405
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 18, 1994
20 8:35 p.m. - 5:03 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 - - - - - - -
406
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
17
INDEX
18 Witness Direct Cross Redirect Recross
W. MICHAEL DENNIS
19 By Ms. Stark: 408
By Mr. Nettleton: 477
20
21 EXHIBITS
NUMBER BATES NO. PAGE
22 13 Handwritten notes 528
23
24
407
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 MR. NETTLETON: We have indicated today
6 that Kathy Stark for the Federal Government is
7 going to start out asking some questions and
8 some specific areas without me waiving the right
9 to come back and complete the direct examination
10 concerning the various areas of opinions that
11 Dr. Dennis intends to provide at trial.
12 MR. KOBELINSKI: Counsel, this is a
13 procedure we actually have cooperatively done in
14 the past. We assume it will be done in the
15 future in other depositions.
16 I would just note hopefully this process
17 will speed things up. We believe it's been
18 going a little slowly over the last two or three
19 days.
20 MR. NETTLETON: I would tend to agree with
21 that.
22 MS. STARK: On behalf of the federal
23 government, our intention this morning is to
24 limit the questions to remote sensing issues and
25 the government would not waive the right to come
408
1 back and ask certain follow-up questions after
2 Paul has completed all of his direct
3 examination. They would not relate to remote
4 sensing, they would relate to other areas.
5 MR. KOBELINSKI: I understand the
6 procedure, fine. I just make a note that you
7 are free to ask about remote sensing or any
8 other areas. I understand what you are saying.
9 I'm not objecting to it.
10 CROSS EXAMINATION
11 BY MS. STARK:
12 Q. Dr. Dennis, good morning.
13 A. Good morning.
14 Q. I would like to take you to the areas of
15 your 1991 and 1993 maps which we looked at somewhat
16 yesterday and I would like to get into a little bit
17 more detail on how those maps were created,
18 specifically the remote sensing techniques that were
19 used in creating those two documents.
20 MR. KOBELINSKI: Kathy, before you start, I
21 don't -- I realize perhaps this exchange could
22 be taken -- misinterpreted in the future. What
23 we are agreeing to do is let you go forward in
24 this particular area. We do not agree either
25 party should be switching back and forth
409
1 repeatedly from attorney to attorney. This is
2 just in this particular circumstance that we
3 agree upon to that procedure. I'm sorry.
4 MS. STARK: I appreciate that. Obviously I
5 have with me an individual who is knowledgeable
6 in this particular area, that's why we are
7 requesting it.
8 MR. KOBELINSKI: No problem.
9 BY MS. STARK:
10 Q. It's my understanding, Dr. Dennis, please
11 correct me if I'm wrong, that primarily you utilized
12 a technique of aerial photography for your 1991 map;
13 is that correct?
14 A. It was as I explained, I believe, done
15 through a combination of photo interpretation of
16 color infrared aerial photographs in combination with
17 aerial reconnaissance and reconnaissance from air
18 boat and identification of cattail and certain areas
19 that perhaps could not be discerned adequately in
20 certain areas based on the aerial.
21 So it was done primarily using the color,
22 infrared aerial photographs as the basis. But it
23 also contained observations from aerial surveys and
24 air boat surveys.
25 Q. I understand. But am I correct in assuming
410
1 that there was no satellite imagery used for the 1991
2 map?
3 A. There was not.
4 Q. Can you tell me for the 1991 map what was
5 the scale of your aerial photography that was taken?
6 A. I believe that's been provided. I recall
7 that it was 1 to 36,000.
8 Q. That would be 1 --
9 A. Inch equals 3,000 feet of the actual photo.
10 Q. How did you determine the classes that you
11 used when you designed the 1991 vegetative map?
12 A. If you will recall, I believe when we
13 discussed that map earlier I indicated that we began
14 that process by trying to identify where cattail was
15 growing throughout the EPA. And we didn't know and
16 we did not have any information from any other
17 sources that gave us a clear picture of where cattail
18 was to be found in terms of geographic extent
19 throughout the entire area.
20 There had been reports and comments and
21 some studies done indicating the extent of cattails
22 in the northern part of 3A, but we weren't aware of a
23 comprehensive evaluation of where else it might have
24 been occurring.
25 So we began the process by trying to
411
1 determine where those other areas were.
2 MR. KOBELINSKI: To save upon an errata
3 sheet, you said there had been studies done
4 mapping of cattails in the northern 3A. Did you
5 mean 2A?
6 THE WITNESS: Yes.
7 BY MS. STARK:
8 Q. But my question is more specific than that.
9 Exactly how did you go about creating the classes
10 that you used on your mapping? I understand your
11 previous testimony. I'm interested in more of an
12 analysis.
13 I understand you said they started very
14 broadly and they narrowed. What I'm interested in
15 finding out is how did you narrow them?
16 A. In the evolution of determining
17 geographical extent, we first identified areas where
18 cattail was growing. And then in doing that, we
19 found that it would be helpful if we gave some sort
20 of indication of the coverage or density or amount.
21 And we began in our data collection in our
22 analysis on the aerial photographs and also in our
23 aerial and ground reconnaissance by making general
24 notations of here is an area of heavy cattail
25 infestation or high cattail density, here is an area
412
1 of low and here is an area of mild. So it began as a
2 very qualitative process.
3 We did not on a '91 map on an A priority
4 fashion determine the categories. And our main
5 purpose in the '91 maps was to note where it was
6 growing to the best that we could and provide some
7 accurate representation of that.
8 So there were no priority categories, and
9 categories actually evolved out of our continuing
10 study of the distribution and amounts and densities
11 as we went through that year.
12 MR. KOBELINSKI: Off the record.
13 (Thereupon, a brief recess was taken,
14 after which the following proceedings
15 were had:)
16 BY MS. STARK:
17 Q. Dr. Dennis, let me ask you -- you mentioned
18 in your last answer in your review of these areas
19 that you looked at the coverage or the density of
20 cattail, and I had kind of a general question as to
21 your definition of those terms so that we are on the
22 same sheet of music.
23 For instance, if you observed an area that
24 was primarily often water but the only vegetation
25 that you saw was cattail, how would you characterize
413
1 that area? Would that be considered 100% cattail
2 under your definition or how did that work?
3 A. If I understand your hypothetical
4 correctly, if there was an area of essentially open
5 water with cattails in it, if the cattail was thick
6 enough to cover substantially all of the area, then
7 it would have been mapped as 80 or 90 or 100%
8 cattail.
9 If it was mostly open water and there were
10 sparsely occurring individual plants of cattail
11 scattered throughout there, then it would have been
12 mapped in another density category either sparse or
13 very low or less than 1% or 15% or something of that
14 type.
15 Q. I can assume, then, that you would consider
16 open water or bare ground essentially to be a
17 vegetative class in your classification?
18 A. It would have been considered as part of
19 the classification system, yes, to the extent in very
20 few instances do I recall where there was open water
21 and nothing growing in the water.
22 Typically there was utricularia or water
23 lily or some other kind of submerged floating
24 aquatic. There may have been in those instances some
25 density of cattails in there.
414
1 Q. Let's go back to the previous answer that
2 you gave right before we took our little break. You
3 had essentially described how you got to this point
4 where you had essentially high density of cattail or
5 mid range and a low range.
6 But your 1991 map obviously has more
7 classes than just those three. How did you refine
8 your system of vegetative classing for your 1991 map?
9 A. As we continued through the year and
10 gathered more information through the year, more or
11 less the period in which that map was generated, we
12 began to want to refine our estimates from low,
13 moderate or high to some percentage category.
14 So we began to make visual estimates of
15 percent cover, and we did this from aerial or air
16 boat. And we also then began to make those
17 determinations on the aerial photographs and photo
18 interpretation of those. So what that did was, that
19 allowed us at the end when we finally said okay, we
20 are stopping this mapping effort and we are going to
21 consider this the extent of cattail the best we know
22 it in 1991. We took whatever coverage percent we had
23 or qualitative percent coverage we had and we made a
24 judgment as to what those categories were, and then
25 essentially let the data tell us how we could put
415
1 them into percentage categories.
2 Is that clear?
3 Q. Well, it requires a follow up, which is,
4 how did the data tell you what the categories were?
5 A. If I could refer you to the categories on
6 the map, the highest category indicates mono specific
7 stand of cattails, some interspersing with patches or
8 stands of other species but with an overall cattail
9 coverage of 80 to 100%.
10 What we were recognizing there was that
11 there are some geographic areas where the cattail is
12 the plant there and is growing quite thickly and in
13 terms of percent cover would be very high.
14 There are other areas where it may be
15 growing very high but it's somewhat patchy. So you
16 may have one area that has very dense cattail and
17 right next to it an area with dense sawgrass.
18 But there was a scale problem in trying to
19 capture accurately that type of geographic
20 distribution and sometimes patchiness and depict it
21 on the scale of the mapping which covered all of the
22 Water Conservation Areas.
23 Q. What is the scale on this mapping of 1991?
24 A. The scale is 1 inch equals 2,540 meters on
25 the presentation that is here as Exhibit 9.
416
1 Q. Why did you mix the categories of inches to
2 meters? I've never seen a scale like that. Isn't
3 that kind of unusual?
4 Why did you choose that scale?
5 MR. KOBELINSKI: Object to the form of the
6 question. It's compound.
7 THE WITNESS: Well, this information is in
8 the geographic information system format, so the
9 particular scale of this map production is not
10 really significant. That scale was essentially
11 chosen because it would take up this completed
12 sheet of paper.
13 We tried to depict it as big as we could on
14 this particular standard sheet.
15 BY MS. STARK:
16 Q. How did you deal with this problem of the
17 occurrence of cattails in patches that was difficult
18 to deal with on the scale?
19 A. We tried to do that in category 1 and 2.
20 Category 1, as I read it, is essentially areas with
21 solid stands of cattail. Within that area it's
22 somewhat patchy. So within an area that's mapped in
23 that designation as cattail, we are clarifying that
24 it's not 100% cattail in there but maybe patches of
25 other vegetation within the area mapped in category
417
1 1.
2 And just so that we would know, there were
3 areas of other vegetation in there.
4 In category 2, we indicated that there were
5 mixed stands of cattail and sawgrass or cattail
6 slough. There the patchiness was more obvious. So
7 we were trying to give a representation that within
8 that category the overall cattail percent coverage
9 would be in the 40 to 80 range.
10 We didn't feel from the data we collected
11 and information we had we could narrow it any more
12 than that, but we were trying to represent overall
13 with that area that that would be the range of
14 cattail coverage and that it was patchy.
15 Then as we go down through the third,
16 fourth and fifth categories, there is decreasing
17 density of cattail, and it's reflective generally of
18 how the cattail occurred and our identification of
19 the cattail throughout that area in that time period.
20 Q. How much of the area that's depicted on
21 Exhibit 3 did you actually have aerial infrared
22 aerial photography for?
23 MR. KOBELINSKI: This is Exhibit 9.
24 Exhibit 3 is the '93.
25 MS. STARK: I'm sorry.
418
1 BY MS. STARK:
2 Q. Exhibit 9, 1991 map is the one I'm
3 referring to.
4 A. The exact lines I believe were provided in
5 the documentation, production of document process.
6 As I recall, generally it covered
7 essentially all of WCA-1, to the northern part of 3.
8 I would say most of 3, but not all of 3.
9 Q. What is the actual number of aerial
10 photographs that you have that you used for the 1991
11 map?
12 A. I don't know.
13 Q. Can you give me an estimate? Is it more
14 than 1,000, less than a hundred?
15 A. Those were produced as the individual
16 photographs and also, I believe, an index with the
17 number of photographs on there. There were 9 x 9
18 transparencies. I wouldn't hazard a guess how many
19 individual photographs there were.
20 Q. Was there actually any area that showed on
21 the 1991 map Exhibit 9 that you did not have aerial
22 photographs for or did you essentially have an aerial
23 photo for everything that you mapped on there?
24 You seemed to indicate that you had all of
25 1, all of 2 and most of 3. Is there any particular
419
1 area that you didn't have aerial photographs for?
2 MR. KOBELINSKI: Are you referring to where
3 cattails are or literally the entire boundaries
4 of the three conservation areas 1, 2A, 2B and 3?
5 MS. STARK: Anything he mapped.
6 MR. KOBELINSKI: Where he identified
7 cattails?
8 MS. STARK: Anything he mapped on that map.
9 THE WITNESS: There are areas depicted on
10 that map that we did not have aerial coverage
11 for.
12 BY MS. STARK:
13 Q. Are you including any of those areas in the
14 area that you contend contains cattails?
15 A. I would need to go back and look at the
16 specific coverage and compare that. My recollection
17 is that we had aerial coverage for most of the areas
18 that are mapped as cattail on there. But that there
19 are probably some areas indicated in some of the
20 generally lower categories of cattail density that we
21 did not have aerial photographs for.
22 Q. If you did not have an aerial photograph
23 for a particular area and you intended to show that
24 area as containing some cattail, how did you go about
25 mapping that particular area and placing it into one
420
1 of your categories?
2 A. Based on field reconnaissance from either
3 fixed wing aircraft, helicopters or air boats with
4 some geographic locating mechanism such as Loran,
5 GPS.
6 Q. In 1991 do you recall if you used Loran or
7 GPS or both?
8 A. My recollection is we began using Loran and
9 that at some point in the year we obtained GPS
10 equipment and converted our data collection from
11 Loran to GPS.
12 Q. What was the accuracy of your Loran unit
13 that you were using?
14 A. I think the general accuracy of Loran is in
15 the neighborhood of several hundred meters.
16 Q. What about the GPS unit when you switched
17 to that, what was the accuracy of the GPS unit for
18 your 1991 maps?
19 A. It would have depended on whether -- the
20 specific time relative to the number of satellites
21 available, how the military was adjusting the
22 information that you could receive from those
23 satellites and whether or not the readings were taken
24 and post processed with the base unit or not.
25 Q. Were you post processing the information?
421
1 A. I can't recall whether we were doing that
2 in 1991 or not.
3 Q. How about in 1993?
4 A. 1993, by then we had established a base
5 station and that data was generally post processed,
6 but there probably was some data that was not.
7 Q. Assuming you did not post process to a base
8 station in 1991, what would the accuracy have been of
9 your GPS locations?
10 A. In the neighborhood of 230 meters or so to
11 perhaps 100 plus or minus meters.
12 Q. Are you familiar with the intention -- the
13 intentional drift that's worked into the GPS system
14 by the military?
15 A. Yes.
16 Q. Do you have or does anyone with BDA have
17 the security clearance in order to receive the key to
18 take care of that intentional drift?
19 A. To my knowledge, no one at BDA has such a
20 security clearance.
21 Q. When you were mapping into these five
22 categories that you eventually determined for your
23 1991 map, did you make any quantitative or
24 qualitative determinations of how a certain drop off
25 in density of cattail would behave?
422
1 In other words, how did you determine where
2 to draw the line between one percent of coverage and
3 another percent of coverage?
4 A. Either from the aerial photographs or from
5 the aerial and ground reconnaissance.
6 Q. So you would visually examine either your
7 photos or the actual land?
8 A. That's correct.
9 Q. And then how would you make the
10 determination of where to draw the line between the
11 percentages?
12 A. If we could determine a cattail boundary
13 from the aerial photographs, we will use aerial
14 photographs to delineate a boundary and then assign a
15 percent coverage category to that.
16 If it was one of the very low sparse
17 coverage categories, we would use the field
18 reconnaissance in which we determined a point where
19 we saw cattail. And then beyond that point, we
20 either saw no more cattail or essentially no more
21 cattail or no more cattail that was in that general
22 coverage category. And in that case we would use
23 that determination and field data locations to draw a
24 line.
25 Q. What was the minimum mapping unit that you
423
1 could use on your aerial photographs when you would
2 digitize that data?
3 A. I don't understand your question.
4 Q. In other words, you have described the
5 process where you took your aerial photos and you
6 would overlay them. Then someone would physically
7 sit down and draw the various mapping units on to
8 that acetate so that that information could be placed
9 into the computer.
10 Is that a correct understanding of the
11 process of how you did it?
12 A. That's essentially correct.
13 Q. What was the smallest polygon that your
14 photographers could draw on the map?
15 A. I don't recall an exact number, but
16 probably in the range of 30 to 50 feet, more or less.
17 Q. You said that my explanation of the process
18 of what was done with the aerial photos was
19 essentially correct. I would like to ask you a few
20 more questions as far as the detail of what that
21 process entailed when BDA did its aerial photography.
22 First let me ask you, was all of the aerial
23 photography for the 1991 map done by the same pilot
24 or the same photographer or was there a variety of
25 people used?
424
1 A. All of the photography for the '91 map was
2 taken, I believe, by Southern Resource Mapping.
3 Whether or not they used the same pilot and the same
4 photographer, I do not know.
5 Q. Once you received your photographs, how did
6 you go about determining the accuracy of your aerial
7 photos and your ground visuals when you reconciled
8 them onto your map?
9 A. Essentially what was done was actual field
10 identifiable points which could be referenced to
11 established base maps were used in conjunction with
12 photographic scales to locate the photos and
13 essentially tie them together for the composite map.
14 Q. Was all of your photography for the 1991
15 map color balanced? Do you know what I mean by color
16 balanced?
17 A. I'm not sure I do.
18 Q. In other words, were all of these photos
19 for this area that's going to be used on this map all
20 processed at the same time in the same batch with the
21 same developing condition?
22 A. I don't recall.
23 Q. What was the accuracy of your field
24 identifiable points? How did you determine what
25 points to use?
425
1 A. We would pick points such as control
2 structures, bins and levees, distances along levees,
3 roads, road intersections, those type of photo
4 identifiable points.
5 Q. What would you do as far as determining the
6 accuracy of, say, in the entire area of 2A where you
7 have no control structures or levees or roads?
8 A. I believe various scaling procedures were
9 used.
10 Q. What scaling procedures did you use?
11 A. Information from one photo where you had an
12 identifiable point would be gathered. That would be
13 entered, and then where there were photos that did
14 not have those kinds of points, some determination of
15 scale of those photographs was used -- in the scaling
16 process was used to, in essence, fit those photos
17 together in a mosaic that would be registered to a
18 base map.
19 Q. I understand that. But I think my question
20 is, what was the scaling process that you used to
21 create the photo mosaic to put on the map?
22 A. Probably at this point we are getting into
23 details of the photographic and registration process
24 that I'm not -- that I did not do, and I was relying
25 on others that had better knowledge and abilities to
426
1 know how to do that to perform those tasks.
2 Q. Was that work done by BDA, this scale that
3 we are discussing?
4 A. Yes.
5 Q. Was it done by a particular individual at
6 BDA?
7 A. There were probably several people that
8 worked on that process, yes.
9 Q. Do you know who those individuals were?
10 A. Dr. Joe Burch, Derrick Davis.
11 Q. Derrick or Eric?
12 A. Derrick. There were probably others.
13 Q. Do you know what the accuracy of the
14 process would be if you are dealing with a
15 identifiable point, say, on the levee and you want to
16 get into the interior of, for example, 2A, what type
17 of accuracy do you come out with?
18 A. I don't recall.
19 Q. Do you have a range?
20 A. No, I don't.
21 Q. Again, I understand that you did not do
22 this particular work, but I need to ask you in
23 detail. When you obtained the aerial photographs and
24 they were given the acetate overlay, was there one
25 person or a group of people at BDA that did this
427
1 actual outlining that you described?
2 A. For consistency, we had one person doing
3 that.
4 Q. Who was that?
5 A. Dr. Joe Burch.
6 Q. What is the accuracy of that particular
7 step in the process? Is there any way to determine
8 that?
9 A. Would you restate the question, please?
10 Q. You stated for consistency that you used
11 one individual. I would assume he probably has a lot
12 of experience in this type of work, this drawing on
13 the aerial photos, but is there any way of
14 determining how accurate that drawing is?
15 A. Yes.
16 Q. What is that?
17 A. By going and doing a ground truthing
18 determination.
19 Q. You had made a statement yesterday or the
20 day before that we were sort of using ground truthing
21 in a generic sense. I assume there is probably a
22 more narrow definition.
23 What would your definition in this
24 particular instance of ground truthing be in order to
25 determine the accuracy of these aerial photo
428
1 overlays?
2 A. As I use ground truthing related to this
3 particular effort, ground truthing would include
4 actually the ground inspections conducted principally
5 by air boat, sometimes getting in and out of the air
6 boat and walking around. Also helicopter over
7 flights at various altitudes and some inspections
8 from fixed wing aircraft.
9 One thing that becomes very apparent in
10 trying to conduct a mapping effort such as this in
11 this kind of area is the vastness. I mean, it's
12 just -- it's just an immensely vast area to work in.
13 So that's why typically ground truthing and
14 in the strict sense would be involved in going out
15 and physically standing on the ground and looking at
16 your area and looking at the map and looking at the
17 vegetation and collating those and say, yes, this is
18 pine forest, or this is oak tree or this is marsh.
19 But in this instance where distances are so
20 great and accessibility is such a problem, we
21 reverted to the use of helicopters and airplanes to
22 help get around and facilitate getting into various
23 places.
24 Q. I understand. Were you able to conduct a
25 ground truthing effort of these aerial photographs
429
1 after they were overlayed?
2 A. Yes.
3 Q. To what extent?
4 A. Essentially what we would do is identify an
5 area, map an area, and then go back to that area as
6 many times as we felt necessary to resolve any
7 questions of accuracy that we might have. So we
8 would go back to some areas once. We would go back
9 to some areas perhaps more than once.
10 Q. Do you recall specifically what areas you
11 may have gone back to more than once?
12 A. The areas with the greatest cattail
13 density, which are reflected in the greatest
14 complexity of matching, were areas we spent more time
15 going back to and working with.
16 Q. So that would be, for instance, the
17 northern part of 2A and southern part of 1, would
18 those be included in that?
19 A. Yes.
20 Q. Any other areas?
21 A. The northern part of 3A and the area
22 generally west of the S-9 structure.
23 Q. And you say this was primarily done by
24 either fixed wing or helicopter over flight?
25 A. Or air boat.
430
1 Q. In 1991 did you have the GPS unit with the
2 bar code system that you referred to yesterday or did
3 you only have that for your '93 efforts?
4 A. As I recall, we only used the bar code
5 efforts in our 1993. We may have begun developing
6 that procedure in the 1991 or 1992 time period.
7 Q. But that would be after this map was
8 produced?
9 A. Created.
10 Q. Created?
11 A. Yes.
12 Q. Did you use a some transfer scope on your
13 digitization of your photographs?
14 A. I don't recall specifically whether that
15 was used or not.
16 Q. Can you describe for me the process that
17 was used in order to transfer your aerial photographs
18 onto your maps?
19 A. I don't believe I can explain in any more
20 detail than what we already discussed.
21 Q. All right. Do you know if the image of the
22 aerial photographs with the acetate overlays were
23 optically projected onto the map or were they
24 digitally scanned? I was not clear on that?
25 A. Okay. It's my recollection and
431
1 understanding that they were digitally reported.
2 Q. What was the pixel size on the scan photos?
3 A. I don't believe I indicated we scanned the
4 photos.
5 Q. If you scanned it to a digital file you
6 would have had to scan the photo, right?
7 A. I believe there is some confusion. I think
8 I indicated that we went through a process of
9 digitizing the delineations from the aerial
10 photographs. We did not scan that into a digital
11 density type of system.
12 Q. All right. You somehow had to transfer the
13 information that's on your aerial photographs onto
14 your map, correct? You had to merge the two?
15 A. Somehow we had to get the information from
16 the color infrared areas and the acetate overlays on
17 those into the base map format, right.
18 Q. So when you did that, did you digitize the
19 photos or did you digitize just the overlays or both?
20 A. We digitized the delineations that we made
21 on the clear acetates that were overlaying the
22 photos.
23 Q. What is the accuracy of the finished map
24 that's created from that type of process?
25 MR. KOBELINSKI: Without the ground
432
1 truthing?
2 MS. STARK: Yes, without the ground
3 truthing.
4 THE WITNESS: I don't know what the
5 accuracy would be without the ground truthing.
6 That would depend on the skill of the
7 photographer.
8 BY MS. STARK:
9 Q. I think you told me your photographer was
10 Dr. Joe Burch?
11 A. That's correct.
12 Q. Did he do the digitizing by scanning or did
13 he do it manually, the digitizing of this overlay?
14 A. I don't believe he did the digitizing.
15 Q. Who did that?
16 A. It would have been various of our computer
17 scientists and technicians.
18 Q. Do they do that manually or do they do that
19 by scanning?
20 A. Manually.
21 Q. What's the accuracy of that procedure?
22 MR. KOBELINSKI: Again, I assume without
23 any ground truthing?
24 MS. STARK: I'm just talking about that
25 process.
433
1 THE WITNESS: I don't recall.
2 BY MS. STARK:
3 Q. Once you had ground truthed the 1991 map,
4 what was your estimate of the accuracy of the
5 depictions on that map?
6 A. To the best of my knowledge and our ability
7 to study the area and the photographs at that time,
8 that map is a very representative and accurate
9 depiction of the extent of cattails within those
10 areas in the 1991 time period.
11 Q. Have you actually calculated a figure for
12 the accuracy, a percent or within a certain meter
13 accuracy?
14 A. No.
15 Q. Do you intend to do that prior to trial?
16 A. I currently have no plans to do that.
17 Q. What additional information would you need
18 in order to create such an accuracy figure or do you
19 have it now?
20 A. When you refer to the accuracy, are you
21 referring to the location and densities of the
22 cattail depicted or the cartographic scale of the
23 map?
24 Q. That's a valid question. Let's start by
25 you talking about the accuracy of the scale. How
434
1 would you determine that?
2 A. I believe there probably are procedures in
3 which the overall accuracy of the map could be
4 determined.
5 Q. And what would they be?
6 A. Essentially picking known, verifiable
7 points and locations and determining distances on
8 those from a source such as survey or other types of
9 mapped information that may be available at a
10 sufficient scale and then compare that data to
11 distances and representations on this map.
12 Q. You would agree, would you not, that the
13 classifications that are used as far as the density
14 of the cattail is basically a subjective type of
15 analysis, is it not?
16 MR. KOBELINSKI: Object to the form of the
17 question.
18 THE WITNESS: The determination of the
19 percentage cattail as I indicated was done by a
20 visual estimate, which is a qualitative
21 technique rather than a quantitative technique.
22 BY MS. STARK:
23 Q. So if you wished to determine the accuracy
24 of those classifications that are shown on your map,
25 how would you go about doing that?
435
1 A. One method would be to go back to our field
2 notes and data sheets and look at what those data
3 indicated and go back to our map and see whether or
4 not what was depicted on the map was representative
5 of what we had recorded in the field.
6 Q. So that would certainly give you some idea
7 of how accurate a depiction your map is of your field
8 notes, correct?
9 A. Of our observations, yes.
10 Q. Or at least what's written down of your
11 observations?
12 A. That's correct.
13 Q. There is no way to go into the field at
14 this point and determine the accuracy of the 1990
15 map, is there --
16 MR. KOBELINSKI: Again?
17 BY MS. STARK:
18 Q. -- today?
19 A. There is no way that I'm aware of to go
20 back in time and verify the accuracy of a particular
21 map unless you have some site specific data that was
22 taken in the time period that the map was produced
23 that you feel is reliable that you can use.
24 Q. What type of site specific data?
25 A. If in any period of time you had gone back
436
1 and recorded for a particular point or area that you
2 inspected the area and visually it was 50% cattail,
3 then you could come back and use that information to
4 determine whether or not that was accurate on the
5 map.
6 If you had more detailed data where you
7 went to an area and you counted every plant in a
8 certain geographic area and you believed the person
9 had identified the plant, he had identified the area
10 and he knew how to count and was basically a reliable
11 person, that level of detail, if you had it
12 available, would allow you to go back in time and say
13 I believe that data and therefore this area generally
14 is accurately depicted on the map.
15 But there is no way that I'm aware of other
16 than that kind of category of data that you can look
17 at a map that was produced of a particular point in
18 time and necessarily verify its accuracy.
19 Q. And you would agree that that type of site
20 specific verification would be subject to any
21 accuracy problems with your GPS or your Loran as far
22 as determining its exact location, would you not?
23 A. Yes. Your ability to know a particular
24 point on the ground is limited by the accuracy of the
25 instrument or the method that you are using to
437
1 identify yourself and your point on the ground.
2 Q. It's my understanding that there can be
3 some adjustment that needs to be done with aerial
4 photographs to take into effect the fact that those
5 photos may have been taken on an angle or there may
6 be some problems along the edges of the photographs
7 as far as the resolution.
8 Are you familiar with the procedures that
9 BDA used to correct those types of problems with your
10 aerial photographs?
11 A. In general terms.
12 Q. Okay. Give me the general terms.
13 A. In general we would use the center portion
14 of the photograph. You are correct. On any aerial
15 photographs that are taken there can be distortion
16 and due to the instability of the aerial platform
17 that you use. So there is some error fact inherent
18 in any aerial photograph.
19 There are ways to deal with that. And
20 generally I believe in this process the way we dealt
21 with it was by using the center part of the
22 photograph, and then we went through a process of
23 best fitting the series of photographs to the base
24 map. And I have tried a couple of times this morning
25 to describe to you how that was done. I described it
438
1 to the extent of my specific knowledge on it. So
2 that's generally how we tried to deal with that.
3 Q. When we say the center part of the
4 photograph, can you estimate on a particular
5 photograph how much of the area you are actually
6 using. Are you discarding 50% of the photo around
7 the edges? Is there any way to quantify that type of
8 statement, that it's the center part?
9 A. It would probably vary a little bit. But
10 generally the center third, more or less, of the
11 photograph.
12 Q. The center third in from the side and in
13 from the top and bottom?
14 A. And in from the top. Color infrared areas
15 also have a vignetting effect around the outside. So
16 in terms of eliminating the tilt problem that you
17 were questioning and the vignetting part, you would
18 use generally the center part of the aerial which
19 gives you a better signature to delineate.
20 Q. I think you told me that these photos are 9
21 inches by 9 inches; is that correct?
22 A. That is right.
23 Q. So am I correct in assuming that you
24 essentially used the three inch square in the middle,
25 is that what you are telling me? You said the
439
1 center, so I'm trying to look at it in inches.
2 A. Depending on the particular degree of
3 vignetting on the photograph, it was probably used
4 approximately the -- probably about four or five
5 inches on the center part of the photograph. I guess
6 that doesn't equate to exactly one-third.
7 Q. I think it might.
8 How did your -- I guess it would be your
9 computer technicians geo reference these digitized
10 overlays to the base map?
11 A. By taking known geo reference points and
12 identifying those on the areas to the extent they
13 occurred, and then in putting that in a digital
14 manner into the geographic information system. And
15 where that couldn't be done, utilizing some sort of
16 scaling procedure with the other photographs.
17 Q. And I know I have already asked you how
18 many total photos you had. Are you aware even in
19 general terms how many photos were actually digitized
20 and geo referenced in order to make the 1991 map?
21 A. I don't know.
22 Q. Just a point of clarification. When you
23 referred to the known point on the ground when we are
24 talking about the geo referencing of the overlays,
25 are you referring to, for instance, a structure or
440
1 levee or are you talking about specific GPS points?
2 What known points are you using?
3 A. Generally I'm talking about the known
4 points as we discussed earlier with structures and so
5 forth. There may have been some GPS recorded points
6 that were utilized, also.
7 Q. How did you go about changing your
8 categories for your legend from the '91 map to the
9 '93 map? Obviously you have more classifications on
10 the '93 maps. How did that process occur?
11 A. We used the information data that we had
12 acquired in our 1991 cattail mapping exercise. And
13 then developed what we believe would be a more
14 systematic approach to mapping the cattail in the
15 conservation areas.
16 Therefore, we, in a priority fashion for
17 the '93 map, determined the classifications that we
18 would use.
19 MR. KOBELINSKI: If you are moving on to
20 '93, would this be a good place to take a break?
21 MS. STARK: This would be fine.
22 (Thereupon, a brief recess was taken,
23 after which the following proceedings
24 were had:)
25 BY MS. STARK:
441
1 Q. As your counsel pointed out, we are
2 shifting gears into the '93 map. Let me start by
3 asking you kind of a general overall question.
4 What were the primary differences, if any,
5 between the methodology that was used in the
6 development of the 1993 map versus what we have just
7 gone through this morning as to the development of
8 the 1991 map?
9 A. As we discussed earlier, the 1991 map was
10 an evolutionary process. We didn't know where
11 cattails occurred, and we were attempting to figure
12 how to best capture the location and geographic
13 extent of cattail within the vast area that comes at
14 WCA-1, 2 and 3. We had the benefit of that
15 experience in conducting our 1993 map. So the 1993
16 map was different in that we established our density
17 or percent cover classifications up front.
18 We also utilized GPS technology much more
19 in the 1993 map than we did in the 1991 map.
20 Q. What's your understanding of the meter
21 accuracy of the GPS with the intentional drift built
22 in if in fact you do not have the military key and
23 the security clearance in order to adjust for that?
24 A. My understanding is that currently with
25 post process GPS data, with the type of GPS units we
442
1 have and use, we can be accurate to within three
2 meters.
3 MR. KOBELINSKI: Off the record.
4 (Discussion off the record.)
5 BY MS. STARK:
6 Q. You are saying that your GPS measurements
7 are accurate to three meter? I think I missed
8 something there.
9 A. I'm saying that with our GPS units and
10 utilization of a base station and by post processing
11 the data, we can be accurate to within three meters.
12 Q. For the 1993 map, was all of your GPS data
13 post processed?
14 A. I don't know.
15 Q. Do you have any estimate of the percentage
16 that may not have been post processed?
17 A. No, I do not.
18 Q. Who did that work? Did BDA do it?
19 A. Which work?
20 Q. Any post processing that may have been done
21 on the GPS, or was that something you hired someone
22 else to do?
23 A. BDA did that.
24 Q. Whom within BDA would have been responsible
25 for that?
443
1 A. I believe most of that was probably done by
2 an employee we had who was a professional land
3 surveyor and trained in the use of GPS.
4 Q. Is that individual still with BDA?
5 A. No.
6 Q. What was that individual's name?
7 A. Tony Downs.
8 Q. Did you use any aerial photography for the
9 creation of the 1993 map?
10 A. Yes.
11 Q. What procedures were used in obtaining, I
12 guess, the synthesis or the analysis of those aerial
13 photos? Did it differ at all from what you did in
14 1991?
15 A. The process was similar to what we used in
16 1991.
17 Q. Did you also use Southern Resource Mapping
18 for that area of the photography work?
19 A. No.
20 Q. Who did you use?
21 A. Aerial Cartographics of America.
22 Q. And do you know if Aerial Cartographics of
23 America utilized one pilot for your entire project?
24 A. No, I don't.
25 Q. How much of the area of WCAs 1, 2 and 3 was
444
1 aerial photographed for the 1993 map?
2 A. Again, I believe the flight lines that
3 indicated coverage provided that in general terms the
4 northern part of WCA-1 was not included and perhaps
5 some of the southern areas of WCA-3.
6 Q. When you say that the flight lines were
7 provided, I'm not sure if I could look at that piece
8 of paper and really make heads or tails of it in any
9 way, and I haven't seen it in your documentation.
10 Can you describe for me the method by which
11 a pilot would go about aerial photographing, a
12 particular geographic pilot? Does he fly up and down
13 in lines or is it a circular pattern? What type of a
14 pattern do they use?
15 A. The typical process that I believe occurs
16 is that the general geographic area of the requested
17 or required coverage is looked at and perhaps the
18 boundary is depicted on some type of base map. The
19 altitude that would need to be flown at with a
20 particular camera lens combination to obtain the
21 coverage that is requested in terms of the scale of
22 photographs would be determined, and then flight
23 lines would be prepared.
24 Generally, and I believe in this case they
25 were already in a north/south, and those flight lines
445
1 are mapped off on the base map to insure adequate
2 coverage of the target area with the degree of
3 overlap that's either requested or required.
4 And then with that information the pilot
5 and the photographer would find that on an
6 appropriate day and fly the mission.
7 Q. I think you had mentioned when Paul was
8 questioning you that the American Society for
9 Photogrammetry and Remote Sensing is the overseer or
10 the society to which various individuals that are
11 experts in these areas belong.
12 Do you know if either Southern Resource
13 Mapping or Aerial Cartographics of America are
14 members of that society?
15 A. I do not know from personal knowledge what
16 societies either of those cartographic firms are a
17 member of.
18 Q. You say you don't know from personal
19 knowledge. Do you have some hearsay information as
20 to what they might belong to?
21 A. I know that with respect to Aerial
22 Cartographics of America, they are extremely active
23 and participating in their professional
24 organizations.
25 From general conversations that we have had
446
1 with them and representatives of their firm, it's my
2 sense that they are extremely active in their
3 professional societies or organizations.
4 Q. Is Dr. Joe Burch a certified
5 photogrammetrist?
6 A. No.
7 Q. Is he a member of the American Society of
8 Photogrammetry and Remote Sensing?
9 A. I don't believe so, but I'm not sure.
10 Q. What about the computer technicians that
11 you spoke of earlier who did some of the digitizing
12 work for you? Are any of them certified
13 photogrammetrists?
14 A. No.
15 Q. Again, are they members of CASPRS?
16 A. They may be, but I don't know from personal
17 knowledge.
18 Q. Getting back to the methods that were used
19 for the 1993 map, the aerial photos that were taken,
20 were they color balanced?
21 A. I'm not sure.
22 Q. Just to save time, was the same type
23 acetate overlay, line interpretation and digitizing
24 of the data used in the processing of the aerial
25 photos as in 1991 or did you use a different method?
447
1 A. It's my understanding generally the same
2 methods were used.
3 Q. Did you use any satellite imagery in the
4 creation of the 1993 map?
5 A. I know we didn't use satellite imagery for
6 any of the cattail mapping purposes. Now that you
7 ask me that question in that format, I seem to recall
8 some mention or possible use in the 1993 cattail map
9 and perhaps even to a degree in the 1991 map of some
10 type of satellite that may have been used somehow in
11 the base map development, but as I tell you that I
12 have told you really about all that I remember about
13 it.
14 Q. I was going to say that's kind of vague.
15 A. I understand it's vague. I'm very clear
16 that to my knowledge we didn't use any satellite
17 photography to map cattail, but in the overall map
18 making and cartographic processes, which I didn't do,
19 just so I can give you an accurate and as complete
20 answer as I possibly do recall, I do seem to remember
21 some reference to some satellite that was used in
22 some manner in that process.
23 Q. What's your best guess as to who would
24 know, would that be Dr. Burch?
25 A. He might know. Also George Carlson or
448
1 Chuck Ronsaghan, R-O-N-S-A-G-H-A-N, something like
2 that, would probably be able to provide that detailed
3 information.
4 Q. Do you know what scale the base map for the
5 1993 map is? Do you understand the question?
6 In other words, what scale did you use for
7 the creation of the base map?
8 A. The base map was essentially a GIS data
9 file. So to that extent, the scale is whatever you
10 want to produce the hard copy of.
11 Q. What information was contained on the base
12 map when it was run prior to any of the addition of
13 your vegetative information?
14 A. Again, we are right on the edge of the area
15 that I have detailed knowledge about. But in
16 general, it's my understanding that there -- the base
17 map would contain known locations of levees, canals,
18 roads, structures, those types of information.
19 Q. And understanding that you did not do this
20 work, and obviously I'm just sort of trying to
21 determine what your knowledge encompasses, do you
22 know what coordinate system was used for that base
23 map or what coordinate system it contains?
24 A. I believe it was UTM.
25 Q. What does that stands for?
449
1 A. Universal Transverse Mercator.
2 Q. What was the projection of the base map?
3 A. I don't know. These are good questions,
4 but it's outside the area that I have direct
5 knowledge of.
6 Q. You say that in the creation of your '93
7 map that you were able to utilize considerably more
8 GPS type information and we discussed at some length
9 the pen and bar code system.
10 Is that what you are referring to as far as
11 this additional GPS data information?
12 A. Yes.
13 Q. I'm not sure that I'm clear on the actual
14 physical field work that was done for that. Was that
15 particular system used when you ran the transects
16 that we talked about or did you set up a different
17 type of geographic coverage, if you will, when you
18 did that work in field?
19 A. I don't understand that question.
20 Q. In other words, we discussed a variety of
21 transects that were set up, for instance, in WCA-1.
22 I believe there were six transects that you went in
23 and you took information on water depth and water
24 quality and some soil cores. That type of
25 information -- and I'm not holding you to specifics,
450
1 but that was what we were discussing as far as what
2 was done on the transects.
3 Was it also a transect system that was used
4 in doing this GPS pen and bar code analysis of
5 vegetative coverage, or was this a separate trip into
6 the field in which you used some other system of
7 covering a certain geographic area?
8 MR. KOBELINSKI: Object to the form,
9 compound.
10 THE WITNESS: I believe you did ask me
11 several questions there.
12 BY MR. NETTLETON:
13 Q. Let me try again then. I think the
14 question I'm asking you is, did you do the GIS work
15 when you did the transect work -- GPS work or did you
16 do it separately?
17 A. There was GPS locational data taken when we
18 conducted certain of the transects that we discussed
19 at some length yesterday in various geographic areas
20 in Water Conservation Areas 1, 2 and 3.
21 As I described yesterday, we performed
22 certain transects and took certain data and located
23 that data or those locations with GPS for those
24 particular investigations.
25 For the 1993 cattail map we conducted
451
1 additional transects that were separate and apart
2 from those studies, overall comprehensive fashion.
3 Q. How was the protocol developed for those
4 transects that were done for this pen and bar code
5 work?
6 A. We established certain east/west flight
7 lines at a distance to insure adequate coverage.
8 Q. What was that distance?
9 A. I don't recall the exact distance, but we
10 established those series of east/west aerial
11 transects, and there were some air boat transects
12 that were conducted also to gather information for
13 the 1993 map.
14 Q. What is your estimate of the widths of a
15 particular transect as it was flown for this GPS
16 work?
17 MR. KOBELINSKI: Distance between
18 transects?
19 BY MS. STARK:
20 Q. In other words, as your aircraft -- was
21 this done by helicopter or fixed wing?
22 A. Most of this was done by fixed wing.
23 Q. As your fixed wing aircraft is traversing
24 from east to west across a given geographic area,
25 what is the width in meters, feet or whatever of the
452
1 area that you would be covering in your pen and bar
2 code calculations that you would be making as you
3 flew over that area?
4 A. I don't recall that distance.
5 What was done was the transects were set up
6 so that with the altitude at which the plane flew,
7 the distance between the flight paths was such that
8 it provided adequate coverage and detail for this
9 mapping exercise.
10 Q. What was the altitude that the aircraft
11 flew?
12 A. 300 feet, approximately.
13 Q. I think we established the other day there
14 is no way to see what's under the belly of the plane
15 unless you strap on to the bottom?
16 A. We indicated we did not strap Dr. Joe Burch
17 and fly him across.
18 Q. So am I correct in assuming that there
19 would be one person recording data off of each side
20 of the plane, or did you do it off one side only?
21 A. One side of the plane.
22 Q. Which side of the plane?
23 A. I don't know.
24 Q. You indicated that the pen and bar code
25 system was capable of recording every one to five
453
1 seconds, I think you said, as far as data. Data
2 could be entered that frequently?
3 A. That's correct.
4 Q. What was the protocol on how frequently
5 data would be entered as the plane progressed across
6 the transect?
7 A. The protocol was essentially to record a
8 data point often enough to characterize and provide
9 sufficient information for a particular area, and to
10 make sure that whenever a boundary between one
11 category and another was crossed, a data point was
12 taken to insure the capture of that distinction.
13 Q. I'm sorry, are you finished?
14 A. Yes.
15 Q. How many individuals recorded GPS data on
16 the over flights?
17 A. One.
18 Q. Who was that?
19 A. Dr. Joe Burch.
20 Q. Once these over flights were done -- and I
21 assume also any air boat transects were done -- in
22 which this pen and bar code system was used, how did
23 you reconcile that information to the aerial
24 photographs that you had for 1993?
25 A. We would take that GPS field data and look
454
1 at it in conjunction with the aerial photographs.
2 Q. Let me stop you there. When you say in
3 conjunction, did you have your GPA data here and your
4 photographs here in front of you, or is this
5 something that's done by computer?
6 A. It may have been there laying on the table
7 or it may have been done in combination with the data
8 on the computer terminal. I just don't know.
9 Q. You are not familiar with the process?
10 A. I just don't know exactly every instance
11 how or what format the data was in when I looked at
12 it.
13 Q. Did you ever see any type of depiction of
14 the pen and bar code data in its raw form?
15 A. I have seen tabulations of GPS data. I
16 can't specifically recall which, if any, of the raw
17 GPS data I saw relative to the '93 map. I just can't
18 recall.
19 Q. I guess I'm trying to understand what it is
20 that you come out with when you have done these over
21 flights and air boat transects and you have entered
22 this data.
23 Does it produce for you some type of a
24 geometric picture or is it simply a listing of GPS
25 locations and whatever was entered into the bar code
455
1 system?
2 A. The GIS system, I believe , will allow
3 either a geographic or tabular display of that data.
4 Q. Do you know what the degree of accuracy
5 would be on the geographic depiction of the data if
6 it was run through a GIS system?
7 A. It would be to the level of accuracy
8 attached to it that we talked about this morning.
9 Q. If all of your GPS data was post processed,
10 it would be within three meters?
11 A. Theoretically.
12 Q. And just so I'm clear, I think you said
13 that you do not know if all of this data was post
14 processed or not?
15 A. No, I don't.
16 Q. Once your GPS data is transferred into
17 whatever type of system makes it usable, and you then
18 want to correlate with your aerial photos and put it
19 on to a base map, how do you go about doing that?
20 A. One method would be to have the GIS system
21 display the location and coverage estimates on the
22 base map.
23 Q. Do you know if that's what was done for the
24 1993 map?
25 A. I don't know specifically.
456
1 Q. For the 1993 map, do you know if the aerial
2 photos were placed on -- were correlated to the base
3 map first or was the GPS data correlated to the base
4 map first?
5 A. As I understand it, it was -- both the GPS
6 information and the photographic measurements were
7 used in conjunction with each other to formulate the
8 map.
9 Q. How does whatever equipment is correlating
10 these two divergent sets of data, how does it adjust
11 for any differences that may exist between the aerial
12 map and the GPS data?
13 A. If there were any differences in that data
14 then those differences were analyzed, evaluated and a
15 judgment call was made as to which data was deemed
16 most representative of the particular area.
17 Q. And who did that evaluation?
18 A. Dr. Joe Burch.
19 Q. Do you know if any such divergences
20 occurred in the data between one set and the other?
21 A. No.
22 Q. No, you don't know or no, there weren't
23 any?
24 A. No, I don't know.
25 Q. What, if any, ground truthing was done
457
1 after the creation of the 1993 map to determine its
2 accuracy?
3 A. As I understand, there was some selective
4 ground truthing as the map was produced to verify the
5 accuracy of the cattail distributed and coverage
6 distributions.
7 Q. When you say some selective ground
8 truthing, can you be more specific? Do you know
9 anything about that effort?
10 A. I know that various areas were looked at.
11 I don't know how many areas and I don't know exactly
12 what areas. I just know the process that was gone
13 through.
14 Q. Who was responsible for that ground
15 truthing effort?
16 A. Dr. Joe Burch.
17 Q. Has there been a calculation made of the
18 degree of accuracy of the 1993 map?
19 A. Not within my understanding of the concept
20 of the degree of accuracy that you are using as we
21 discussed earlier this morning.
22 Q. Is there another concept of degree of
23 accuracy that you feel this map has been subjected
24 to?
25 A. I believe our information sources are base
458
1 maps. Our procedures and our existing data have been
2 looked at to determine whether or not we believe that
3 the 1993 map accurately depicts the extent and
4 coverage of cattail.
5 Q. When you say it has been looked at, who has
6 looked at it?
7 A. There is the geographic information system
8 scientists and technicians, Dr. Joe Burch, Dr. Jack
9 Hill.
10 Q. Have any of these individuals conducted a
11 formal peer review of the 1993 map?
12 A. What do you mean by formal peer review?
13 Q. What would your understanding as a
14 scientist be of the formal peer review?
15 A. Well, there is a peer review process for
16 publishing scientific articles where you submit a
17 manuscript for publication in a particular
18 periodical, and that manuscript is reviewed by the
19 editor and various other scientists that are
20 knowledgeable in the field of the subject matter of
21 the publication. And then usually comment is
22 received or suggestions are made concerning the
23 manuscript and any changes to it, and then the
24 editors of the publication openly make a
25 determination about whether to publish it or not,
459
1 whether to insist that all of the issues raised by
2 the peer reviewers be considered or some considered
3 and others deemed not to be necessary to be
4 considered.
5 They had to make that determination that
6 the paper is published. That's how I'm usually
7 associated with a formal peer review process.
8 Q. Would there be any type of a peer review
9 process of any experimentation that may have been
10 done by a particular scientist? In other words, if a
11 scientist conducted some type of survey, geographical
12 survey, is there any method by which another
13 scientist might criticize the review, the protocols
14 or the methodology that was used?
15 MR. KOBELINSKI: Just general question,
16 whether one scientist can look at another
17 scientist's work?
18 MS. STARK: Correct.
19 THE WITNESS: Yes.
20 BY MS. STARK:
21 Q. Did anybody do that type of work that you
22 did for the creation of the 1991 and the 1993 map?
23 A. Yes.
24 Q. And who did that?
25 A. Dr. Jack Hill.
460
1 Q. Did Dr. Jack Hill create any reports or
2 memoranda of his review of your work?
3 A. Not to my knowledge.
4 Q. Did he report back to you after he had
5 reviewed the protocols and methodology?
6 A. He -- I would -- I don't know if I would
7 use the term report, but he did a review of
8 procedures associated with the cattail mapping and
9 provided us comments, discussion.
10 Q. At what stage of development did he provide
11 those comments? Was it after the maps were
12 completed?
13 A. We collaborated with Dr. Hill throughout
14 the development of protocols. And as the whole
15 process was going on, we have been collaborating with
16 Dr. Hill for some time on these matters in general
17 and some of the specifics of the maps have been
18 produced.
19 Q. Am I correct in my assumption that Dr. Hill
20 is not an employee of BDA?
21 A. You are correct.
22 Q. What input specifically did Dr. Hill have
23 in the creation of the 1991 and 1993 maps?
24 A. I don't recall what specific input he may
25 have had.
461
1 Q. Do you recall what areas he may have
2 provided comment or input?
3 By areas I would mean did he talk to you
4 about the aerial photography, did he talk to you
5 about your digitization or GPS, those type of general
6 broad areas specifically? What was it that he was
7 commenting on?
8 A. Essentially in the entire range of issues
9 all the way from the use of aerial photographs to
10 production of the GIS based map. I was used in
11 quality control, quality assurance function.
12 Q. Did Dr. Hill conduct any of the field work
13 for other than 1991 or 1993 maps?
14 A. I believe that he conducted certain field
15 visits for different purposes, but he did not collect
16 nor was he used in the capacity of collecting the
17 field data for the maps.
18 Q. Did any other individuals act in a similar
19 capacity to Dr. Hill in providing comments to BDA in
20 their development of these maps?
21 A. There may have been general discussions
22 with some others outside of DEA concerning matching
23 and production of the maps, but nothing beyond
24 general type discussions that I could recall.
25 Q. Did BDA seek any independent input -- by
462
1 independent, I mean someone not somehow connected to
2 the litigation -- in the development of your
3 protocols or methodology for the development of the
4 maps?
5 A. We got the input of Dr. Jack Hill. He was
6 an outside DBA type person. But other than that, no.
7 Q. Have you taken any steps to determine the
8 statistical precision of your percent cover
9 classifications in either the year 1991 or 1993 maps?
10 A. Not that I'm aware of.
11 Q. I'm about to switch areas again. It's a
12 quarter after 11. Take a break?
13 MR. KOBELINSKI: Yes.
14 (Thereupon, a brief recess was taken,
15 after which the following proceedings
16 were had:)
17 BY MS. STARK:
18 Q. Doctor, I would like to ask
19 you a couple of questions about the work that was
20 done by ARAM, the firm you said from Michigan?
21 A. Yes.
22 Q. I believe you mentioned that they utilized
23 Landsat?
24 A. Satellite imagery.
25 Q. Is that correct?
463
1 A. That's my recollection.
2 Q. I believe you also mentioned that they used
3 the MSS spectral scanner, multi-spectral scanner?
4 A. I don't remember indicating that. I may
5 have, but I don't remember indicating that.
6 Q. I have it in my notes. I probably wouldn't
7 have come up with that on my own.
8 In any event, are you familiar with the two
9 different sensors that are on the Landsat, satellite?
10 A. I'm familiar with the different sensors
11 there.
12 Q. Do you know what the different resolutions
13 are of those scanners or sensors?
14 A. I'm familiar with generally Landsat,
15 satellite imagery. And for clarification, I guess
16 for the record, I'm not absolutely sure which scanner
17 they use or which band on which scanners they used,
18 to my knowledge. That was not part of my
19 participation in that process.
20 Q. So you could not definitively testify
21 whether they used the MSS or the TM sensor?
22 A. No.
23 Q. Did you have any involvement with ARAM
24 other than the location and, I guess, some of the
25 trips to the training stations that we talked about
464
1 earlier?
2 A. As I recall what we talked about previously
3 was basically assisting them in their field
4 investigations for their mapping effort.
5 Q. Did any of the work that you did to assist
6 ARAM end up being part of the work that you utilized
7 for any of your efforts for this litigation?
8 A. Yes.
9 Q. Specifically, what task or work did you do
10 for ARAM that ended up in your work?
11 A. The reconnaissance that we conducted with
12 ARAM helped us identify where cattail might be
13 occurring. And to the extent that we gained some
14 additional knowledge of the geographic extent of
15 cattail, that was helpful to us in the development of
16 our '91 cattail map.
17 Q. On these field reconnaissance missions or
18 trips, how did you record this information that
19 helped you to identify where the cattail was
20 occurring?
21 A. Would you clarify for me what you mean by,
22 how did you record?
23 Q. Obviously, I assume you probably wrote it
24 in a field notebook. What I'm looking for is, how
25 were these locations identified on this
465
1 reconnaissance work?
2 Were you using a particular GPS or Loran
3 system?
4 A. At that time we would have been using the
5 Loran system within the helicopter that we contracted
6 with.
7 Q. And how specific was the data that you
8 collected during these field reconnaissance missions?
9 Were you at that time breaking down percentages of
10 cattail cover or were you just looking to see if
11 there was cattail at all?
12 A. We were principally looking to see if there
13 was cattail at all, and we were obviously interested
14 in, if we found it, whether there was a big area of
15 it, was it a mono specific stand or was it just some
16 standard individuals.
17 For our purposes relative to the '91 map
18 this was all what I would characterize as
19 reconnaissance type investigations.
20 Q. Preliminary investigation, so to speak?
21 A. Yes.
22 Q. When was this field reconnaissance work
23 done?
24 A. The best that I can recall, it was 1991.
25 No, I believe that was 1990.
466
1 Q. Did you collect any other types of data in
2 your field reconnaissance work with ARAM that you
3 ended up using for some other project as it relates
4 to this litigation?
5 A. Not that I recall.
6 Q. Once the actual training stations were
7 located, did you do any collection at any of those
8 stations that you used for any other purposes other
9 than ARAM and their work?
10 A. Some of the places where we found cattail
11 growing ultimately became some of the areas that we
12 studied further.
13 Q. When you say once we discovered where
14 cattail were growing, are you referring to once you
15 established the training stations and you physically
16 went to those locations and you determined the
17 cattail was there?
18 A. That was several questions. We
19 investigated and tried to find with ARAM large enough
20 patches of cattail, and as I recall sawgrass or other
21 types of species to assist them in their
22 classification to assist them in their mapping
23 effort. So we would do that.
24 And then some of those areas, for instance
25 the area south of the 10 structures in WCA-2 was an
467
1 area that we identified, and we ended up going back
2 and taking additional data in that area as I
3 described yesterday. But other than that, we
4 conducted no other specific studies for ARAM.
5 Q. What would have been a margin of area of
6 cattail or sawgrass in order to be effective for
7 ARAM's purposes?
8 A. As I recall, they wanted locations that
9 were as large as we can find. I don't remember them
10 giving us any specifics that said they had to have a
11 certain acreage area for their use. I just don't
12 know.
13 We helped them find the cattail, identify
14 "Here is an area, it looks like this area is thick
15 with cattail," or whatever. Then they take that
16 information and go back and use it however they
17 deemed appropriate.
18 Q. On your '91 and '93 vegetative maps, that
19 being cattail cover, have you calculated the acreages
20 of the various classifications of cattail?
21 A. Yes.
22 Q. I'm going to assume that you probably don't
23 have those numbers right off the top of your head; is
24 that correct?
25 A. That's correct.
468
1 Q. Where would I find the calculations of
2 those acreages?
3 A. I don't recall specifically any formal
4 tables or tabulations of them. There may be. I just
5 don't recall.
6 What we have done with the information and
7 geographic information system computer format, you
8 can ask for an acreage fix by identifying any of the
9 polygons or areas on there, so we have looked at
10 acreage calculations in that way at various times
11 through the last several years.
12 Q. What type of GIS processing software do you
13 use in order to get those calculations?
14 A. The GIS software that we use primarily is
15 ARC Info.
16 Q. Have you created any reports, whether or
17 not you may have placed this data in a tabular form,
18 that reference acreage of the various classifications
19 of cattail?
20 A. Not that I can recall.
21 Q. Other than the aerial photography and the
22 GPS work and the other processes that we discussed
23 this morning which went into the development of the
24 1991 and '93 maps, did you use any other remote
25 sensing techniques in the creation of those two maps?
469
1 A. To the best that I can recall, the process
2 that we discussed this morning encompasses the scope
3 of the types of procedures that we used.
4 Q. For any of the other projects that you have
5 undertaken for purposes of this litigation, have you
6 utilized any remote sensing techniques that we have
7 not discussed this morning?
8 A. Would you repeat that, please?
9 MS. STARK: Can you read it back?
10 (The question referred to was thereupon
11 read by the reporter as above recorded.)
12 THE WITNESS: If I understand your question
13 to mean have we used flying other than aerial
14 photography and field reconnaissance and field
15 study type procedures in any of the specific
16 study areas that we went over yesterday in our
17 studies and analysis, no, we haven't.
18 BY MS. STARK:
19 Q. You are correct in your understanding of
20 the question. I don't want to rehash all of the
21 methodologies that we have gone through. What I'm
22 looking for is different types of methodologies that
23 may have been used.
24 Have you used any other types of data in
25 your work either on the vegetative maps or any of the
470
1 other tasks that you told us about that you have done
2 for litigation such as radar or shuttle photography,
3 that type of data?
4 A. We have not used any radar sensing devices.
5 We do have a radar instrument, but I don't recall
6 that we specifically used it in any of the studies we
7 talked about. We may have, but we only received that
8 technology within the last year or two.
9 Q. Were there any other sources of data that
10 you might have used in the creation of the '91 and
11 '93 maps other than various things we discussed this
12 morning?
13 A. Not that I recall.
14 Q. How about for any of the other projects?
15 A. Not that I recall.
16 Q. Has anyone at law environmental reviewed or
17 looked at any of your vegetative maps or any of your
18 data?
19 A. I don't know.
20 Q. Who at BDA would know that?
21 A. I'm not sure whether anyone would or not.
22 It may be they have seen our cattail maps, but I'm
23 not sure.
24 Q. Has anyone at BDA reviewed any of
25 environmental maps or data?
471
1 A. Not to any significant degree.
2 Q. When you say not to any significant degree,
3 can you quantify that for me? Have you looked at
4 something?
5 A. I could explain it. I'm aware that Law is
6 performing some type of mapping. I have not seen the
7 maps. And that's about the extent of my knowledge of
8 it.
9 Q. Have you personally discussed methodologies
10 or protocol for developing vegetative maps with
11 anyone at Law Environmental?
12 A. No, I haven't.
13 Q. Do you know if Dr. Burch has had any such
14 discussions with anyone at Law Environmental?
15 A. He may have, but if he did they would be
16 very brief, informational kinds of discussions.
17 Q. You are not aware of any data exchanges or
18 anything between BDA and Law Environmental?
19 A. I'm not aware of any.
20 Q. So you, yourself, have not seen any data
21 from Law Environmental?
22 A. No.
23 Q. Do you know if Dr. Hill, Dr. Jack Hill, has
24 seen any of the data or maps of Law Environmental?
25 A. I don't know.
472
1 MS. STARK: I think that pretty much covers
2 the remote sensing areas that I wanted to go
3 into. I guess I will let you pick it up again.
4 As we discussed this morning, there may be
5 some other areas I might want to ask you about
6 when Paul is finished, but he is so thorough I
7 suspect they will be brief.
8 Actually, before we do that, I have one
9 more question. It's very general.
10 BY MS. STARK:
11 Q. You produced color sides to the United
12 States and we had them made into photographs which I
13 have brought a stack of them here. Were any -- was
14 any of that slide work specifically used in the
15 creation of your '91 and '93 maps or is this a
16 different effort?
17 A. I haven't looked at what slide work you are
18 referring to and I'm not sure I can answer that
19 question without reviewing that.
20 MR. KOBELINSKI: Let him look at that at
21 the lunch break.
22 MS. STARK: Okay, that would be fine. Or
23 we can do it later.
24 THE WITNESS: I'm aware that we produced
25 our 35 millimeter slide files for you all.
473
1 BY MS. STARK:
2 Q. I guess what I would be asking is in the
3 sense of you did your aerial photography, that was a
4 particular thing that you went out and did in order
5 to create the vegetative maps.
6 Did you go out and create 35 millimeter
7 slides specifically to create the vegetative map or
8 maybe there was just some overlap?
9 A. We did not take 35 millimeter slides
10 specifically for the maps, if that's your question.
11 MS. STARK: That's my question. If that's
12 the case, then I think we can probably talk
13 about those at some later time.
14 MR. KOBELINSKI: You want to start up after
15 lunch?
16 MR. NETTLETON: Yes.
17 (Thereupon, a lunch recess was taken,
18 after which the following proceedings
19 were had:)
20 MR. NETTLETON: Ready?
21 THE WITNESS: Before we go -- before we
22 start on your line of questioning, sir, I want
23 to make sure that I accurately answered a couple
24 of the questions this morning.
25 Thinking back on them, I think I did. But
474
1 just so the record is clear and I haven't
2 inaccurately answered in any way, I think you
3 were asking me had we used any additional remote
4 sensing data in our cattail mapping or in our
5 individual location studies that we discussed.
6 MS. STARK: Correct.
7 THE WITNESS: I think I answered no, we
8 hadn't.
9 MS. STARK: Yes.
10 THE WITNESS: I wasn't sure in reflecting
11 back whether you had asked a broader question
12 than that or not in terms of whether we looked
13 at any other remote sensing data.
14 BY MS. STARK:
15 Q. Okay. I had excluded that because I knew
16 that you had talked previously about reviewing
17 historical aerial photos. So no, my question did not
18 go to that type of remote sensing work. I knew that
19 you had done that. That was not included.
20 Is there another aerial data that you
21 looked at or sensing data?
22 A. I could think -- in trying to be complete
23 in my answer, I could think of a couple of other
24 satellite or remote sensing types of information that
25 I have looked at but not -- relative to the
475
1 Everglades but that I have not specifically used in
2 these particular cattail mappings.
3 I wanted to make sure if that was your
4 question I was giving you a complete answer and there
5 were a couple of other things I didn't mention if
6 that was your question. I'm just trying to make sure
7 that I'm being as complete in my answer as I can.
8 Q. Just so we covered the area completely and
9 we don't have to go back to it at some point, you
10 obviously are indicating to me at some point you have
11 looked at some remote sensing data that you may or
12 may have not looked at.
13 You want to tell me what that is?
14 A. Well, you have to bear with me. We are
15 four days and I'm just trying to make sure that I
16 have accurately answered the question and I have
17 given you all of the information, and I can think of
18 two other bits of information that we haven't talked
19 about.
20 Q. What are those?
21 A. One is that we investigated the use of an
22 airplane mounted sensor that's referred to as CASI.
23 What it is is an airplane platform digital remote
24 sensing sensor, if you will. It has been developed
25 by a particular company, and I can't recall whether
476
1 the company and the sensor's called CASI or both.
2 But it basically records spectral
3 signatures in a digital format and then you run
4 through a remote sensing type analysis on it.
5 Q. Did you obtain any data using that system
6 that you were able to utilize?
7 A. We did not use any of that data in any of
8 the maps or studies that we have been talking about
9 that we performed.
10 Q. Did you use it for any other purpose in the
11 litigation?
12 A. Our primary purpose in investigating it was
13 to determine its feasibility as a remote sensing
14 tool.
15 Q. What did you determine?
16 A. We basically determined that it was a good
17 sensor. It had good resolution. You get resolution
18 of either two meters or four meters. And if you used
19 it in any more small or confined geographic area it
20 worked well, but that you could not necessarily
21 transfer the analysis that you obtained from it in
22 one area and have it stand in another area and have
23 it be reliable.
24 That's basically what we found.
25 Q. I think I understand that. What was the
477
1 other thing that you had recalled that related to the
2 remote sensing technique?
3 A. The other is several years ago the Florida
4 Game and Fresh Water Fish Commission conducted a
5 state-wide computer mapping project whereas they
6 mapped vegetation in various categories throughout
7 the state of Florida.
8 And we have that database and we have
9 generally looked at it, but again we have not used it
10 specifically for these studies or this series of maps
11 we produced.
12 I just wanted to clarify that in case the
13 question that you asked was brought up, I just wanted
14 to be complete.
15 MS. STARK: Thank you. All right.
16 REDIRECT EXAMINATION
17 BY MR. NETTLETON:
18 Q. Why didn't you use the Florida Game and
19 Fresh Water Fish Commission database?
20 A. We were not sure whether the resolution and
21 the categories that we used in that mapping
22 classification and with it the caveats that Game and
23 Fish placed on that database and analysis were the
24 most appropriate for the particular investigations
25 that we were concerned with.
478
1 Q. What was the time period of the Fish --
2 Game and Fish Commission's data?
3 A. It was either late '70's or perhaps early
4 '80's or a combination of both of those.
5 Q. Do you know that data was produced with
6 your production of documents and materials?
7 A. I don't believe it was. That's public
8 information.
9 Q. What categories of vegetation were Game and
10 Fish mapping?
11 A. Basically primary land use classifications
12 such as urban areas, agricultural areas, forested
13 upland to forested wetlands, herbaceous wetlands.
14 Q. Did they have any classification for
15 sawgrass, cattail or the various vegetation that
16 appears in the Everglades system?
17 A. As I recall, and I really hadn't looked at
18 that in a while, but as I recall the details to that
19 classification system are not that specific.
20 It would basically be a fresh water marsh
21 type of classification or something of that nature.
22 Q. Dr. Dennis, yesterday we went through the
23 various sites where you had collected field data,
24 most notably water depth measurements and vegetative
25 cover data.
479
1 With regard to any of those studies, were
2 you attempting to test any hypothesis when you went
3 out to collect that data?
4 A. Yes.
5 Q. What was the hypothesis you were testing?
6 A. The basic hypothesis we were testing was,
7 as you recall, all of these areas we picked because
8 there was cattail growing there and we were trying to
9 test the hypothesis of whether or not the cattail was
10 growing in areas that the District or the federal
11 government had defined as nutrient enriched areas or
12 not, and whether or not the areas where the cattail
13 was growing were in areas that appeared to be
14 somewhat deeper than the surrounding areas or in some
15 instances had any elevated phosphorous levels.
16 Q. Have you or has anyone else performed any
17 statistical analysis on the data you collected in
18 these various field collection trips?
19 A. No. Will you read the question back?
20 (The question referred to was thereupon
21 read by the reporter as above recorded.)
22 THE WITNESS: Steve Millard in that one
23 paper we talked about earlier. That's the only
24 one that I'm aware of.
25 BY MR. NETTLETON:
480
1 Q. That was for area 1, right?
2 A. That's correct.
3 Q. And other than the Millard document that
4 was previously marked as an exhibit, has there been
5 any other statistical analysis of any of the data you
6 collected in the other areas that you described
7 yesterday?
8 A. We haven't conducted any. I'm not aware of
9 anything anybody else has conducted.
10 Q. With regard to the hypothesis whether
11 cattail was growing in areas defined as nutrient
12 enriched, what did you conclude?
13 A. That cattail was growing in areas that had
14 been identified as nutrient enriched and cattail was
15 growing in areas that had not been identified as
16 nutrient enriched.
17 Q. What did you conclude with regard to your
18 hypothesis whether cattails were growing in areas
19 that appeared to be somewhat deeper than surrounding
20 areas or that elevated phosphorous levels?
21 MR. KOBELINSKI: Object to the form of the
22 question to the extent it's two questions.
23 MR. NETTLETON: That's the way he stated
24 it, that it's two separates hypotheses.
25 THE WITNESS: I think it's two separate
481
1 questions.
2 MR. NETTLETON: I'll break it down.
3 BY MR. NETTLETON:
4 Q. What did you conclude with regard to your
5 hypothesis of whether cattails are growing in areas
6 appearing to be somewhat deeper than surrounding
7 areas?
8 A. We found that the cattails were growing
9 generally in areas where the water depths based on
10 comparison -- relative comparison with the cattail
11 growing areas and adjacent areas that cattail were
12 generally growing in deeper areas.
13 Q. What did you conclude with regard to
14 whether cattails were growing in areas -- whether
15 cattails were growing in areas that had elevated
16 phosphorous levels?
17 A. We found some areas where cattail were
18 growing in the areas with phosphorous levels that
19 were greater than surrounding or nearby areas, and we
20 found some instances where cattail was growing in
21 areas that did not have phosphorous levels that were
22 appreciably different from surrounding areas.
23 Q. And what type of exercise or calculations,
24 if any, did you perform in order to reach that
25 particular conclusion?
482
1 A. We looked at the location of the cattail
2 and available soil phosphorous data and whatever
3 depth measurements we would obtain and compared that.
4 Q. Well, you indicated there was no
5 statistical analysis performed; is that correct?
6 A. That's correct.
7 Q. So was this just an eyeball looking at the
8 data and reaching a conclusion based upon that as
9 opposed to any type of rigid statistical analysis or
10 calculations?
11 A. Based on reviewing the data, but without a
12 formal statistical analysis.
13 Q. Is there any reason why statistical
14 analysis was not attempted with regard to all these
15 areas other than WCA-1?
16 A. No, other than the fact that these were
17 principally field investigations where we were taking
18 field data. And in taking that field data we had not --
19 we were trying to understand the system and we were
20 trying to gather as much information over as broad an
21 area as we could and we did not set up the specific
22 sampling with statistical design in mind ahead of
23 time.
24 That would be a good follow up thing to do,
25 to go back and form more extensive statistically
483
1 based sampling. I believe I have seen proposals that
2 have been submitted to the District and got variance
3 groups to attempt to do that.
4 Q. Well, would it be fair to characterize
5 these conclusions, then, as essentially a reflection
6 of your anecdotal observations in the field?
7 A. I think it would be fair to characterize
8 them as data collected from specific locations that,
9 when compared to other existing data and databases
10 such as broader soil phosphorous studies that may
11 have been conducted, that that gives a good
12 indication of factors that are at play in determining
13 where cattail grows.
14 These were not experimental studies in a
15 rigorous sense. I believe that it's appropriate that
16 data of this type be taken and that that be compared
17 with more rigorous experimental design information
18 and combined, all of that information. Ultimately
19 the best hypothesis can be tested and confirmed or
20 rejected.
21 Q. Well, you stated this was not an
22 experimentally designed study. Am I also correct
23 that from your testimony you just gave that it was
24 also not a correlative design study?
25 A. I'm not sure what you mean by that.
484
1 Q. It was not set up with the intent to
2 perform any correlative analysis on the data?
3 A. It was, as I believe I indicated, not set
4 up and designed with a predetermined statistical
5 design in mind.
6 Q. You mentioned you looked at the soil
7 phosphorous. For these particular areas that we
8 discussed excluding area 1, the other various areas
9 that we discussed yesterday, did you look in those
10 areas at any soil phosphorous data other than that
11 which you collected during your visits?
12 A. Yes, sir.
13 Q. Whose soil data did you look at for those
14 particular areas?
15 A. We have looked at soil phosphorous data
16 that has been developed by Dr. Reddy, by Duke, by ESP
17 and by Dr. Patrick. There may be others. Those are
18 the primary ones I can recall.
19 There is certain soil phosphorous data
20 that's been produced and reported in various Water
21 Management District documents and studies. We would
22 refer and use all of that data.
23 Q. Well, did any of these sources of soil
24 phosphorous data have samples specifically in the
25 areas that you were taking water level measurements
485
1 at?
2 A. Yes.
3 Q. Were any of those soil phosphorous samples
4 taken in conjunction or concurrently with your field
5 collection of data?
6 A. You are talking about these other --
7 Q. Other than area 1?
8 A. These other soil phosphorous data sets
9 other than the ones collected by BDA?
10 Q. Right.
11 THE WITNESS: Now that I clarified, would
12 you read the question back, please?
13 MR. NETTLETON: I can restate it.
14 BY MR. NETTLETON:
15 Q. Were any of the soil samples taken by Duke,
16 ESP, Reddy, Patrick or the South Florida Water
17 Management District in the areas of your study taken
18 concurrently with the time that you were taking your
19 field data?
20 A. The only one that I can recall that was
21 taken concurrently was some of ESP's data. And I
22 should have mentioned also the Florida Game and Fresh
23 Water Fish Commission in terms of the data that they
24 have taken in the holyland or that they have recorded
25 from the holyland.
486
1 Q. When you previously testified that no
2 statistical analyses have been performed on the data
3 that you collected, is that also true with regard to
4 the data you collected concerning water depth,
5 vegetation cover and the soil data collected by these
6 other sources you just identified?
7 A. That was a long question. Read it back,
8 please.
9 Q. Let me just restate it, it may be easier.
10 Was any statistical analysis performed by
11 you or anyone else to your knowledge of the data that
12 you collected, the water depth data and so forth and
13 vegetative cover in the areas we discussed, other
14 than area 1 along with any of the soil data from any
15 other source?
16 A. I think you are asking whether or not any
17 of the data that we took we gave to somebody else and
18 they analyzed it in conjunction with their own soil
19 phosphorous data. I think that's what you are
20 asking.
21 Q. Correct.
22 A. Okay. Other than the ESP stations that I
23 mentioned, I don't believe so. And as I clarified
24 one other day in these discussions I'm not referring
25 to the periphyton studies that were conducted by
487
1 Dr. Bud Smart.
2 Q. Have you or anyone else at BDA taken the
3 soil data from any of these other sources in
4 combination with the data you collected and performed
5 any statistical analysis?
6 A. Not that I recall, no.
7 Q. In your previous answer you made a
8 reference to other than ESP.
9 Has ESP performed any statistical analysis
10 on the data that you collected in either isolation or
11 in combination with any other data?
12 A. I'm not sure whether they have or not. I
13 was referring to the fact that certain of the data
14 that we discussed we took in conjunction with ESP.
15 And they would have had our data and they may have
16 conducted some statistical analysis, but I'm not
17 sure.
18 Q. Have you seen any such statistical
19 analysis?
20 A. I don't believe so.
21 Q. Have you heard about any such statistical
22 analysis?
23 A. As I sit here right now, I can't recall.
24 Q. Other than the various areas that you
25 described yesterday where you were collecting this
488
1 data which I believe you identified had cattail
2 growing, did you go to any areas of the EPA where
3 there was no cattail and collect any data?
4 A. Yes.
5 Q. Where was that?
6 A. In these areas that we talked about, we
7 would extend out of the cattail area to the adjacent
8 areas in some instances and look at those. We also
9 looked at areas where melaleuca was growing. Those
10 were not necessarily the same areas where cattail was
11 growing. So to that extent we looked at other areas
12 other than cattail areas.
13 Q. In those other areas were you collecting
14 data on vegetative cover, water depth, water quality
15 information?
16 A. We didn't collect that type of information
17 when we were investigating melaleuca. We only
18 collected that data generally, as I have already
19 recorded, adjacent to areas that were particularly
20 part of the same overall transects that might have
21 gone from the cattail area to non-cattail area.
22 There is one other exception of that and,
23 as I indicated a day or so ago, I believe, that I
24 went with Dr. John Davis on his entry and inspection
25 into the 14, 16 water quality sites within
489
1 Loxahatchee wild life refuge. And in those instances
2 there was data on the water quality and water depths.
3 Q. Was there also information taken on
4 vegetative cover?
5 A. Yes.
6 Q. Has any statistical analysis been performed
7 on that particular data?
8 MR. KOBELINSKI: Which data?
9 MR. NETTLETON: Water quality, water depth
10 and vegetative cover data that were taken during
11 your trip with John Davis to interior marsh
12 stations of the Loxahatchee.
13 THE WITNESS: We have not performed any
14 statistical analysis on that data.
15 BY MR. NETTLETON:
16 Q. Has anyone else, to your --
17 MR. KOBELINSKI: You are referring to all
18 three parameters?
19 MR. NETTLETON: Any and all in combination
20 or isolation.
21 THE WITNESS: John Davis may have conducted
22 some analysis of the water quality data.
23 BY MR. NETTLETON:
24 Q. In the study areas that you described
25 yesterday, how far beyond the cattail did you run
490
1 your transects?
2 A. It varied from study to study.
3 Q. Was there any criteria you used for the end
4 point of your transects?
5 A. The general criterion would have been to be
6 far enough outside the area where cattail was growing
7 so that we would be clearly in a different vegetation
8 association.
9 Q. And how far was that, generally?
10 A. It would have vary from individual site to
11 individual site.
12 Q. Well, if your criteria was that you would
13 be far enough out from the cattail, was there not a
14 uniform, what you considered far enough?
15 A. I understand your question. At least I
16 think I do. If the transects were a few hundred feet
17 long, then we might go 10 or 20 or 30 or 40 feet more
18 or less outside of the area where the cattail was
19 growing.
20 If the transects were miles long, then we
21 might go several thousands of feet beyond. So it
22 just depended on -- relatively on the length of the
23 original transect.
24 Q. Was there any specific quantitative
25 relative relationship between the length of the
491
1 transect within the cattail and the distance that you
2 went out beyond the cattail?
3 A. There was no magic formula that I recall
4 that was used.
5 Q. Was that the only criteria for determining
6 the end point of the transect beyond the cattail
7 areas?
8 A. That was the typical criterion in the
9 transects that were conducted in the Everglades
10 National Park as far as the entry and inspection
11 process.
12 Some of those transects were established
13 for distances clearly beyond the location of any
14 cattail. In those instances, we were going that
15 distance. In some instances, to replicate the length
16 of the transects that other investigators had
17 conducted.
18 For instance, Ron Jones conducted several
19 transects in the Park and we were going typically the
20 times and lengths of distances that he had reported.
21 And that reminds me, I guess, that when you
22 asked had we gone to any other areas that didn't have
23 cattail there were a few areas in the Park entry
24 inspection process that we had gone to that didn't
25 have cattail in them, also.
492
1 Q. Did you take soil cores from -- or
2 generally, did you take soil cores from the last
3 station in your transect, the end point?
4 A. Where we took soil cores we would typically
5 take them in representative locations along the
6 transect. In other words, what we would try to be
7 doing in taking whatever core samples we took is
8 capturing whatever variability there might have been
9 and in general capture differences within areas where
10 cattail was growing and areas that cattail was not
11 growing.
12 Q. You did not do any statistical analysis to
13 determine what that variability was?
14 A. As I stated previously, I'm not aware of
15 any statistical analyses that were performed on that
16 day.
17 Q. Did you generally take water quality
18 samples from the surface water at the last station
19 along your transects?
20 A. In going back and thinking through and
21 reviewing some of the detail on those transects we
22 discussed, I found that I think we very rarely took
23 any surface water quality data. I wasn't sure about
24 that when we discussed it yesterday or the day
25 before.
493
1 There may have been a few samples taken,
2 but there was generally very little surface water
3 quality data.
4 Q. I believe that's what you said yesterday.
5 But those few samples that were taken, was there a
6 particular location that they would have been taken
7 such as the beginning of the transect, the end of the
8 transect or the middle of the transect?
9 A. Again, to the extent that they were taken
10 it would have been a sample taken in a what would
11 have been considered a representative or typical area
12 for the vegetation community that we were sampling
13 in.
14 Q. It wouldn't have been taken necessarily at
15 the extreme ends of the transects?
16 A. No.
17 Q. Would that also be true for the soil cores?
18 A. I think I indicated on the soil cores we
19 tried to take those in locations to either capture
20 whatever variability there may have been in the soil
21 phosphorous levels or to be able to take a sample
22 outside of the area where, for instance, cattail
23 might have been growing so that we could get an idea
24 about what the soil phosphorous levels were in the
25 immediate general vicinity outside of the cattail
494
1 population.
2 Q. You weren't collecting, then -- you say you
3 were collecting them to determine the variability of
4 soil phosphorous in the areas. Am I correct, you
5 were not collecting them for purposes of determining
6 the relationship between the soil phosphorous and the
7 vegetative growth?
8 A. Well, they were -- data on where they were
9 taken was also taken on the vegetation that was
10 there.
11 Q. When you say variability, are you talking
12 about you wanted to capture the variability of the
13 soil phosphorous within a -- for instance, a cattail
14 stand, a single cattail stand, whether there was
15 variability within that stand? Is that what you are
16 referring to?
17 A. Yes. Either variability within the stand
18 or any type of gradient that might have existed.
19 That would depend on the particular transect in a
20 particular stage area.
21 Q. And did you find gradients of phosphorous
22 in the soil in your various study areas?
23 A. In some instances.
24 Q. Would I be correct that you would have
25 found a gradient of soil phosphorous from high to low
495
1 running north to south in the northern area of 2A
2 below the S-10 structures?
3 A. Yes.
4 MR. KOBELINSKI: Is that a hypothetical or
5 does the test show that?
6 BY MR. NETTLETON:
7 Q. Did the data show that?
8 A. Yes. I have seen various data establishing
9 a nutrient gradient in the soils south of the 10
10 structure.
11 Q. I didn't think that was to controversial.
12 MR. KOBELINSKI: I don't know he testified
13 that he did that, that's why I wasn't sure what
14 your question was.
15 BY MR. NETTLETON:
16 Q. Other than the area south of the S-10
17 structures, did you find any soil phosphorous
18 gradients in any of the other study areas that you
19 have described previously?
20 A. There appears to be soil phosphorous
21 gradient in some of the transects that were conducted
22 in the refuge with entry inspections, particularly
23 higher levels of phosphorous near the canal going to
24 lower levels of phosphorous interiorly.
25 Q. Any other areas where you found a gradient?
496
1 A. In some of the areas in the northern part
2 of 3A where there was a -- where the cattail was
3 growing there appeared to be in some instances some
4 soil phosphorous gradients.
5 Q. Going from high to low from what point?
6 A. Going from high to low in some instances
7 from the interior portions of a burn scar where
8 cattail was growing out into the area that was not
9 burned.
10 Q. Did you find a phosphorous -- soil
11 phosphorous gradient extending out from any
12 structures on the Miami Canal into area 3A?
13 A. In going back and looking at my
14 recollection that we either did not take any or took
15 very few or only a couple of soil phosphorous
16 recordings there. There was not enough data taken to
17 make any determination.
18 THE WITNESS: Can we take a three to five
19 minute break?
20 MR. NETTLETON: Sure.
21 (Thereupon, a brief recess was taken,
22 after which the following proceedings
23 were had:)
24 BY MR. NETTLETON:
25 Q. Dr. Dennis, do you find that the nutrient
497
1 gradient that you have seen below the S-10 structures
2 seems to generally correspond with the cattail
3 coverage as you mapped on your 1991 and 1993 maps?
4 A. No.
5 Q. So in your view there does not appear to be
6 even a visual correlation between the phosphorous --
7 soil phosphorous and the cattail distribution in 2A?
8 A. Yes, there is a visual. You asked me if it
9 was based on our mapping. There are some differences
10 in the nutrient gradient and phosphorous contours I
11 have seen in the depictions of some of our maps.
12 That was my note. Yes.
13 There is a visual similarity between
14 cattail and phosphorous south of the 10 structures.
15 Q. Do you have an opinion as to what has
16 caused that phosphorous gradient to come to exist
17 below the S-10 structures?
18 A. I would assume that it has to do with
19 phosphorous that's come through the 10 structures in
20 the water that's been released through the 10
21 structures.
22 Q. Do you believe that to be a reasonable
23 assumption?
24 A. Yes, I do.
25 Q. Dr. Dennis, what is your opinion as to the
498
1 cause or causes of the cattail establishment and
2 encroachment in area 1 that has occurred from the
3 1960's through the 1980's?
4 A. I believe that a similar phenomenon as I
5 described in 2A has occurred in the southern part of
6 1. That is, there was a drainage impact associated
7 with the construction of the Hillsborough Canal and
8 the areas on either side of it were drained. The
9 overall hydrologic flow patterns and timing and so
10 forth has been disrupted throughout the entire
11 Everglades by the construction of the system specific
12 to 1.
13 The Hillsborough Canal was constructed.
14 Drainage was associated with that construction.
15 Impacts and disturbances occurred in that area. The
16 drainage allowed fires to burn in that area -- and
17 rather deeply, evidently. And those disturbances
18 were then followed by the closing of the system, the
19 impounding of the system. So you went from a
20 disturbance factor where the vegetation had been much
21 disturbed, directly altered from what was there
22 historically, and that was followed by a raising of
23 the water level and impounding to the degree of that
24 area.
25 And we can see on the aerial photography
499
1 that cattail began to colonize the area, and that
2 colonization has increased and sometimes it's greater
3 and sometimes it's less, depending on how wet or dry
4 the area has been. So that there was a disturbance
5 factor followed by introduction of the propagules
6 either by the wind blown seed or vegetative
7 propagules that got established.
8 Favorable conditions were found there and
9 then they either expanded or contracted when those
10 favorable conditions occurred.
11 It's essentially in terms of the process
12 and the sequence the similar kind of thing that
13 happened in 2A. The drainage occurred, the
14 alteration of the vegetation, a stressing on the
15 vegetation enough to open gaps or voids which allowed
16 cattail as an earlier colonizer to come in and become
17 established.
18 And then based on the conditions that
19 followed, cattail either -- as I indicated --
20 expanded or contracted during the period of flooding
21 of 2A where this was essentially managed as a shallow
22 reservoir. Conditions were not favorable in that
23 kind of environment for cattail to expand. It can be
24 too deep and too wet and too long for cattail to do
25 well.
500
1 So you in essence have to have, I believe,
2 a disturbance factor. And that disturbance factor
3 has to be followed by a stressing of the vegetation
4 so that openings occur, and that has to be followed
5 by favorable growing conditions for cattail.
6 I'm sorry if I went so long --
7 Q. There is no reason to apologize. I know
8 you are trying to give me a complete and full answer.
9 A. Yes, sir, I am. And it's late on our
10 fourth day.
11 Q. The disturbances that you described, the
12 drainage, fires, followed by reflooding -- would I be
13 correct that in those instances those disturbances
14 followed by reflooding would result in higher
15 phosphorous concentrations in those particular areas
16 that existed previously?
17 A. There may have been.
18 Q. Would you expect higher phosphorous
19 concentrations to result from drainage and reflooding
20 or fire and reflooding?
21 A. Yes, I would.
22 Q. And is that elevated phosphorous one of the
23 favorable conditions that allows cattail to colonize
24 the disturbed area?
25 A. I have seen no data which indicates that
501
1 that flush of phosphorous that comes about as a
2 result of reflooding grain soils is the causative
3 factor.
4 Cattail has a certain threshold phosphorous
5 requirement, as every plant does. And I think that
6 the important thing is that at least that threshold
7 level exists. If it's below that threshold level,
8 then cattail wouldn't grow there. But as long as you
9 have that minimum threshold ability, I think that's
10 the important thing.
11 I have seen no data which indicates a -- or
12 establishes -- more accurate that establishes that
13 cause and effect from that increased flush of
14 phosphorous.
15 Q. Why do you believe that -- in these areas
16 that have experienced disturbance through drainage
17 and fire and reflooding, why do you believe cattail
18 colonizes the areas as opposed to sawgrass if they
19 are both in relative proximity to the disturbed area?
20 A. It has to do with the conditions that
21 follow a disturbance. I think that there is quite a
22 bit of evidence that in drained Everglades conditions
23 that sawgrass is expanded into areas that were
24 previously another vegetation type.
25 I believe that there is quite a bit of data
502
1 that expansion of sawgrass following drainage and
2 altered hydroperiod has been rather dramatic.
3 I think that if the area is drained and
4 altered and dry, then probably the typical thing
5 would be that sawgrass would come into the area, as
6 one possibility.
7 If it's drained, altered and you have this
8 opening and this void, this elimination of
9 vegetation, a void created and increased hydroperiods
10 occur, then it appears that the most prevalent or one
11 of the most prevalent colonizers would be cattail.
12 Q. I believe you testified that you have seen
13 no evidence to prove that elevated phosphorous has
14 caused cattail to invade in particular areas; is that
15 correct?
16 A. Yes. I think I indicated I haven't seen an
17 established causal relationship where phosphorous was
18 the key trigger that triggered the cattail.
19 Q. Have you seen any such evidence to
20 establish -- any other causative effect to trigger
21 the cattail encroachment into an area?
22 A. Based on the information I reviewed, it
23 appears that the sequence of conditions that I
24 described, the drainage, the alteration of the
25 vegetation, the opening of the area followed by the
503
1 favorable growing conditions, is probably the most
2 reasonable explanation for why cattails come into
3 different areas.
4 Q. Other than what it appears or what may be a
5 reasonable explanation, my question is have you seen
6 any evidence to establish what the causative factors
7 are to the encroachment of cattail into an area?
8 A. I have not seen any experimentally
9 conclusive studies that definitively establish that
10 cause and effect relationship.
11 Q. Do you believe that reasonable scientists
12 could disagree concerning what is the most reasonable
13 explanation for the encroachment of cattails in the
14 Everglades protection area?
15 MR. KOBELINSKI: Object to the form of the
16 question. I find the question unreasonable.
17 THE WITNESS: It can certainly be that
18 reasonable scientists can have different
19 opinions and different hypotheses about events
20 such as that. Sure, that can be.
21 BY MR. NETTLETON:
22 Q. And is one reasonable hypothesis that
23 elevated phosphorous levels have contributed to the
24 expansion of cattails in the Everglades protection
25 area, do you believe that to be a reasonable
504
1 hypothesis?
2 A. I believe that because you can, as you
3 described earlier, see a visual relationship between
4 the cattail. Again, we are talking about south of
5 the 10 structures.
6 Because of that -- cattail growth in a
7 broad sense occurs in that area where there has been
8 demonstrated to be increased phosphorous levels in
9 the soil. Because of that, I think that it's
10 reasonable that someone should ask the question
11 what's causing that, and that that certainly is
12 subject for proper inquiry and investigation. And
13 two of the most obvious possibilities are hydroperiod
14 effect and maybe that increased phosphorous.
15 So I believe that's a proper area to be
16 investigating. I would suggest that it's proper to
17 investigate it and bring all of the information and
18 data available to try to conclusively determine that
19 to the extent it can be rather than rely on any
20 apparent or real correlations.
21 Q. So is it your opinion or is it your view
22 that any opinion as to the cause of cattail expansion
23 in the Everglades protection area would be unreliable
24 unless it is established by virtue of experimental
25 testing?
505
1 Maybe I should change "unreliable" to
2 "unreasonable."
3 A. Would you read the question back or restate
4 it?
5 Q. Is it your view, then, that any opinion as
6 to the cause of cattail encroachment in the
7 Everglades protection area would be unreasonable
8 absent experimental testing to verify that particular
9 opinion?
10 A. I believe that you begin with observations,
11 review of existing data, whatever information is
12 available and as much information as is available to
13 begin to develop a hypothesis.
14 And ultimately the proof of the pudding, if
15 you will, is experimental testing, and that is the
16 rigorous scientific approach to trying to answer
17 these sorts of questions.
18 Q. And, to your knowledge, has there been any
19 experimental testing which has established the cause
20 of the cattail encroachment in the Everglades
21 protection area?
22 A. I'm aware of some experiments that have
23 been established that are underway. I don't believe
24 those experiments have been concluded or extended to
25 the place where you have an absolutely completed
506
1 definitive experiment yet.
2 Q. Which experiments are you aware of that are
3 underway?
4 A. The ones that I'm more familiar with are
5 those being conducted by Duke University.
6 Q. Any others other than being conducted by
7 Duke Wetland Center?
8 A. I have seen some proposals or some study
9 plans that have been submitted by various scientists
10 or have been developed by various of the technical
11 committees that have been formed to more rigorously
12 gather data and test this question.
13 But I don't know where those studies stand
14 right now.
15 Q. Again, other than proposals, are you aware
16 of any experimental testing that's currently underway
17 to address the issue other than that being conducted
18 by the Duke Wetland Center?
19 A. Those are the primary experimental studies
20 that I'm aware of. There may be some others that I
21 have seen, I just don't recall them right now.
22 Q. What are you specifically relying on for
23 your opinions concerning the cause of the cattail
24 expansion in area 1?
25 A. Do you want me to go back through the data
507
1 and information and so forth?
2 Q. I want you to specify what specific
3 information you are relying on that supports your
4 opinion as to why cattails have established and
5 expanded in area 1.
6 A. Historical aerial photographs, various
7 reports produced by the Loxahatchee wildlife refuge
8 personnel or people, various investigators that have
9 studied it, such as Givens, Thompson. Might have
10 been some others.
11 Q. Thompson?
12 A. Thompson. Our entering inspection work,
13 general -- let me just put a category of general
14 historic and data and reports that have described the
15 vegetation and the prior conditions and conditions in
16 the refuge as they existed at various times going
17 back to John Henry Davis' 1943 work and coming
18 forward. More recent area of photography and cattail
19 maps. Same phosphorous data that has been collected
20 by either us or whatever investigators.
21 Those are the general sets of information
22 that I would be relying on for my opinion.
23 Q. How does the soil phosphorous data that has
24 been collected by you or other investigators support
25 your opinion?
508
1 A. Well, it's part of the overall picture and
2 data that I reviewed. It's just another -- not just
3 another, but it's another set of data. So in forming
4 my opinion, I basically have tried to gather whatever
5 available information there was and weigh it and use
6 it in forming my opinion.
7 Q. Doesn't, in fact, the soil phosphorous data
8 actually run counter to your view that phosphorous is
9 not the causative factor in the cattail establishment
10 and encroachment in area 1?
11 A. I think I explained that my opinion was
12 that there was a sequence of events, there was a
13 process that caused cattail to become established.
14 And looking at all the data it led me to that
15 conclusion of that process and that series of events.
16 Q. You mentioned earlier that there is a
17 phosphorous gradient in area 1 running from high/low
18 to the canal to the interior; is that right?
19 A. There is some indication in general that
20 appears to be true. I don't know that enough data
21 has been taken to conclusively illustrate that as has
22 been taken in the northern part of 2A. There has
23 been quite a bit of data taken south of the 10
24 structure and 2A. And I think that those data sets
25 by the different investigators have pretty clearly
509
1 indicated a nutrient gradient south of the 10
2 structures as we talked earlier.
3 I don't know -- there has been some data
4 taken in the water conservation area 2 to that
5 effect. There has been soil phosphorous data taken
6 on a grid sort of system throughout 1. But I don't
7 know that the data for one has been developed to the
8 extent that it has been for 2.
9 Q. Well, based upon the information that you
10 do have concerning the appearance of the soil
11 gradient running from the canals towards the
12 interior, would you agree that that roughly
13 corresponds with what is shown on your map -- again
14 visually corresponds -- with the heaviest areas of
15 cattail being in the areas with the highest soil
16 phosphorous?
17 A. I think in a visual context that would
18 probably be true.
19 Q. What is your opinion of the cause of the
20 higher phosphorous soil levels in the areas near the
21 canals?
22 A. I would expect it to be a result of the
23 prolonged flooding with waters that are varying
24 nutrient content, but typically higher in phosphorous
25 content than occurred in the pre project Everglades
510
1 by all accounts, and I think it could probably be
2 stipulated as a matter of record in this proceeding
3 by all of the scientists.
4 Q. Don't count on it.
5 A. In this litigation I certainly wouldn't
6 count on anything. But I think it's the general
7 consensus that the Everglades developed a ligatrophic
8 system, low nutrient system. I don't know that
9 anybody has fully determined exactly what a low
10 nutrient system is. There are some studies on the
11 way to do that.
12 But generally I think you can acknowledge
13 that the low nutrient -- certainly 10 parts per
14 billion would be low nutrient, somewhere in that
15 level in the surface waters. And you could get up
16 perhaps higher than that in certain areas under
17 certain situations in the natural Everglades probably
18 with alligator holes or with rookeries. Probably
19 there are some point source areas where the
20 phosphorous levels went up or went down.
21 There is probably also somewhat -- in the
22 historic Everglades somewhat of a nutrient gradient.
23 MR. KOBELINSKI: Are you answering a
24 question, Dr. Dennis?
25 MR. NETTLETON: Yes, he is explaining his
511
1 answer.
2 MR. KOBELINSKI: Would you like the
3 question read back?
4 MR. NETTLETON: I think he understand it.
5 MR. KOBELINSKI: Do you remember what the
6 question was?
7 BY MR. NETTLETON:
8 Q. Please continue, Doctor.
9 A. Let me continue the point I'm on and then
10 perhaps I should have the question read back so I can
11 make sure that I'm not elaborating beyond your
12 question.
13 But as I was saying, I think in the natural
14 Everglades, which is ligatrophic, that probably there
15 was some nutrient gradient from north to south.
16 There is some evidence that perhaps areas south of
17 Lake Okeechobee when it overflowed were somewhat
18 higher in nutrients in that area. As you come
19 through the pond, then there is an indication of
20 taller sawgrass in that area.
21 So I think that's the natural Everglades
22 phenomenon in terms of phosphorous. Generally low.
23 Nobody has been able to, I don't think, determine
24 exactly how low. 50 parts per billion was used in
25 the settlement agreement. I heard 10 parts per
512
1 billion was a good background level. That's still
2 being investigated, as I understand it.
3 But there are higher levels of nutrients
4 that have come into the system in WCA-1 from the
5 canals and through the control structures. And based
6 on how high the water is and how low the water is,
7 those concentrations can vary.
8 But I would presume that a reasonable
9 hypothesis would be that those waters that had higher
10 than rain water concentrations of nutrients would
11 contribute in higher nutrient levels in areas where
12 those waters had greater contact time with the soils.
13 Q. The water you are referring to specifically
14 with regard to the WCA-1 would be those waters --
15 surface waters coming through the S-5A and the S-6
16 structures?
17 A. Yes. As I understand it, the water comes
18 basically through those. There is a couple of
19 structures I believe on the east side, but I don't
20 know -- I don't think they are a primary contributor.
21 They are within the system.
22 But most of the water, as I understand it,
23 either comes from rainfall or through the S-5A or S-6
24 and is captured there and released through the 10
25 structure or obviously goes out the Hillsborough
513
1 Canal.
2 MR. KOBELINSKI: Let's take a break,
3 Dr. Dennis, it has been an hour.
4 THE WITNESS: Yes.
5 MR. NETTLETON: Do we have to?
6 MS. STARK: It has been about 40 minutes.
7 MR. NETTLETON: Go ahead.
8 (Thereupon, a brief recess was taken,
9 after which the following proceedings
10 were had:)
11 BY MR. NETTLETON:
12 Q. Dr. Dennis, can you give me your opinion
13 concerning the cause of the cattail that you have
14 mapped in what you defined as the S-9 area, if you
15 have an opinion?
16 I didn't want to presuppose that.
17 A. Yes, I have an opinion.
18 Q. What is that opinion?
19 A. That the area that was referred to as the
20 S-9 area has undergone in the past various hydrologic
21 alterations. Based on prior maps such as Davis 43
22 and other accounts of vegetation in that general
23 area, and based on our belief and concern that there
24 is vegetation there, based on the -- the vegetation
25 is still there, it appears that area used to be a
514
1 cattail -- sawgrass area and that there have been
2 changes in hydrology which has stressed and/or
3 eliminated the sawgrass in that area and that cattail
4 has come into essentially open areas and colonized
5 them, and there has been favorable hydrologic
6 conditions for its growth and continued existence in
7 that area.
8 Q. Was that area ever drained?
9 A. To one extent or another, yes.
10 Q. Did the drainage, was that part of the
11 stress you referred to on the historic sawgrass
12 community or are you referring more to the stress
13 caused by fire and high water levels?
14 A. Principally all three worked in
15 combination. But I think principally the hydroperiod
16 alteration in that area has been such that it's been
17 subjected to some differing hydroperiods. It has
18 been flooded and that stressed the sawgrass in that
19 area, and then it was -- underwent some dry periods.
20 And during those dry periods evidently there were
21 some rather significant fires.
22 So the elevated water levels in which the
23 sawgrass grew and essentially took on a different
24 growth for more of a tussock kind of growth form
25 followed by lower water conditions and fire which
515
1 then killed the sawgrass, created an opening,
2 reflooded and the cattail has colonized those
3 openings.
4 Q. To make sure I understand your testimony
5 correctly, am I correct that in your view what has
6 occurred here was the water levels were raised which
7 led to the sawgrass in the area to begin to have
8 tussock growth followed by drainage, then by fire
9 which eliminated the sawgrass, followed by reflooding
10 and colonization by cattail. Is that the chronology?
11 MR. KOBELINSKI: I would just object to the
12 extent it's a characterization of his response.
13 His response says what it was. Go ahead.
14 MR. NETTLETON: It's not a
15 characterization. I'm asking if that was the
16 chronology.
17 THE WITNESS: I believe you had it correct.
18 It was flooding, sawgrass responded to the
19 raising of the flooded conditions so that it was
20 growing more in a form where the apical
21 meristem, the actual growing part was raised
22 above the ground where it would be or near the
23 ground, and then that was followed by a lower
24 water condition through drainage, draught or
25 some combination of those, anyway lower water
516
1 conditions, fires occurred. And because the
2 meristem was exposed, it had an increased
3 susceptibility to fire, and that was very
4 significant in eliminating it, opening an area.
5 The cattail then came in when the water levels
6 came back up.
7 BY MR. NETTLETON:
8 Q. Based on your understanding of the events,
9 can you give me some general time periods when this
10 occurred?
11 Was this all within a single one-year
12 period or was this over a decade or how did this
13 chronology occur?
14 A. This evidently occurred over a period which
15 extended from the present back into the 1980's. I
16 mean cattail occurs there now. So I'm using that as
17 existing.
18 Q. Do you know when this fire occurred that
19 you are referring to?
20 A. I don't know the specific year or whether
21 there may have been a couple of years when it
22 occurred, but it would have been sometime in the mid
23 '80's, more or less.
24 Q. Do you know if that was a peat fire?
25 A. I don't know whether there was any peat
517
1 that burned there or not for absolute sure. I don't
2 think -- we saw fire marks on the base of some of the
3 sawgrass tussocks, but as to whether there was peat
4 burn or whether there was -- whatever the extent of
5 it was, I'm not sure.
6 Q. Would you expect that after a fire in this
7 area and reflooding, that the phosphorous levels
8 would be elevated beyond that which existed prior to
9 the fire?
10 A. As a typical condition when an area burns
11 and then is reflooded, there is basically the same
12 phenomenon at work as when there is an area drained
13 and then it's reflooded. There is usually a release
14 of phosphorous following that.
15 Q. Where does the water come from that
16 reflooded the S-9 area? Does that come through the
17 S-9 pump or structure?
18 A. It's my understanding that the --
19 MR. KOBELINSKI: If you know.
20 THE WITNESS: The S-9 pump is -- can be
21 operated to pump water -- let me back up.
22 I believe that the water basically comes
23 from the canals that generally feed into that
24 area. That's the general source of water for
25 that area.
518
1 BY MR. NETTLETON:
2 Q. Do you know which canals those are?
3 A. I have to -- at this point in time I would
4 have to refer back to some map that describes the
5 canals.
6 Q. The canals in the area of the S-9 area as
7 you defined it?
8 A. I think that would be accurate.
9 MR. KOBELINSKI: I don't think that was a
10 question.
11 MR. NETTLETON: It had a question mark at
12 the end.
13 BY MR. NETTLETON:
14 Q. Have you seen any data concerning the soil
15 phosphorous levels in the S-9 areas as you have
16 defined it?
17 A. Yes.
18 Q. What were the soil phosphorous levels in
19 that area?
20 A. I believe that that has probably been
21 provided in the production. I have to refer to it.
22 Q. Do you recall generally what range they
23 were in, the levels?
24 A. As I recall right now, they generally
25 ranged from -- I think the most accurate answer I can
519
1 give you without looking at the data is that I recall
2 in discussions concerning those data that they were
3 referred to me as generally as the upland background.
4 Q. Who referred to them that way?
5 A. I believe it was either Dr. John Davis or
6 Dr. Bill Patrick.
7 Q. What is your understanding of the high end
8 background based upon your conversations with John
9 Davis and Bill Patrick?
10 A. My understanding of the soil phosphorous
11 background is generally variable, but in the 400,
12 500, 600 somewhere in that range, as best I can
13 recall. But that's generally considered background.
14 Q. What units are those, four, five, 600?
15 A. It's getting late. I can't even think of
16 the standard. I've just gone blank.
17 Q. Did BDA take soil cores?
18 A. No.
19 Q. The soil cores, what data do you understand --
20 or when was the data taken that you understand either
21 Bill Patrick or John Davis was referring to when they
22 advised concerned the soil phosphorous levels in that
23 area?
24 A. Would you repeat that?
25 Q. You indicated that your understanding was
520
1 that the soil phosphorous levels in the S-9 area were
2 at the high end of background based upon discussions
3 you had with either John Davis or Bill Patrick.
4 My question is simply what data, what time
5 period was the data from that they were referring to
6 for soil phosphorous?
7 MR. KOBELINSKI: When did they collect the
8 soil samples?
9 MR. NETTLETON: Yes, assuming they were
10 relying on their own soil samples.
11 THE WITNESS: I believe that was in the
12 1990 time period, 1991, something like that.
13 BY MR. NETTLETON:
14 Q. What is your understanding of the portion
15 of the profile in the soil that either John Davis or
16 Bill Patrick was referring to concerning the
17 phosphorous content, how deep in the soil?
18 A. I believe that was either the first five
19 centimeters or first ten centimeters. It was in the
20 upper five or ten centimeters of the soil. I do
21 remember the units on that.
22 Q. It wasn't inches?
23 A. No, but in another --
24 MR. KOBELINSKI: There is no question
25 pending.
521
1 BY MR. NETTLETON:
2 Q. What specifically are you relying on with
3 regard to your opinion concerning the establishment
4 of cattails in the S-9 area as you described it?
5 A. The field observations, aerial photographs,
6 prior accounts of vegetation in the area, stage
7 records from the area.
8 And as I understand it, the general
9 description of the flooding tussock type of sawgrass
10 fire, that phenomenon I believe was observed by the
11 District scientist, also, which seemed to confirm
12 that sequence of events.
13 Q. In the northern area of 3A as you described
14 it and as depicted on your maps, do you know what the
15 soil phosphorous levels are for those areas
16 containing cattail?
17 A. They vary.
18 Q. Do you know what range they vary in?
19 A. Generally, as I recall, they would vary
20 from 500 or so to perhaps over 1,000 micrograms per
21 gram.
22 Q. What opinion do you expect to provide at
23 the final hearing concerning whether cattail in the
24 EPA has caused a violation of the water quality
25 standards?
522
1 A. I don't believe it has.
2 Q. I believe you stated at the end of your
3 testimony yesterday that the standards you are
4 looking at are the narrative nutrient standard and
5 nuisance species standard; is that correct?
6 A. That's correct.
7 Q. On what do you base your opinion that the
8 cattail in the EPA does not constitute a water
9 quality violation with regard to the narrative
10 nutrient standard?
11 A. Do you have a copy of that standard?
12 Q. No, I'm sorry. I don't. I believe you
13 described it yesterday.
14 A. As I understand it, the narrative nutrient
15 standard is that in no case shall nutrient
16 concentrations of a body of water be altered so as to
17 cause an imbalance in natural populations of aquatic
18 flora and fauna.
19 Considering whether nutrients have caused
20 the cattail colonization, and considering the body of
21 water to be the EPA as defined in the SWIM Plan, and
22 considering whether this is an imbalance in the
23 natural population of flora and fauna, I would take
24 all of that into account in forming my opinion.
25 Q. How do you define "imbalance" for purposes
523
1 of your opinion?
2 A. An imbalance would occur when you have a
3 species occurring to such an extent that the flora or
4 fauna is changed and the functions in the system have
5 been significantly and adversely affected.
6 Q. What functions are you referring to?
7 A. Functions provided by the water body.
8 Q. Can you give me some examples of what you
9 are referring to?
10 A. Wild life utilization, recreation.
11 Q. Any other functions that you can think of
12 that you are referring to?
13 A. In general terms, since we are talking
14 about a wetland system, it would be potentially any
15 of the types of functions that wetlands generally
16 provide.
17 Q. Well, that's what I'm trying to get a feel
18 for, what functions are you referring to?
19 A. Wetlands typically provide habitat for
20 various species. They provide storage capacity, they
21 provide water treatment function. They provide
22 erosion, shoreline protection. They can provide a
23 function as a -- those are general functions.
24 Q. What do you mean by storage capacity?
25 A. Well, the wetland occurs typically in a
524
1 lower topographic setting and therefore it stores
2 water so it provides some storage function.
3 Q. So you are talking about water storage
4 capacity?
5 A. That's correct.
6 Q. Are there any other functions that you can
7 think of?
8 A. We could go on for some time delving into
9 various functions of wetland and sub setting those,
10 but those are some general broad categories.
11 Q. Are there any other general broad
12 categories or does that pretty much cover it?
13 A. I think I mentioned recreation. Food chain
14 support which is related to habitat. Those are the
15 general categories. At 4:00 on Friday afternoon
16 there may be some others I haven't listed, but those
17 are certainly some of the major ones.
18 Q. What is your understanding of what would
19 constitute a significant and adverse effect on any
20 such function?
21 MR. KOBELINSKI: To the extent you are
22 asking him to draw a legal opinion as to what
23 that means, I object to that.
24 MR. NETTLETON: I'm sorry.
25 MR. KOBELINSKI: To the extent you are
525
1 asking what that legally means from the statute,
2 I would object to that. To the extent it calls
3 for a legal conclusion, you can answer.
4 MR. NETTLETON: Is he planning to offer an
5 opinion on that or not?
6 BY MR. NETTLETON:
7 Q. Can you tell me what you mean by or what
8 would constitute a significant and adverse effect?
9 A. In my opinion the impact would have to be
10 of such a extent in terms of geographic area,
11 duration, permanence. Those would be factors that
12 would come into play determining whether it was
13 significant or not.
14 Q. What about adverse? What would constitute
15 adverse?
16 A. Adverse would, I believe, consider the
17 effect on the functions and designated use of the
18 water body.
19 Q. What does that mean, effects on the
20 functions and designated use of the water bodies?
21 A. Well, if you had a change, for instance, in
22 vegetation but the -- that didn't adversely affect --
23 let's take this one example, that didn't adversely
24 affect habitat characteristics for a particular
25 species or it didn't adversely affect food chain
526
1 production, then a change, if it doesn't adversely
2 affect the systems and the functions that are
3 occurring in the systems, then I don't think you
4 would be deemed to be adverse.
5 Q. The difficulty I'm having, you are using
6 the terms "adverse affect" in defining what you mean
7 by adverse. I'm trying to get a qualitative
8 understanding of what in your opinion constitutes
9 adverse and adverse change or affect.
10 A. Adverse, negative.
11 Q. Putting aside "significant," which you
12 already defined, if there is a change in the wildlife
13 habitat or the food web, would that constitute an
14 adverse effect?
15 A. A mere change I don't believe would not
16 constitute necessarily an adverse effect.
17 MR. KOBELINSKI: I am going to object.
18 Over what area? The size of this table, this
19 room or what?
20 MR. NETTLETON: That's what he defined as
21 to what would be significant. I said aside from
22 significance.
23 BY MR. NETTLETON:
24 Q. My question is just on the question of
25 adverse effect. What constitutes a change which
527
1 would be deemed adverse?
2 A. Well, I think there you would have to look
3 at the change, whether or not it was a negative
4 impact. I'm having a hard time understanding your
5 question.
6 Q. Okay. I'm having the same difficulty
7 understanding your answer.
8 You have defined adverse effect as, I
9 guess, a negative effect. My natural question is,
10 what do you mean by a negative effect?
11 MR. KOBELINSKI: How about an adverse
12 effect? Aren't we going around in circles here?
13 BY MR. NETTLETON:
14 Q. If a change in and of itself of a function
15 or designated use is not an adverse effect, what
16 constitutes an adverse effect?
17 A. A change that negatively impacts the
18 function or the designated use of the water body.
19 Can we take a five minute break? I assume
20 we are going to continue more than five or ten
21 minutes.
22 MR. NETTLETON: Yes.
23 (Thereupon, a brief recess was taken,
24 after which the following proceedings
25 were had:)
528
1 BY MR. NETTLETON:
2 Q. Dr. Dennis, when we were discussing
3 previously your opinions concerning the water quality
4 violations, you made reference to a piece of paper
5 that you pulled out of your pocket.
6 Can you tell us what's on that piece of
7 paper?
8 A. Yes. When you asked me that question
9 either yesterday or the day before, I lost track of
10 the days. I asked you for a copy of the rules, you
11 didn't have one. And it really is my practice always
12 when I'm reviewing these kind of things to pull the
13 rule out and try to have it in front of me when I'm
14 considering it.
15 So I took the liberty last night to write
16 down the definition of or the rule citation for
17 nutrient standard and for nuisance species and I have
18 that for my reference.
19 MR. NETTLETON: Do you have any objection
20 to marking the original or would you prefer to
21 keep that and have a copy made?
22 THE WITNESS: I don't need it.
23 MR. NETTLETON: Mark that as Exhibit 13.
24 (The document referred to was thereupon
25 marked Exhibit 13 for Identification.)
529
1 THE WITNESS: I would have taken more care
2 to be neater in my handwriting if I understood
3 it would be an exhibit in these proceedings.
4 MR. NETTLETON: Your counsel looked close
5 enough to remove other notes that appeared to be
6 at the bottom before we marked it.
7 THE WITNESS: The only notes those were
8 were the times of my plane which I got when I
9 called into the office at lunch. So now I don't
10 know what time -- I know what time, but I don't
11 know what flight numbers I have.
12 BY MR. NETTLETON:
13 Q. One of the terms you used for defining
14 significant was duration, another one was permanence.
15 Would I be correct those are different
16 descriptions, permanence is a form of duration?
17 A. Yes, it could be.
18 Q. And you also mentioned geographic area. Am
19 I correct that in your definition of significance as
20 you have used it in your definition of imbalance that
21 you are referring to the spatial and temporal extent
22 of any change in function or designated use of the
23 water body?
24 A. Yes. I was referring to the spatial and
25 temporal extent of cattail. That's what we were
530
1 talking about in regard to and then thereby any
2 spatial or temporal impact on water body.
3 Q. What in your opinion would be a sufficient
4 geographic area for that area to be significant?
5 MR. KOBELINSKI: What area to be
6 significant?
7 MR. NETTLETON: The geographic area.
8 MR. KOBELINSKI: Cattails?
9 MR. NETTLETON: I'm going from Dr. Dennis'
10 definition of imbalance which was when a species
11 is occurring to such an extent that flora and
12 fauna is changed and functions in the system
13 have been significantly and adversely affected.
14 His definition of significance was
15 geographic area and duration, and I'm trying to
16 find out if you have a specific geographic area
17 in mind that would render a change significant.
18 THE WITNESS: When I'm referring to
19 geographic area, I mean essentially the degree
20 of the area, extent, not any particular
21 geographic spot.
22 BY MR. NETTLETON:
23 Q. In other words, there is no specific
24 quantification in your mind of a number of acres of
25 change that would be necessary in order for there to
531
1 be significant change from a spatial standpoint?
2 MR. KOBELINSKI: You are talking about
3 generally?
4 MR. NETTLETON: Yes.
5 THE WITNESS: Generally I have no specific
6 number.
7 BY MR. NETTLETON:
8 Q. And with regard to duration, do you have in
9 mind any specific quantification of what will
10 constitute significance or a long enough duration
11 that it would be deemed significant?
12 Is there a specific quantification of that?
13 A. Not a specific quantification, no.
14 Q. So with both of those determinations as to
15 duration and geographic area and determining whether
16 something is a significant change constitutes a
17 subjective judgment?
18 MR. KOBELINSKI: I object to the extent,
19 are you asking whether or not those are defined
20 in the statute?
21 MR. NETTLETON: No.
22 THE WITNESS: The statute does not provide
23 any quantifiable threshold as it does for other
24 parameters where it gives a specific
25 concentration or level.
532
1 So in this case I think we were called upon
2 to exercise reasonable judgment.
3 BY MR. NETTLETON:
4 Q. Dr. Dennis, in your opinion if you change a
5 given area from a sawgrass marsh to a cattail
6 dominated area, would that in your view alter the
7 functions of that particular area as you defined
8 them?
9 MR. KOBELINSKI: I object,
10 mischaracterization of his prior testimony,
11 Counsel.
12 He defined the function of wetland, not
13 specifically a sawgrass marsh, but go ahead.
14 MR. NETTLETON: I wasn't characterizing his
15 testimony, I was asking a question.
16 MR. KOBELINSKI: You said, "as you have
17 defined it." I don't think he has defined it on
18 the record.
19 THE WITNESS: I'm sorry, would you repeat
20 the question?
21 BY MR. NETTLETON:
22 Q. In your opinion, would the alteration of an
23 area from a sawgrass marsh to a cattail dominated
24 area constitute a change in the functions of the
25 area?
533
1 MR. KOBELINSKI: I further object. It's
2 ambiguous as you have not defined the area.
3 MR. NETTLETON: Whatever the area is.
4 BY MR. NETTLETON:
5 Q. What did you expect to change -- let me
6 rephrase it.
7 Under that hypothetical, would you expect a
8 change in wildlife utilization, wildlife habitat,
9 recreation, or food chain support or water treatment
10 function?
11 MR. KOBELINSKI: Object, compound. Ask
12 each one.
13 MR. NETTLETON: Any of those.
14 THE WITNESS: You could have some changes
15 in an area if it was sawgrass dominated or
16 cattail dominated.
17 BY MR. NETTLETON:
18 Q. Would you expect there to be changes in the
19 functions?
20 A. I think we would have to go through each
21 function and discuss those.
22 Q. Would you expect there to be a change in
23 any of those functions?
24 A. There could be changes in certain of the
25 functions. I think we would have to go into more
534
1 detail on your hypothetical in terms of --
2 Q. Let me bring it closer.
3 MR. KOBELINSKI: Let him finish the answer.
4 MR. NETTLETON: I withdraw my question.
5 MR. KOBELINSKI: I move to strike portion
6 of his answer.
7 MR. NETTLETON: Go ahead, finish your
8 answer.
9 THE WITNESS: Could you please read back
10 that portion of my answer that I started?
11 (The question referred to was thereupon
12 read by the reporter as above recorded.)
13 THE WITNESS: What I was trying to explain
14 was that for that hypothetical you need to
15 provide more specifics in terms of aerial
16 extent, density of cattail or sawgrass, those
17 types of things.
18 BY MR. NETTLETON:
19 Q. That's what I was going to do. Let's not
20 take a hypothetical, but the real situation as you
21 understand it below the S-10 structures and the
22 change that has occurred in the vegetative
23 communities between the 1960's and through the
24 1980's.
25 Do you believe that the changes in the
535
1 vegetative communities that have occurred as you
2 understand them have resulted in a change of the
3 functions of the system for that area?
4 A. Changes in functions from --
5 Q. What existed previously.
6 A. What existed previously, 1950's time period
7 to the present?
8 Q. Correct.
9 A. Yes. I believe there would be some
10 differences in functions.
11 Q. Do you believe those differences would be
12 adverse?
13 A. I believe that the changes that occurred
14 from the '50's into and through essentially the
15 decade of the '60's and on into the '70's where the
16 area was converted to a shallow reservoir, I believe
17 that if the original functions and intent was to have
18 a marsh system that by creating the shallow reservoir
19 system, that would be an adverse change to the prior
20 system if that was your intent.
21 Of course the creation of it as a shallow
22 reservoir had some positive benefits to certain
23 species. For instance, it became a better fishery.
24 But it was adverse to some of the wildlife functions
25 for the species that were adapted to a drier setting.
536
1 Q. Am I correct, you are then defining
2 adversity as to whether or not a change is consistent
3 with the policy or intent of the -- for lack of a
4 better term -- regulating agency that's controlling
5 the system?
6 A. I believe that the evaluation of adverse
7 impacts on a system can be made separately from the
8 wishes of the regulating agency. I believe that
9 assessment could be made.
10 But I believe in this instance the area has
11 been so regulated, changed, manipulated that it has
12 become a factor in this analysis.
13 Q. What is your opinion concerning whether
14 cattail in the Everglades protection area constitutes
15 a violation of the nuisance species standard?
16 A. As I understand it, the nuisance species
17 standard is essentially substances in concentration
18 which result in the dominance of nuisance species.
19 And then it says none should be present.
20 Then I think you have to go to the
21 definition of nuisance species, and it is defined in
22 the rules to be species of flora and fauna whose
23 noxious characteristics or presence in sufficient
24 numbers, biomass, areal extent may reasonably be
25 expected to prevent or unreasonably interfere with a
537
1 designated use of those waters.
2 Q. Okay. What is your opinion as to whether
3 the cattail in the EPA constitutes a violation of the
4 nuisance species standard?
5 A. I don't believe it does.
6 Q. What do you base that opinion upon?
7 A. The requirement that the substance in
8 question must be in such a concentration that it
9 results in a dominance of a nuisance species. In
10 other words, I believe there has to be a nexus to the
11 substance and concentration while it's occurring so
12 that it's a positive determinant of the nuisance
13 species.
14 Q. What substance are you referring to for
15 your opinion?
16 A. I have assumed that you were referring to
17 phosphorous. If that assumption is incorrect,
18 clarify it for me.
19 Q. Well, do you have an opinion as to whether
20 or not cattail constitutes a nuisance species,
21 irrespective of the nexus with a substance and the
22 violation of the standard?
23 I'm not talking about violation of
24 standard, just whether or not cattail constitutes a
25 nuisance species in its presence in the northern area
538
1 of 2A?
2 A. As I understand this rule, nuisance species
3 has to be considered in the context of the water body
4 under consideration and the designation or
5 interference with reasonable use or the designated
6 use.
7 So considering the body as defined in the
8 SWIM Plan and the designated uses, no, I don't.
9 Q. Can you explain why you do not view cattail
10 in the northern area of 2A to constitute a nuisance
11 species as that is defined in the rule?
12 A. It would be my opinion that the designated
13 water body is the EPA, and that the designated use is
14 principally for recreation, fishing and wildlife.
15 And I don't believe that cattail is occurring in
16 sufficient numbers, biomass in areal extent to
17 prevent or unreasonably interfere with the use of the
18 EPA by wildlife or for recreation.
19 Q. Would you agree that hypothetically cattail
20 could dominate an area that's designated as the EPA
21 that it could interfere with the designated use?
22 MR. KOBELINSKI: Are you talking about the
23 entire area?
24 BY MR. NETTLETON:
25 Q. Hypothetically, if it were significant
539
1 enough in biomass and areal extent, could it
2 interfere with the designated use of the EPA.
3 A. I would agree hypothetically that cattail
4 even though it's a native naturally occurring species
5 in certain situations could be considered a nuisance
6 species. And in those sections, that determination I
7 think would be made on the areal extent of cattail
8 within the designated water body and whatever the use
9 of that designated water body was.
10 Q. Assuming the use as designated for the EPA,
11 would your answer be the same, which you indicated
12 your understanding, designated for recreation,
13 fishing and wildlife?
14 MR. KOBELINSKI: Going back to the original
15 hypothetical, having cattail throughout the EPA
16 mono culture?
17 BY MR. NETTLETON:
18 Q. Can it reach such an extent that it would
19 constitute a new science species with that designated
20 use?
21 A. If a mono specific stand of cattail
22 occurred throughout the entire EPA, I believe that
23 that would constitute a nuisance species and a
24 violation of the nuisance species standard.
25 And by "throughout," I mean a solid levee
540
1 to levee block of cattail.
2 Q. You don't think anything short of that
3 would constitute a violation of the nuisance species
4 statute?
5 A. That's not what I said.
6 Q. So something less than a levee to levee
7 cattail dominance could constitute a violation of the
8 nuisance species in the EPA?
9 A. I think the judgment would have to be made
10 based on the factors available at the time. In other
11 words, you would have to know the extent of cattail
12 occurrence. It's biomass numbers, all of those sorts
13 of things.
14 Q. But there could be a violation of the
15 nuisance species standards with less than complete
16 dominance of the entire area by cattail?
17 A. Hypothetically.
18 Q. If you assume that the designated water
19 body is only WCA-2A, in your opinion would the extent
20 of cattails in that area constitute a violation of
21 the nuisance species standard?
22 A. This is a hypothetical?
23 Q. Hypothetical in the sense of assuming that
24 the designated water body is only WCA-2A as opposed
25 to the entire EPA?
541
1 A. No.
2 Q. What is your opinion based on that you are
3 expecting to offer at trial concerning the adequacy
4 of the SWIM Plan concerning restoration of the
5 Everglades restoration?
6 A. I don't believe that the SWIM Plan is
7 adequate to bring about Everglades restoration.
8 Q. You would agree, then, would you not,
9 Dr. Dennis, that the Everglades is in need of
10 restoration?
11 A. From an ecological perspective, yes.
12 Q. What about the current condition of the
13 Everglades in your opinion requires restoration from
14 an ecological standpoint?
15 A. I'm sorry, I didn't understand the first
16 part of that question.
17 Q. What in your opinion about the current
18 condition of the Everglades requires restoration from
19 an ecological standpoint?
20 A. I think as was reported out in the science
21 subgroup report the fact that the natural water
22 regime and all of its facets of the Everglades has
23 been disrupted is the primary factor.
24 I believe they pointed out, and I agree
25 with it, that water made the Everglades and that
542
1 hydroperiod is the primary driving force in the
2 Everglades.
3 And I agree with that report, that that's
4 the fundamental invasive point where restoration
5 should begin.
6 Q. Would you also agree that the -- that
7 restoration activities in the nature of reducing the
8 loads and concentrations of phosphorous into the
9 historically ligatrophic Everglades system are needed
10 for purposes of restoration from an ecological
11 standpoint?
12 A. I believe a consideration of water quality
13 should be made in fashioning a sound and achievable
14 restoration plan for the Everglades.
15 Q. Well, more specifically than water quality
16 in general, is it your opinion from the ecological
17 standpoint that in order for restoration of the
18 Everglades to be accomplished it is appropriate to
19 reduce the concentrations and loads of phosphorous
20 that are entering the Everglades protection area in
21 the surface waters?
22 A. The amounts of concentration loads of
23 phosphorous that are coming into the EPA should be
24 considered and evaluated in a manner that -- with the
25 changes to the system that would allow a more natural
543
1 hydroperiod, the system could function as practically
2 as possible as a ligatrophic system as it did
3 historically.
4 Q. Based upon the information that currently
5 exists and as you understand it, do you believe that
6 the current levels of phosphorous entering the
7 Everglades protection area would need to be reduced
8 in order to accomplish that?
9 MR. KOBELINSKI: Currently? Are you
10 talking about a period of record or something
11 that occurred in the last year?
12 MR. NETTLETON: The last few years,
13 generally speaking.
14 THE WITNESS: As I stated previously, I
15 believe that restoration can best be achieved
16 through the establishment of proper hydroperiod
17 in terms of depth, duration, timing through the
18 system, and the compartmentalization of the
19 system, and the separation of the system from
20 natural rainfall patterns appear to be probably
21 the largest factors -- along the largest factors
22 affecting the system and its ability to function
23 naturally.
24 I believe that those need to be addressed
25 and the reduction in nutrient concentrations in
544
1 appropriate concert.
2 I guess what I'm trying to say is it's
3 certainly too simplistic an answer to Everglades
4 restoration to say that if you reduce
5 phosphorous concentrations you will restore the
6 Everglades.
7 And it appears that -- going back to my
8 opinion relative to the SWIM Plan, that the
9 overwhelming and primary emphasis is then placed
10 on phosphorous reduction.
11 BY MR. NETTLETON:
12 Q. Well, let me try to ask the question a
13 different way.
14 Is it your opinion, Dr. Dennis, that
15 Everglades restoration can be accomplished from an
16 ecological standpoint with simply restoring
17 hydroperiod and without reducing the phosphorous
18 loads or concentrations entering the Everglades
19 protection area in any surface water?
20 A. What I'm trying to explain in answer to
21 your question is that right now the nutrient levels
22 that enter the EPA come in a few individual point
23 source areas, in essence. And that in effectuating a
24 successful restoration of the Everglades you need to
25 not only look whatever the concentrations might be
545
1 and whatever the loading might be, but look at the
2 distribution of that water over space.
3 Q. So would you agree that building of STAs
4 which would allow restoration of more sheet flow
5 across the area would be beneficial to the ecological
6 system, regardless of nutrient reduction or a
7 combination therewith?
8 A. I don't believe the STAs, as I understand
9 them, result in the re-establishment of sheet flow.
10 Q. Assuming for purposes of my question that
11 STAs redirect flow in such a manner as to more
12 naturally mimic sheet flow than is currently
13 occurring through the structures, do you believe that
14 would be a beneficial restoration of hydroperiod and
15 restoration of the ecology of the Everglades?
16 MR. KOBELINSKI: I object to the form of
17 the question. You asked us not to do discovery
18 on. Ms. Ponzoli objected and instructed
19 Dr. Soukup not to respond to the questions.
20 BY MR. NETTLETON:
21 Q. Assuming the STAs redirect flow so as to
22 more naturally mimic the sheet flow, wouldn't that be
23 beneficial to the Everglades ecosystem from a
24 hydroperiod standpoint?
25 MR. KOBELINSKI: I'm just objecting because
546
1 you are asking questions that you asked us not
2 to ask.
3 MR. NETTLETON: I don't recall that, but go
4 ahead.
5 THE WITNESS: My understanding of STAs are
6 that basically they are treatment areas of
7 various sizes where the water is put into that
8 area and then is released from it.
9 So there are basically treatment systems,
10 as I understand them, as they exist in the
11 current SWIM Plan and that they do little to
12 create natural sheet flow.
13 The creation of natural sheet flow is a
14 more expansive consideration than just bringing
15 the water into a treatment area and then
16 releasing it from that treatment area.
17 BY MR. NETTLETON:
18 Q. So you don't accept my assumption for my
19 question, but rather than belabor the point, is it
20 your understanding that the STAs do not have any
21 hydroperiod restoration aspects to them?
22 I'm referring to the STAs as set forth in
23 the SWIM Plan.
24 A. Not the revised versions.
25 Q. The STA's as they are in the SWIM Plan?
547
1 A. It's my understanding that they would have
2 minimal effect on hydrologic restoration.
3 Q. What in your opinion would be necessary to
4 include in the SWIM Plan in order to make it adequate
5 to address the Everglades restoration?
6 A. I believe that the system should be looked
7 at as a whole, that carefully defined goals that
8 would set out what successful restorations would be
9 made. Those goals would be reviewed in light of the
10 practical nature of the current situation.
11 And by that I mean the natural Everglades
12 had components in it that are essentially gone, such
13 as much of the short hydroperiod areas, fringing
14 areas. And therefore I believe that the entirety in
15 a holistic manner should be considered.
16 Reasonable goals determined, those tested
17 against what could be achieved, and then a plan put
18 in place that first and foremost considers the
19 hydrological aspects of the system.
20 And then in concert with that, the water
21 quality aspects should be considered so that you have
22 an overall comprehensive system.
23 Q. Is it your opinion that in order for there
24 to be a reasonable SWIM Plan or an adequate SWIM Plan
25 that the restoration goals of hydroperiod and water
548
1 quality must be resolved simultaneously?
2 A. I believe there should be a comprehensive
3 plan that addressed that. I believe that should be a
4 fundamental starting point.
5 What I see in the SWIM Plan is a
6 continuation of past history in the Everglades, and
7 that is a situation as identified in one area or
8 another, and then some remedial actions or some plan
9 is implemented to potentially address it, and that we
10 got about 50 years of history that's occurring.
11 I believe it's time to develop a
12 comprehensive, well thought out plan for the
13 Everglades.
14 Q. Based upon your experience as a biological
15 scientist, are you of the opinion that hydroperiod
16 for the Everglades should be restored prior to any
17 water quality restoration objectives being
18 implemented?
19 A. I believe it's only prudent to begin by
20 addressing the most fundamental issue, which I
21 believe everyone has generally identified as
22 hydroperiod. It's the management, the timing, the
23 delivery, amounts of water, where they go and when
24 they go and how it's directed that's most affected
25 the system.
549
1 It just doesn't make any sense to me to
2 ignore that, and spend an immense amount of money
3 addressing one issue, which this is not the
4 fundamental issue.
5 And I believe that if you address the
6 fundamental issue it might lead you to attack and
7 suggest different solutions to the water quality
8 concerns.
9 Q. Does it make sense to you to restore the
10 hydroperiod as you described it without cleaning up
11 the water first?
12 MR. KOBELINSKI: Asked and answered.
13 THE WITNESS: I believe you advance the
14 restoration goals significantly more by
15 addressing hydroperiod concerns as I have
16 defined them. And you will have -- you will go
17 a lot further towards restoration by starting
18 with that and addressing that.
19 I think you could address the water quality
20 issues as they have been proposed to be
21 addressed in the SWIM Plan. And we can find
22 ourselves ten years from now really in no
23 different situation than we are now if we don't
24 address the hydrologic issues.
25 We very likely could have as much cattail
550
1 growing there ten years from now as we have now
2 if we don't address hydrology.
3 MR. KOBELINSKI: Dr. Dennis has a plane to
4 catch, so I need to get him to a cab.
5 MR. NETTLETON: All right. For the record,
6 as the record will speak for itself, I think we
7 have only had an opportunity at this point to
8 explore four of the seven areas of expected
9 opinion testimony at the final hearing.
10 The record would also reflect that this
11 deposition was supposed to start Monday and we
12 didn't start until Tuesday afternoon. So I just
13 reserve the right to continue it at a convenient
14 time.
15 MS. STARK: The government joins.
16 MR. KOBELINSKI: My only response is that
17 it's my understanding that, number one, that
18 while the depo I guess was originally scheduled
19 to start on Monday, four days were requested.
20 That's what your notice states.
21 MR. NETTLETON: Five.
22 MR. KOBELINSKI: Read your notice, but it
23 will speak for itself. It's sitting right
24 there, for four days. But anyway we have taken
25 the position the parties make their best
551
1 estimate as to how long they take.
2 If you have not completed him, and to the
3 extent, Dr. Dennis, a convenient time can be
4 found, we will attempt to accommodate, as we
5 assume the other sides are attempting to do when
6 other witnesses are not completed.
7 I believe likewise the record will speak
8 for itself as to your opportunity to reach those
9 opinions. I believe an inordinate amount of
10 time was taken on things that Dr. Dennis will
11 not be testifying about.
12 But we will attempt to cooperate with you
13 and find a convenient time, given the remainder
14 of the schedule.
15 MR. NETTLETON: I disagree, of course, with
16 your characterization.
17 MR. KOBELINSKI: I understand. We don't
18 waive, by the way.
19 (Thereupon the taking of the
20 deposition was concluded.)
21 - - - - - - - - -
552
1
2 I, W. MICHAEL DENNIS, do hereby certify
3 that I have read the foregoing deposition and that
4 the same is a true and accurate transcript of my
5 testimony, except for attached amendments, if any.
6
7
8
9 ----------------------------------
10
11
12
13
14
15 The signature above of W. MICHAEL DENNIS
16 was subscribed and sworn to before me this 4th day of
17 April, 1994.
18
19
20
21
22 -----------------------------------
23 Notary Public
24 My commission expires
553
1
2 CERTIFICATE OF OATH
3
4
5 STATE OF FLORIDA )
6 COUNTY OF DADE )
7
8
9 I, the undersigned authority, certify that
10 W. MICHAEL DENNIS personally appeared before me and
11 was duly sworn. WITNESS my hand and official seal
12 this 4th day of April, 1994.
13
14
15 ___________________________________
16 Thomas R. Neumann, RPR
17 Notary Public - State of Florida
18 My Commission Expires: June 19, 1994
554
1 CERTIFICATE
2
3 STATE OF FLORIDA )
COUNTY OF DADE )
4
5
I, Thomas R. Neumann, Registered
6 Professional Reporter, do hereby certify that I was
authorized to and did report said deposition in
7 stenotype; and that the foregoing pages, numbered
from 405 to 551, inclusive are a true and correct
8 transcription of my shorthand notes of said
deposition.
9
I further certify that I am not an attorney
10 or counsel of any of the parties, nor am I a relative
or employee of any attorney or counsel or party
11 connected with the action, nor am I financially
interested in the action.
12
The foregoing certification of this
13 transcript does not apply to any reproduction of the
same by any means unless under the direct control
14 and/or direction of the certifying reporter.
15 Dated this 4th day of April, 1994.
16
_________________________________
17 Thomas R. Neumann, RPR
18
STATE OF FLORIDA )
19 COUNTY OF DADE )
20
The foregoing certificate was acknowledged
21 before me this 4th day of April, 1994 by
Thomas R. Neumann, who is personally known to me.
22
23
________________________________
24 Notary Public - State of Florida
My Commission expires:
25
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