLINGER: Is that sworn in or sworn
21 out?
22 MR. HYDE: As an officer of the Court, I
23 am bound to respond honorably and accurately.
24 MR. KILLINGER: I think we'll move on
25 quickly.
413
1 (WHEREUPON, A BRIEF OFF-THE-RECORD
2 DISCUSSION WAS HELD.)
3 Q Let me see. So I guess someone did go
4 back and put out Hester-Dendies.
5 A Correct.
6 Q You said --
7 A And they did that approximately every
8 two months.
9 Q Every two months.
10 A For approximately two years.
11 Q And that was not you. You did not do that
12 yourself?
13 A I don't think I actually ever put any of
14 those samples out, no.
15 Q Okay. Every two months you -- did you go
16 and switch them out, put a new one in?
17 A No. What we did was we -- as I said
18 before, you know, they were -- the biological
19 integrity rule requires that they incubate for
20 28 days.
21 So every 28 days, we went and collected
22 the samplers that had been installed the month
23 before. We would not put out new samplers then, we
24 would wait, you know, approximately a month or so,
25 and go out and put in another set.
414
1 So you ended up with six samples per year,
2 but you visited the site, you know, every month.
3 Q Why would you not put out new ones there?
4 I mean --
5 A Well, because it costs a fair amount of
6 money to process those samplers once you get them
7 back to the lab.
8 Q Okay.
9 A And it was an economic decision. You're
10 just doubling your costs to do it every month, as
11 opposed to every other month.
12 Q Okay. Did you have any control sites?
13 A Well, you know, part of the -- the goal
14 was to see if there was any difference between
15 cattails and saw grass --
16 Q Right.
17 A -- in a given location. So you could look
18 at the saw grass -- you know, one of the
19 allegations were that cattails was causing,
20 you know, the biological integrity standard to be
21 violated.
22 So we would take the saw grass site and
23 let it serve as a control for, you know, the
24 cattail site in the same vicinity at that given
25 location. Okay.
415
1 Q And then --
2 A So that -- that was one set of analyses.
3 Q Okay. So you were sort of assuming that
4 the saw grass marsh was the natural status quo?
5 A No. No. No. We were assuming -- see,
6 our, you know, you know, question was: Are the two
7 sites different?
8 Okay. So what you're testing is: Is the
9 cattail -- are the macroinvertebrates in a cattail
10 community at this location different from a
11 saw grass community at that location. That
12 doesn't --
13 Q Right.
14 A -- necessarily assume that either one of
15 them is better than the other, or, you know,
16 natural and the other one unnatural. They could
17 both be, you know, natural communities.
18 Q Okay.
19 A They could both be unnatural communities.
20 All we're doing is saying, if you were to
21 compare these two communities at a given location,
22 are they different. Do you see what I'm saying?
23 Q Yes. I think I do.
24 A Now --
25 Q I'm sorry. Go ahead.
416
1 A As I said earlier, we established,
2 you know, stations in, you know, different zones
3 within the conservation area.
4 Okay. We established one set of the
5 stations, I don't know, within a half a mile or so
6 of the 10-C structure. Okay. Then we established
7 another set of paired stations down about,
8 you know, 3 or 4 miles below that. I guess what
9 people might consider the transition zone from
10 the -- what people have termed -- incorrectly I
11 think -- the cattail monoculture.
12 And then we established another set of
13 stations down around the 217 gauge where people
14 have alleged the, you know, unenriched, you know,
15 background, you know, type station.
16 But we were, you know, comparing,
17 you know, the communities at each one of those
18 locations.
19 Then we also looked at, well, is there a
20 difference between a cattail community at the
21 background station, for instance, and a cattail
22 community up at the 10-C location. And then also
23 at the intermediate location.
24 Then we compared, you know, the saw grass
25 at each one of those communities also.
417
1 So there was a, you know, two-way,
2 you know, comparison. Going there, comparing
3 different communities each location, and then
4 comparing the same kind of communities at different
5 locations.
6 Q Okay. So you had sort of three categories
7 of sites, and then within each category of site,
8 you had sort of three community --
9 A Right. If the three communities --
10 Q -- pairs.
11 A -- were there. Like, if the -- the sites
12 closest to the 10 structure, there was no slough
13 site, no open water site. So we weren't able to
14 take a site there.
15 And at the middle station, there was a
16 site, it was kind of characterized as a slough.
17 But it was really just kind of a place where the
18 airboats had made a little bit of open water, and I
19 wouldn't really characterize it as a slough
20 station. But we just went ahead since we were
21 there, and just, you know, put samplers out there.
22 Q Were you able to -- would you consider
23 that area -- was it 10-C, is that what you said?
24 A Right south of 10-C.
25 Q Would that be an area that you would
418
1 consider to be phosphorus enriched?
2 A Yes.
3 Q Did you have any difficulty finding a
4 saw grass community out there to place the samples
5 in?
6 A I don't recall it being particularly
7 difficult. I mean, we established all the stations
8 I think in a single day. So -- we might have spent
9 two days on it, I can't remember. But I mean -- we
10 didn't spend a day looking for it if that's what
11 you mean.
12 Q Who actually deployed the Hester-Dendies?
13 A Various people that work for us. Or the
14 individuals would be identified in the field notes.
15 Q Are the people who deployed them
16 experienced in deploying Hester-Dendies?
17 A Oh, yes.
18 Q How were they deployed?
19 A They were basically attached to a
20 Styrofoam float, and, you know, anchored either by,
21 you know, blocks or tied to, you know, some kind of
22 vegetation.
23 If -- if there was any, you know,
24 possibility of them, you know, floating away or
25 blowing -- getting blown away or there was likely
419
1 to be any flow through the area.
2 Q How big are the floats that you used to
3 float your Hester-Dendies?
4 A Probably 6 inches square, something like
5 that maybe. Sometimes they're larger.
6 Q So they're not all the same size?
7 A I think probably on -- on this one, they
8 were all in the -- in the 6-inch -- 6-inch range.
9 But those large ones I'm thinking about are -- are
10 I think some that were used on -- on a
11 Suwannee River project one time.
12 Q How many Hester-Dendies did you suspend --
13 Is it correct they were suspended?
14 A Yes.
15 Q -- from each float? Did you suspend one
16 per float, or --
17 A Yes.
18 Q How many replicates did you --
19 A Three.
20 Q -- deploy?
21 Can you sort of explain to me how this
22 physically worked. If you had the saw grass
23 community you're putting the Hester-Dendies in, did
24 you put three in that saw grass community --
25 A Yes.
420
1 Q -- each with the floats?
2 A Yes. But they would be within maybe a --
3 a radius of, you know, a couple meters. There are
4 photographs I think of the -- of the sampling sites
5 in -- in several of the things.
6 Q Where in the water column were they
7 suspended?
8 A Essentially, you know, more or less right
9 at the surface in all the locations where,
10 you know, the water depths were, you know,
11 fluctuating and likely to go to zero because we
12 didn't want the samplers to end up laying -- or
13 lying on the bottom, if we could help it.
14 Sometimes you couldn't do that.
15 And when that happens, there was notes
16 made in the field notes that the samplers were,
17 you know, found lying on the bottom, or -- or
18 whatever. In some cases where the water wasn't
19 deep enough when they were installed, there were
20 notes put in the field notes that said, you know,
21 the samplers are -- are, you know, lying on the
22 bottom, or the bottom of it is touching the
23 bottom.
24 I mean, I -- ideally you don't want those
25 things to occur. But, you know, it's better to,
421
1 you know, put the sampler out there and get
2 something than just not get it.
3 Q Did you have a --
4 A I guess I should say, too, that there was
5 a -- I think I mentioned, there was a timed
6 qualitative sample taken at each one of the
7 locations.
8 Q Explain that to me a little bit.
9 A Basically they, you know, go out and --
10 and collect organisms from as many different,
11 you know, habitats as they can in a, you know,
12 specified, you know, time interval.
13 Q How was that done?
14 A They use, you know, a dip net and forceps,
15 and --
16 We also take a core sample as part of
17 that, and --
18 Q Did any of the sites change vegetatively
19 over the course of the study?
20 A No.
21 Q Are there any sort of standard protocols
22 for Hester-Dendy deployment and use, about whether
23 things lie on the bottom, or anything like that?
24 A I think that, you know, most studies I'm
25 familiar with, you know, end up suspending the
422
1 Hester-Dendies, you know, from floats. There are
2 some studies where they try to set them, you know,
3 a set distance above the bottom of the -- of the
4 water column.
5 Q Do you think one method is preferable over
6 the other?
7 A I personally think that, you know, having
8 them, you know, suspended is -- is probably better,
9 because especially in, you know, deeper areas, you
10 can put them right above, you know, the bottom,
11 you know, they're more subject to increased
12 sedimentation, that sort of thing.
13 Q Do you know of any differences in the
14 results you get from Hester-Dendy deployment where
15 they're suspended from a float as opposed to
16 supported from below?
17 A I think there are differences.
18 Q What would those differences be?
19 A You can get just a, you know, different
20 kind of species composition.
21 Q Is it dependent upon where in the water
22 column they're suspended.
23 A That can have an effect on it, when you're
24 dealing with a lot of drift organisms, and that
25 sort of thing.
423
1 Q Is the shading-out of the Hester-Dendy by
2 a float a potential factor in what you might wind
3 up with?
4 A I think you have to, you know, consider,
5 you know, the shading factor when you're doing
6 these kind of analyses and that sort of thing.
7 I think that in, you know, these
8 particular areas, it wasn't as much of a factor
9 because you're putting them in kind of dense,
10 you know, vegetation anyway that is creating its
11 own, you know, shade.
12 So you've got that additional factor to
13 contend with. But I think that when you use the
14 exact same method in two areas you're trying to
15 compare, but that effect cancels itself out.
16 Kind of like if I weighed you and Frank
17 and had both of you holding 25 pound weights,
18 you know, your relative weights would still be the
19 same, because you're both holding the same weight.
20 You use the same, you know, technique of
21 suspending things in both, you know, communities.
22 Then those effects cancel each other out.
23 MR. HYDE: I'd like to just note for the
24 record that the Rule itself does not specify
25 whether one is to suspend or to use a different
424
1 method of deploying the Hester-Dendies --
2 MR. KILLINGER: I'm not suggesting that it
3 does.
4 A I mean, I could add that, you know, the
5 method we use is a method that was, you know,
6 worked out and approved in conjunction with EPA on
7 several studies we did in conjunction with them.
8 Q It leads me back to a question that sticks
9 in my mind because of the photographs you produced.
10 As I recall, the floats from which you
11 suspended the Hester-Dendies were not uniformly
12 shaped and not uniformly sized.
13 Do you have any data that show exactly
14 what sizes or shapes they were?