266
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
3 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA; ROTH FARMS, INC., and )
4 WEDGWORTH FARMS, INC., )
Petitioners, ) DOAH Case No. 92-3038
5 v. )
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
- - - - - - - - - - - - - - - - - - x
8 FLORIDA SUGAR CANE LEAGUE, INC.; )
UNITED STATES SUGAR CORPORATION; )
9 and NEW HOPE SOUTH, INC., )
Petitioners, )
10 v. ) DOAH Case No. 92-3039
SOUTH FLORIDA WATER MANAGEMENT )
11 DISTRICT, an agency of the State )
of Florida; et al., )
12 Respondents. )
- - - - - - - - - - - - - - - - - - x
13 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
14 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
15 Petitioners, )
v. ) DOAH Case No. 92-3040
16 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
17 of Florida; et al., )
Respondents. )
18 - - - - - - - - - - - - - - - - - - x
100 S.E. 2nd Street
19 Miami, Florida
March 17, 1994
20 8:35 p.m. - 5:00 p.m.
21 DEPOSITION OF W. MICHAEL DENNIS
22 Taken before THOMAS R. NEUMANN, Registered
Professional Reporter and Notary Public in and for
23 the State of Florida at Large, pursuant to Notice of
Taking Deposition filed in the above cause.
24 - - - - - - -
267
1 APPEARANCES
2
ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE
3 LEAGUE, INC., UNITED STATES SUGAR CORP., and
NEW SOUTH HOPE, INC.
4
EARL, BLANK, KAVANAUGH & STOTTS, P.A.
5 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
6 Miami, Florida 33131
BY: MARK KOBELINSKI, ESQ.
7
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
8
POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD.
9 4000 International Place
100 S.E. 2nd Street
10 Miami, Florida
BY: PAUL NETTLETON, ESQ.
11
ON BEHALF OF THE RESPONDENT-INTERVENOR
12 UNITED STATES OF AMERICA
13 KATHY A. STARK, ESQ.
ASSISTANT U.S. ATTORNEY
14 99 N.E. 4th Street
Miami, Florida 33132
15
16 ALSO PRESENT: RALPH ROOT
TOM ARMENTANO
17
18 INDEX
Witness Direct Cross Redirect Recross
19 W. MICHAEL DENNIS
By Mr. Nettleton: 268
20
EXHIBITS
21 NUMBER BATES NO. PAGE
6 1263946-963 305
22 7 1269072-073 330
8 1295750-759 330
23 9 1991 cattail map 379
10 aerial photographs 382
24 11 1263689-700 396
12 Addendum to Bibliography for Dr. Dennis 396
268
1 Thereupon --
2 W. MICHAEL DENNIS
3 was called as a witness and, having been first duly
4 sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. NETTLETON:
7 Q. Good morning, Dr. Dennis.
8 A. Good morning, sir.
9 Q. Yesterday we were discussing your task of
10 evaluating why cattails are growing where they are
11 growing.
12 I would like to continue with our
13 discussion there. Specifically, you gave me a number
14 of areas that were looked at and then some categories
15 of information that were obtained from those areas.
16 What I would like to do now is go through
17 and get some more specific information on each of
18 those areas.
19 The first area you mentioned was the area
20 south of the S-10s, WCA-2A. Can you tell me
21 specifically what geographic area you specifically
22 looked at south of the S-10s?
23 A. Well, we looked at WCA-2 in general at that
24 scale for the types of conditions and changes that
25 have occurred in that Water Conservation Area.
269
1 We then looked more specifically at the
2 area generally in that five to ten mile area south of
3 the 10 structures in an area that's been referred to
4 as the nutrient enriched area.
5 Q. Do you have any more specific geographic
6 boundaries you can provide to me other than five to
7 ten miles south of the S-10s that you were actually
8 looking at for your study purposes?
9 A. I believe there have been -- that there has
10 been information provided on where we were and what
11 work we did. Therefore, for your purposes this
12 morning generally I would describe it as there were
13 several sites that were located in conjunction with
14 scientists from ESP and Paul Larson where individual
15 sites were picked essentially in close, intermediate
16 and further distance from the 10 structures,
17 generally spaced between the 10 structures and about
18 midway of -- a little north of midway on the
19 north/south line of WCA-2.
20 Q. You say all the specific sampling locations
21 are referenced in the documents?
22 A. I believe so, yes. We also took data
23 independent from that series of sampling stations on
24 essentially the north/south line that ran from the
25 area of the structures on the south to at least
270
1 halfway through WCA-2, maybe a little bit beyond.
2 And we also assisted in selecting certain periphyton
3 sampling stations that Dr. Smart used in his
4 periphyton studies. They were generally associated
5 in that same vicinity.
6 Q. Will you be relying upon any specific data
7 collected at the periphyton sites for purposes of
8 evaluating why cattails were growing where they are
9 growing?
10 A. Only in a general sense.
11 Q. Before discussing the specific data that
12 you and others at BDA collected, you had mentioned a
13 number of categories of historical information that
14 you collected.
15 Can you tell me what water quality,
16 historical water quality data collected by others
17 other than BDA you obtained for this particular area
18 of study, the area south of the S-10s?
19 A. By-and-large, as I recall, all of the --
20 essentially all of the water quality data that we
21 have looked at or would be using is data that has
22 either been collected by or has been provided by the
23 South Florida Water Management District.
24 Q. What period of record is encompassed within
25 that data?
271
1 A. I believe it includes essentially the
2 entire data set. Different stations have different
3 periods of record, so I believe that that information
4 was requested and was provided. We did not directly
5 request that information from the District.
6 Q. Other than the water quality data collected
7 from the District, have you obtained any other water
8 quality data from other sources that you are relying
9 on in this -- for this particular task?
10 A. We would be relying on any of the water
11 quality data that have been collected by ESP or Duke
12 and any accounts of water quality data that have been
13 reported in technical publications or papers
14 developed by district scientists or others.
15 Q. What water quality data have you obtained
16 from ESP?
17 A. Essentially any of the water quality data
18 that we received, that is the District or was in the
19 District, has come to us through ESP, and also any of
20 the specific water quality data that ESP may have
21 taken.
22 Q. Are you saying all of the District data,
23 all the data collected by the District on water
24 quality you actually obtained from ESP as opposed to
25 the District?
272
1 A. The best that I recall, that is correct.
2 Q. What independent ESP water quality data
3 have you obtained?
4 A. There were some sample stations in which
5 water quality data was collected again in that
6 general area that I described south of the 10
7 structures over a period of time by ESP and/or
8 largely working in conjunction with ESP.
9 Q. Was anyone at BDA involved in collecting
10 that data?
11 A. Not to any significant degree. By that I
12 mean, there were occasions when I was along on some
13 of the field inspections and water quality was being
14 taken by ESP and I may have assisted in collecting
15 some of the meter measurement data. But that was a
16 matter of facilitating and helping in the field
17 sampling rather than anything beyond that.
18 Q. And what water quality data have you
19 received from Duke?
20 A. Just whatever water quality data they
21 reported in their annual or quarterly reports.
22 Q. Do you have any water quality data from
23 Duke that is not contained within their annual or
24 quarterly reports?
25 A. I don't believe so, with the possible
273
1 exception of some of the water quality data that was
2 collected on the entry inspection to Everglades
3 National Park. I believe that would be the only
4 additional water quality data outside of their annual
5 or quarterly reports.
6 Q. What specific entry into the Park are you
7 referring to, approximately when did that occur?
8 A. That was approximately last summer.
9 Q. Is that the same core data that you said
10 you still might be receiving from Duke?
11 A. It would -- there was only one entry
12 inspection that I participated in or that I know
13 about in the Everglades National Park. That would
14 have been the same data set.
15 Q. What historical data do you have concerning
16 water quality or hydroperiod for the areas south of
17 the S-10s?
18 A. It essentially would fall into the same
19 category. There is water quality or data from
20 district files and records again obtained basically
21 from ESP and/or Radwaler, who has worked with ESP on
22 those matters. Water quality in any of the District
23 reports or publications, published literature, water
24 management taken in conjunction with the specific
25 investigations I referenced earlier.
274
1 Q. Which ones?
2 A. The ESP stations and the transect data that
3 we took, and any of the data reported in the Duke
4 reports.
5 Q. Do you have any water quality or
6 hydroperiod data collected by Duke that is not
7 contained within their annual or quarterly reports?
8 A. No.
9 Q. Do you have any water quality or
10 hydroperiod data that was independently collected by
11 ESP that wasn't simply the District's data being
12 passed to you?
13 A. Yes, as I previously referenced.
14 Q. I must have missed the reference. Tell me
15 what data that consisted of.
16 A. I was referring back to the ESP stations
17 where the water quality data was taken. There were
18 water depth measurements taken there, also.
19 Q. Do you recall the approximate location of
20 those stations where water depths were taken?
21 A. At the approximate location that I
22 described where the water quality data was taken.
23 Q. Are those reported in a report somewhere,
24 the specific locations?
25 A. They are located in field notes. I don't
275
1 know there was a report prepared.
2 Q. Whose field notes would contain those
3 notations?
4 A. Those locations would either be recorded in
5 my field notes or John Davis' or Paul Larson's.
6 Q. What previous vegetation maps or historical
7 descriptions do you have for the area south of the
8 S-10s that you have reviewed?
9 A. The 1943 John Henry Davis map. There are a
10 series of map projections that were produced by the
11 University of Florida that include that area. Not
12 specifically a 2A map, but it's included in those
13 maps.
14 Q. What time period are the University of
15 Florida maps?
16 A. They span a time period of, I believe,
17 about 1900 through the 1970's, I believe. Maybe a
18 little bit beyond. I do recall at least through the
19 '70's.
20 Q. Are those contained in a single report
21 somewhere?
22 A. We produced that data and those maps, I
23 believe, and they are contained in a University of
24 Florida report.
25 Q. Do you recall the date of the report,
276
1 approximately, or the author of the report?
2 A. The report was in the '70's or early '80's,
3 I believe. I don't recall the author.
4 Q. Any other vegetative maps or distributions
5 of the area south of the S-10s that you have
6 reviewed?
7 A. I reviewed the maps that we discussed
8 yesterday, the Rutchey maps, the Jensen maps. I
9 can't specifically recall, but I seem to remember
10 there were some general vegetation maps, maps of some
11 type in some of the earlier district documents that
12 describe WCA-2. Some of those reports that dealt
13 with the impact of the flooding regulation schedule.
14 Those are the ones that I can recall.
15 Q. Do you recall approximately how many
16 district documents you are referring to that describe
17 the effects of flooding in the regulation schedule?
18 A. There were two or three reports.
19 Q. Do you know the approximate dates of those
20 reports that were authored?
21 A. They were in the 1980 time period.
22 Q. The University of Florida maps you
23 described, did they have categories for cattails
24 included?
25 A. I don't believe so.
277
1 Q. Do any of the District documents which you
2 described as containing information concerning impact
3 of flooding and regulation schedule, do they discuss
4 the growth of cattails in area 2A?
5 A. They discuss the general changes in
6 vegetation that were brought about. There may have
7 been some references to cattail, but I don't
8 specifically recall.
9 Q. What aerial photography, historical aerial
10 photography have you seen for the area south of the
11 S-10 structures?
12 A. We obtained a set of aerial photography
13 that goes back to 1940, so there is photography from
14 1940, some dated in the '50's, some dated in the
15 '60's, '70's, '80's. And we did use the aerial
16 photography that we had flown in the '90's.
17 Q. What was the sources of the aerial
18 photography for the 1940's through the 1980's?
19 A. There were various sources. We did a
20 search of available aerial photography and I believe
21 that is provided in the years and the sources of all
22 of that photography.
23 Q. Those depict the area south of the S-10s in
24 conservation area 2A?
25 A. They cover that area, yes. I do recall the
278
1 source of the '91 aerial photography. Southern
2 Resource Mapping.
3 Q. Where is Southern Resource Mapping's
4 business office?
5 A. They got several offices, I believe.
6 Q. Which one did you deal with?
7 A. I believe Paul Larson actually specifically
8 dealt with them and obtained that photography.
9 MR. NETTLETON: Off the record.
10 (Thereupon, a brief recess was taken,
11 after which the following proceedings
12 were had:)
13 BY MR. NETTLETON:
14 Q. Dr. Dennis, another area that you
15 mentioned -- historical information you mentioned was
16 studies conducted in the area.
17 What specific studies conducted in the area
18 of the -- south of the S-10s were you referring to?
19 A. John Henry Davis' 1943 historical accounts
20 of the Everglades, which include that area. The
21 District reports that discuss water levels and
22 regulation schedules and vegetation changes, the one
23 we referenced just a minute ago.
24 Any of the more recent District studies
25 that have been conducted by various investigators
279
1 reported in District reports and publications. The
2 Duke studies.
3 Q. Are there any studies or reports other than
4 the things you have already mentioned with regard to
5 the water quality and water quality and vegetation
6 maps?
7 A. What was your specific question?
8 Q. You had mentioned yesterday historical
9 information or information collected by other persons
10 that you obtained for the various areas. One of the
11 categories you mentioned were studies conducted in
12 the area?
13 A. I think those are generally the same ones.
14 The only other thing is any parts of the reports or
15 references to that area that may have been included
16 in the earlier project authorizing studies and memos
17 back in the 1948, '50 time period.
18 Q. You lost me. What are you referring to?
19 A. Well, there were a set of federal documents
20 that related to the development and construction of
21 the flood control project as it was authorized in
22 1948 or so.
23 And to the extent that there are any
24 general or specific references to vegetation and
25 general ecological conditions in those reports, then
280
1 I would rely on those. Again, I believe that all of
2 those that I would be relying upon would be produced.
3 Q. Another category you mentioned of
4 historical or information obtained from other parties
5 was government reports and analysis.
6 Would that include anything different than
7 what you have already described?
8 A. Not that I recall.
9 MR. KOBELINSKI: Counsel, I would just
10 interpose -- again, you are deposing a witness
11 who turned over all of the documents you relied
12 upon. You made a bibliography.
13 To the extent he doesn't recall something,
14 I'm sure it was produced in the documents.
15 MR. NETTLETON: Speaking of that, since you
16 brought that up, there are a number of documents
17 that have been mentioned during the deposition
18 which I have not seen. I'm going to go back and
19 try to sort that out before we end the
20 deposition and I'll try to provide a
21 comprehensive list and we can determine whether
22 or not they have been produced.
23 We also still have not seen Dr. Dennis'
24 privilege list, either.
25 BY MR. NETTLETON:
281
1 Q. A category of information you mentioned was
2 records of land use or management. Other than the
3 information you have already described, are there any
4 other records of land use or management that you have
5 reviewed for the area south of the S-10?
6 A. Not that I recall.
7 Q. I believe the final category of information
8 you referred to that you may have received historical
9 information on is records of fires.
10 Can you tell me what records of fires you
11 have obtained for the area south of the S-10s?
12 A. Whatever fire records we were able to
13 obtain from either the District or the Florida Game
14 and Fresh Water Fish Commission, there were several
15 sets of those records.
16 Again, I believe they have all been
17 produced.
18 Q. I would like to turn to information that
19 you or others at BDA have specifically collected for
20 addressing this particular task of evaluating why
21 cattails were growing where they were growing.
22 You mentioned four categories yesterday,
23 the first being water depth measurements. Can you
24 tell me what water depth measurements you took at the
25 area south of the S-10s?
282
1 A. The ones that I previously discussed this
2 morning when you were asking about where we had taken
3 data.
4 Q. Well, perviously I was asking you about
5 data you obtained from other parties other than BDA.
6 I thought you were mentioning the ESP stations. Now
7 I'm asking for what data BDA itself has taken with
8 regard to water depth.
9 A. We assisted in data collection at the ESP
10 stations. And, as I recall, I took some of the water
11 depth data on days that I may have been along on
12 those field studies.
13 In a general north/south transect that I
14 referenced earlier south of the 10 structures, we
15 recorded vegetation data and we also recorded water
16 depth with that vegetation data.
17 Q. Were those BDA stations or were those --
18 A. Yes. And I believe there was -- we also
19 ran several transects and took some general water
20 depth data throughout that general area that has been
21 marked as a nutrient enriched area south of the S-10
22 structures.
23 Q. That data was independent of the collective
24 vegetative data description?
25 A. There may have been vegetation data
283
1 collected with it, but there may have been some data
2 that was collected independent of vegetation.
3 Q. Were there specific stations created for
4 purposes of obtaining water level or water depth
5 data?
6 A. What do you mean?
7 Q. Did you establish a station somewhere or
8 beforehand that you went back repeatedly to?
9 A. No.
10 Q. Were these essentially one time water depth
11 samples at a single location?
12 A. Yes.
13 Q. Did you take any water depth data from a
14 single location over some period of record?
15 MR. KOBELINSKI: You are again referring to
16 below the 10 structures, Counsel?
17 MR. NETTLETON: Right now, yes.
18 THE WITNESS: No.
19 BY MR. NETTLETON:
20 Q. With regard to the water depth data you
21 collected, can you describe for me physically how
22 that water depth was measured?
23 A. Yes. We would take a measuring rod or
24 stick or tape and that had a calibrated measurement
25 on it and put it down into the water until we were --
284
1 that we were measuring, essentially the top of the
2 substrate, and we would measure the distance from the
3 top of the substrate to the plane of the water level.
4 Q. What were the range of water depths that
5 you collected data concerning in that area?
6 A. They varied. I would have to go back and
7 look and see.
8 Q. I'm just looking for a gross estimate.
9 A. A gross estimate would be from the areas
10 that were dry, the measurement was zero to several
11 feet.
12 Q. Who took the water level measurements in
13 the area south of the S-10s?
14 A. I took some of them. Probably the majority
15 of the rest of them were taken by either Dr. Joe
16 Burch or George Carlson.
17 Q. Go ahead.
18 A. Let me clarify the record. Dr. Bud Smart
19 was conducting periphyton sampling that had an
20 independent periphyton sampling program underway.
21 BDA was -- he was at BDA at that time. Therefore,
22 BDA, the company, was involved in assisting him and
23 taking whatever data he had.
24 So my answers don't reflect that study
25 which I was considering as a periphyton study.
285
1 Q. When you were taking a water level reading
2 would you physically get into the water or was that
3 done from a boat or how was that measured?
4 A. Both.
5 Q. How did you record the water level data?
6 Was it put in a field notebook?
7 A. It was either recorded in a field notebook
8 or on a tape as taped field notes.
9 Q. You mean dictated?
10 A. That is correct.
11 Q. When you recorded water level from a
12 particular site, did you take only a single reading
13 or were there multiple readings that were taken for a
14 single site?
15 A. Typically we would measure the depth in
16 several places and see what the variability was.
17 Water depth can vary slightly from spot to spot. The
18 ground is not absolutely level out there. So what we
19 would do is, we would try to take several
20 measurements and see what we were getting about the
21 same depth, and if there seemed to be not much
22 variability, then we would record that data or an
23 average of the points.
24 Q. Would you record all of the sample -- all
25 of the water level measurements, or would you just
286
1 record a single average number?
2 A. There were times when we did both. If
3 there was variability there, we might record that the
4 depth measurement was varied from one point for 1.4
5 to 1.7 and then record 1.6 or whatever an average
6 was.
7 In other instances there didn't appear to
8 be much variability. We just measured three and four
9 more or less spots, and it always was essentially the
10 same. We might just record the one number.
11 Q. What was the geographic area of a specific
12 site? How far between your various sampling efforts
13 to determine water level at a single site was there?
14 A. It varied. What we would try to do is in
15 the vegetation community that we -- if we were
16 measuring water depth at a specific vegetation
17 community, we would try to walk around or get around
18 that vegetative community enough to assure ourselves
19 that we were capturing a proper estimate of the depth
20 there. So if the patch of vegetation was resting as
21 big as this room, then we might take three or four
22 measurements scattered around where people are
23 sitting at this table, more or less, maybe a little
24 bit further. The far end of the room is
25 unrepresented.
287
1 If we were interested in a larger area,
2 then we would spread the depth measurements out along
3 that area.
4 Q. What's the greatest distance that you
5 recall generally between -- for a single site
6 sampling of water level?
7 A. I don't recall.
8 Q. Was it five acres of a site that you
9 wandered down and measured or are we talking more in
10 matters of 100 feet?
11 MR. KOBELINSKI: Object to the form to the
12 extent five acres is an area, 100 feet is a
13 distance.
14 BY MR. NETTLETON:
15 Q. Square feet. I'm just trying to get a feel
16 for what you considered a sampling area for measuring
17 variation of water level and what the largest of that
18 might look like.
19 A. Well, I'm trying to accurately give you a
20 feel for that.
21 Typically I think the situation would be
22 that we might take three or four generally randomly
23 selected water depths in an area of approximately
24 five meters square, something like that.
25 Q. Was that your practice, essentially,
288
1 whenever you were measuring water levels, that you
2 took multiple readings or were there some occasions
3 where you only took a single water level reading?
4 A. I can't remember any instances where I
5 measured water depth and I didn't take several
6 readings to determine what the appropriate level
7 would be.
8 If you just took one reading you never knew
9 whether you put it down in a hole or it was up on a
10 little mound or clump of something.
11 Q. When you got your multiple readings for a
12 particular site, was there any formal calculation
13 done or was that kind of a rough in your head type
14 estimate of what the water level was or average of
15 what the water level was?
16 MR. KOBELINSKI: Object to the form to the
17 extent it assumes what was done was a rough
18 estimate.
19 MR. NETTLETON: It was an open question.
20 It wasn't assuming anything.
21 THE WITNESS: The measurements that I
22 collected, I typically would measure depths
23 until I wasn't seeing any change in the extent
24 or variation of the depths. And then I would
25 average those in my head. If I recorded five
289
1 depths and one or two of them were significantly
2 different from the other three, I would probably
3 discount those and use the three that were
4 generally close together.
5 BY MR. NETTLETON:
6 Q. What soil cores did BDA take, if any, in
7 the area south of the S-10s?
8 A. We may have taken some soil cores on the
9 north/south transect that I referred to where we took
10 the vegetation and the water depths.
11 Q. You don't recall whether or not soil cores
12 were taken along that transect by BDA?
13 A. I would have to refer to the notes to make
14 absolutely sure there may have been, but I'm not
15 absolutely sure.
16 Q. What was the beginning point of the
17 north/south transect you are referring to?
18 A. Generally, just south of the Hillsborough
19 Canal. I believe it was between control structures A
20 and C.
21 Q. So the transect did not run directly below
22 one of the structures?
23 A. Again, I would have to check the field
24 notes to be -- to see, but it's my recollection it
25 was in that general area.
290
1 Q. Between S-10A and S-10C?
2 A. Yes.
3 Q. What were the soil cores analyzed for,
4 assuming they were taken?
5 A. If they were taken, they were probably
6 analyzed for total phosphorous.
7 Q. Anything other than total phosphorous?
8 A. There may have been, but I would have to go
9 back to look at those.
10 Q. What water quality data did BDA collect
11 below the area south of the S-10s?
12 A. There may have been a few at one point in
13 time samples collected, but I don't recall any
14 regular or systematic water quality sample efforts
15 there.
16 Q. Do you recall whether water quality
17 sampling was made by BDA along the transect between
18 the S-10A and S-10C structures in conjunction with
19 any of the other activities that were ongoing on that
20 transect?
21 A. I don't believe so. Again --
22 Q. When we are referring to water quality
23 sampling, I'm referring to surface water sampling.
24 Is that how you understood it?
25 A. Yes. I can go back to those field notes
291
1 that have been produced and give you more complete
2 informed answers on those if you would like, but
3 that's what I recall right now.
4 Q. What vegetative description data was taken
5 in the area south of the S-10s?
6 A. Generally we would record species,
7 composition, perhaps some measure of cover or height.
8 Q. That included species other than cattail,
9 is that any species?
10 A. Yes.
11 Q. Was that done along the transect you
12 described between 10A and 10C?
13 A. I believe it was. Again, I would have to
14 go back and review that set of field notes.
15 Q. Other than along that transect, were there
16 any other vegetative description data collected for
17 that area?
18 A. There may have been at some point in time
19 over the last four or five years some measurements
20 taken to get an idea about how many ramets of cattail
21 occurred within a certain area. That would have been
22 for general vegetation description understanding and
23 to get a better understanding of measurements
24 reported in the literature.
25 Q. Was the data collected concerning
292
1 vegetative description in the area south of the S-10
2 structures a single sampling event or was it done
3 over a specific period of record of some sort?
4 A. There were multiple times going back to
5 late 1989 or 1990 when we would conduct field
6 investigations and field inspections in 2A, including
7 the northern part of 2A.
8 Q. Other than any field notes you may have
9 created, is the vegetation description data described
10 in any other formats or reports of any form?
11 A. I don't believe so.
12 Q. The water depth data for areas south of the
13 S-10s other than your field notes, is that data
14 reported anyplace else?
15 A. Not that I recall. Can we take a small
16 break?
17 MR. NETTLETON: Sure.
18 (Thereupon, a brief recess was taken,
19 after which the following proceedings
20 were had:)
21 BY MR. NETTLETON:
22 Q. I'm going to make an attempt here -- I
23 don't know how of trying to do something that may
24 speed up my questions.
25 If it doesn't work, we will revert.
293
1 We just went through the various
2 descriptions of data that you have collected most
3 specifically related to south of the S-10s. You have
4 identified six other generic areas that you have
5 looked at with regard to this task about why cattail
6 is growing where it's growing.
7 What I would like to do is go through each
8 of these and to the extent there is any data,
9 historical data different than what you have already
10 described, to identify that data. So let's get
11 started, see if it works.
12 MR. KOBELINSKI: You are actually talking
13 about the six geographic areas?
14 MR. NETTLETON: Yes.
15 BY MR. NETTLETON:
16 Q. The other areas that you have mentioned
17 were the perimeter area and southern WCA-1, S-9 area,
18 northern area of 3A. Holyland, certain areas
19 adjacent to the canals and areas from access to the
20 Park.
21 Referring specifically to historical data
22 that you have obtained for any of these areas, which
23 is data collected from someone other than BDA, do you
24 have any -- this is not going to work.
25 MR. KOBELINSKI: If you do it one at a time
294
1 you can whip through the different areas.
2 MR. NETTLETON: Let's try that. That's
3 what I was doing to start with, but we weren't
4 moving quickly.
5 BY MR. NETTLETON:
6 Q. Let's go to area 1, perimeter area,
7 southern area of 1 you identified.
8 Can you tell me what historical information
9 you have received or obtained from parties other than
10 BDA's own collection efforts concerning water
11 quality?
12 A. Water quality data would be data that was
13 received, as we discussed previously, from ESP based
14 on District databases and any historical accounts of
15 water quality that might be found in prior government
16 reports or publications or research works.
17 Q. Do you have water quality data from area 1
18 that has been independently taken by ESP or Paul
19 Larson?
20 A. Yes.
21 Q. What data is that?
22 A. I thought I was going to shorten it by
23 giving you a short answer, then you have given me
24 another question.
25 Basically it's the data that was collected
295
1 as part of the entry inspection process on those 14,
2 16 stations.
3 Q. Do you have any information from the area 1
4 water quality data that was obtained by Duke, legally
5 or illegally?
6 MR. KOBELINSKI: Do you mean whether or not
7 he stole data from Duke?
8 MR. NETTLETON: Let me rephrase it so the
9 record is clear.
10 BY MR. NETTLETON:
11 Q. Do you have any water quality data that was
12 obtained from the Duke Wetland Center for WCA-1 other
13 than anything that may be reported in their annual or
14 quarterly reports?
15 A. No. And continuing on in making the record
16 clear, we have never stolen any data from anyone.
17 Q. I wasn't referring to you.
18 MR. KOBELINSKI: I guess the record should
19 reflect we have been saying this with a smile on
20 our faces.
21 MS. STARK: Some of us.
22 BY MR. NETTLETON:
23 Q. What, if any, water quality data have you
24 obtained from persons other than BDA's own collection
25 efforts for area 1?
296
1 A. Any water quality data would be basically
2 from the same general sources that I just described
3 for water quality.
4 Q. And do you have any sources of vegetative
5 maps or historical descriptions of area 1 other than
6 those that you mentioned with regard to area 2A?
7 A. Yes.
8 Q. What additional sources of information
9 contain vegetative maps or descriptions of area 1
10 vegetation?
11 A. The vegetation maps that were contained or
12 a part of work order 32 that I believe we discussed,
13 I think, either yesterday or the day before
14 yesterday.
15 I believe that my prior answer covers all
16 of those. It's a little confusing to have to think
17 back on everything I said, but I think that's
18 probably correct.
19 Q. The maps you are referring to with regards
20 to work order 32, are those all contained within the
21 John Richardson, et al., 1990 report?
22 A. Yes or various versions thereof.
23 Q. Do you have aerial photography for the
24 1940's, '50's, '60's, '70's and '80's with regard to
25 area 1?
297
1 A. And '90's.
2 Q. Yes?
3 A. Yes.
4 Q. The '90's you are referring are the ones
5 that BDA developed?
6 A. Yes.
7 Q. On the historical aerial photography pre
8 1990's, what geographic areas are covered by that?
9 MR. KOBELINSKI: You are talking generally,
10 not with regard to Water Conservation Area 1
11 now?
12 BY MR. NETTLETON:
13 Q. Right, do they cover the entire EPA or all
14 the conservation areas or some sub set of that?
15 A. My recollection is that they cover all or
16 essentially all of WCA-1. And we talked about WCA-2.
17 They would cover all or parts of WCA-3, but I'm not
18 sure that all of those sets cover all of 3.
19 I would have to go back and look at the
20 base maps for those.
21 Q. Do any of them cover any portions of the
22 Park?
23 A. I would have to go back and look. Some of
24 them may cover some portions of the Park, but my
25 recollection is that they principally cover the Water
298
1 Conservation Areas.
2 Q. On the categories you mentioned of studies
3 that had been conducted and/or government reports and
4 analysis, other than the ones you mentioned with
5 regard to or sources that you mentioned with regard
6 to area 2A, are you specifically relying upon any
7 other studies, government reports or analyses for the
8 area 1 area?
9 A. I think the overall general categories I
10 gave would cover WCA-1.
11 The only additional one -- again, I'm
12 trying to think back of exactly how that was answered
13 previously for WCA-2, but work order 32 would be
14 included in one where it was not included in two.
15 Q. What land use or management information do
16 you have with regard to area 1, if any?
17 A. The information of historic conditions
18 contained in documents such as Davis' 1943 paper and
19 others of that type, and the various studies and
20 reports on the Loxahatchee wildlife refuge has been
21 produced by essentially the federal government over
22 the years, some of which go back to the authorizing
23 of the project in the '48, '50 time period and
24 extending on with the series of annual reports that
25 are produced on the Loxahatchee wildlife refuge over
299
1 the years.
2 What was your question again?
3 Q. I'm trying to think a better way to do
4 this, but it's not coming to me yet.
5 A. I'm trying to make sure I fully answer your
6 question the way we are doing it.
7 Q. If you don't understand something, let me
8 know.
9 A. I realize and appreciate what you are
10 trying to do. I'm trying to respond in kind.
11 Q. I think what you have described, a lot of
12 generic reports and information that you relied upon
13 for historical data and so forth for area 2 which I
14 think generally applies for a lot of these areas.
15 I'm trying to find a way to avoid repetition. Let me
16 try another route here.
17 With regard to -- again I'm referring to
18 historical non-BDA collected information or data,
19 going to the S-9 area as you described it, is there
20 any specific information unique to that particular
21 location, historical information that you have
22 reviewed?
23 A. I don't believe so beyond those areas that
24 we generally discussed.
25 Q. Can you describe for me geographically what
300
1 you referred to as the S-9 area?
2 A. Yes. Can I refer to this?
3 Essentially it's a triangular area located
4 west of the S-9 pump station.
5 Q. Are you referring to the area that's the
6 triangular area south and west of the S-9 structure,
7 this one?
8 A. No.
9 Q. Where is S-9?
10 A. Here.
11 Q. Do you know approximately what the
12 geographic area of that triangle is that you are
13 referring to just west of the S-9?
14 MR. KOBELINSKI: You mean square footage or
15 square meter-wise?
16 MR. NETTLETON: Whatever is an appropriate
17 unit of measurement.
18 THE WITNESS: It would extend from
19 essentially the area of the S-9 structure to the
20 west to the Miami Canal, and south to -- I
21 believe that's L-67A.
22 BY MR. NETTLETON:
23 Q. South along the Miami Canal?
24 A. If you took a east west line from
25 essentially the S-9 control structure area west to
301
1 the Miami Canal south along the Miami Canal and then
2 north along L-67A from approximately S-151.
3 Q. The next area you described was the
4 northern area of 3A. Can you give me a little more
5 specific description of what area you are referring
6 to there?
7 A. Generally it would be the northern part of
8 3A, east of the Miami canal.
9 Q. Are you referring roughly to any particular
10 area that's depicted on Exhibit 3 that you are
11 referring to?
12 A. Yes. Generally it would be the areas
13 mapped in the higher cattail density depictions,
14 north of Highway 84.
15 Q. Again, is there any unique historical
16 information or data or data that you have obtained
17 from third parties with regard to that specific area?
18 A. I believe that all of the areas or all of
19 the data and information would fit into the
20 categories that I gave relative to WCA-2.
21 Q. The next area you mentioned was the
22 holylands area. Can you tell me, again, with regard
23 to historical information or data or data generated
24 by parties other than BDA, is there any unique
25 information that you have reviewed with regard to the
302
1 holyland?
2 A. Whatever prior existing District or Game
3 and Fish studies or reports of that area would
4 contain, and also the more recent monitoring reports
5 that have been conducted in that area by the Game and
6 Fish Commission and/or the District.
7 Q. Now, the next generic area that you
8 described that you looked at were certain areas
9 adjacent to canals.
10 What specific areas were you referring to
11 that were looked at in that regard?
12 A. There were five or six areas that were
13 adjacent to canals. As I recall generally one of
14 them was located approximately midway along L-39E in
15 Water Conservation Area 2, part of that levee that
16 runs through 2.
17 Another was located along L-68A west into
18 WCA-3 about halfway between Highway 84 and the area
19 of S-9 pump station.
20 Another one was located in the extreme
21 south end of L-67A, north of the Park in Water
22 Conservation Area 3A, west into 3A. And I believe
23 another one was located on the -- about midway along
24 the Miami canal east into 3A, essentially an equal
25 distance between Highway 84 and the boundary of 3A.
303
1 Q. Is that essentially the same area you
2 described as northern 3A?
3 A. It's in the same proximity, but this was
4 looking at the area closer to the canal.
5 MR. KOBELINSKI: Can we take a quick break?
6 MR. NETTLETON: Yes.
7 (Thereupon, a brief recess was taken,
8 after which the following proceedings
9 were had:)
10 BY MR. NETTLETON:
11 Q. Dr. Dennis, other than the four areas you
12 have just described, are there any other areas
13 adjacent to canals that you specifically looked at?
14 A. I believe there were one or two other
15 areas, but I can't -- I would have to go back to the
16 field notes to remember exactly where they are. I
17 just don't recall.
18 Q. Do you have any historical data or data
19 collected by parties other than BDA that's unique to
20 these specific areas adjacent to the canal that you
21 have referred to?
22 A. Not beyond what we have already discussed,
23 I don't believe.
24 Q. The last area you described was the area
25 from the access to the Park. Can you generally
304
1 describe for me where that access occurred
2 geographically?
3 A. Yes. We looked at areas generally south of
4 the 12 structures on the southern and near the
5 terminus of L-67, extended an area or a couple of
6 areas along Taylor Slough and an area in, the western
7 part of the Park near the boundary with Big Cypress
8 and the Park dosing study site.
9 I think those are generally the areas or
10 the specific locations reflected in field notes, maps
11 produced.
12 Q. Again with regard to these areas in the
13 Park, have you obtained any unique historical data or
14 data collected by third parties other than BDA that
15 you have reviewed?
16 A. I think the general descriptions of the
17 information would still hold. There have been
18 specific reports and studies that relate to the Park,
19 so obviously those would have been utilized in that
20 area rather than more of the Water Management
21 District documents and studies in the conservation
22 areas.
23 Q. Returning to the perimeter area in southern
24 WCA-1, can you tell me what water depth measurements
25 BDA collected in that area?
305
1 A. Yes.
2 We collected water depth measurements along
3 various transects that we investigated during the
4 entry inspection authorized investigation, and I also
5 accompanied Dr. John Davis on a number of the water
6 quality sampling events at the specific 14 to 16
7 water quality sampling stations.
8 Q. Was water level data taken in conjunction
9 with those water sampling -- water quality sampling?
10 A. Water depth was taken, as I recall.
11 Q. Any other water depth data that you
12 collected in area 1?
13 A. I don't believe so.
14 Q. The first thing you mentioned was water
15 depth data taken along various transects. Are those
16 the transects that are reported in the Millard
17 report?
18 A. Could you show me a copy of it to make sure
19 we are talking about the same Millard report?
20 MR. NETTLETON: Mark that Exhibit 6.
21 (The document referred to was thereupon
22 marked Exhibit 6 for Identification.)
23 MR. NETTLETON: For the record, we marked
24 as Exhibit 6 a composite exhibit consisting of a
25 cover letter dated February 17, 1994 to
306
1 Dr. Dennis from Mr. Blank enclosing a report
2 authored by Dr. Millard dated, draft, August 19,
3 1993.
4 BY MR. NETTLETON:
5 Q. Dr. Dennis, are the transects as depicted
6 in this report on the map that's contained in here
7 the transects you are referring to?
8 A. The six transects that are indicated within
9 the Loxahatchee National Wildlife Refuge, are those
10 transects or the approximate location of them?
11 Q. Were water level data collected along each
12 of these transects?
13 A. Yes.
14 Q. Is all of the water level data that was
15 collected along these transects reported in
16 Exhibit 6?
17 A. I'm not sure.
18 MR. KOBELINSKI: Which figure are you
19 looking at, Counsel?
20 MR. NETTLETON: I'm sorry.
21 MR. KOBELINSKI: What were you referencing
22 to?
23 MR. NETTLETON: I mentioned Exhibit 6.
24 BY MR. NETTLETON:
25 Q. Can you tell me how the transects reflected
307
1 in this report were selected, what criteria was used
2 for the transects?
3 A. Yes. Transect A, B and C were historical
4 transects that were reported on work order 32.
5 Transects E and F were transects which had
6 been selected and previously examined by Dr. Ron
7 Jones.
8 Transect D we specifically selected.
9 Q. Did the sampling sites along transect A, B
10 and C, extend as far as any sampling sites related to
11 work order 32 along those transects?
12 A. I'm not sure I understand that question.
13 Q. Are your transects that you sampled along --
14 as reflected in Exhibit 6 the same length or distance
15 as the transects you referred to as historical
16 transects reported on in work order 32?
17 A. I don't know that they are the same length.
18 Q. Do you know whether the length of the
19 transects E and F are the same as those selected and
20 sampled by Ron Jones?
21 A. I don't know, but my recollection is that
22 the Ron Jones transects were generally longer. We
23 had very limited access to this area and a very short
24 court mandated time in which to collect data.
25 Q. What criteria did you use to select
308
1 transect D, the location of transect D?
2 A. The location of transect D was selected
3 based on review of aerial photography which indicated
4 fairly homogeneous bands of vegetation that extended
5 from the Hillsborough Canal, essentially parallel in
6 the Hillsborough Canal and extended interiorly into
7 the refuge.
8 Q. Which aerial photographs are you referring
9 to?
10 A. The 1991 areas.
11 Q. How many sampling sites along the transects
12 existed with regard to water depth sampling? Were
13 they the same for each transect?
14 A. No.
15 Q. Who conducted the water depth measurements
16 in area 1 for BDA?
17 A. I -- either myself or Dr. Joe Burch.
18 Q. Can you describe for me how you physically
19 measured water depth along these transects?
20 A. We took a measuring rod or measuring
21 instrument and placed it down into the water until it
22 reached the surface of the grounds elevation, and we
23 would record the measurement of the measuring rod at
24 the plane of the water.
25 Q. Other than a measuring rod, did you use any
309
1 other type of instrument along the transects in
2 area 1?
3 A. We only used a measuring device that either
4 had graduations marked on it commercially or that we
5 had prepared.
6 Q. You say measuring rod?
7 A. Either a rod or a measuring staff.
8 Q. Am I correct you measured from where the
9 rod would first contact the sediment surface to the
10 water level surface?
11 A. We would rest the rod or the measuring
12 device on the soil surface and make sure that it was
13 representative of the soil surface.
14 In other words, we had not pushed the rod
15 down into the sediment where we had some obstruction
16 above the soil surface.
17 Q. And for each of the sampling sites where
18 you took water level measures, did you take more than
19 one reading for a specific site?
20 A. Typically we followed the procedures that I
21 described previously this morning.
22 Q. So the procedure you described in water
23 level measuring for area 2A is essentially the same
24 procedure you used in area 1 along these transects?
25 A. The technique is essentially the same.
310
1 Q. Just so I'm clear, that's where you
2 described that you would go around to four or five
3 spots within approximately a five meter square to
4 make sure that you had a fairly uniform level; and if
5 there were some that were way outside, you would
6 throw those out and do an average in your head of the
7 ones that seemed consistent?
8 Is that generally how the water level
9 measures were taken for a specific site?
10 A. That's generally how they were taken. The
11 only additional qualification I would place on that
12 is we took water measurements in a particular
13 vegetation zone. And if we had an area that had
14 different vegetation zones, we would record different
15 water depths to the extent that there were different
16 water depths within those different vegetation zones
17 and record that.
18 But the procedure that we described this
19 morning where we would take several measurements,
20 make sure that we were -- we had the rod resting
21 appropriately on the bottom of the water off the
22 recording device, record it in a field notebook and
23 take enough measurements to determine the variability
24 of the ground surface at that point in time, and take
25 an average that was representative of that particular
311
1 sampling location is what we did.
2 Q. If you had an area that changed vegetation
3 type, would I be correct when you reported to -- you
4 said you would report two water levels if there were
5 different water levels for those vegetation types.
6 Would those be representative of two sample
7 stations, if you will, for water level?
8 A. We would record the water level measurement
9 along with the specific vegetation association.
10 Q. Did you take water quality samples at each
11 of the locations that you took water level readings?
12 A. Generally, yes. There may have been some
13 water level recordings in locations where water
14 quality sample was not taken. But generally, yes.
15 Q. What would be the reason -- what was the
16 reason for not taking a water quality sample in any
17 location where you were taking a water level
18 measurement?
19 A. I recall that in a couple of instances or
20 so where we were at the most interior -- that is,
21 away from the canal location of the transect -- there
22 was a mosaic of vegetation types present and in very
23 close proximity to one another, and we may have
24 described those vegetation associations and taken a
25 water depth associated with each.
312
1 But it was essentially all the same water,
2 if you will, in that location, because the difference
3 in distance between the community change or the
4 vegetation change from one point to another with the
5 resulting water depth measurements may have been only
6 a matter of 5, 10, 20 feet. Just a short distance.
7 So when that occurred, we probably only
8 took one water quality sample.
9 Q. Under those circumstances where did the
10 water quality come from, which area of vegetation?
11 A. We recorded that in the field notes.
12 Q. Was there a criteria established which one
13 you would generally take in that situation?
14 A. We took it in the sample location that was
15 the most representative of that area.
16 Q. When you say "most representative," what do
17 you mean?
18 A. We generally established our sampling
19 stations in an area of essentially homogeneous
20 vegetation. In other words, an area that was
21 essentially dominated by cattail or essentially
22 dominated by sawgrass.
23 There were only a couple of instances that
24 I can recall where -- and again, these were on the
25 interior part of the refuge at the end or towards the
313
1 end of our transect locations, where there may have
2 been other vegetation associations present. And when
3 that occurred, we would take data on them also to the
4 extent that they occurred.
5 Q. You would take what kind of data?
6 A. Vegetation and water data.
7 Q. You would not take water quality sampling
8 in that situation?
9 A. Not a separate water quality sampling.
10 Q. Did you take soil cores at each of the
11 locations where water levels were measured along the
12 transect in area 1?
13 A. No.
14 Q. Why not?
15 A. We were limited in the number of soil cores
16 we could take. We were not allowed to take as many
17 samples as we perhaps would have wished to be able to
18 take, based on the protestations of the federal
19 government.
20 Q. How did you pick the sites for purposes of
21 measuring water level? What was the criteria you
22 used for picking the sites along the transects for
23 measuring water level?
24 A. We measured water level at the sites that
25 we had selected based on vegetation.
314
1 Q. What criteria was used for the site
2 selected for taking surface water quality samples?
3 A. Those samples were taken at the locations
4 where the vegetation data was taken with the
5 exception of the few instances I have already
6 discussed.
7 Q. So then vegetative cover essentially
8 determined your sites for water quality sampling, as
9 well. That was a criteria you were using for
10 selecting the sites on a transect?
11 A. That's correct, except for the water
12 quality sample that was collected in the canal proper
13 or the open area that might have been immediately
14 adjacent to the canal. But essentially the canal --
15 that water quality sample station was located based
16 on it being along the transect and it being in the
17 canal or adjacent to the canal, but not based on
18 vegetation.
19 Q. What criteria did you use for selecting
20 those sites along the transects where you took same
21 core samples?
22 A. Again, we tried to take same core samples
23 along each transect to the extent that we could to
24 provide a generally representative data of soil
25 conditions in various vegetation communities and
315
1 various distances from the canals.
2 Q. What was the significance of using distance
3 from the canal as a criteria for selecting your soil
4 core sampling locations?
5 A. We wanted to try to attempt to capture
6 whatever variation there might have been or there
7 might be in the band of altered vegetation adjacent
8 to the canals, therefore we did not want to take all
9 of the soil data immediately adjacent to the canal or
10 way away from the canal. We wanted to take
11 representative locations along each transect.
12 Q. The vegetative description data you
13 collected, can you tell me, did that -- tell me what
14 that included generally? How were you recording that
15 vegetative descriptive data?
16 A. In a field note book.
17 Q. Would you record the various species and
18 percentage of cover for a species at a given
19 location?
20 A. Generally.
21 Q. What was the geographic parameters, if you
22 will, of a specific sampling location that you were
23 indicating a percentage cover at?
24 A. We had a particular radius both that we
25 looked at and in making determinations, and that
316
1 specific number is recorded on the field data sheets.
2 I don't remember as I sit here right now exactly what
3 it was.
4 Q. Do you have a rough estimation, your
5 understanding, that specifications are reflected on
6 documents?
7 A. If I could refer to the field sheet I could
8 give you the exact distance.
9 Q. Considering I don't have the field sheet
10 and I don't recall ever seeing it, I'm just trying to
11 get a ballpark rough estimate.
12 A. The field sheets have been produced
13 approximately a year ago to assist you in this point
14 in time to give you a general idea of the distance we
15 are talking about.
16 I will give you a number, but as throughout
17 the whole deposition when you have asked me for
18 specific numbers, I have tried to refer you to the
19 documents where you could get the correct and
20 accurate number. I just don't carry all of these
21 numbers around in my head, and I'll continue to try
22 to do that.
23 But in terms of general area, approximately
24 50 or 100 feet out from the boat in a general
25 circular fashion, that order of magnitude.
317
1 MR. KOBELINSKI: Counsel, I just note the
2 field notes with regard to the entry and access
3 of the refuge in the Park were actually
4 disclosed or provided on two separate occasions.
5 Number one, as agreement, pursuant I guess to
6 the court's order that data was exchanged after
7 there was entry and access to the refuge.
8 Dr. Dennis' field notes were exchanged along
9 with the results of his testing.
10 MR. NETTLETON: Were they exchanged with
11 the federal government or with us?
12 MR. KOBELINSKI: Whoever asked for them, we
13 provided copies.
14 Number two, they were likewise also
15 included in the documents produced a year ago
16 when Dr. Dennis' documents were originally
17 produced. Just so you know, the field notes
18 have been actually produced on two separate
19 occasions.
20 MR. NETTLETON: That's something we intend
21 to look into.
22 MR. KOBELINSKI: All right.
23 BY MR. NETTLETON:
24 Q. What were the water quality samples that
25 were collected along these transects analyzed for?
318
1 A. Again, all of the specific parameters were
2 analyzed in the field notes and the documents
3 produced and the results of those.
4 And Dr. Bud Smart was the one that actually
5 took that water quality data and was responsible for
6 those results.
7 Q. What is your understanding of what the
8 parameters were analyzed for in the water quality
9 sample?
10 A. That generally included a fairly standard
11 set of water quality parameters including
12 phosphorous, nitrogen chloride conductivity,
13 temperature, those types of standard water quality
14 parameters.
15 Q. Do you know whether core water nutrients
16 were measured?
17 A. I don't believe so.
18 Q. Do you know whether extractable soil
19 phosphorous was measured -- I should say, nutrients?
20 A. There was a measurement of phosphorous in
21 the soil samples that were taken.
22 Q. Other than total phosphorous, do you know
23 if any other types of measurements of phosphorous
24 were taken from the soil cores?
25 A. I believe total phosphorous was the only
319
1 thing that was measured.
2 Q. Do you know whether nitrogen was measured
3 in the soil cores?
4 A. I don't believe so. Again, I would refer
5 you to the data that has been turned over.
6 Q. Do you know if anyone analyzed the data in
7 order to determine any nitrogen phosphorous ratios
8 that may have existed in the areas?
9 A. Not that I can recall.
10 Q. Was bulk density measured in the soil
11 cores?
12 A. I don't believe so.
13 Q. Was there any attempt, to your knowledge,
14 to calculate the total mass of phosphorous in any
15 particular location or soil sample?
16 A. My recollection is that the soil
17 phosphorous samples were collected in the field,
18 using the core with an intent to measure compaction
19 of the core, and that then those cores were analyzed
20 for total phosphorous.
21 Q. How was the vegetative cover
22 percentage-wise determined?
23 A. Visually.
24 Q. As far as your visual determination of
25 percentage cover, would that involve the same general
320
1 geographic site area that you described before with
2 regard to the water quality sampling which was 50 to
3 100 feet, rough estimate, with the center of that?
4 A. Within that specified sampling radius there
5 was a visual estimate made of the percent cover of
6 that area.
7 Q. Was there any exercise in the nature of any
8 particular site actually going out and counting the
9 number of cattail plants or sawgrass plants or
10 measuring biomass in any discrete area?
11 A. No. As I mentioned previously, we had a
12 very short and limited time period in which we were
13 allowed access to conduct any data collection, and we
14 were restricted as to what types of samples we could
15 collect.
16 Q. Did you take any replicate water quality
17 samples for given sites, field replicates?
18 A. I believe so, but I would again refer you
19 to the field data.
20 Q. The water level data that you collected
21 along the transects in area 1, was that a single
22 sampling event for each of the sites?
23 A. Yes.
24 Q. Do you have any knowledge of what the
25 variability in water depth is at any of those sites
321
1 over a temporal period -- I should say, seasonal
2 variation?
3 A. We were not allowed access to investigate
4 those areas on a seasonal basis.
5 Q. Do you know whether the water levels at any
6 of your given sites may or may not have a seasonal
7 variation of two feet or in that range during the
8 course of a year?
9 A. The seasonal variation level would be
10 controlled by the District's release of water into
11 that area.
12 Q. How does the District's release of water
13 into the area control the seasonal variability of
14 water depth along your transects?
15 A. If more water is released into that area
16 from the S-5 or S-6 control structure, and depending
17 on whether the 10C structures are open or closed, the
18 water will either go up or down in WCA-1. And it
19 will remain up or down, depending on how much water
20 is put in there and how long it's held in there.
21 Q. So it's your understanding that the water
22 coming through the S-5A station directly influenced
23 the water levels in WCA-1?
24 A. As I said, it's my understanding that water
25 is released into WCA-1, which is essentially a closed
322
1 system surrounded by levees and dykes with two
2 principal locations where water can enter. That's in
3 the S-5 area and S-6 area. And the principal areas
4 where water can be released are the 10 structures.
5 And the water levels are regulated in that
6 area through the joint agreement with the Corps of
7 Engineers and the Water Management District. Either
8 the water has to come in there from those sources or
9 it has to come from rainfall, and depending on how
10 the system is operated and what gates are open, when
11 and for how long and how much it rains when and where
12 and how long the water will go up or come back down.
13 Q. Do you know historically what the seasonal
14 variation in water levels is along the specific sites
15 that you examined along the transects?
16 MR. KOBELINSKI: What time frame, Counsel?
17 MR. NETTLETON: Historical.
18 MR. KOBELINSKI: Are you talking about
19 1800?
20 MR. NETTLETON: Any period, if he has
21 knowledge. Then we will ask him about it.
22 THE WITNESS: Could you at least clarify
23 the historical reference to before the project
24 was constructed or after the project was
25 constructed?
323
1 BY MR. NETTLETON:
2 Q. Let's take after the project was
3 constructed, do you know what the annual -- entire
4 annual or seasonal fluctuations in water level have
5 been, say, over the last five years for the sites
6 that you sampled along the transects in area 1?
7 A. Each one of the transects would have a
8 different degree of fluctuation. They weren't all
9 the same.
10 Q. Well, my question is, do you know what
11 those fluctuations were? Do you have information
12 which would indicate to you what the actual
13 fluctuations were at any of those sites?
14 A. I have the records and the stage gauge data
15 which reflect water levels within the refuge for
16 various periods of record.
17 Q. Does that stage gauge data provide you
18 information as to what the levels were along the
19 transects you measured?
20 A. It could be used to provide an estimate of
21 those variations.
22 Q. How can it be so used?
23 A. Well, let's take an example. The upper end
24 of the regulation schedule is at 17 feet. If you
25 know that the water level is at 17 feet based on
324
1 looking at the various stage gauges within the refuge
2 or on the control gates surrounding it, and you know
3 that the relative elevations along portions of the
4 transect are -- well, let me go through another step.
5 And you know what the elevation was in the
6 tab period based on the gauge station data at the
7 time we conducted our investigation, then you can
8 determine a depth of water for a particular gauge
9 station elevation. And that would allow you to go
10 back and make a determination or an estimate of what
11 the depth of the water would be based on other stage
12 gauge readings as recorded.
13 Q. So from a single stage gauge reading that
14 corresponds with your single sample events, you can
15 develop some type of correlation between the stage
16 gauge level and historic levels along your transect?
17 MR. KOBELINSKI: That's supposed to be a
18 characterization of his testimony. I will
19 oppose that or object to that as a
20 mischaracterization.
21 BY MR. NETTLETON:
22 Q. Is that what you are saying?
23 A. I'm saying that you can take the stage data
24 records and use those as a means of determining what
25 the water depths were likely to be on a particular
325
1 date.
2 Now, that determination needs to be
3 evaluated in the context of whether or not there was
4 a flat pool of water in the refuge at that time or
5 whether there were a -- what I'm saying is, you have
6 to look at -- watch the variations in the gauge data
7 and, dependent on the similarities of that and taking
8 that into account, then, yes, you could come up with
9 an estimate of what the water depths would be.
10 Q. Were there flat pool conditions in the
11 refuge at the time you took your water level samples?
12 A. I believe that they were essentially and
13 within a fairly narrow range flat.
14 Q. Have you or anyone at BDA attempted to make
15 this calculation that you described earlier from
16 stage gauge data to determine the historical water
17 levels along the sites in the transects that you
18 measured water levels for in area 1?
19 A. We have looked at what the water levels
20 were on or near the days that we conducted our
21 sampling and looked at that in the context of the
22 readings that we had and were recorded on the days we
23 did our sampling.
24 Q. You previously mentioned that all of the
25 data collected with regard to this entry into the
326
1 refuge may not be contained in Exhibit 6.
2 What data would have been excluded from
3 recording in Exhibit 6, what data has been excluded?
4 A. I don't think that's what I indicated
5 earlier. If I recall, I think you asked me if all of
6 the water level data, what's included in the year,
7 and I indicated I didn't know.
8 Q. So you don't know one way or the other, is
9 that what you are saying, whether all the data is
10 included in Exhibit 6?
11 MR. KOBELINSKI: Water level data?
12 MR. NETTLETON: Well, water level data.
13 THE WITNESS: I know that I have turned
14 over all of the water level data that we
15 collected to Dr. Millard.
16 BY MR. NETTLETON:
17 Q. Was all of the data that you collected
18 along the transects in area 1 provided to
19 Dr. Millard?
20 A. Yes.
21 Q. That include water level, soil core data
22 and water quality data and vegetative description
23 data?
24 A. Yes.
25 Q. Do you know whether Dr. Millard made a
327
1 determination to exclude some of that data in his
2 analysis as reported in Exhibit 6?
3 MR. KOBELINSKI: I object to the form,
4 excluded.
5 THE WITNESS: This is Dr. Millard's paper
6 and analysis. We pick the data in the field,
7 recorded it, provided it to him. And he made
8 his own determinations of what data to use, how
9 to use it and what analysis to run on it.
10 BY MR. NETTLETON:
11 Q. Who did the laboratory analysis for the
12 water quality in soil cores?
13 A. That was done by -- where the samples were
14 turned over to BDA labs, except there may have been
15 some water quality analysis that was run by Dr. Jack
16 Jones. So the samples were turned over to either one
17 or both of those laboratories for analysis.
18 Q. And were all of the sampling results
19 provided to Dr. Millard?
20 Was there any screening of them by anyone
21 at BDA or anyone before it was turned over to
22 Dr. Millard?
23 A. We did not screen any of the data before
24 providing it to him.
25 Q. Do you know whether Dr. Millard discounted
328
1 any data he may have considered?
2 A. The only knowledge I would have of that is
3 whatever he reported in this paper.
4 Q. Did I understand you correctly that the
5 analysis and so forth and conclusions that are drawn
6 in this paper are those of Dr. Millard?
7 A. This is Dr. Millard's paper.
8 Q. Did you or anyone at BDA have any input
9 into the analysis or conclusions as set forth in this
10 paper?
11 A. I think as I stated before, we took the
12 data, developed it, sent it to Dr. Millard. As I
13 recall, he may have, in his review of the data, asked
14 us certain questions about how we took certain data.
15 But beyond that, he worked independently from us on
16 developing this paper.
17 Are we going to go to 12:30 or so for
18 lunch?
19 MR. NETTLETON: We can break at noon.
20 THE WITNESS: It doesn't matter to me.
21 MR. KOBELINSKI: Let's break when they
22 break.
23 THE WITNESS: I need a short break now.
24 MR. NETTLETON: We will break fairly soon.
25 BY MR. NETTLETON:
329
1 Q. Would you agree, Dr. Dennis, that based
2 upon the data collected in area 1 that there is no
3 way to assess the relationship between cattail
4 abundance and hydroperiod based upon that data?
5 A. That there is no way based on this data
6 to -- would you repeat that question?
7 Q. Would you agree that there is no way to
8 assess the relationship between cattail abundance and
9 hydroperiod based upon the data that you collected
10 along the transects in area 1?
11 A. How are you defining cattail abundance?
12 Q. However it's defined in Exhibit 6.
13 A. Let me see how Dr. Millard was using that.
14 Q. I don't want to interfere with your review.
15 I would suggest that cattail abundance is a term used
16 in the title of the report.
17 The only data I'm aware of that he was
18 looking at is the data you provided concerning
19 cattail coverage in the specific geographic area. I
20 would assume that the percentage coverage as reported
21 by you will be the equivalent of cattail abundance as
22 used by Dr. Millard.
23 MR. KOBELINSKI: Would you like to use that
24 as the definition for the purpose of the
25 question, just to save some time?
330
1 MR. NETTLETON: Certainly, if that saves
2 time.
3 THE WITNESS: With the understanding that
4 you are equating cattail abundance to the
5 percent cover estimates.
6 BY MR. NETTLETON:
7 Q. That's what's reflected in the report, is
8 it not?
9 A. I was in the process of confirming that.
10 Q. Okay.
11 MR. NETTLETON: Mark that as Exhibit 7.
12 (The document referred to was thereupon
13 marked Exhibit 7 for Identification.)
14 MR. NETTLETON: Mark that as Exhibit 8.
15 (The document referred to was thereupon
16 marked Exhibit 8 for Identification.)
17 THE WITNESS: If you will repeat the
18 question.
19 (The question referred to was thereupon
20 read by the reporter as above recorded.)
21 THE WITNESS: I would agree with
22 Dr. Millard's statement, that this data analyzed
23 in this report represents one snapshot in time.
24 There is no way to assess the relationship
25 between cattail abundance and the hydroperiod
331
1 based upon these data unless one wants to use
2 water depth as a proxy for hydroperiod.
3 MR. NETTLETON: Okay.
4 THE WITNESS: And I believe that with the
5 various qualifications and with the database
6 that's available here, that statement is an
7 appropriate qualification.
8 I do believe that the data clearly shows
9 that cattail is growing in areas with typically
10 deeper water around the perimeter areas of
11 WCA-1.
12 BY MR. NETTLETON:
13 Q. Those deeper water areas also tend to have
14 higher phosphorous concentrations in the soil?
15 A. Some of those areas typically do.
16 Q. Let me show you what has been marked as
17 Dennis Exhibit 7 and, if you could, just identify it.
18 Is this the raw data reflecting the
19 sampling events that you described in area 1 along
20 the transects?
21 A. It appears to be, yes.
22 Q. I notice in the last column it's a column
23 for percent cattail coverage. Did you, in fact,
24 collect data on percent coverage of other species
25 other than cattail?
332
1 A. I believe so.
2 Q. Do you know if those are reported in any
3 type of tabular form somewhere other than in field
4 notes?
5 A. I don't know that it's recorded in any
6 other tabular form.
7 MR. NETTLETON: Let's take a break now for
8 lunch.
9 (Thereupon, a lunch recess was taken,
10 after which the following proceedings
11 were had:)
12 BY MR. NETTLETON:
13 Q. Dr. Dennis, let me show you what has been
14 marked as Exhibit 8 and -- which consists of a
15 composite, but the data attached to that, am I
16 correct that that reflects the government's --
17 federal government's data that was collected
18 simultaneously with the data you collected along the
19 transects in area 1 as we were discussing before
20 lunch?
21 My question is, does that include the data
22 that was collected by the federal government
23 simultaneously with the data that you collected along
24 the transect in area 1 that we were discussing prior
25 to lunch?
333
1 A. Yes. It's my understanding that this is
2 the data collected by the federal observers during
3 that sampling exercise.
4 Q. Have you or is anyone at BDA made any
5 comparison between the federal government's data and
6 the data that you collected to determine the
7 consistency?
8 A. I have looked at that, yes.
9 Q. What results or what conclusions did you
10 reach in that regard?
11 A. There are some areas of apparent
12 consistency and some areas where there are
13 inconsistent results.
14 Q. Can you tell me which areas have
15 inconsistent results?
16 There seemed to be some differences in some
17 of the water depths that are recorded, some of the
18 soil phosphorous readings.
19 Q. Just for the record, I believe Exhibit 8
20 also contains data reflected from water quality
21 sampling at the 14 or 16 interior stations appended
22 to the back of it as well, which may not be part of
23 the same data set?
24 A. That's correct. I was not referring to
25 that data set. And some of the water -- perhaps some
334
1 of the water values. I don't know that the tables
2 that I'm looking at indicate station, habitat, depth,
3 water, P SED, and it indicates February 16, 1993.
4 I have looked at this data set a couple of
5 times and I have had some difficulties in being able
6 to directly compare and understand it. For instance,
7 the date on this federal data set is 16 February
8 1993. Our sampling dates indicate that samples were
9 taken on February 16, 17 and 18, 1993.
10 Q. Other than the dates, is there any other
11 difficulty matching up the stations?
12 A. Yes.
13 Q. What are those?
14 A. Also the station notations are not the
15 same, and I have not at this time gone back to the
16 follow-up spread sheet description and plotted their
17 locations with their latitude and longitude and, in
18 some cases, question marks to see specifically which
19 one of these stations relate to our particular
20 station.
21 So there is some confusion that I still
22 have about comparing station to station. And then,
23 in addition, as I have just mentioned, the results
24 that are indicated water PPB, I'm not sure what that
25 refers to, which one of the values.
335
1 I assume that they are referring to
2 phosphorous, but I don't know that's the case. And
3 then there are differences recorded in the P
4 received, which is the sediment phosphorous data.
5 Q. Did you visually observe the federal
6 government's representatives taking the water quality
7 and soil samples?
8 A. Yes.
9 Q. Were they generally taken in the same
10 location as your sampling activities?
11 A. In the same general area.
12 Q. Are there any differences that you have
13 noted? You mentioned there are differences. Are
14 there any differences that you have noted that would
15 appear to be rather significant in the sense of how
16 you would define the significant difference that
17 would be unexplainable, assuming they came from the
18 same location?
19 A. Yes. One of the most immediate and obvious
20 striking differences involves the phosphorous
21 sediment data. It's in instances quite different.
22 Q. Do you have any explanation for why they
23 would be different?
24 A. I don't know why they are different.
25 Possible explanations that I have thought of are one,
336
1 how the phosphorous samples were taken. I don't
2 know -- I'm not exactly sure what the federal
3 scientists were always doing and what data they were
4 always collecting.
5 For instance, they carried small little
6 cups about the size of the plastic water cups we have
7 been having, and they would at times scoop up some of
8 the bottom with those cups. And I don't know whether
9 the phosphorous data they report here is an analysis
10 of those cups that they scooped up or whether this is
11 phosphorous data from samples that we gave them from
12 cores we took.
13 So one thing I can't explain is where the
14 soil phosphorous samples that are reported by the
15 federal investigators came from.
16 Q. Did the federal representatives take some
17 core -- replicate soil cores?
18 A. No.
19 A. They had no soil cores that I recall.
20 Q. Did you split your soil cores with the
21 federal government?
22 A. Yes.
23 Q. I would like to move along to the area that
24 you previously defined as the S-9 area.
25 Did you or anyone at BDA collect any water
337
1 depth measurement data from what you defined as the
2 S-9 area?
3 A. Yes, we did.
4 Q. Can you describe for me generally what
5 measurements were taken?
6 A. Yes. We traversed that area in an air boat
7 and stopped periodically and took water depth
8 measurements. We did this on a number of transects
9 throughout that area.
10 Q. Are those transects identified in any
11 reports somewhere?
12 A. I don't believe they are identified in any
13 reports.
14 Q. Do you know what the location of those is?
15 Can you describe the location of those transects?
16 A. The location in terms of latitude and
17 longitude of each of the sampling points was
18 submitted previously. And I believe all of that
19 information is in the materials that we presented in
20 production of documents, but --
21 Q. But for what?
22 A. But for your purposes now, since you don't
23 seem to have had -- or looked at that data, there
24 were a number of transects throughout that entire
25 triangular area we described this morning, so the
338
1 entire area was covered.
2 Q. Did the transects all run in one direction
3 or different directions?
4 A. As I recall, some of them went east, west
5 and some of them went out in other directions.
6 Q. Were the latitude/longitudes reported in
7 anything other than your field notebooks?
8 A. They were recorded as GPS data points, as I
9 recall.
10 Q. Reported where?
11 A. Here is where I would need to go back and
12 look and see exactly which way the data was recorded.
13 But when we took GPS readings, we either took a
14 reading off of the GPS unit in the field and/or
15 recorded that reading within the GPS unit, which then
16 allowed us to go back and plug that into a
17 computerized database.
18 Q. Was your means of measuring the water depth
19 essentially the same as you described earlier for
20 doing that?
21 A. Essentially the same with the exception of
22 the -- I believe the depth measurements were probably
23 made within a smaller area than we were talking about
24 earlier this morning, because they were not
25 necessarily associated with a particular vegetation
339
1 type.
2 Q. What was the criteria you used for
3 selecting the sites where you were measuring the
4 water depth?
5 A. We were trying to get as accurate coverage
6 of that area reflective of topographic conditions as
7 we could.
8 Q. Did you have set spacing between your
9 sampling sites along the transects?
10 A. I believe what was done is there was an
11 attempt to generally space them along the transects,
12 but that was, I believe, done by timing distance of
13 travel and thereby approximating the spacing.
14 Q. So you would run the air boat for five
15 minutes and stop, is that what you are talking about?
16 A. Whatever the time interval might be.
17 Q. Did you collect water quality samples at
18 any of the sites that you took water depth
19 measurements out of?
20 A. I don't believe so.
21 Q. Did you take any soil cores at any of the
22 sites that you took water depth measurements out of?
23 A. I don't believe so. Again, for an
24 absolutely complete and definitive answer, I would
25 refer you to the field notes on that.
340
1 Q. If you had taken water quality samples and
2 soil cores that were reflective of field notes, would
3 that have been transferred into any particular
4 database or report form at any time?
5 A. I don't recall any reports that we used
6 relative to that area.
7 Q. I think I qualified my questions as to
8 whether you had taken water quality or soil cores at
9 the sites that you took water depth measurements.
10 Without that qualification, did you take
11 any water quality or soil cores in the area that you
12 described as the S-9 area?
13 A. As I recall, we assisted in taking some
14 data of that type in that area.
15 Q. What type of data?
16 A. Some were quality data and some soil core
17 data.
18 Q. Who were you assisting?
19 A. Dr. John Davis.
20 Q. Do you know what the purpose was for
21 Dr. Davis taking those water quality samples or soil
22 cores?
23 A. Yes.
24 Q. What was that?
25 A. We were trying to evaluate the
341
1 environmental conditions within that S-9 area.
2 Q. Why was that area of interest?
3 A. Because cattail was growing in it and it
4 had not been identified as a nutrient enriched area
5 as -- at the area south of the 10 structures.
6 Q. Have you seen the results of the analysis
7 of the water quality samples and soil cores taken in
8 the S-9 area?
9 A. That was some time ago, but I believe at
10 some point in time I saw the results.
11 Q. Do you generally recall what the
12 phosphorous -- total phosphorous levels were in the
13 water samples?
14 A. I don't recall specifically what they were.
15 Q. And the range? Were they higher or lower,
16 comparatively speaking, to the surrounding areas?
17 A. My recollection is that they were in the
18 low range as opposed to a high range.
19 Q. What do you mean by a low range?
20 A. Generally values that were at or slightly
21 above what was then referred to me as typical
22 background conditions.
23 Q. What would that be, what has been referred
24 to you as typical background conditions?
25 A. In which geographic area?
342
1 Q. The area you were just referring to when
2 you said that it was referred to you as background.
3 A. If I could remember what the numbers were,
4 I would just go ahead and tell you what they are.
5 Maybe we could look through the documents and I could
6 see if I could find some of those.
7 Q. I would prefer not to spend time going
8 through the boxes, but at this stage --
9 A. There were boxes of data produced.
10 Q. Are you talking in the 10 to 20 parts per
11 billion or 50 to 70 or greater than 100 parts per
12 billion? What's a ballpark figure?
13 A. The best that I can recall in a ballpark
14 figure, not having reviewed those specific numbers in
15 years, was in the below 100 range, but I'll give you
16 that number with a qualification that it may be
17 different than what was actually recorded.
18 Q. It may have been more than a hundred parts
19 per billion?
20 A. It may have been more or may have been
21 less. As I recall some of the numbers, it varied
22 from station to station.
23 Q. What were the soil cores that were taken
24 analyzed for?
25 A. There may have been a number of parameters.
343
1 I do recall they were at least analyzed for
2 phosphorous.
3 Q. Total phosphorous?
4 A. At least total phosphorous. And there may
5 have been other analyses run on that.
6 Q. What were the range of levels of
7 phosphorous found in the soil cores in the S-9 area?
8 A. Again, I don't recall the specific numbers.
9 Q. Do you intend to go back and review all of
10 the data that we have been discussing prior to trial?
11 A. Portions of it.
12 Q. Would this be one of those portions?
13 A. I would intend to review that data to
14 determine more specifically what the range of values
15 and the conditions were.
16 Q. Have you taken any vegetation reflective
17 data for the S-9 area?
18 A. Yes.
19 Q. Did you collect any vegetative description
20 data in the sites that you took water depth
21 measurements at the sites?
22 A. Was this the first series of water level
23 records that we were talking about?
24 Q. Right, the transects you indicated you did.
25 A. There may have been some vegetative data
344
1 taken in association with others. But as I recall,
2 that data was taken primarily to evaluate the
3 contours of that area.
4 Q. What does that mean?
5 A. The topography, general topography of the
6 area.
7 Q. Were you taking specific data concerning
8 vegetative cover for the specific sites that you took
9 water level measurements out of?
10 A. Again, I don't believe we did.
11 Q. Were water level or water depth
12 measurements made in conjunction with Dan Davis'
13 collection of water quality and soil cores in the S-9
14 area?
15 A. Yes.
16 Q. And those were separate than the transects
17 that you referred to previously?
18 A. Yes, sir.
19 Q. What areas was John Davis taking water
20 level measurements at within the S-9 area, were those
21 also along transects?
22 A. Not a specific transect, no.
23 Q. How were the sites that John Davis was
24 taking water level measurements at chosen?
25 A. Based on vegetation and distance from the
345
1 S-9 structure.
2 Q. How was vegetation used to choose a site?
3 A. There were certain areas that had dense
4 cattail, other areas were dominated by sawgrass and
5 other areas had mixed stands of sawgrass and cattail.
6 Q. Were the sites chosen to sample the various
7 different types of vegetative cover?
8 A. Yes.
9 Q. Approximately how many sites did John Davis
10 have?
11 MR. KOBELINSKI: John Davis what? I didn't
12 hear you.
13 MR. NETTLETON: -- have in the S-9 area?
14 THE WITNESS: As I recall, there were six
15 stations that we sampled at that time.
16 BY MR. NETTLETON:
17 Q. What time period was this sampling done?
18 A. Our involvement in that sampling was over a
19 few days time period.
20 Q. Do you recall approximately when?
21 A. I believe I made field notes on that and
22 the exact dates would be on those field notes. But
23 as I recall. It would have been 1990.
24 Q. Do you recall what time of the year it was,
25 what season?
346
1 A. I believe it was early 1990.
2 Q. The transects that you described that BDA
3 ran, was that done before or after John Davis'
4 sampling activity?
5 A. After.
6 Q. Approximately when were you out in area 9
7 or S-9 area running those transects?
8 A. It was probably either late 1990 or 1991.
9 Q. When you ran your transects collecting
10 measurements on water depth, what generally did you
11 find as far as the water depth in that S-9 area?
12 A. As I recall, when that series of transects
13 were run the water depth was several feet deep.
14 Q. That would be throughout the S-9 area as
15 you described it?
16 A. As I recall. It varied some, but
17 generally, yes.
18 Q. What about during the time period when John
19 Davis was taking his water quality and soil core
20 samples, what was the water depth during that time
21 period in the S-9 area?
22 A. The times that I was there, the water depth
23 varied from three or four feet deep, I believe, to a
24 foot and a half to two feet deep.
25 Q. It varied over space or over time?
347
1 A. Both.
2 Q. Did it vary that much within the few days
3 that you were out there in a given location?
4 A. I recall being out there with the depth
5 being different. I'm not sure whether or not those
6 different depths were associated with that initial
7 picking of those sampling stations or whether I'm
8 remembering a couple of different visits out there.
9 Q. The water depth measurements that you made
10 along your transects in the S-19 area, were those one
11 time measurements at each site?
12 A. Yes.
13 Q. Referring to the area that you described as
14 the northern area of 3A, can you tell me what, if
15 any, water quality sampling you have done in that
16 area?
17 A. I believe there was some work quality
18 samples taken in a few locations in that area.
19 Q. How were those locations chosen?
20 A. They were picked based on our
21 identification of the occurrence of cattails in those
22 areas.
23 Q. What does that mean, on the occurrence of
24 cattails? You were sampling only in cattail areas or
25 what?
348
1 A. We identified areas in the northern part of
2 3A as I described this morning where cattail was
3 occurring. And we would sample from the areas that
4 contained cattail out to areas that were contiguous
5 that didn't contain cattail.
6 Q. Did they do that along a transect?
7 A. Essentially, yes.
8 Q. How were the stations along that transect
9 chosen?
10 A. Representative stations along that transect
11 were chosen to reflect differences in vegetation
12 composition or topographic relief.
13 Q. What do you mean by topographic relief?
14 A. Varying elevations at the ground.
15 Q. Was there more than one transect?
16 A. As I recall, yes, there were several
17 transects.
18 Q. How many?
19 A. Three or four more or less, as I recall.
20 Q. Were you taking water level measurements
21 along these same transects?
22 A. Yes.
23 Q. Did you take them at each of the places
24 where you took water quality sampling and vice-versa?
25 A. We probably took more -- I'm sorry, what
349
1 was the question, what measurement we had?
2 Q. Did you take water quality samples at each
3 location you took water level measurements?
4 A. I don't believe so, no.
5 Q. So you would have taken more water level
6 measurements than water quality samples?
7 A. Yes.
8 Q. The places where you did take water quality
9 samples, did you also take water level measurements?
10 A. I believe so, yes.
11 Q. Why did you not take water quality samples
12 at each of the water level measurements stations?
13 A. These were stations in relatively close
14 spacing, and it wasn't felt that the water quality
15 would vary that much within that short distance.
16 Q. What kind of spacing were you talking
17 about?
18 A. 10 feet.
19 Q. How far apart were the water quality
20 samples generally taken?
21 A. I think, as I indicated when we started
22 this, I believe there were some water quality data
23 taken, but I would need to look at the field notes to
24 be sure. If they were, there were just general water
25 quality samples taken from the geographic area.
350
1 Q. Am I correct, then, the purpose of this
2 particular exercise was not to define the water
3 quality of the surface water in the area?
4 A. I think we were interested in knowing what
5 it was generally in that area, but we recognized that
6 one water quality sample in one day doesn't
7 necessarily explain the water quality history of the
8 area.
9 So we probably took a water quality sample
10 or two to generally see what the results showed, but
11 I believe that was the extent of our investigations
12 in the surface water quality in that area.
13 Q. Were the water level measurements made with
14 the same techniques as you described earlier with
15 regard to area 2A?
16 A. Generally.
17 Q. Were any soil cores taken from this area?
18 A. I believe there were some taken, yes.
19 Q. Were they taken along the same transect as
20 the water level measurements?
21 A. Yes.
22 Q. Did you take soil cores at each of the
23 stations that the water level was measured?
24 A. We would have taken a water level
25 measurement wherever we took a soil sample, but we
351
1 probably took more water level measurements than we
2 took soil samples.
3 Q. What were the soil cores analyzed for?
4 A. As I recall, total phosphorous.
5 Q. Did you look at any other parameters?
6 A. May have been, but none that I recall right
7 now.
8 Q. What would the range of total phosphorous
9 result from the analysis of the cores be?
10 A. Again, I refer you to the specific data
11 that we produced that give those values.
12 Q. Do you have any general recollection of
13 what range they fell into?
14 A. My general recollection is that they were
15 in the low to slightly elevated over background.
16 Q. And what are you defining as background?
17 A. Background can probably and probably does
18 vary from location to location and place to place.
19 As a general concept, soil phosphorous, total
20 phosphorous measurements of 400, 500, somewhere in
21 that range.
22 Q. Is that milligrams per kilogram or what
23 units are you referring to?
24 A. I believe that's how the measurements are
25 usually referred.
352
1 Q. The water level measurements that you took,
2 were those single sampling for each site?
3 A. To the degree we took any, it was one or
4 two.
5 Q. I'm talking about water level.
6 A. I'm sorry.
7 Q. Were they single date samples for each of
8 the sites?
9 MR. KOBELINSKI: Single.
10 MR. NETTLETON: I forgot my terminology.
11 BY MR. NETTLETON:
12 Q. Did you examine a site more than once for
13 water level in the northern 3A areas you described?
14 A. I don't believe so.
15 Q. Approximately when was this sampling
16 activity conducted?
17 A. This would have been in the, I believe,
18 '91, '92 time period.
19 Q. Is there a report that reflects the results
20 or reflects the data that was collected during the
21 sampling in the northern area 3A as you described it?
22 A. No specific report.
23 Q. Are you aware of anyone else who has done
24 any sampling activity in this area of northern 3A as
25 you described it?
353
1 A. Yes.
2 Q. Who was that?
3 A. I believe Dr. Reddy has conducted soil
4 phosphorous sampling in that area.
5 Q. Anybody else?
6 A. I believe Dr. Patrick has conducted some
7 soil phosphorous sampling, also.
8 Q. When did Dr. Patrick conduct soil sampling?
9 A. I believe that would have been within the
10 past year.
11 Q. Sometime in 1993?
12 A. I believe so. It could have been early
13 '94. I think it was probably '93.
14 Q. Other than Dr. Reddy and Dr. Patrick, are
15 you aware of anyone else doing any sampling in the
16 northern area of 3A as you described it?
17 A. Not that I can recall right now.
18 Q. Do you know if Dr. Patrick collected
19 anything other than soil samples?
20 A. I don't know.
21 Q. Have you seen the analysis result of the
22 soil samples taken by Dr. Patrick in this area?
23 A. I believe that I had seen some results of
24 those.
25 Q. You don't have a clear recollection?
354
1 A. No, I don't.
2 Q. When you were taking your water level
3 measurements, were you also collecting data on
4 vegetative description coverage?
5 A. Yes.
6 Q. Did you take vegetative description data
7 for each of the locations where you took a water
8 level measurement?
9 A. Generally, yes.
10 Q. The next area you described was the
11 holyland area. Have you or anyone at BDA collected
12 any data in the holyland area?
13 A. Yes.
14 Q. Have you collected water level data?
15 A. Yes.
16 Q. When did you do that?
17 MR. KOBELINSKI: Can I just interject?
18 Perhaps it's semantic, are we talking about
19 water level or water depth data, or is that the
20 same thing?
21 MR. NETTLETON: I think I'm using the terms
22 that Dr. Dennis provided to me.
23 MR. KOBELINSKI: Okay.
24 BY MR. NETTLETON:
25 Q. Dr. Dennis, do you draw a distinction
355
1 between water level and water depth?
2 A. The measurements that I have been referring
3 to have been measuring the depth of the water.
4 Q. Did you take water depth data in the
5 holyland?
6 A. I apologize for any confusion that that may
7 have caused.
8 Yes, we took some water depth in the
9 holyland.
10 Q. When was that?
11 A. In the, I believe, '92 time period.
12 Q. Again, did you set up transects in the
13 holyland?
14 A. Essentially, yes.
15 Q. Did you take water quality samples from the
16 surface water in the holyland?
17 A. I don't believe we did.
18 Q. Did you take any soil cores from the
19 holyland?
20 A. We may have taken a core or two, but I
21 don't think so. I can refer back to my notes. I
22 can't be absolutely sure one way or another about
23 that.
24 Q. Did you take data concerning vegetative
25 cover in the holyland?
356
1 A. Yes. And when you say did "you," I'm
2 assuming this goes back to your original line of
3 questioning where you mean me or BDA.
4 Q. Does that mean you did not personally take
5 this data in the holyland?
6 A. No, I didn't.
7 Q. Who did?
8 A. Dr. Joe Burch and George Carlson, as I
9 recall.
10 Q. Do you know how they went about measuring
11 water depth?
12 A. Essentially, as we discussed previously.
13 Q. Was vegetative cover data recorded for each
14 of the stations at which water depth was measured?
15 A. Generally, yes.
16 MR. KOBELINSKI: Can we take a quick break?
17 MR. NETTLETON: Yes.
18 (Thereupon, a brief recess was taken,
19 after which the following proceedings
20 were had:)
21 BY MR. NETTLETON:
22 Q. Dr. Dennis, turning to certain areas
23 adjacent to canals you described earlier today, can
24 you tell me if you took water level data from each of
25 those locations?
357
1 A. We took water level data at each one of
2 those, yes. Water depth data.
3 Q. Excuse me, water depth data?
4 A. Yes.
5 Q. Did you take water quality data at each of
6 those locations?
7 A. I don't believe so.
8 Q. Did you take water quality data at any of
9 those locations?
10 A. We may have taken some at some of those.
11 Again, that's reflected in the field notes.
12 Q. Would those water quality data, assuming
13 they were taken, have been taken at a location that a
14 water depth measurement was made?
15 A. Yes.
16 Q. Did you take any soil cores in those areas
17 adjacent to canals that you described earlier?
18 A. There may have been some taken.
19 Q. Would those have been in the same -- in a
20 location where the water level measurement was also
21 taken?
22 A. Yes.
23 Q. And did you take data concerning vegetative
24 cover in the areas adjacent to the canals we
25 described earlier?
358
1 A. Yes.
2 Q. Would you have taken such data descriptions
3 for each of the areas where you measured water depth?
4 A. Yes.
5 Q. Other than your field notes, is there any
6 place where the results -- or where this data is
7 tabulated in any form or reported in any form?
8 MR. KOBELINSKI: Object to the extent that
9 counsel is using, preparing or contemplating
10 trial exhibits, I would exclude that. But other
11 than that, he can respond.
12 THE WITNESS: With the exception of
13 Mr. Kobelinski's prior qualification, none that
14 I'm aware of.
15 BY MR. NETTLETON:
16 Q. Well, have you provided to counsel the
17 various data we have been discussing which is
18 contained in your field notes in some type of
19 memoranda form or typed format?
20 A. There may have been some instances over the
21 past four or five years where at the request of
22 counsel we provided some brief description of aspects
23 of some of these studies.
24 Q. I'm not asking about descriptions of the
25 studies, I'm asking specifically whether the data you
359
1 have collected as far as the water depth data at the
2 various locations we have been discussing has been
3 put into some type of format, either on a disk or
4 something and provided to counsel as opposed to
5 simply giving them the handwritten field notes.
6 A. We have not provided them any data on disk.
7 Q. Have you provided it on hard copy paper
8 other than the field notes?
9 A. We have provided on occasion certain
10 illustrations which contain some of the data that has
11 been collected.
12 Q. What do you mean by illustration?
13 MR. KOBELINSKI: To the extent you are
14 discussing draft trial exhibits, again
15 presenting data at trial as exhibits, I instruct
16 him not to answer.
17 If you are talking about lists of data, you
18 can ask him that he typed it out for us. Fine,
19 ask him that.
20 MR. NETTLETON: That's what I have been
21 asking.
22 MR. KOBELINSKI: That's why I'm instructing
23 you not to respond as to draft trial exhibits.
24 BY MR. NETTLETON:
25 Q. I'll come back to this in a little bit.
360
1 In the areas that you went into in the Park
2 that you described earlier, did you take water depth
3 data measurements?
4 A. Yes.
5 Q. Did you take water quality samples?
6 A. ESP primarily took the water quality
7 samples. I assisted in taking some.
8 Q. Did you take soil cores?
9 A. I did not.
10 Q. Did ESP take soil cores?
11 A. I don't believe so.
12 Q. Anyone from Duke take soil cores?
13 A. Yes.
14 Q. Did you collect data on vegetative cover in
15 the Park?
16 A. Yes.
17 Q. Did ESP take water quality samples at each
18 location that you took a water depth measurement?
19 A. No.
20 Q. Did you take a water depth measurement at
21 each location ESP took a water quality sample?
22 A. I believe so.
23 Q. Did you take data on vegetative cover for
24 each of the locations or stations that you measured
25 water depth?
361
1 A. Generally, yes.
2 Q. Did you take water depth measurements at
3 each location that Duke took a soil core sample?
4 A. Yes.
5 Q. Did Duke take a soil core sample at each
6 location you took a water depth measurement?
7 A. No.
8 Q. Have you prepared any topographical maps
9 with regard to the water depth measurements that you
10 have taken throughout the Everglades protection area?
11 A. Yes.
12 Q. When was that prepared?
13 A. Those data are recorded in the information
14 that's been submitted.
15 Q. To who?
16 A. In the production of documents.
17 Q. Which production?
18 A. I believe the original production.
19 Q. Did you say that there was a topographical
20 map produced in the first production for water depth
21 data?
22 A. I believe that data was depicted, yes.
23 Q. When you say data depicted, you mean on a
24 topographical map of some sort?
25 A. I believe we depicted the water depth
362
1 information that we discussed, some of which we
2 discussed previously in a mapped format.
3 Q. Dr. Dennis, can you tell me as specifically
4 or as generally as you feel appropriate what opinions
5 you intend to offer at trial in this matter at the
6 final hearing?
7 MR. KOBELINSKI: Other than those already
8 expressed?
9 MR. NETTLETON: Including those.
10 MR. KOBELINSKI: You want him to go over
11 what he already talked about?
12 MR. NETTLETON: I want to know each opinion
13 or category of opinion that you intend to
14 express at the final hearing.
15 THE WITNESS: In general terms, it would
16 include an opinion on the geographic extent of
17 cattail within the EPA, causative factors
18 related to the geographical extent of cattails
19 in the EPA, whether the occurrence of cattails
20 in the EPA has caused a violation of water
21 quality standards, the adequacy of the current
22 version of the SWIM Plan to address Everglades
23 restoration, the nature of the vegetational
24 characteristics of the natural Everglades,
25 vegetational changes that have occurred over
363
1 time to the natural vegetation of the
2 Everglades, reasons for those changes.
3 I believe those are generally the
4 categories of opinions that I'm going to offer.
5 There may be others, but those are generally the
6 categories, I believe.
7 BY MR. NETTLETON:
8 Q. When you say there may be others, do you
9 mean that would fall within one of these general
10 categories or a separate category that you haven't
11 thought of?
12 A. Into the third day in the afternoon of this
13 deposition I'm recognizing I might have forgotten
14 something, but this is what I can remember right now.
15 Q. Start with the geographic extent of
16 cattails within the EPA. What time period do you
17 expect to provide testimony concerning that issue?
18 A. Generally, from the early 1800's to the
19 present.
20 Q. What is your opinion of the geographic
21 extent of the cattails in the EPA in the early
22 1800's?
23 MR. KOBELINSKI: Object to the form to the
24 extent the EPA did not exist in the early
25 1800's. If you are referring to the area that's
364
1 currently the EPA, that's fine.
2 MR. NETTLETON: I'm using his words. I
3 think we understand what we are talking about.
4 THE WITNESS: Would you read back the
5 question?
6 MR. NETTLETON: I'll state it again.
7 BY MR. NETTLETON:
8 Q. What is your opinion as to the geographic
9 extent of cattails in what is now referred to as the
10 Everglades protection area in the early 1800's?
11 A. I believe cattail occurred naturally within
12 that area in the early 1800's.
13 Q. What was the geographic extent of the
14 cattail in the early 1800's?
15 A. I believe that it occurred in small
16 relatively isolated occurrences, and also could occur
17 in moderate to larger size patches.
18 Q. In any particular area of the Everglades?
19 A. I believe cattail naturally occurred
20 throughout the slough, wet prairie, sawgrass
21 communities to some degree or another.
22 Q. Well, do you have any quantification or
23 opinions as to the quantification of what degree it
24 existed in the historic Everglades of the early
25 1800's?
365
1 A. No specific quantification.
2 Q. Any general quantification?
3 A. No accurate calculations.
4 Q. What are you relying on for purposes of
5 your opinion concerning the geographic extent of
6 cattails in the Everglades in the early 1800's? I
7 take it it's not a personal observation?
8 A. No, it's not a personal observation.
9 Q. What are you relying on?
10 A. Historical accounts.
11 Q. From who?
12 A. From earlier visitors to the Everglades and
13 descriptions and opinions written by some of the
14 earlier botanists that investigated the Everglades.
15 Q. What is the earliest account of which you
16 are aware that you have reviewed?
17 A. Probably in the 1850 time period.
18 Q. What account is that?
19 A. Some of the accounts of what is referred to
20 as the Seminole Wars.
21 Q. Where are they reported that you have seen
22 them?
23 A. Seen accounts of --
24 Q. The geographic extent of cattails, which is
25 what I thought we were talking about.
366
1 MR. KOBELINSKI: That's not what I thought.
2 I thought you asked for vegetative accounts of
3 the Everglades. Maybe there is a misconception,
4 Counsel.
5 MR. NETTLETON: I don't think these
6 questions are that hard. I don't know why we
7 are going through this turmoil.
8 BY MR. NETTLETON:
9 Q. What is the earliest accounts that you know
10 of? Where did you see it concerning the geographic
11 extent of cattails in the Everglades?
12 A. Okay.
13 MR. KOBELINSKI: Well, Counsel, in response
14 to your question --
15 MR. NETTLETON: I'm not asking the
16 question.
17 MR. KOBELINSKI: -- in response to your
18 statement you don't know why these questions are
19 so hard, you have for 19 hours, three days into
20 the deposition asked this witness what his
21 expert witness opinions are. It's clear this
22 witness is very tired right now. He is worn
23 down after 19 hours of very long tedious
24 questioning. You are asking why it's so
25 difficult.
367
1 MR. NETTLETON: Whatever, Mark. That's a
2 good objection.
3 MR. KOBELINSKI: You made a comment on the
4 record, not a question. You didn't understand
5 why it was so difficult.
6 I'm responding to your comment.
7 MR. NETTLETON: I still don't understand
8 why it's so difficult.
9 If you could answer the question, that
10 would be a step in the right direction.
11 THE WITNESS: I have reviewed -- let me
12 specifically answer your question.
13 I can't recall the exact earliest reference
14 that I reviewed that mentions cattail in the
15 Everglades.
16 BY MR. NETTLETON:
17 Q. Moving forward from the early 1800's,
18 what's the next time period that you intend to offer
19 an opinion on concerning the geographic extent of
20 cattails in the Everglades?
21 A. Generally in the time period reported by
22 John Davis.
23 Q. That would be the 1940's?
24 A. 1930's, 1940's.
25 Q. Would you be relying upon the accounts of
368
1 John Henry Davis in that regard?
2 A. Yes, sir, I would.
3 Q. What is your opinion concerning the
4 geographic extent of cattails in the Everglades in
5 the 1930's and '40's?
6 A. That cattail naturally occurred throughout
7 areas of the Everglades that I have previously
8 mentioned, and that it apparently occurred in at
9 least one location that was large enough and
10 remarkable enough for John Henry Davis to map it in
11 his 1943 vegetation map.
12 Q. Do you have any reason to doubt the
13 accounts of John Henry Davis as set forth in his
14 report concerning cattail coverage in the Everglades
15 during the 1930's and 1940's?
16 A. No, I don't.
17 Q. What is the next time period during which
18 you intend to give an opinion concerning the
19 geographic extent of cattail within the Everglades?
20 A. In the 1950's, generally.
21 Q. What is your opinion concerning the
22 geographic extent of cattail within the Everglades in
23 the 1950's?
24 A. That it naturally occurred in scattered,
25 small locations.
369
1 Q. Do you have an opinion as to the aerial
2 extent of cattails in the 1950's in the Everglades?
3 A. I have no way to make those determinations.
4 Q. Do you have any percentage determinations?
5 A. No.
6 Q. Do you have any acreage or percentage
7 determination concerning the geographic extent of
8 cattails in the Everglades in the 1930's and '40's?
9 A. In that time period, I'm relying primarily
10 on the data of John Henry Davis.
11 Q. Does John Henry Davis report what the
12 acreage or percentage coverage of cattail was in the
13 Everglades in the 1930's or 40's?
14 A. He depicts an area in which cattail is one
15 of the primary vegetative constituents on his 1943
16 vegetation map.
17 Q. Does he indicate in his accounts that there
18 are cattail occurring elsewhere in the Everglades
19 other than as on the 1943 map?
20 A. As I recall, he indicates or mentions
21 cattail as a constituent of or a part of the flora of
22 the Everglades, as I can recall right now.
23 Q. What are you relying on for purposes of
24 your opinions concerning the geographic extent of
25 cattails in the Everglades in the 1950's?
370
1 A. General accounts of vegetative communities.
2 Q. Where are those accounts located?
3 A. Loveless described vegetative communities
4 in the Everglades. There were also descriptions
5 provided in some of the descriptions of the refuge,
6 what was to be the refuge area.
7 Q. That description is in the Loveless
8 accounts or different accounts?
9 A. Those are from different accounts.
10 Q. What is the next period during which you
11 intend to offer an opinion concerning the geographic
12 extent of cattails in the Everglades?
13 A. Generally the '60's through the '80's.
14 Q. What is your opinion concerning the
15 geographic extent of cattails in the Everglades from
16 the 1960's through the 1980's?
17 A. That they increased.
18 Q. When you say they increased, are you
19 referring to a geographic acreage increase in cattail
20 coverage?
21 A. I'm referring to geographic and aerial
22 coverage.
23 Q. What is your understanding of the
24 geographic aerial coverage of cattails in the 1960's?
25 A. That they began expanding in the
371
1 essentially southern part of WCA-1 and the northern
2 part of WCA-2.
3 Q. What is your understanding of the aerial
4 extent of cattail coverage in the Everglades in the
5 1960's?
6 A. That there were populations of cattails
7 occurring in small localized areas in various
8 portions of the EPA and that cattail was becoming
9 established and expanding in the southern part of
10 WCA-1 and the northern part of WCA-2.
11 Q. And that establishment of cattails in the
12 southern area of WCA-1 and northern area of WCA-2 in
13 your opinion or understanding was occurring in the
14 1960's?
15 A. That's correct.
16 Q. Do you have a more specific date other than
17 the 1960's, when that began to occur?
18 A. I don't have an exact date, but generally
19 the mid to later part of the 1960's.
20 Q. In the mid to late 1960's, what is your
21 understanding of the acreage of cattail coverage that
22 existed in the southern area of WCA-1?
23 A. I don't have an acreage figure calculated.
24 Q. Do you have a general understanding of an
25 estimate of acreage or estimate of percentage of the
372
1 area of WCA-1 that cattail was established in by the
2 mid to late 1960's in the southern area of WCA-1?
3 A. Would you read that back?
4 (The question referred to was thereupon
5 read by the reporter as above recorded.)
6 THE WITNESS: I don't have acreage
7 calculations.
8 BY MR. NETTLETON:
9 Q. My question was, do you have a general
10 ballpark estimate of either acreage or percentage of
11 cover from the WCA as a whole?
12 MR. KOBELINSKI: That's the third time you
13 asked the question, so I'll say asked and
14 answered.
15 MR. NETTLETON: You can just say no.
16 MR. KOBELINSKI: He said no. He said, I
17 don't have an acreage estimate.
18 MR. NETTLETON: That wasn't my question.
19 MR. KOBELINSKI: If you don't have an
20 acreage estimate, how can you say what
21 percentage of the acreage was cattail?
22 MR. NETTLETON: All he has to say is no.
23 MR. KOBELINSKI: He said that to you
24 several times.
25 THE WITNESS: I don't have an acreage
373
1 calculation and I have not developed a
2 percentage estimate.
3 BY MR. NETTLETON:
4 Q. Have you any understanding of what amount
5 of acreage or percentage of WCA-2A was established or
6 had cattails established in it by the mid to late
7 1960's?
8 A. Several thousand acres.
9 Q. And on what do you base your understanding
10 of the establishment of cattails in the southern area
11 of 1 and northern area 2A in the mid to late 1960's?
12 MR. KOBELINSKI: Object to the form of the
13 question.
14 BY MR. NETTLETON:
15 Q. What is the basis or what are you relying
16 on for your understanding that cattail became
17 established in WCA-1 and the southern area of WCA-1
18 and northern area of WCA-2 the end -- the mid to late
19 1960's?
20 A. Read that back, please.
21 (The question referred to was thereupon
22 read by the reporter as above recorded.)
23 THE WITNESS: Aerial photographs.
24 BY MR. NETTLETON:
25 Q. Are you also relying on aerial photographs
374
1 for your understanding of the approximate acreage of
2 the cattails in the northern area of 2A you described
3 in the late 1960's?
4 A. To a degree.
5 Q. What else are you relying on?
6 A. That's primarily what I'm relying on.
7 Q. What aerial photographs are you referring
8 to? Do you know who took the aerial photographs?
9 A. No, I do not.
10 Q. Can you describe for me your understanding
11 of how the -- I'm not talking about causative
12 factors, but just geographically -- how the aerial
13 extent of cattail extended from the 1960's through
14 the 1980's?
15 A. Generally in the southern part of WCA-1
16 they expanded into the area adjacent to the
17 Hillsborough Canal and to a degree extending north
18 and south along the perimeter canals.
19 In WCA-2, they extended from an area south
20 of the Hillsborough Canal generally in the area from
21 the vicinity of the 10 structures paralleling the
22 Hillsborough Canal and extending southward.
23 Q. Can you give me your understanding in
24 either quantitative or qualitative terms of exactly
25 how that expanse occurred in geographic scope over
375
1 the time period we are discussing, late 1960's
2 through the 1980's?
3 A. Are you asking me to give you a certain
4 geographical extent or acreage per year?
5 Q. Not necessarily per year. If you can do it
6 by per year, that's great. If you can do it over the
7 early 1970's to the late 1970's, however you
8 understand the expansion to have occurred during that
9 time period.
10 A. I can add that generally by the 1970's or
11 so I believe there has been reported to be
12 approximately 6,000 acres, more or less, in the
13 northern part of 2A.
14 Q. I'm sorry, did you say the early '70's or
15 the '70's?
16 A. The '70's.
17 Q. Was there any similar quantification for
18 area 1?
19 A. There may have been, but I can't recall
20 right now.
21 Q. You said it was said to be. What said that
22 to be?
23 MR. KOBELINSKI: I'll object to the
24 question.
25 BY MR. NETTLETON:
376
1 Q. What are you relying on that reported
2 approximately 6,000 acres in the 1970's of cattails
3 in the northern area 2A?
4 A. I recollect hearing Steve Davis express
5 that or a similar opinion.
6 Q. You heard him express that orally or have
7 you seen that in some writing that he has done?
8 A. Orally. I can't recall whether I have seen
9 it in writing.
10 Q. What was the occasion that you heard him
11 speak of this?
12 A. In a deposition.
13 Q. Was it his deposition?
14 A. Yes.
15 Q. Past the 1970's, what is your understanding
16 of the expansion of any of the cattails in northern
17 area 2A or southern area 1 during the 1980's?
18 A. I'm sorry, did you say early 1980's or
19 1980's?
20 Q. Again, whatever time period you have some
21 understanding of a change in. I think you just
22 mentioned the 1970's. I threw out the 1970's, but if
23 you have a different time period --
24 A. I believe that in the 1980's cattail either
25 continued to expand or had approximately reached some
377
1 type of equilibrium in terms of aerial extent in
2 WCA-1, and that there was some additional expansion
3 of cattails in the northern part of 2A.
4 Q. Can you put any quantification to the
5 extent of additional expansion in the northern area
6 of 2A that occurred in the 1980's?
7 A. No, I can't.
8 Q. In relation to the approximate 6,000 acres
9 that you indicated you understood to exist in that
10 area in the 1970's, can you put some qualitative --
11 do you have any qualitative understanding of how much
12 it expanded beyond that original 6,000 acres?
13 A. By 1989 there were some quantitative
14 estimates of the extent of cattails in the northern
15 part of 2A.
16 Q. What were those quantitative numbers?
17 A. Those were reported in the -- those
18 estimates were reported in the Larson study, which we
19 talked about previously.
20 Q. Do you recall the aerial extent or acreage
21 of cattails as reported in the 1989 Larson study?
22 A. As I recall, that study depicted an area of
23 dense cattail. I don't remember whether they called
24 it dense cattail or what the exact designation was,
25 but high density, thick cattail stand.
378
1 Then they depicted areas with lesser
2 density or mixed cattail and other vegetation
3 categories. And I could quickly refer you to that if
4 you got that document, but I don't recall the exact
5 numbers.
6 Q. But is it your understanding that there was
7 an expansion beyond that which existed in the 1970's
8 through approximately 1989 of the cattails in the
9 northern area of WCA-2A?
10 A. That's my understanding.
11 Q. Are you relying on anything in that regard
12 other than the Larson report and study and, of
13 course, Davis' comments concerning the '70's?
14 A. By then we reached a period of time when I
15 could make personal observations.
16 Q. Would I be correct in assuming that your
17 opinions concerning the geographic extent of cattail
18 coverage for THE 1991 and 1993 time periods would be
19 reflected on the vegetative maps that have been
20 produced here?
21 A. That's correct.
22 Q. And we have already marked the 1993 as
23 Exhibit 3.
24 I don't think we have marked the 1991. Why
25 don't we mark that as Exhibit 9.
379
1 (The document referred to was thereupon
2 marked Exhibit 9 for Identification.)
3 BY MR. NETTLETON:
4 Q. Dr. Dennis, if you could, just confirm what
5 we marked as Dennis Exhibit 9 is the 1991 cattail map
6 that we discussed earlier in your deposition.
7 A. Yes.
8 Q. And am I correct that the cattail
9 distribution as shown on what we referred to as the
10 1991 map is based upon helicopter, airplane and air
11 boat surveys from November 2, 1989 through
12 February 3, 1992, and aerial photography taken
13 February 16, 1991?
14 A. I believe that's correct.
15 Q. And would I be correct with regard to
16 Exhibit 3, the 1993 cattail map, that the cattail
17 distribution depicted on that would be based upon the
18 airplane, air boat, helicopter surveys as well as the
19 aerial photography as reflected on the source listed
20 on that exhibit --
21 A. Yes.
22 Q. -- on the dates reflected on that; is that
23 right?
24 A. Yes, sir.
25 Q. Are you relying on any aerial photography
380
1 for your opinions or understandings concerning the
2 extent of cattail coverage in the Everglades
3 protection area other than the 1960's and the 1991
4 and 1993 maps?
5 A. I would be relying to one degree or another
6 on all of the sets of photography that have been
7 produced and provided.
8 Q. For what purpose are you relying on the
9 various sets of aerial photography?
10 A. As representation of conditions existing at
11 the time of the photography to the extent that those
12 conditions can be reflected in the photographic
13 signature.
14 Q. Have you done any photo interpretation of
15 the historic aerial photography for purposes of
16 producing any type of vegetative maps other than the
17 1991 and 1993 maps that have been marked here?
18 A. I have produced no maps other than those.
19 Q. Have you, in fact, done any photo
20 interpretation of those historical aerial photographs
21 for purpose of determining the geographic extent of
22 cattail coverage in the Everglades during the dates
23 on which those photographs were taken?
24 A. Yes.
25 Q. And are the results of your photo
381
1 interpretation reported in any memoranda or reports?
2 A. No.
3 Q. Has the extent of your photo interpretation
4 of these historical photographs been primarily a
5 mental exercise of looking at them and satisfying
6 yourself as to what they show with regard to
7 geographic extent of cattail on the dates the
8 photographs were taken?
9 MR. KOBELINSKI: I object to the form of
10 the question to the extent counsel is referring
11 to a mental exercise.
12 THE WITNESS: I reviewed various of those
13 aerial photographs from the time periods that
14 those sets of photographs were taken to gain an
15 understanding of the appearance of those areas
16 particularly as reflected in vegetation patterns
17 or rather physical features that I could discern
18 of the photographs to gain an understanding of
19 what the areas looked like during those time
20 periods.
21 BY MR. NETTLETON:
22 Q. As a result of that review and analysis,
23 have you essentially put pen to paper or recorded
24 your thoughts concerning the same or your
25 interpretation of the photographs either on paper or
382
1 on electronic data?
2 A. No. Just about break time.
3 MR. NETTLETON: Let's take five minutes.
4 (Thereupon, a brief recess was taken,
5 after which the following proceedings
6 were had:)
7 MR. NETTLETON: Mark this as Exhibit 10.
8 (The documents referred to were thereupon
9 marked Composite Exhibit 10 for Identification.)
10 BY MR. NETTLETON:
11 Q. Dr. Dennis, I'm going to show you what was
12 produced to us, I guess, which appears to be
13 photocopies of aerial photographs that has been
14 marked as Dennis Exhibit 10. It's a composite
15 exhibit.
16 Can you tell me if those are all the aerial
17 photographs you reviewed other than the 1991 or 1993
18 aerial photographs?
19 MR. KOBELINSKI: While Dr. Dennis is doing
20 that, I would just represent the actual photos
21 themselves were presented, not just photocopies
22 of them. The determination to have this type of
23 copy made was not made by us.
24 MR. NETTLETON: Who was that made by?
25 MR. KOBELINSKI: They did not want to
383
1 release the photos. The photos were brought
2 down here.
3 MR. NETTLETON: The historical photographs?
4 MR. KOBELINSKI: The historical
5 photographs. You will find correspondence about
6 that last year.
7 MR. NETTLETON: Just for the record, I
8 don't believe we were involved in any of that
9 correspondence or discussion. In fact, this is
10 a copy from the federal government. I did not
11 have a copy of those.
12 MR. KOBELINSKI: Well, I believe the
13 federal government was involved and we
14 appreciate their graciousness.
15 BY MR. NETTLETON:
16 Q. Do you recall the question?
17 A. No.
18 Q. The question was, Dr. Dennis, after having
19 reviewed what has been marked as Composite Exhibit
20 10, are those photocopies of all of the aerial
21 photographs, historical area photographs that you
22 referred to previously during your deposition that
23 you have reviewed?
24 A. I don't believe so.
25 Q. What aerial photographs do you believe are
384
1 not included in Exhibit 10?
2 A. I can't tell you from looking at those.
3 Q. Do you know approximately how many sheets
4 of aerial photographs you have reviewed historical
5 aerial photographs?
6 Again, I'm excluding the ones you did
7 specifically for developing your maps.
8 MR. KOBELINSKI: Just so I understand the
9 question, are you talking about how many aerial
10 photos he reviewed? You are referring to
11 something called sheets?
12 BY MR. NETTLETON:
13 Q. How many sets of aerial photographs?
14 A. I don't recall the exact number of sets.
15 Q. But you obviously recall whatever is in
16 Exhibit 10 is not all of them; is that correct?
17 A. Based on a quick review it just doesn't
18 appear that it includes perhaps all of them.
19 MR. KOBELINSKI: Off the record.
20 (Discussion off the record.)
21 BY MR. NETTLETON:
22 Q. Dr. Dennis, what is your opinion of the
23 causative factors relating to the geographic extent
24 of cattails within the Everglades protection area?
25 A. That cattails were caused by some type of
385
1 disturbance. That disturbance is of a sufficient
2 degree and magnitude to stress or move or somehow
3 cause a void in the vegetative pattern, and that
4 given appropriate proximity to disbursal of
5 propagules of cattail and given appropriate
6 environmental conditions that cattail will colonize
7 the void and then will continue to exist as long as
8 there are favorable growing conditions.
9 Q. What do you mean by appropriate
10 environmental conditions?
11 A. Appropriate amount of light, appropriate
12 temperature, appropriate hydrologic or hydroperiod
13 conditions, and appropriate substrate and nutrient
14 requirements.
15 Q. When you say they will continue to exist as
16 long as there are favorable growing conditions, what
17 do you mean by favorable growing conditions?
18 A. Conditions within the ecological amplitude
19 of cattail.
20 Q. What conditions of those that are within
21 the ecological amplitude of cattails?
22 A. You have to have appropriate light. They
23 can't grow in the dark. Basically the water has to
24 be fresh water or fairly low in ionic content. They
25 can't grow in salt water. There has to be enough
386
1 nutrients to satisfy their minimum requirements, just
2 like any organism. They can't live without food.
3 And the hydroperiod in terms of depth
4 duration and timing of water has to be adequate and
5 sustained, and there has to be no events which
6 essentially kill the plant or else the cycle of
7 establishment has to be started over again.
8 Q. In your discussion, are you referring to
9 any particular species of cattail?
10 A. I believe all of the requirements I gave
11 would fit for either of the two species of cattail
12 which occur in the Everglades.
13 Q. Which two species are those?
14 A. Typha Latifolia and Typha Dominguensis.
15 Q. What are the nutrient requirements for
16 cattail?
17 A. Cattail grow in a broad range of nutrient
18 levels.
19 Q. What is that range?
20 A. I don't know.
21 Q. Can you tell me what specifically you are
22 relying on which supports your opinion as you have
23 expressed it concerning the causative factors of
24 cattails in the Everglades?
25 A. Published scientific literature, government
387
1 reports and documents, personal observations and
2 studies and reports of other scientists that have
3 investigated this question.
4 Q. What specific personal observations and
5 studies are you relying upon?
6 A. The results of ones that we had discussed
7 in the past two or three days.
8 Q. Refresh my recollection. Which
9 particular -- I'm not asking you to give me the
10 details, but just which particular studies are you
11 relying on specifically for this opinion?
12 A. Studies from entry and inspection into
13 Loxahatchee or Everglades National Park,
14 investigations in WCA-1, 2, 3 and the holyland.
15 Q. So you are referring to the study areas
16 that we went through earlier today? I think there
17 were some names of them or something like that?
18 A. I'm referring to the study areas that we
19 previously discussed today.
20 Q. That would be the area south of the S-10s.
21 The perimeter south of the WCA-1 S-9 area. The
22 northern area of 3A. The holylands area. Certain
23 areas adjacent to canals as you defined those and
24 areas from access to the Park; is that correct?
25 A. That's essentially correct.
388
1 Q. What is your opinion of the cause of the
2 cattail expansion in the northern area 2A south of
3 the S-10s?
4 A. Essentially that area was subject to
5 extensive drainage that resulted in disturbance to
6 the soil and fires there by altering the natural
7 vegetative patterns in the communities and stressing
8 the native vegetation.
9 That was followed by impounding of the area
10 so that it went from a drain condition that had
11 undergone disturbance to a flooded condition. That
12 sequence of events allowed cattail to become
13 established and the areas continued to be manipulated
14 in terms of water level control since the early
15 '60's. And once established, the cattails have
16 generally experienced favorable conditions throughout
17 and had remained established.
18 Q. Well, in fact, isn't it your opinion that
19 not only did they become established but they also
20 expanded from the 1960's through the 1980's?
21 A. I believe that they have expanded from
22 their initial primary colonization, which occurred in
23 the '60's.
24 Q. What were the favorable conditions that
25 allowed them to expand in that manner?
389
1 A. Continuation of the stressing of the
2 existing vegetation in that area, favorable water
3 levels and sufficient nutrients.
4 Q. What was causing the continued stressing of
5 the existing vegetation?
6 MR. KOBELINSKI: What time period, Counsel?
7 MR. NETTLETON: During the 1960's to the
8 1980's.
9 THE WITNESS: Water level manipulations.
10 BY MR. NETTLETON:
11 Q. Anything else?
12 A. That was the primary factor.
13 Q. And what was the existing vegetation that
14 was being stressed?
15 A. When?
16 Q. During the 1960's through the 1980's.
17 A. By the late 50's the area south of the 10
18 structures had undergone several vegetative changes
19 and there was existing essentially a mixture of
20 sawgrass and various species.
21 With the establishment of WCA-2A and the
22 regulation schedule that was implemented, that area
23 was converted essentially into a shallow lake. Water
24 levels were maintained. There was very little
25 opportunity for alteration of hydroperiods, and
390
1 species that had come into that area as a result of
2 the prior drainage were flooded out.
3 Q. When you said there was continued stressing
4 of the existing vegetation from the 1960's through
5 the 1980's which was one of the favorable conditions
6 leading to the expansion of cattails during that
7 period, what vegetation were you specifically
8 referring to as the existing vegetation?
9 A. Sawgrass and the various weed species that
10 were growing there at the time, and also other
11 species that had naturally occurred in that area.
12 Q. What are the favorable water levels that
13 allowed for the cattail expansion?
14 A. Cattail generally seem to do better in
15 extended hydroperiods in which there is not a drying
16 and wetting cycle, but a more continuous flooded
17 regime.
18 Q. Were those the conditions that existed from
19 the 1960's through the 1980's?
20 A. Those were the conditions that existed on
21 into the 1970's, at which -- yes. Until the 1970's.
22 Q. So have the favorable water levels for
23 cattail not existed since the 1970's?
24 A. No conditions favorable for cattail have
25 continued since the 1970's.
391
1 Q. What is the source of the sufficient
2 nutrients that provided favorable conditions for the
3 cattail expansion?
4 A. Existing nutrients in the soils, nutrients
5 from rainfall and nutrients from input through the 10
6 structures.
7 Q. So is it your opinion that inputs of
8 nutrients through the 10 structures provided
9 favorable conditions for the expansion of the
10 cattails in the northern area of 2A from the 1960's
11 through the 1980's?
12 A. I don't think that's what I answered.
13 Q. So that is not correct, what I just stated?
14 A. It was correct the way I stated it earlier.
15 Q. Is it your opinion that the input of
16 nutrients through the S-10 structures contributed to
17 the available nutrients which provided favorable
18 conditions for the expansion of cattails in the
19 northern area of 2A from the 1960's through the
20 1980's?
21 A. Water that came through the 10 structures
22 provided one of the available sources of nutrients
23 and nutrients reduced by cattail to grow -- and I
24 don't know that the cattail can discern whether they
25 are taking a gram of nutrients that came from the
392
1 sediment that came from rainfall as opposed to waters
2 from the 10 structures.
3 Q. Is it your opinion that the expansion of
4 cattails in the northern area of WCA-2A from the
5 1960's through the 1980's would have occurred even if
6 the phosphorous or nutrient levels going to the S-10
7 structures were at background levels, as you
8 previously defined them?
9 A. I believe we talked about background levels
10 in a very general and qualified sense.
11 Q. Well, let's for purposes of argument -- I
12 shouldn't say that.
13 MR. KOBELINSKI: You don't want to say
14 "argument."
15 BY MR. NETTLETON:
16 Q. Assume for purposes of discussion something
17 in the range of 10 parts per billion.
18 MR. KOBELINSKI: Same question is being
19 posed?
20 MR. NETTLETON: Yes.
21 THE WITNESS: It's my opinion that given
22 the previous disturbance, history, alterations,
23 and hydrologic history, that even with water of
24 that level of phosphorous, cattail would have
25 become established and expanded in 2A based on
393
1 data and information I have available to me
2 right now.
3 BY MR. NETTLETON:
4 Q. What specific data and information are you
5 referring to?
6 A. That we previously talked about over the
7 last three days. By that I just mean if there is new
8 data developed and new information that becomes
9 available, I would consider that, also.
10 Q. I guess I'm still a little hazy on exactly
11 what data and information we discussed related to the
12 question of the cattail expansion and cause of
13 cattail expansion.
14 Can you clarify what specific data you are
15 referring to?
16 A. Would you please restate or clarify that
17 question?
18 Q. What data and information are you relying
19 upon which shows that the cattail expansion in the
20 northern area of 2A would have occurred regardless of
21 the nutrient flows through the S-10s?
22 A. I believe I referred earlier to the
23 fertilizer studies being conducted by Duke
24 University. And it's my understanding of those
25 studies and the results today that those studies have
394
1 not shown that additional inputs of nutrients,
2 including phosphorous, would cause an expansion or
3 increase in cattail in areas that they studied, but
4 it does appear to fertilize, if you will, both the
5 cattail and the sawgrass in those areas.
6 Q. Other than the Duke study, are you relying
7 on any other information or data for that opinion?
8 A. That's a question that has been
9 investigated to one degree or another over the last
10 number of years.
11 In my review of that literature, I had seen
12 representations of correlations between cattail and
13 nutrient levels. But I have not seen any report that
14 purports to categorically represent that phosphorous
15 has been the causative factor for cattail expansion
16 in 2A.
17 There have been reports where that has been
18 alleged. But as a possible hypotheses, I haven't
19 seen a definitive paper that establishes that is a
20 causative factor.
21 Q. If such a study existed and showed that
22 phosphorous was a more dominant factor than
23 hydroperiod -- or water levels and water depth, I
24 should say -- in expansion of cattail as opposed to
25 sawgrass, would that alter your opinion?
395
1 A. If conclusive experimental evidence were
2 brought to my attention that came up with those
3 conclusions, yes, it would.
4 Q. Is there any published scientific
5 literature that you are relying on other than the
6 Duke fertilizer study, if you consider that
7 published, to support your opinions concerning the
8 cause of cattail expansion in area 2A?
9 A. I'm sorry, would you read that question
10 back?
11 Q. Are you relying on any other published
12 scientific literature to support your conclusion that
13 you stated as to the causative effect of the
14 expansion of cattails in area 2A?
15 A. Yes, to the extent I discussed in my
16 previous answers.
17 Q. Which previous answers are you referring
18 to?
19 A. Well, I believe I indicated that I had
20 reviewed -- and I provided a bibliography of the
21 materials I reviewed, and looking at that source of
22 information I haven't been able to find any reports
23 or studies that conclusively demonstrate that
24 phosphorous has been the causative factor for the
25 establishment of cattails in that area.
396
1 MR. NETTLETON: Mark this as Exhibit 11 and
2 12.
3 (The documents referred to were thereupon
4 marked Exhibits 11 and 12 for Identification.)
5 BY MR. NETTLETON:
6 Q. I'm showing you what has been marked as
7 Dennis Exhibits 11 and 12. Are these the
8 bibliographies that you were referring to?
9 MR. KOBELINSKI: Can you read back the
10 question?
11 (The question referred to was thereupon
12 read by the reporter as above recorded.)
13 THE WITNESS: Yes.
14 BY MR. NETTLETON:
15 Q. What, if any, government reports and
16 documents are you relying on in support of your
17 opinion concerning the causative factors of cattail
18 expansion in the northern area of 2A?
19 A. I'm sorry, it's getting late in the day.
20 Could you repeat the question, have it read back?
21 MR. NETTLETON: Read it back.
22 (The question referred to was thereupon
23 read by the reporter as above recorded.)
24 THE WITNESS: There are previous Water
25 Management District technical documents which
397
1 describe the history and effects of water level
2 controls on that area.
3 BY MR. NETTLETON:
4 Q. Do those documents conclude that the
5 cattail expansion in northern 2A was caused by the
6 factors as you described in your testimony?
7 A. I'm not aware of any specific report,
8 government report that describes the process and
9 conclusions exactly as I described them in my
10 previous answer concerning the causative factors.
11 Q. Other than exactly, do they lend support
12 for the causative factors as you have stated in your
13 opinion testimony for the expansion of cattails in
14 area 2A?
15 A. I think that it's accurate to say that they
16 document certain of the elements that I attributed as
17 a part of the causation.
18 Q. Are you saying that they essentially
19 document the historical events such as disturbance or
20 water depth and so forth that you ascribe as the
21 causative factors for the expansion?
22 A. Yes. And can I ask how long we are going
23 to go because I'm in need of a break if we are going
24 to go late.
25 MR. KOBELINSKI: I can only go until 5.
398
1 MR. NETTLETON: You can only go until 5?
2 MR. KOBELINSKI: That's the normal breaking
3 time. Today that's all I can go to.
4 MR. NETTLETON: Can you stay until 6?
5 MR. KOBELINSKI: Not today. I have people
6 in the office. We have been trying to cooperate
7 by going late, having short lunch hours,
8 starting early. But today, I can't.
9 MR. NETTLETON: I just wish you had told me
10 earlier than five to five.
11 MR. KOBELINSKI: Would you have changed
12 your questions, Counsel?
13 MR. NETTLETON: I may have.
14 Let's try to get five more minutes in. I
15 can get one more question out. Let's try a hard
16 one.
17 THE WITNESS: Thank you for the warning.
18 MR. KOBELINSKI: I object to the
19 characterization of the question.
20 BY MR. NETTLETON:
21 Q. Dr. Dennis, can you tell me what your
22 opinion is concerning whether cattail in the
23 Everglades protection area has caused a violation of
24 water quality standards?
25 A. No, I don't believe that it has.
399
1 Q. What water quality standards are you making
2 reference to when you say that?
3 A. As I understand it, there are basically
4 four at issue. The narrative nuisance rule, nuisance
5 species rule, dissolved oxygen rule and the rule that
6 deals with basically the history and
7 macroinvertebrates and that kind of thing.
8 Q. Biological diversity?
9 A. Biological diversity, that is correct.
10 Q. Maybe I misunderstood what you had
11 described earlier as the subject matter of your
12 opinion testimony. I thought you had said that you
13 were going to address the issue whether cattail in
14 the Everglades protection area has caused a violation
15 of water quality standards.
16 Is your testimony concerning water quality
17 standards broader than that?
18 A. I intend to render an opinion on the
19 nuisance species rule and the narrative nutrient
20 rule, but not biological diversity or dissolved
21 organisms.
22 Q. And is your testimony at the final hearing
23 going to relate specifically to the cattail
24 existence, occurrence and/or spread in the Everglades
25 protection areas as it relates to those particular
400
1 standards?
2 A. It will basically address whether or not
3 cattail occurrence violates those two standards, yes.
4 Q. What I'm trying to get at, is your
5 testimony going to be limited to looking at the
6 cattail aspect of it as opposed to other vegetative
7 communities or other trophic levels in the Everglades
8 as they may relate to those standards?
9 A. It will deal with whether cattail in its
10 location and extent causes a violation of those two
11 standards within the definitions provided in those
12 two standards.
13 Q. What is your understanding of the narrative
14 nutrients standard?
15 MR. KOBELINSKI: Object to the extent it
16 calls for a legal opinion.
17 MR. NETTLETON: I asked for his
18 understanding.
19 MR. KOBELINSKI: I understand.
20 THE WITNESS: Could you give me a copy of
21 that rule?
22 BY MR. NETTLETON:
23 Q. I don't have a copy of that rule with me.
24 Do you have any understanding as you sit here without
25 looking at the rule what the narrative nutrient
401
1 standards provides for?
2 A. Basically that there shouldn't be nutrients
3 in such amounts as to cause an imbalance in the
4 natural flora or fauna within the designated water
5 body that would interfere with the designated use.
6 That's my general understanding.
7 When I'm dealing with rules I always get
8 the rule back out and look at it to make sure it's
9 not some aspect of it that I have forgotten about.
10 That's why I asked you for a copy.
11 MR. NETTLETON: You sound like a lawyer.
12 THE WITNESS: I don't know how --
13 MR. KOBELINSKI: No point insulting the
14 witness, Counsel.
15 THE WITNESS: I'll take that as a
16 compliment.
17 It is five o'clock.
18 MR. NETTLETON: Tomorrow morning at 8:30.
19 (Thereupon the taking of the
20 deposition was adjourned.)
21 - - - - - - - - -
402
1
2 I, W. MICHAEL DENNIS, do hereby certify
3 that I have read the foregoing deposition and that
4 the same is a true and accurate transcript of my
5 testimony, except for attached amendments, if any.
6
7
8
9 ----------------------------------
10
11
12
13
14
15 The signature above of W. MICHAEL DENNIS
16 was subscribed and sworn to before me this 4th day of
17 April, 1994.
18
19
20
21
22 -----------------------------------
23 Notary Public
24 My commission expires
403
1
2 CERTIFICATE OF OATH
3
4
5 STATE OF FLORIDA )
6 COUNTY OF DADE )
7
8
9 I, the undersigned authority, certify that
10 W. MICHAEL DENNIS personally appeared before me and
11 was duly sworn. WITNESS my hand and official seal
12 this 4th day of April, 1994.
13
14
15 ___________________________________
16 Thomas R. Neumann, RPR
17 Notary Public - State of Florida
18 My Commission Expires: June 19, 1994
404
1 CERTIFICATE
2
3 STATE OF FLORIDA )
COUNTY OF DADE )
4
5
I, Thomas R. Neumann, Registered
6 Professional Reporter, do hereby certify that I was
authorized to and did report said deposition in
7 stenotype; and that the foregoing pages, numbered
from 266 to 401, inclusive are a true and correct
8 transcription of my shorthand notes of said
deposition.
9
I further certify that I am not an attorney
10 or counsel of any of the parties, nor am I a relative
or employee of any attorney or counsel or party
11 connected with the action, nor am I financially
interested in the action.
12
The foregoing certification of this
13 transcript does not apply to any reproduction of the
same by any means unless under the direct control
14 and/or direction of the certifying reporter.
15 Dated this 4th day of April, 1994.
16
_______________________________
17 Thomas R. Neumann, RPR
18
STATE OF FLORIDA )
19 COUNTY OF DADE )
20
The foregoing certificate was acknowledged
21 before me this 4th day of April, 1994 by
Thomas R. Neumann, who is personally known to me.
22
23
________________________________
24 Notary Public - State of Florida
My Commission expires: