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