1

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3 SUGAR CANE GROWERS COOPERATIVE )

of FLORIDA; ROTH FARMS, INC.; and, )

4 WEDGEWORTH FARMS, INC., )

Petitioners, )

5 V ) DOAH

SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.; )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

V ) DOAH

10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, )

V ) DOAH

15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040

DISTRICT, an agency of the State )

16 of Florida; et al., )

Respondents. )

VOLUME I

18 Deposition of Thomas Fontaine

19 Taken before April Y. Segui, Court Reporter

and Notary Public in and for the State of Florida at

20 large, pursuant to notice of taking deposition filed

by the Petitioners in the above cause.

Monday February 21, 1994

23 319 Clematis Street, 5th Floor

West Palm Beach, Florida 33401

24 9:10 - 11:50 a.m.

1 APPEARANCES:

2 On behalf of the Petitioners Florida Sugar

Cane League, Inc., United State Sugar Corp.,

3 and New South Hope, Inc.:

Earl, Blank, Kavanaugh & Stotts, P.A.

4 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

5 Miami, Florida 33131

By: JONATHAN L. GAINES, ESQUIRE

On behalf of the Petitioners Sugar Cane Growers

7 Cooperative, Roth Farms, Inc., and Wedgeworth

Farms, Inc.:

8 Hopping, Boyd, Green & Sams

123 South Calhoun Street

9 Tallahassee, Florida 32314

By: GARY V. PERKO, ESQUIRE

On behalf of the Respondent SFWMD:

11 Popham, Haik, Schnobrich & Kaufman, Ltd.

100 S.E. Second Street

12 Miami, Florida 33131

By: DANIEL J. McGRATH, ESQUIRE

On behalf of the Intervenor United States of America:

14 Department of Justice

155 South Miami Avenue, Suite 627

15 Miami, Florida 33130-1693

By: THOMAS A.W. FITZGERALD, ESQUIRE

Also Present: Ronald Munson

18 - - -

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Thomas Fontaine

BY MR. PERKO 5

1 - - -

2 E X H I B I T S

3 - - -

4 NUMBER PAGE

6 EXB. 1 CV of Dr. Fontaine 6

7 EXB. 2 Expert Witness designation for Dr. Fontaine 45

8 EXB. 3 Appendix F of the SWIM Plan 56

9 EXB. 4 Memo 5-21-92 from Dr. Fontaine to Tony Federico 67

10 EXB. 5 Memo 10-19-92 from Dr. Fontaine to Zan Kugler 131

11 EXB. 6 9-29-92 Nolte & Associates Draft Report 132

12 EXB. 7 Memo 9-9-92 from Dr. Fontaine to Tony Federico 146

13 EXB. 8 Memo 12-12-91 from Dr. Fontaine to Ron Bearzotti 161

14 EXB. 9 Water Quality Section paper undated 177

15 EXB. 10 Chart; Phosphorus Budget for the EAA 179

16 EXB. 11 Chart; EAA, Page 2 dated 5-12-89 180

17 EXB. 12 3-3-92 Draft Technical Document 193

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Thomas Fontaine,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: Sure. Yes. Fine. Okay.

8 DIRECT (Thomas Fontaine)

9 BY MR. PERKO:

10 Q. Could you please state your name and

11 address for the record, sir?

12 A. Name is Tom Fontaine and I assume you want

13 my business address.

14 Q. Yes. That's fine.

15 A. South Florida Water Management District,

16 West Palm Beach, Florida.

17 Q. Probably ought to give your full name.

18 A. Thomas David Fontaine, III.

19 Q. It's Dr. Fontaine, is it not?

20 A. That's correct.

21 Q. Dr. Fontaine, have you ever been deposed

22 before?

23 A. Yes.

24 Q. How many times?

25 A. Once.

1 Q. That was in the federal litigation

2 involving the United States of America versus South

3 Florida Water Management District?

4 A. Yes.

5 Q. Okay. You generally know the ground rules

6 here. I'll be asking you a number of questions

7 related to the facts and opinions in this proceeding

8 involving the Everglades SWIM Plan. If you don't

9 understand any of the questions I ask, just tell me

10 and I'll try to rephrase it. Otherwise, I'll assume

11 that you understood what I was asking. If at any

12 time you need a break to get a drink of water, some

13 fresh air, just let me know and we'll take a break,

14 okay?

15 Dr. Fontaine, let me show you what I'll ask

16 the court reporter to mark as Exhibit Number 1.

17 (The document was marked Exb. No. 1.)

18 BY MR. PERKO:

19 Q. Do you recognize what's been marked as

20 Exhibit Number 1, Dr. Fontaine?

21 A. Yes.

22 Q. And what is that document?

23 A. This is a CV, curriculum vitae.

24 Q. Did you prepare it?

25 A. Yes.

1 Q. To your knowledge is it accurate and

2 complete?

3 A. It looks like the one I prepared sometime

4 ago, sure.

5 Q. Do you remember when you prepared it?

6 A. No.

7 Q. If you could take a look at it, sir, and

8 tell me if there's anything you would add since you

9 prepared this document.

10 A. Some of the professional affiliations are

11 old, such as the Editorial Advisory Board for "The

12 Handbook of Environmental Chemistry,"

13 Springer-Verlag. Take that one off. The Technical

14 Advisory Committee for the International Association

15 of Great Lakes Research is something I certainly did.

16 It's old. It's not an existing thing right now.

17 Well, I'm not going to read all the publications, but

18 I assume that they are accurate.

19 Q. To your knowledge are there any additional

20 publications since Fontaine and Stewart 1992?

21 A. Yeah, there are. I have to think about

22 them.

23 Q. That's fine.

24 A. There's one on a model of toxic kinetics --

25 and I'm not going to get the title exactly right --

1 with Peter Landrum up at the NOAA lab up in Ann

2 Arbor, Michigan; toxic kinetics of pH's in arthropods

3 and there is one, I believe -- no. I'm sorry. It's

4 there already.

5 Q. Did the publication with Peter Landrum

6 involve your work of the Great Lakes?

7 A. Yes. I won't swear that I've remembered

8 them all, but I'm doing the best I can.

9 Q. Have you published anything relating to the

10 Everglades?

11 A. What do you consider a publication?

12 Q. Well let's start with peer review journals.

13 A. Okay. I have nothing in peer review

14 journals at this time.

15 Q. Have you authored any District technical

16 publications?

17 A. There have been technical reports, lengthy

18 memorandums of which I'm sure you have them all.

19 Q. Okay. Do you recall the general subject

20 matters of those technical reports?

21 A. Oh. There was a technical report on

22 concentrations of phosphorus coming off of the

23 Everglades Agricultural Area, individual farm pumps.

24 I think this is a matter of public record.

25 Q. Okay. When was that? Do you recall?

1 A. That was probably about two years ago.

2 Q. Do you recall the subject matter of any

3 other technical reports that you've authored

4 regarding the Everglades?

5 A. You're obviously aware of the SWIM Plan

6 document that I had a role in.

7 Q. Okay. Is there a specific portion of the

8 SWIM Plan that you had a role in?

9 A. Appendix F.

10 Q. Did you author Appendix F?

11 A. Uh huh, yes.

12 Q. Did anyone assist you in authoring Appendix

13 F?

14 A. That's why I was thinking there for a

15 second. I was trying to recall if some of the, you

16 know, very introductory paragraphs about the history

17 of the Everglades may have come -- I may have

18 borrowed them from Paul Whalen or Paul Whalen may

19 have written that first paragraph, perhaps. I don't

20 really recall, but that's my best recollection.

21 Q. Other than those introductory paragraphs,

22 Appendix F is your work, is that correct?

23 A. Uh huh.

24 MR. McGRATH: Dr. Fontaine, throughout the

25 course of the deposition, if you could, verbally

1 respond yes or no. You just gave kind of an uh

2 huh. The court reporter is having to transcribe

3 everything down so it makes her job a lot

4 easier.

5 THE WITNESS: Yes. I will try to do

6 better.

7 MR. McGRATH: Thank you very much.

8 BY MR. PERKO:

9 Q. Other than the technical report of

10 phosphorus concentrations coming off of the EAA and

11 SWIM Plan Appendix F, do you recall authoring any

12 other technical reports while at the District or

13 memoranda?

14 A. Yeah. There was a technical memorandum on

15 phosphorus budgets for the Holey Land. That's two

16 words, Holey Land. To the best of my recollection

17 that's the major technical reports.

18 Q. Okay. Dr. Fontaine, Exhibit 1 to the

19 deposition, your CV, states that you came to the

20 District in 1990. Is that correct?

21 A. That's correct.

22 Q. You took a position as Director of the

23 Water Quality Division?

24 A. That's correct.

25 Q. When in 1990 did you first come to the

1 District?

2 A. March 1st.

3 Q. And then in 1991 you became Director of

4 Everglades Systems Research Division?

5 A. No. I don't think that's right. Is that

6 what it says? Let me see. It may have actually been

7 December of 1991. I seem to recall January of 1992,

8 but it's certainly within that time period.

9 Q. Okay. Was that as a result of a

10 reorganization at the District?

11 A. Yes, uh huh.

12 Q. So was it considered a lateral move?

13 A. Yes.

14 Q. Just a title change?

15 A. Just a title change.

16 Q. Okay. Did your responsibilities change at

17 that time?

18 A. Uh huh. Excuse me. I had to do that. I

19 was drinking water. Yes. Yes. In the former

20 position Director of Water Quality Division the

21 geographical area that I covered was the entire

22 District --

23 Q. Okay.

24 A. -- for the Everglades Division that deals

25 with basically everything south of the lake.

1 Q. Other than the change in the geographic

2 scope of the division did your responsibilities

3 change at all?

4 A. Can you give me a better definition of

5 responsibilities?

6 Q. What were your responsibilities as Director

7 of the Water Quality Division?

8 A. To make sure that assignments were

9 completed in a timely fashion, relevant fashion and

10 the work was high quality concerning water quality

11 issues in the District and, you know, in the

12 Everglades it would be very similar except it would

13 be to ensure that the Everglades research was of high

14 quality and -- go ahead.

15 Q. And the water quality issues that you just

16 referenced, would that include water quality

17 sampling, QAQC, that sort of thing? Was that under

18 your division?

19 A. Give me a second. I'm trying to remember.

20 It wasn't too long ago, but it seems like a long time

21 ago. The QAQC portion of water quality samples was

22 actually handled by a chemistry laboratory, the head

23 of which I cannot remember her name. It was Mary.

24 Q. MaryLou Daniel?

25 A. Yes. She's gone now. So there was a

1 laboratory portion and then there's the field

2 sampling portion of QA and we were responsible for

3 preparing what -- preparing what they called the

4 Project QA Plans and I think we were able to put

5 together a few of those, but I don't think we got all

6 of them done by the time the reorganization was done.

7 I don't think they got all of them done, but I had

8 some of the people who did the sampling, the actual

9 sampling located in my division at that time.

10 Q. And who were they?

11 A. Larry Grosser, Guy Germain. It's been a

12 long time. You know, I could get you that

13 information, but there's a number of technicians that

14 are just not coming to mind. I can see their faces,

15 but I can't remember names.

16 Q. Maybe the best way to proceed is how many

17 people do you currently have working under you in the

18 Everglades Systems Research Division?

19 A. About 36.

20 Q. How many of those are considered

21 professionals?

22 A. In the professional series of engineers and

23 scientists I would say there's about 20. Perhaps

24 more.

25 Q. Who do you report to, sir?

1 A. Tony Federico is the Director of the

2 Department of Research and Pat Gostel and Pat has

3 been the Acting Director of the Department of

4 Research, so it's a dual reporting right now.

5 Q. Who works directly underneath you?

6 A. Directly for me, I have three supervisors.

7 Q. Okay.

8 A. Jayantha Obeysekera, Mike Chimney and Fred

9 Sklar. I also have an administrative assistant.

10 Q. And what is the administrative assistant's

11 name?

12 A. Jan Johansen.

13 Q. Does Larry Fink work in your division?

14 A. He no longer works for me. He was

15 transferred into another division at the same rank.

16 You know, it was a lateral move.

17 Q. What division does he work in?

18 A. He works for the Research Appraisal

19 Division now.

20 Q. Is Jim Grimshaw in your division?

21 A. Jim Grimshaw is now in my division, yes.

22 Q. I take it that he recently came to your

23 division.

24 A. He recently came from Research Appraisal.

25 Q. Player to be named later.

1 Is Nancy Urban in your division?

2 A. No.

3 Q. What is Dr. Obeysekera's responsibilities?

4 A. He is the unit leader of all our water

5 quantity and water quality modeling.

6 Q. Is he performing any water quantity and

7 water quality modeling relating to the proposed

8 Stormwater Treatment Areas or Best Management

9 Practices in the Everglades SWIM Plan?

10 A. I don't believe that he is actively

11 involved in any modeling that has to deal with the

12 Stormwater Treatment Areas or BMPs.

13 Q. To your knowledge is anyone else actively

14 involved in the modeling of Stormwater Treatment

15 Areas or BMPs, anyone else in the District?

16 A. In the District, not in my division. There

17 are individuals who -- I really don't know who they

18 are, but I know that there is some modeling going on

19 that has to do with determining the effects of

20 Stormwater Treatment Areas on the rest of the water

21 quantity budget of South Florida.

22 Q. On quantity?

23 A. Quantity.

24 Q. Are you aware of any modeling of the water

25 quality effects of the Stormwater Treatment Areas on

1 water quality downstream of the STAs?

2 A. There is nothing particularly underway.

3 There is work under development, but there are no

4 products.

5 Q. What work is under development?

6 A. We have an RFP on the streets right now --

7 and this is what I mean by development -- that would --

8 whoever wins the contract -- link a water quality

9 module to the South Florida Water Management model.

10 Q. As I understand it, the South Florida Water

11 Management model currently only addresses water

12 quantity, is that correct?

13 A. Only addresses water quantities.

14 Q. It's based on a grid system, is that

15 correct?

16 A. That's correct.

17 Q. Would this water quality module be fitted

18 into that grid system?

19 A. In some way. That is yet to be determined.

20 Q. What is the status of that RFP? Has it

21 been made public yet?

22 A. I believe it hit the streets in the last

23 month.

24 Q. Did anyone in your division participate in

25 development of that RFP?

1 A. Yes.

2 Q. Who was that?

3 A. Well, me -- I'll call him Obie. That's

4 Jayantha Obeysekera. Obie, Joanne Roy.

5 Did you say in the division or just

6 anywhere?

7 Q. Start with any division in the District.

8 A. You got them.

9 Q. Outside your division?

10 A. Paul Warner. That's probably all.

11 Q. Okay. What division is Mr. Warner --

12 Dr. Warner?

13 A. He is on Tony Federico's staff. He was

14 formerly with my division.

15 Q. What is the time schedule contemplated

16 under the RFP for the development of this water

17 quality module?

18 A. Well, I didn't bring my budget books with

19 me. It is either a one year or a two year contract.

20 I'd have to go back and look to see. I think it's a

21 one year.

22 Q. When would the work begin?

23 A. Well, as soon as the contract is, you know,

24 awarded through the Governing Board.

25 Q. Do you have a feel for the time frame?

1 A. I will not speculate on when things can get

2 through the Governing Board.

3 Q. Usually a matter of six months?

4 A. (Indicating.) How do I tell you?

5 Q. Dr. Fontaine, what is the purpose of this

6 water quality module contemplated in the RFP?

7 A. The idea is that when water moves through

8 South Florida there's stuff in the water, which

9 includes nutrients and it seems that when we make

10 water quantity decisions, we should be aware of what

11 happens to the quality.

12 Q. Okay. What type of water quantity

13 decisions are you talking about?

14 A. Anything that has to do with water supply.

15 Q. Would that include the Stormwater Treatment

16 Areas?

17 A. Sure. Anything that falls under the rubric

18 of water management.

19 Q. Is it contemplated that this water quality

20 module of the overall model would be able to predict

21 phosphorus concentrations at particular points

22 downstream of the STAs?

23 A. Yes.

24 Q. Does the District currently have the

25 capability to predict phosphorus concentrations

1 downstream of the STAs?

2 A. I did hear your question. I'm just trying

3 to give you a considered reply.

4 I think the general answer is not really in

5 the sense that I would hope, but there were some

6 relationships developed for high and low flow of

7 conditions at the entrance to Everglades National

8 Park that I had nothing to do with that would

9 probably be called predictive.

10 Q. When were those relationships developed?

11 A. Those were part of the settlement. These

12 were in the federal government and District case.

13 Q. Who at the District was involved in

14 developing those relationships?

15 A. I think that was George Shih, S-h-i-h.

16 Q. Who in the federal government was involved

17 in developing those relationships?

18 A. Have you asked the federal government? I

19 think it was Bill Walker but you might ask them.

20 Q. And I believe you said you had no

21 involvement in the development of relationships?

22 A. None whatsoever.

23 Q. Do you recall what the relationships

24 showed?

25 A. I'd have to go back and look at the

1 document.

2 Q. What was the purpose of developing the

3 relationships?

4 A. For setting standards of phosphorus

5 concentrations going into the Park.

6 Q. Did these relationships -- were they

7 relationships between outflow concentrations in the

8 EAA and Everglades National Park?

9 A. That was not explicitly said. It was a

10 relationship between flow at the various input

11 structures to the Park and phosphorus concentrations

12 within those flows.

13 Q. Okay. So the focus was at the S-12

14 structures?

15 A. S-12s. Clearly the phosphorus had to come

16 from somewhere.

17 Q. Is it your opinion that the phosphorus came

18 from the EAA?

19 A. Well, it's all got to go somewhere, doesn't

20 it?

21 Q. Does that mean yes?

22 A. I couldn't tell you how much to attribute

23 without further study.

24 Q. Will the water quality module contemplated

25 in the RFP that we've been discussing be useful in

1 answering that question?

2 A. Yes.

3 Q. How so?

4 A. In modeling there are ways that you can

5 basically determine the relative importance of

6 sources, instincts.

7 Q. And how would this module be used to

8 determine or how could it be used to determine

9 whether the EAA is the source of phosphorus at the

10 S-12s?

11 A. Well, you know, I must say that you're

12 asking me to speculate on a model that hasn't been

13 developed yet.

14 Q. Okay.

15 A. So I would want to wait. You know, I just

16 don't think it's the time to go into the details,

17 because it depends on the response to the RFP. They

18 may have clever ways that I've never even dreamed of

19 and -- so let's hold off on that one.

20 Q. Is the Everglades Systems Research Division

21 responsible for the -- or does it have any

22 responsibility for the Everglades Nutrient Removal

23 Project?

24 A. We are responsible for research conducted

25 at the ENR and I make the distinction between

1 research and anything else.

2 Q. As opposed to?

3 A. Operation of the pumps and maintenance of

4 the levees and monitoring of the inflows and

5 outflows, that type of thing.

6 Q. Okay. And what research is your division

7 currently conducting on the ENR Project?

8 A. At this moment the only research that's

9 going on out there that I'm aware of is a study of

10 phosphorus flux from the soils into the water column

11 after they have been flooded.

12 Q. Who's performing that work?

13 A. That work is being conducted by Sue Newman.

14 Q. Has -- is it Dr. Newman?

15 A. Yes.

16 Q. Has Dr. Newman prepared any reports of the

17 findings of that research?

18 A. I've seen some draft -- very preliminary

19 draft discussion and figures of that work.

20 Q. Is she finding that phosphorus is being

21 transferred from the soils into the water column in

22 the ENR Project?

23 A. Well, I know that she could speak for

24 herself, but what I saw was a net flux of phosphorus

25 from the sediments into the water, but that is not to

1 say that that will always occur forever over all time

2 and space.

3 Q. I understand.

4 A. Okay.

5 Q. Are there any plans for additional research

6 to be conducted by your division in the ENR Project?

7 A. Yes.

8 Q. And what does that include?

9 A. There's going to be work on nutrient

10 processes in the water column and in the sediments,

11 the cycling mechanisms. There will be work on

12 periphyton and macrophyte responses. There will be

13 work on microbial populations and as monitoring data

14 becomes available then there will be mass balance

15 calculations done for various water quality

16 constituents.

17 Q. Anything else?

18 A. We may do some rough necessary coefficients

19 work, the effects of vegetation on water flow.

20 Q. Do you mean by that effects of vegetation

21 on water velocities for example?

22 A. Yes. Water velocities, that's correct.

23 Q. Is there any research contemplated for

24 mercury cycling in the ENR Project?

25 A. Yes. As you probably know, in the permit

1 there is a section on mercury.

2 Q. Who's in charge of that work?

3 A. That's a good question.

4 Q. You don't know?

5 A. Well, at this point there is no one person

6 I can say that will be in charge of that work.

7 Q. Who would be involved in that work?

8 A. I'm not sure. You know, I said that

9 there's no one person, so how can you ask me who's

10 involved?

11 Q. Well, I assume that someone from your

12 division will be involved in that work.

13 A. That may not be a correct assumption.

14 Q. That may not be a correct assumption.

15 Is there anyone that you know would be

16 involved in that work?

17 A. Possibly a contractor. You know, that's --

18 it's not defined right now.

19 Q. Are you aware of any research that has been

20 performed in the ENR Project regarding mercury

21 cycling?

22 A. The only work I know of in the ENR on

23 mercury -- you called it cycling. I don't think it

24 was cycling --

25 Q. Okay.

1 A. -- was what KBN Engineering did.

2 Q. Okay. Are you aware of any work that

3 Dr. Carl Watress has performed in the ENR Project?

4 A. Carl Watress was down here. He worked with

5 people from my staff on sampling procedures,

6 procedures for insuring that ultra trace procedures

7 were followed, but I don't characterize that as

8 research.

9 Q. Okay.

10 A. He did, however, write a report, I believe,

11 on mercury research, but I have not read it.

12 Q. Did Dr. Watress collect any water quality

13 samples for mercury analysis in the ENR Project?

14 A. I don't know.

15 Q. I take it, then, you don't know if any data

16 resulted from Dr. Watress he is work in the ENR

17 Project?

18 A. I don't know.

19 Q. Who in your division worked with

20 Dr. Watress on this project?

21 A. Larry Fink at the time was in my division,

22 I think. I can't remember exactly when he

23 transferred over.

24 Q. I understand.

25 A. Pete Rawlik, R-a-w-l-i-k. He's one of our

1 technicians. I believe Jim Grimshaw was involved.

2 Q. Do you recall the date of the report that

3 you believe Dr. Watress wrote appeared?

4 A. No.

5 Q. Was it after the first of the year?

6 A. I don't recall.

7 Q. Is your division currently involved in any

8 research regarding the Stormwater Treatment Areas

9 proposed in the Everglades SWIM Plan other than the

10 ENR Project?

11 A. I didn't quite hear you. You said a word

12 like pose. Can you say your question again?

13 Q. Is your division currently involved in any

14 research regarding proposed Stormwater Treatment

15 Areas?

16 A. Well, we have the ENR Project which is

17 obviously like a Stormwater Treatment Area and all of

18 our Stormwater Treatment Area types of research would

19 be conducted either there or in Conservation Area 2A

20 which has basically acted as a Stormwater Treatment

21 Area for the last 30 years.

22 Q. Are you aware of any work by Dr. Abtew on

23 lysimeters in the ENR Project?

24 A. I'm generally aware of that.

25 Q. What is the purpose of that work?

1 A. The purpose of that work is to measure

2 evapotranspiration from wetland vegetation.

3 Q. Various types of wetland vegetation?

4 A. That's correct.

5 Q. Is Dr. Abtew in your division?

6 A. Yes, he is.

7 Q. Do you know if Dr. Abtew has prepared any

8 reports regarding results of his lysimeter work?

9 A. Yes, he has.

10 Q. Has he estimated evapotranspiration rates

11 of various wetland species?

12 A. I believe his reports only deal with

13 cattail. Those are the published reports.

14 Q. Have you read those reports?

15 A. I have read his evapotranspiration reports

16 and peer review manuscripts just submitted for -- I'm

17 going to get confused here. I think he's actually

18 had one published in a peer review journal and I

19 think he just sent out another one to a peer review

20 journal.

21 Q. Do you recall what journal he submitted

22 those to?

23 A. There are so many journals. I'm sorry. I

24 don't remember.

25 Q. Do you recall when the first report came

1 out? First, how many reports has Dr. Abtew prepared,

2 to your knowledge, regarding his lysimeter work?

3 A. This is a guess. It's probably two or

4 three.

5 Q. Okay. Do you recall the approximate time

6 frames of those reports?

7 A. In the last year.

8 Q. You mentioned that your division either is

9 or may be doing some additional research regarding

10 the STAs in Water Conservation Area 2A, is that

11 correct?

12 A. I think you need to help me understand what

13 you mean by research regarding the STAs before I even

14 answer that.

15 Q. Okay. Well, let me ask you this. What

16 research is your division currently conducting in

17 Water Conservation 2A?

18 A. Right now there is research that is not

19 related to STAs --

20 Q. Okay.

21 A. -- but is related to defining threshold

22 nutrient concentrations for translating the narrative

23 water quality standard into a numerical water quality

24 standard.

25 Q. You're speaking of the narrative standard

1 for phosphorus?

2 A. Yes. That's correct. Or for nutrients.

3 Q. And what does that work involve?

4 A. Very generally, there is a series of

5 transects that are located in Conservation Area 2A.

6 At the beginning of the transect is where the

7 nutrients come in. This is speaking in general, very

8 general terms. As you go out in those transects the

9 nutrient input diminishes, decreases over space, so

10 along that transect we're measuring many things, but

11 the attempt is to distinguish concentrations of

12 nutrients in the water column that do not lead to

13 imbalance.

14 Q. So I take it, then, that this involves

15 water quality sampling along those transects?

16 A. Water quality sampling.

17 Q. What parameters are being sampled from the

18 water column?

19 A. There is a list, a long list of these and

20 I'm not going to be able to recall everything off

21 that list.

22 Q. Okay.

23 A. I'll tell you this, that it's the major

24 nutrients, the major cations and anions. That itself

25 is about a page full of things.

1 Q. Are --

2 A. Plus pesticides and herbicides.

3 Q. How long has this work been ongoing?

4 A. This work was recently initiated. It is

5 not a full blown effort yet. It is a -- we're in the

6 development end of things right now. We're making

7 sure that field techniques are good, that we can

8 assure the quality assurance in the future, so my

9 point here is it's been initiated only in the sense

10 that, you know, we're working out the bugs.

11 Q. When was it initiated?

12 A. I believe it was in October of '93.

13 Q. Has this work resulted in water quality

14 data from the transects?

15 A. I think the first time that we ended up

16 with water quality data from the transects was within

17 the last month. I do not believe there have been any

18 other times.

19 Q. If I wanted to obtain copies of that data

20 what would I request?

21 A. You would obviously send or copy this

22 letter to our Legal Department and you would address

23 it to Leslie Wedderburn who is Department Director of

24 Water Resources Evaluation Department and ask them

25 for the data.

1 Q. Is there a project code?

2 A. I'm sure there is, but I don't know what it

3 is.

4 One thing I overlooked in my earlier answer

5 is that this is a joint program with the Department

6 of Environmental Protection and in their capacity

7 they are setting out certain biological sampling

8 equipment such as hester dendy's and periphytometers

9 Q. Who's involved in this work from your

10 division?

11 A. Are you speaking of the planning part or

12 what?

13 Q. The actual sampling.

14 A. The actual sampling, okay. Actual sampling

15 is involving Jim Grimshaw, Pete Rawlik and a number

16 of other people, but I'm not sure which ones.

17 Q. Is there a QA Plan being followed at this

18 point for the water quality sampling?

19 A. As I said, you know, part of the reason for

20 doing what we're doing now is to work out the bugs,

21 but as far as water quality is concerned, there's

22 always in the QA Plan -- not always, but there is a

23 QA Plan at the District for the water quality.

24 Q. You're speaking of the District QA Plan?

25 A. That's correct.

1 Q. It's dated 1992, isn't it?

2 A. I have no idea what date it is.

3 Q. Is there also sediment samples being

4 collected or are there sediment samples being

5 collected in connection with this work?

6 A. There are plans to collect sediment samples

7 but, to my knowledge, none have been collected yet.

8 Q. Have you or has the District settled upon

9 the locations of the transects at this point --

10 A. Yes.

11 Q. -- or is that still to be determined?

12 A. No. The transects have been determined.

13 Q. Do they follow prior transects sampled by

14 the District?

15 A. One of them in particular does, yes. It's

16 the infamous S-10 structure transect.

17 Q. Okay. Do you recall which S-10 structure

18 that runs south from?

19 A. I think it's D, but you can't quote me on

20 that one.

21 Q. Okay. Is your division currently

22 conducting any research into WCA-2A?

23 A. All the research that we're doing in 2A

24 right now that I can recall is related to the

25 transect threshold gradings. However, I'm -- I'm

1 sure you're aware there have been aerial photography

2 studies which I'm not sure fall under, you know, your

3 concept of research. I can't read your mind.

4 Q. Okay. Are those photography studies being

5 conducted by Ken Rutchey?

6 A. Uh huh, yes.

7 Q. Is there any additional research or

8 sampling planned for WCA-2A other than the transect

9 nutrient threshold study?

10 A. We will be building two wetland water

11 quality water quantity models using data that are

12 collected from that study and that is work that is

13 presently underway.

14 Q. Are these wetland water quality water

15 quantity models something different than what's

16 contemplated in the RFP that we discussed previously?

17 A. Yes.

18 Q. Okay. What are the purpose of these

19 models?

20 A. The end use of these models is twofold.

21 The first use is to be able to understand nutrient

22 removal through wetlands and to determine how to

23 optimize that nutrient removal, so this kind of goes

24 back to your questions about STA research.

25 Q. Okay.

1 A. So that's one purpose of these models is to

2 be able to use them in a way that can help us

3 optimize phosphorus removal in STAs.

4 Q. Are there any other purposes?

5 A. The other purpose is for understanding and

6 predicting nutrients dynamics in natural systems.

7 When I say natural systems I'm talking about natural

8 Everglades system, not the constructed wetlands.

9 Q. For example, WCA-2A?

10 A. Sure. Although I would hardly call that

11 natural, at least where the S-10 structures have been

12 receiving nutrient inflows for so long.

13 Q. Any other work ongoing or planned in WCA-2A

14 in your division?

15 A. I can't think of anything more, but that

16 doesn't mean I won't think of something later and

17 I'll try to remember.

18 Q. If you ever need to supplement any of your

19 answers at any point feel free to do so --

20 A. Sure.

21 Q. -- either to add additional information or

22 explain something that you realize that you didn't

23 explain fully or something.

24 A. Sure.

25 Q. Is your division conducting any research or

1 sampling within the Loxahatchee National Wildlife

2 Refuge or WCA-1?

3 A. We are not involved as far as I know in

4 that sampling. There is sampling that is noted in

5 the Settlement Agreement to be done, but I don't

6 think any of my division members are associated with

7 that sampling.

8 Q. Do you know who is associated with that

9 sampling?

10 A. I can only say that it would be out of the

11 Water Quality Division and I don't know individuals.

12 Q. Who's the director of that division?

13 A. Maxine Cheeseman.

14 Q. I take it you have not reviewed any results

15 of sampling in the Loxahatchee.

16 A. No. No. And, frankly, I'm not even sure

17 they have initiated the sampling yet. I'm not

18 associated with that program.

19 Q. Is your division involved in any research

20 or sampling within the Holey Land?

21 A. Yes.

22 Q. What is that work?

23 A. You want to be more specific?

24 Q. What research are you performing in the

25 Holey Land?

1 A. Well, as I indicated previously, we put out

2 a report on phosphorus collections of the Holey Land.

3 Q. Right.

4 A. There was a water budget of the Holey Land

5 that was done in addition and I believe the water

6 budget was just updated recently, but that was not

7 out of my division.

8 Q. Who updated it?

9 A. Somebody from the Data Management Division.

10 Q. Okay.

11 A. There have been cores taken in the Holey

12 Land for nutrient analysis. There has been aerial

13 photography performed in the Holey Land.

14 Let me back up on that one. We have

15 produced some maps based on other people's data for

16 vegetation in the Holey Land. I believe we also have

17 some of our own information and I'm not sure how that

18 all fits together.

19 Q. Is that again Ken Rutchey's work?

20 A. Yes.

21 Q. Is Mr. Rutchey in your division?

22 A. Yes, he is.

23 Q. Any other ongoing work in the Holey Land

24 that you're aware of?

25 A. Well, I've done a preliminary look at

1 trying to explain why the cattail are in the Holey

2 Land. We're still in the exploratory draft stages.

3 Q. Have you prepared a draft report on that?

4 A. I have prepared a draft report, yes. More

5 of a draft memo than anything else.

6 Q. What's the date of that draft memo?

7 A. I can't remember.

8 Q. Within the past --

9 A. It's recent. It's within the last couple

10 of months.

11 Q. Do you have a working hypothesis as to why

12 cattail are in the Holey Land?

13 A. I think there are a number of factors. Now

14 we're speaking just of the Holey Land without

15 extrapolation to anything else, any other place.

16 Q. Okay.

17 A. There are a number of factors that seem to

18 interact. It's very hard to tease them apart from

19 the Holey Land, but there is water depth; there is

20 phosphorus in the sediments; there is whether or not

21 those soils have burned and the significance there is

22 that if soils burn, inorganic nutrients become

23 available, at least for the immediate -- in the

24 immediate sense.

25 I have done a comparison of phosphorus in

1 the sediments in terms of mass versus that which

2 comes in from the canal, the Miami Canal, so I put it

3 in a mass balance context. So the hypothesis here,

4 going back to the working hypothesis, it goes

5 something like this. You obviously need water and

6 nutrients to grow plants. Everybody knows that. The

7 cattails appear to show up in areas that are deeper,

8 which can be caused by burns of the muck and the

9 burning can cause the release of nutrients and when

10 you put all of those three things together you get

11 the growth of vegetation. In this case, cattail.

12 Cattail is well known for growing in disturbed sites.

13 And burning would certainly be a disturbance, but let

14 me make sure that we keep this conversation in the

15 context that it should be kept in. The Typha in 2A

16 may be there for the same -- the same factors may

17 play roles in 2A but their relative importance may be

18 different.

19 Q. Do you have an indication or reason to

20 believe that the relative importance of those factors

21 are different in WCA-2A?

22 A. Based on the extremely strong correlations

23 when you overlay maps of the Typha growth in 2A with

24 the phosphorus content of the sediments it's almost

25 inescapable. It's hard to believe anything other

1 than the phosphorus in the sediments is what causes

2 the Typha growth in 2A. That, of course, is a

3 correlation and, you know, it's very strong. I guess

4 I'll end there.

5 Q. Does correlation mean causation?

6 A. No, but, you know, clearly, you know that

7 there are many times when there's causation

8 associated with correlation.

9 Q. Is your division currently performing any

10 work to determine interrelationships between

11 phosphorus and mercury in the Everglades?

12 A. That is one of the items that we would like

13 to see explored as part of the ENR mercury work, but

14 we have no research ongoing that addresses that right

15 now.

16 Q. Any plan in the next year or so?

17 A. I'm sorry. I didn't hear you.

18 Q. Is there any research planned within the

19 next year or so regarding interrelationships between

20 phosphorus and mercury?

21 A. Well, if you read the permit, the permit

22 says something like in 60 or 90 days after the

23 issuance of the permit there will be a mercury plan

24 and implementation of the plan, so whenever the

25 permit is issued we'll get started.

1 Q. You're speaking of which permit?

2 A. Well, there's two. There's the DEP permit

3 and there's the federal permit and I think we're

4 pretty close. I heard something recently that we're

5 very close to getting at least the DEP one.

6 Q. I heard that too.

7 A. But I hear a lot of things.

8 Q. So do I.

9 Is your division involved in obtaining

10 those permits?

11 A. No. The permits are actually obtained

12 through the Construction Management Department.

13 Q. But your division may have input into

14 developing research proposals?

15 A. Not research proposals.

16 Q. Plans?

17 A. Just development of the permit. I mean

18 when -- the permitting process itself is not a

19 research process.

20 Q. Okay. I thought you mentioned that one of

21 these permits or both of them would require a mercury

22 research plan.

23 A. That's a requirement of the permit, so in

24 that sense, fine.

25 Q. Who within your division is involved in

1 obtaining permits from the Department of

2 Environmental Protection or EPA?

3 A. Our division personnel are not obtaining

4 permits.

5 Q. I understand.

6 A. Okay. So what's your question then?

7 Q. But your division has input into the

8 process?

9 A. Input, fine.

10 Q. Who from your division has input in the

11 process?

12 A. At this point I am probably the only one.

13 Q. Okay.

14 A. Earlier it was Larry Fink.

15 (Thereupon, a recess was taken.)

16 MR. PERKO: Back on the record.

17 BY MR. PERKO:

18 Q. Dr. Fontaine, earlier this morning you

19 mentioned that your division will be building some

20 wetland and water quality water quantity models using

21 transect work in WCA-2A, is that correct?

22 A. That's correct.

23 Q. Has that model development actually

24 commenced?

25 A. Yes.

1 Q. Who's working on that?

2 A. It's a person named Mohammed Moustafa.

3 Q. Has he actually completed developing any

4 models?

5 A. No. It's still in the development stage.

6 Q. When do you anticipate that models will be

7 available for use as a result of this effort?

8 A. For use means what?

9 Q. Well --

10 A. Not to be picky with you, but there is, in

11 my mind, differences.

12 Q. Well, you mention that there's basically

13 two purposes for these models.

14 A. Uh huh.

15 Q. One is to understand nutrient removal

16 through wetlands.

17 A. Right.

18 Q. When do you anticipate that you will have a

19 model or models that can be used for that purpose?

20 A. I see where you're heading.

21 I would say that, you know, you're talking

22 about a two year time frame.

23 Q. Same time frame for the second purpose

24 which was optimization of nutrient removal from

25 wetlands?

1 A. Close enough provided everything works and

2 goes well.

3 Q. What type of models do you anticipate being

4 developed as part of this work, flood flow, CSTR?

5 A. Well, I anticipate that we'll see models

6 that attempt to accurately represent the conditions

7 that are found in these wetland marshes.

8 Q. I have to back up. You said "in these

9 wetland marshes."

10 A. Uh huh.

11 Q. Okay. I thought these models were for

12 WCA-2A

13 A. Okay. That's a wetland. It's a marsh.

14 Q. But is it going to model the conditions in

15 WCA-2A, the flow conditions in WCA-2A for example?

16 A. We're going to use WCA-2A data as our

17 initial data for going through the modeling process.

18 Q. Okay.

19 A. There's a fair amount of data there.

20 Q. But the models may simulate different flow

21 conditions or what have you?

22 A. It could, yes. I think you need to

23 understand that there's also a data set coming from

24 ENR.

25 Q. And will that data set be used in this

1 modeling effort?

2 A. Sure.

3 Q. Okay. We've been through research or

4 sampling that your division is conducting in WCA-1

5 and WCA-2A. Is your division conducting any research

6 or sampling in WCA-3?

7 A. There's a lot of stuff going on my

8 division. That's why it takes me a little while to

9 think these through.

10 Q. Take your time.

11 A. I don't think we have any active research

12 in 3A other than -- and I'm not even sure this is

13 started -- air photo interpretation.

14 Q. And, again, would that be Mr. Rutchey's

15 responsibility?

16 A. Yes.

17 Q. Other than perhaps aerial photography are

18 you aware of any other planned research or sampling

19 to be conducted in WCA-3?

20 A. Planned is another story. We envision

21 taking the Typha study that we're conducting in

22 Conservation Area 2A now and simply picking it up, if

23 you will, and putting it into Conservation Area 3A.

24 Q. Do you envision that that study, the

25 transfer of that study would be after the WCA-2A

1 study is completed or would there be some overlap?

2 A. That depends on future budget conditions.

3 Q. And what would the purpose of -- be of

4 transferring the 2A study into 3?

5 A. Well, if you recall, the 2A study was

6 developed to come up with numerical definition for

7 the narrative standard. The same idea applies.

8 MR. PERKO: Mark this as 2, please.

9 (The document was marked Exb. No. 2.)

10 BY MR. PERKO:

11 Q. Dr. Fontaine, if you would take a look at

12 what's been marked as Exhibit 2. I'll represent for

13 the record that this is an excerpt from the expert

14 witness designation filed by the South Florida Water

15 Management District.

16 A. Okay.

17 Q. Specifically the portion designating you as

18 an expert in this.

19 A. Okay.

20 Q. Have you ever reviewed this portion, this

21 excerpt before?

22 A. Yeah. I saw this sometime ago.

23 Q. And it states that your general area of

24 expertise is Environmental Engineering and that you

25 direct the Everglades Systems Research Division in

1 the District. As you mentioned, this still accurate?

2 A. This should say Environmental Engineering

3 Sciences. I'm not an engineer.

4 Q. Okay. This states that the subject matter

5 of your expected testimony includes water and

6 phosphorus budgets for EAA and EPA --

7 A. Uh huh.

8 Q. -- formula for determining compliance with

9 EAA Rule's 25 percent phosphorus reduction

10 requirement and methodology for STA sizing. Is that

11 accurate?

12 A. Yes. But let me ask you this. I mean the

13 formula for determining compliance with EAA Rule is a

14 rule related issue. It's not a SWIM Plan issue in my

15 way of thinking, so --

16 MR. McGRATH: Gary, with respect to that,

17 obviously you can ask him questions about it.

18 He has not looked at that. It's not up to speed

19 on the EAA Rule issues. On the most recent

20 statement of issues that was not stated as being

21 an issue. Now, obviously, if, you know,

22 agriculture interests change their position

23 again and include it as an issue, Tom would need

24 some time to get up to speed.

25 BY MR. PERKO:

1 Q. Dr. Fontaine, do you anticipate testifying

2 regarding any other subject matters beyond what I

3 just identified?

4 A. Well, what I anticipate and what my lawyers

5 anticipate may be two different things. I hope that

6 there is no more.

7 Q. Have you actually developed water and

8 phosphorus budgets for the EAA and the EPA?

9 A. Have I actually developed one?

10 Q. Yes.

11 A. I actually have not.

12 Q. So you would be relying on the work of

13 others, is that correct?

14 A. That is correct.

15 Q. Did you actually author the formula for

16 determining compliance with the EAA Rule's 25 percent

17 phosphorus reduction requirement?

18 A. No, I did not actually author that.

19 Q. Who authored that formula?

20 A. At the time George Shih was in my division.

21 Q. Is it Dr. Shih?

22 A. Dr. Shih, that's correct.

23 Q. And I believe you previously testified that

24 regarding methodology for STA sizing, that you did

25 author Appendix F --

1 A. Uh huh.

2 Q. -- of the SWIM Plan, is that correct?

3 A. That's correct. Those were our initial

4 screening level compilations, yes.

5 Q. Have you performed additional calculations

6 to determine STA sizing?

7 A. No. I have not performed any additional.

8 Q. When did you first become involved in

9 developing a methodology for STA sizing?

10 A. You know, I don't recall the date. It was

11 clearly some time after March 1990. It was very

12 early on in my career at the District.

13 Q. Do you recall if it was in 1991 when you

14 first became involved?

15 A. I can tell you this. If you look in

16 Appendix F there is some reference to dates in 1991,

17 so it clearly included 1991.

18 Q. Okay. How did you get involved in

19 determining the methodology for STA sizing? Were you

20 asked by someone at the District?

21 A. I saw a need for someone to do this kind of

22 work.

23 Q. Why did you perceive that need?

24 A. Well, nobody else was doing it.

25 Q. Well at the time -- let me ask you this.

1 Are you familiar with the Settlement Agreement that

2 was reached in the lawsuit filed by the United States

3 against South Florida Water Management?

4 A. I can't repeat it verbatim, but I certainly

5 am probably as familiar as the next person who's had

6 a chance look at it.

7 Q. Were you involved in meetings that led up

8 to the negotiation or led to the execution of that

9 Settlement Agreement?

10 A. I was not involved in the settlement in a

11 major meeting kind of way. There were tons of

12 meetings, I'm sure. I don't feel like I ever

13 participated in any of them.

14 Q. You never participated in any of them?

15 A. You know, I don't know how you define

16 settlement meeting. Who would be in the room if you

17 were to define a settlement meeting?

18 Q. Do you recall attending any meetings where

19 representatives of the federal government were

20 present?

21 A. Yes.

22 Q. Okay. And did you discuss methodologies

23 for STA sizing in any of those meetings?

24 A. Yes. I would call these ad hoc meetings.

25 Q. Why would you call them ad hoc meetings?

1 A. Because they weren't formal, you know, type

2 of meetings.

3 Q. Did you begin exploring potential

4 methodologies for STA sizing prior to attending these

5 meetings?

6 A. Yes.

7 Q. I'm just trying to determine when in the

8 process you perceived the need.

9 A. Right.

10 Q. Was it before the settlement negotiations

11 began?

12 A. There's -- I don't know when the settlement

13 negotiations actually began. This is all stuff

14 somewhere else, you know, so all I know is that I

15 remember sitting in a room saying this is clearly a

16 modeling issue. Somebody needs to pick up the

17 gauntlet and do it.

18 Q. You stated that you attended ad hoc

19 meetings at which federal representatives were also

20 present where you discussed potential methodologies

21 for STA sizing, is that correct?

22 A. That's correct.

23 Q. Who were the federal representatives

24 present at those meetings? Was this more than one

25 meeting?

1 A. Let me ask you first of all what you mean

2 by federal representatives so I make sure this one is

3 clear.

4 Q. Either employees of the federal government

5 or consultants of the federal government.

6 A. Fine. Thank you.

7 The question was: Was there more than one

8 meeting?

9 Q. Yes.

10 A. Yes.

11 Q. How many meetings did you attend?

12 A. That's hard to say. I wouldn't want to

13 venture a guess.

14 Q. More than five?

15 A. I just really don't know.

16 Q. Who were the federal representatives that

17 attended these meetings?

18 A. Bill Walker, Bob Kadlec. Those are both

19 consultants. I don't recall if there were actually

20 any federal employees at these meetings.

21 Q. Do you recall if any other District

22 employees were present at these meetings?

23 A. I believe that Tony Federico was at one of

24 these.

25 Q. Anyone else from the District that you

1 recall?

2 A. I'm trying to remember the settings and go

3 through that in my mind.

4 Q. Take your time.

5 A. Bear with me here. I can't think of

6 anybody else.

7 Q. Any representatives of the Department of

8 Environmental Regulation at these meetings?

9 A. I can't definitively say.

10 Q. Do you recall any other attendees of these

11 meetings?

12 A. No.

13 Q. I take it that you had perceived the need

14 to develop STA sizing methodologies before you

15 attended these meetings, is that correct?

16 A. That's correct.

17 Q. Had you seized upon a methodology or had

18 you decided upon a methodology for STA sizing before

19 you attended these meetings?

20 A. I had a general idea.

21 Q. Did it differ from what you eventually

22 described in Appendix F of the SWIM Plan?

23 A. Did it differ? It didn't differ in the

24 sense that I saw the need for a mass balance model.

25 The mass balance context was always in my original

1 thinking.

2 Q. Okay.

3 A. Where it went through a logical process of

4 scientific thought and approach, there were

5 variations that I considered, but the end result I

6 thought was pretty good.

7 Q. Appendix F assumes a settling rate of 8

8 meters per year, is that correct, in sizing the STAs?

9 A. Basically, yes, although there are tables

10 in there that indicate what the sizes would be under

11 other settling rates, but the major premise is 8

12 meters per year.

13 Q. Was the 8 meters per year settling rate

14 discussed at the meetings you attended with Bill

15 Walker and Bob Kadlec?

16 A. Yes.

17 Q. Who first calculated the 8 meters per year

18 settling rate?

19 A. Walker or it may have been Walker and

20 Kadlec. I don't remember.

21 Q. Had you calculated a number for the

22 settling rate prior to learning of the 8 meters per

23 year that Dr. Walker calculated?

24 A. No.

25 Q. Did Dr. Walker use the same methodology

1 explained in Appendix F in calculating the 8 meters

2 per year that you discussed at these meetings?

3 A. There are two methodologies in Appendix F

4 for getting at the meters per year term. The method

5 Walker used had to do with the regressions of water

6 quality in the water column and the deposition rate

7 in the sediments. That is the Walker method.

8 Q. Uh huh.

9 A. The other method in the SWIM Plan was, for

10 lack of a better term, the one where you can back out

11 the meters per year term given certain conditions

12 that existed in Conservation Area 2A. That was a

13 modeling approach and it's, you know, different from

14 the one Walker started off with.

15 Q. Okay. But when Walker first calculated

16 that 8 meters per year, it's your understanding that

17 he used the regression approach?

18 A. Yes. That's correct.

19 Q. Could you explain to me how the regression

20 approach used in Appendix F, explained in Appendix F

21 is used to calculate a settling rate?

22 A. Okay. Very simply the results of one

23 regression equation are divided by the results of

24 another and it ends up giving you the units, meters

25 per year.

1 Q. Okay. You performed the regressions at a

2 particular distance along an S -- a transect in

3 WCA-2A, is that correct?

4 A. Right. Right. The regression is something

5 versus distance.

6 Q. Okay.

7 A. Okay.

8 Q. So you had a regression relaying the water

9 quality data and a regression -- and a regression

10 relaying the sediment data?

11 A. Yes.

12 Q. You saw those regressions along a

13 particular distance of a transect in WCA-2A?

14 A. The regressions express either water

15 quality in the water column or settling accumulations

16 in the sediments as a distance function, so you could

17 plug in one value for the other.

18 Q. So you ultimately end up with a settling

19 rate that is tied to a particular distance along a

20 transect, is that correct?

21 A. That is correct. If you look at settling

22 rates calculated along the distance axis, they are

23 basically unique to where they fall on that distance

24 axis.

25 MR. PERKO: Go ahead and mark this.

1 (The document was marked Exb. No. 3.)

2 BY MR. PERKO:

3 Q. Dr. Fontaine, if you would, take a look at

4 what's been marked as Exhibit Number 3 to this

5 deposition. Can you tell me, sir, if you recognize

6 this document? I'll represent for the record it is a

7 copy of Appendix F from the Everglades SWIM Plan

8 March 13, 1993.

9 A. Well, it looks like what you represented it

10 to be.

11 Q. And I believe you previously testified that

12 you authored this Appendix F with the exception of

13 perhaps some introductory language?

14 A. That's correct.

15 MR. FITZGERALD: I would suggest it's 1992

16 and not 1993. Other than that I would agree.

17 MR. PERKO: I'm sorry. March 13, 1992.

18 Thank you, counsel.

19 BY MR. PERKO:

20 Q. Dr. Fontaine, if you would, direct your

21 attention to Page F-4 of Exhibit 3 under Subheading

22 2, Data Inputs and Constraints.

23 A. Uh huh.

24 Q. The end of that paragraph states that, "It

25 is realistic to assume the BMPs installed in the EAA

1 for purpose of phosphorus retention should retain no

2 more than 20 percent of the water that would

3 naturally leave the EAA as runoff."

4 In Table 3 it shows an adjustment for EAA

5 BMPs.

6 A. Right.

7 Q. I take this to mean that your analyses

8 assume that 80 percent of the water that historically

9 flowed from the EAA will be treated by the STAs.

10 A. Let me think that one through.

11 Was there a two part question there?

12 Q. Let me rephrase it.

13 A. Okay.

14 Q. In calculating the size of the STAs --

15 A. Uh huh.

16 Q. -- you assumed a settling rate of 8 meters

17 per year, correct?

18 A. That's correct.

19 Q. Okay. And in that calculation you assumed

20 that 20 percent of the historic flows --

21 A. Uh huh.

22 Q. -- from the EAA would not be treated by

23 STAs, is that correct?

24 A. We assumed that there was 20 percent --

25 maximum of 20 percent retention.

1 Q. Okay.

2 A. If I can make a correction, it's not the

3 "treated" terminology because all that water some day

4 could come out. Sorry if that confuses you.

5 Q. That part of the water that's retained may

6 some day --

7 A. Right. Right.

8 Q. -- may come out?

9 Okay. But for purposes of determining the

10 STA sizing methodology --

11 A. Uh huh.

12 Q. -- you assumed that 20 percent --

13 A. A maximum of 20 percent of the water could

14 be retained.

15 Q. Okay. Does that mean that only 80 percent

16 of the historic flow would be treated?

17 A. Well, that's hard to say. Are you talking

18 about in real life or -- you know, in real life, I

19 mean we don't -- we're still working on our BMPs out

20 there.

21 Q. Right. Right.

22 But for purposes of determining the STA

23 sizes --

24 A. Uh huh.

25 Q. -- the calculations that you performed

1 assumed that only 80 percent of historic flow would

2 be treated?

3 A. Right.

4 Q. Okay.

5 A. That, by the way, is in regard to the EAA.

6 I mean there were other adjustments to the hydrology,

7 correct, when you look at the table, so --

8 Q. I understand. Well, let's refer to the

9 table in Table 3. Could you explain what Table 3

10 shows for me?

11 A. Okay. Well, the purpose of Table 3 is to

12 estimate hydrological flows that will go into the

13 water treatment areas after certain adjustments have

14 taken place. And, clearly, you have to start off

15 with what your annual period of record flows were.

16 That's basically where you start.

17 Q. That's Column A?

18 A. That's Column A. Then you start

19 subtracting out from there.

20 Q. Okay. Column B you subtract out?

21 A. Water supply bypass.

22 Q. What does water supply bypass refer to?

23 A. You're going to get a better definition

24 from somebody who does that water quantity kind of

25 calculation.

1 Q. Just asking for your understanding.

2 A. Basically water that gets shipped down to

3 the conservation areas or to the lower east coast.

4 Q. Okay. So for purposes of your analysis you

5 assumed that water supply bypasses would not be

6 treated by the STAs, is that correct?

7 A. That's correct.

8 Q. And Column C refers to land converted to

9 STAs. What does that mean?

10 A. When existing agricultural areas are

11 changed from agriculture to Stormwater Treatment

12 Areas they will not, it is assumed here, have the

13 same hydrologic runoff, you know, as if they did if

14 they continued to be ag land.

15 Q. There would be less water running off of

16 that land?

17 A. Uh huh.

18 Q. The next column refers to A-(B+C).

19 A. That's simple math.

20 Q. That's where you subtract annual average

21 period of record flows?

22 A. Right.

23 Q. You subtract from that water supply bypass --

24 A. Right.

25 Q. -- and land converted to STAs?

1 A. Right.

2 Q. What is the final column?

3 A. Okay. We need to distinguish between BMPs

4 and STAs. BMPs are things on-site in the

5 agricultural areas that are different from STAs.

6 BMPs being Best Management Practices, such as holding

7 water. That calculation basically says, you know,

8 that they can -- up to a maximum of 20 percent, they

9 would hold that.

10 Q. Okay. So you adjust the adjusted annual

11 period of record flows by the amount that can be held

12 back by the farms as a result of implementation of

13 BMPs?

14 A. Correct.

15 Q. So you end up with 80 percent of the

16 adjusted period of record flows, is that correct?

17 A. Uh huh.

18 Q. My questions is: Does that mean that your

19 analyses assume that the STAs will treat only 80

20 percent of the adjusted period of record flows?

21 A. Want to restate that? Read it back,

22 please? I want to make sure -- I'm not trying to be

23 difficult. I'm trying to absolutely understand what

24 you're saying.

25 Q. I understand.

1 (Thereupon, a portion of the record

2 was read by the reporter.)

3 MR. McGRATH: Let me just object to the

4 form of the question. Obviously, especially

5 you're focusing on the modifier "only" and I

6 don't particularly understand your use of that,

7 but you were making a point every time you asked

8 that question.

9 MR. PERKO: I don't understand your

10 objection, counsel.

11 MR. McGRATH: I'm just objecting to the

12 form of the question, to the extent you seem to

13 be focusing on the "only" aspect, "only" the 80

14 percent and I don't particularly understand that

15 focus.

16 BY MR. PERKO:

17 Q. Do you understand the question, Doctor?

18 A. I'm trying to. I'm trying to make sure I

19 understand it. You know, mathematically, it says

20 that we will treat 80 percent of the adjusted average

21 annual period of record flows, okay?

22 Q. Okay. If you were to treat 100 percent of

23 the adjusted annual period of record flows --

24 A. Okay.

25 Q. -- would you require additional STA

1 acreage?

2 A. Well, there are a number of assumptions

3 that you have to make very clear to me. In a way

4 you're asking me to speculate and not -- you have to

5 tell me whether or not they removed the phosphorus

6 from that water before it gets to the STAs.

7 Q. Assume they did not.

8 A. Assume they did not remove the phosphorus

9 and that the STAs were required to treat a hundred

10 percent instead of 80 percent, the question then is:

11 Will the STA acreage increase? Is that your

12 question?

13 Q. Yes.

14 A. Using this model the STA acreage would

15 increase. I have not run that calculation, mind you,

16 but knowing the way the model works, there's no way

17 that you would get a decrease.

18 Q. Is it your understanding that the 20

19 percent retained on-farm will be made up and

20 ultimately discharged in the Everglades Protection

21 Area through other sources?

22 A. Is it my understanding? Not really. I

23 have not really dealt with that subject.

24 Made up from where? Discharged to where?

25 Help me out here.

1 Q. Your analyses assume --

2 A. Uh huh.

3 Q. Correct me if I'm wrong. Your analyses

4 assume that the STAs will treat 80 percent of the

5 adjusted EAA flows.

6 A. Correct.

7 Q. Is that correct?

8 A. Yes.

9 Q. My question is -- well, given that

10 assumption, if the water that's retained on-farm is

11 not made up through other sources, that Everglades

12 Protection Area would receive only 80 percent of the

13 water that it historically receives, is that correct?

14 A. Okay.

15 Q. Follow me?

16 Is it your understanding that that 20

17 percent that is retained on-farm will be made up

18 through other sources so that the Everglades

19 Protection Area receives the same amount of water it

20 did historically?

21 A. Okay. I certainly have never made that

22 decision myself, but I have heard others speak that

23 there could be increased water delivery south from

24 the lake to make up for that water.

25 Q. From the lake meaning Lake Okeechobee?

1 A. Yes. That's what I have heard, but it's

2 not really my understanding about any of this, it's

3 just this is what I have heard.

4 Q. And what is the quality of that water in

5 terms of phosphorus concentration?

6 A. At the lake, you know, I don't have the

7 numbers in my head.

8 Q. Okay. Well, assuming -- is it your

9 understanding that this additional water from the

10 lake would be treated by the STAs?

11 A. I haven't assumed that at all.

12 Q. Is that your understanding?

13 A. I have no comment on it. I just can't even

14 begin to comment on it.

15 Q. Let's back up, Dr. Fontaine.

16 What was the purpose of Appendix F?

17 A. The purpose of Appendix F was to document

18 work that had been done to determine the size of

19 Stormwater Treatment Areas that would be required to

20 reach a 50 parts per billion total phosphorus over

21 the long term concentration that would then discharge

22 into the EPA.

23 Q. Where did the 50 ppb target concentration

24 come from?

25 A. That was a number that I was told to

1 basically design around. It's a design number.

2 Q. Who told you to design around that number?

3 A. Tony Federico.

4 Q. Did Mr. Federico tell you how that number

5 was derived?

6 A. The phrase used was that it's

7 "technologically feasible."

8 Q. Had you determined the settling rate before

9 Mr. Federico instructed you to use the 50 ppb target?

10 A. That's the question?

11 Q. Yes.

12 A. Okay. I don't believe so. I don't believe

13 so.

14 Q. Okay. Mr. Federico told you -- or

15 Dr. Federico, I'm sorry, told you?

16 A. Mr. Federico.

17 Q. Mr.?

18 A. Yeah. Just to let you know.

19 Q. He told you that the 50 ppb had been

20 determined to be technologically feasible, is that

21 correct?

22 A. Uh huh.

23 Q. Technologically feasible by what?

24 A. At the time there was no by what.

25 Q. Okay.

1 A. It was just technologically feasible.

2 Q. Just that Stormwater Treatment Areas in

3 general would achieve 50 ppb, that it was

4 technologically feasible?

5 A. He didn't preface it with Stormwater

6 Treatment Areas. We were told to shoot for 50 parts

7 per billion and with the phrase that that's

8 "technologically feasible."

9 Q. How can you determine technologically

10 feasibility before technology is decided upon?

11 A. Do you want me to speak for Federico?

12 Q. For yourself.

13 A. I mean I would suggest you ask Federico

14 that question. Clearly, all kinds of things are

15 decided based on other experiences or other data.

16 MR. PERKO: Let's take a short break. Five

17 minutes.

18 (Thereupon, a recess was taken.)

19 (The document was marked Exb. No. 4.)

20 MR. GAINES: Can I put something on the

21 record, a request to you, Dan? I wanted to just

22 do it now so we don't wait until the very end of

23 the day or until tomorrow.

24 Dr. Fontaine mentioned his Holey Land

25 research and draft memo that he had prepared. I

1 would request a copy of that. I don't think

2 that was produced with the documents unless Tom

3 is going to correct me on that, but I would

4 request that a copy of that be provided for

5 tomorrow morning.

6 MR. FITZGERALD: It was previously

7 identified and utilized in the deposition of Ken

8 Rutchey about ten days ago, so it would be in

9 the hands of the petitioners.

10 MR. McGRATH: Frankly, I can't make the

11 agreement on the record and be able to have it

12 first thing tomorrow morning because of the

13 District being closed today.

14 MR. GAINES: Sometime during the session

15 tomorrow would be fine with me. If Dr. Fontaine

16 did prepare it I think that should be part of

17 his documents and if Mr. Fitzgerald said that's

18 a Rutchey exhibit -- you don't happen to

19 remember what exhibit was that was, do you, Tom?

20 MR. FITZGERALD: I didn't bring my computer

21 today. I could get it out of that. I probably

22 will bring it tomorrow if they have got the

23 little plug fixed and I can tell you then.

24 MR. GAINES: I'll try --

25 MR. FITZGERALD: It was the subject of a

1 fair amount of discussion at Ken's deposition,

2 so I'll try to remember.

3 Who did his deposition?

4 MR. GAINES: I'll try to get it through my

5 office, but I also request that he try to get it

6 or any related data or documents that go with

7 it.

8 BY MR. PERKO:

9 Q. Okay. Dr. Fontaine, I believe you

10 previously testified that the purpose of Appendix F

11 was to document work in sizing the STAs, is that

12 correct?

13 A. Yes.

14 Q. Whose work were you documenting?

15 A. Mine.

16 Q. Yours?

17 A. I mean --

18 Q. Did you independently derive the equations

19 on Page F-8?

20 A. Okay. The equations on F-8 came from work --

21 was based on work done in my division.

22 Q. By whom?

23 A. The actual work, the phosphorus

24 concentration, equation 3 was for -- from work done

25 by Urban, et al. and then the equations 1 and 2 were

1 the work based on work of Marguerite Koch and Reddy.

2 Q. Who actually developed the regressions?

3 A. Well, you know, we did it in -- I think I

4 assigned it to Brad Jones to do a regression on that

5 data.

6 Q. What kind of regression did you use?

7 A. Well, the form that you see right there.

8 Q. I'm trying to understand how Brad Jones

9 went about developing this regression.

10 A. Well, he would have had the data in there,

11 you know.

12 Q. Did he use a standard statistical package?

13 A. Yeah, but I don't recall what it was. I'm

14 afraid I just don't have that memory.

15 Q. Okay.

16 A. And I am sure we'll get to it, but I think

17 it's fair to identify that, you know, a follow up

18 memo identified that there was a problem with the

19 units.

20 Q. Who compiled the data used for the TP

21 concentration in equation 3?

22 A. In equation 3, who compiled it? Well, that

23 data, I believe, was from Nancy Urban's work, so the

24 original compiler would have been Nancy Urban.

25 Q. Okay. Why did you select Nancy Urban's

1 work for this equation?

2 A. Well, sorry to laugh. Because it was the

3 only data that were there that we knew of that, you

4 know, basically fell along the sediment accumulation

5 data. You look for the best available data, let's

6 put it that way.

7 Q. Did you subsequently identify other data

8 that fell along the sediment accumulation data?

9 A. No. My involvement was very -- no. Not

10 that I recall.

11 Q. Are you familiar with data from sites B-2,

12 B-3, B-4, B-5, B-6 and B-7?

13 A. I want to make sure that there are Bs

14 before all of those numbers.

15 Q. Yes.

16 A. Are you sure?

17 Q. Yes. B-1 through B-7.

18 A. You know, am I familiar with them? You

19 know, I couldn't locate them exactly for you at this

20 moment, but I can go back to the water quality data

21 base and certainly pull information, yeah.

22 Q. Is there additional data from WCA-2A that

23 could have been used in equation 3?

24 A. In equation 3? I'm having trouble with the

25 memory banks. I'm trying to remember. This was a

1 long time ago. Is there additional data? Along that

2 same transect or anywhere else?

3 Q. Do you have to use data from the same

4 transect in equation 3?

5 A. That would be the preferable place.

6 Q. Why is that preferable?

7 A. The ideal situation is where the overlaying

8 water column data overlays the sediment data.

9 Q. So you would want to use concentrate --

10 water concentration data for the same transect that

11 you have sediment data for?

12 A. Ideally. There is no ideal, though.

13 Q. Okay. And I believe you said that the

14 sediment data was from Marguerite Koch's work?

15 A. That's correct.

16 Q. That was a different study from the Urban

17 study that resulted in that water column data,

18 correct?

19 A. You know, it took place before I even got

20 here, so I don't really know.

21 Q. I'm trying to understand if those sediment

22 samples and the water quality samples were taken

23 contemporaneously.

24 A. I don't know.

25 Q. But, to the best of your knowledge, they

1 were along the same transect?

2 A. They certainly head in the same direction,

3 basically north/south. Are they located exactly at

4 the same centimeter of transect? Well, I don't think

5 so.

6 Q. Was the regression in equation 3 based on

7 average concentrations over the 1986-1990 period of

8 record or individual concentrations?

9 A. I recall that it was average and then there

10 was a drought year in that period of record, which

11 honestly I don't remember how that was figured in.

12 Q. So there was a drought year within the 1986 --

13 A. Yeah.

14 Q. -- through '90 period of record?

15 A. Yes.

16 Q. And you do you recall how that data was

17 treated?

18 A. I don't think it was included, but I really

19 can't remember.

20 Q. How did you develop the 26 year net

21 phosphorus deposition rate in equation 1?

22 A. Okay. Basically the same approach was used

23 as with the water quality in the water column.

24 Q. Okay. Did you break the data, divide it by

25 26?

1 A. Which equation are you referring to now?

2 Q. 1.

3 A. Did I divide it by 26? No. Unless --

4 let's make sure we understand here. You know,

5 honestly, the regression equation, I'm trying to

6 recall if that was -- I believe that was furnished.

7 I'm sorry. It was furnished by Koch and Reddy. How

8 many years ago was this? But the deposition

9 regression equations were Koch and Reddy.

10 Q. Did you develop annual accumulation rates

11 for purposes of this analysis?

12 A. Okay. First of all, equation 1, it says 26

13 year net deposition rate. That's exactly what it

14 means.

15 Q. That's the net over a 26 year period?

16 A. Over 26 years.

17 Q. So you did not use annual deposition rates?

18 A. You just emphasized the word "net" so let

19 me make sure I understand where you're going.

20 Q. Let me ask you. What does the word "net"

21 mean in that context?

22 A. It means the sum of all processes that lead

23 to the accumulation or deposition of phosphorus and

24 that can cover a lot of ground scientifically, but

25 it's the net result. It's like your checking

1 account.

2 Q. What processes are involved? Name some for

3 me.

4 A. Well, there's decomposition. There's

5 actual settling of particles.

6 Q. From the water column?

7 A. From the water column to the sediments.

8 There could be some resuspension of this,

9 resuspension of sediments into the water. There can

10 be precipitation of phosphorus with calcium,

11 depending on the pH. That would go from the water

12 column to the sediments.

13 Q. Uh huh.

14 A. You can have the macrophytes, whether they

15 be Typha or sawgrass or whatever growing, which would

16 take up phosphorus and then dying which would lay

17 down phosphorus.

18 Q. That phosphorus would be taken up from the

19 soil?

20 A. Somewhere in the soil.

21 Q. Okay.

22 A. Now, wait a minute. Let me make sure.

23 Honestly, that is -- I think that question is better

24 answered by a plant physiologist. I'm not an expert

25 in that.

1 Q. Is there vertical movement of phosphorus in

2 the soil column?

3 A. It's possible.

4 Q. Do you have an opinion as to whether there

5 is in WCA-2A?

6 A. I don't have an opinion.

7 Q. Why would there be vertical movement if

8 there was?

9 A. Why would there be vertical movement?

10 Well, in the soil you have diffusion processes where

11 things can go from high concentrations to low.

12 That's a possible reason. I think, you know, you're

13 in an area that I'm not an expert in soils. A soils

14 person would be more qualified.

15 Q. Okay. What are the resulting units in

16 equation 1? What units does that equation result in?

17 Is it grams per meter squared per year?

18 A. Oh. I understand. Yes.

19 Q. So you ultimately result in an annual

20 accumulation rate?

21 A. I'm sorry. I understand now where you're

22 coming from with your original question.

23 Grams per year squared per year, yes.

24 Q. Did you take the total phosphorus in the

25 cores down to the cesium peak and divide by 26 to get

1 that annual accumulation rate?

2 A. I didn't do that work. That work was

3 supplied to me. You're going to have to ask them.

4 Q. Supplied to you by whom?

5 A. Koch and Reddy.

6 Q. Does equation 2 ultimately result in a

7 product expressed in grams per meter squared per

8 year?

9 A. I would say that that was certainly the

10 intent. Although I understand where you're coming

11 from, looking at where it says five year, but that's

12 a little difficult to ascertain whether it's five

13 year or grams per meter squared per year. The intent

14 was grams per year.

15 Q. Do you know how that number was derived?

16 A. I did not do that calculation so I think

17 you need to talk to somebody else.

18 Q. Okay. Who provided you that calculation?

19 A. Again, that would be Koch and Reddy. You

20 know, just to help you out here, on Page F-6, which

21 is the, you know, verbiage that comes before

22 equations 1 and 2 --

23 Q. Uh huh.

24 A. -- it says a lot of words here. It says

25 the equations developed describe the net flux grams

1 TP squared per year. So those are the units. So it

2 was stated here and Koch was referenced.

3 Q. Does this language that you just pointed

4 out give you any indication of how the 26 year rate

5 was derived?

6 A. Does the language that I just pointed out

7 give you an indication of how the 26 year rate was

8 derived?

9 Well, I want to answer your question, but

10 I'm not sure I understand it.

11 Q. Well, maybe I'm not expressing it

12 correctly. But we talked about how equations 1 and 2

13 ultimately result in a number expressed in grams per

14 meter squared per year and I was trying to understand

15 how you developed that annual number --

16 A. Uh huh.

17 Q. -- from a 26 year accumulation of soil.

18 A. Uh huh.

19 Q. Does the language that you just pointed out

20 give you any indication of how that number was

21 derived?

22 A. No.

23 Q. So, again, you would defer to Drs. Koch and

24 Reddy?

25 A. Right. That's not Dr. Koch, but it is

1 Dr. Reddy.

2 Q. Marguerite Koch?

3 A. Right.

4 Q. And Ramesh Reddy?

5 A. Yes.

6 Could I take a couple minutes?

7 MR. McGRATH: Sure.

8 MR. GAINES: It's about 5 to 12. We should

9 just break.

10 MR. McGRATH: Let's do lunch.

11 MR. PERKO: An hour?

12 MR. McGRATH: Sure. About quarter to one

13 let's come back.

14 (Thereupon, a lunch recess was taken.)

15 BY MR. PERKO:

16 Q. Dr. Fontaine, if I could direct your

17 attention back to Page F-8?

18 A. Could I give you a time out?

19 Q. Sure.

20 A. Before we broke for lunch, I was thinking

21 about what I had said and I want to make sure that I

22 correct something that I said.

23 Like I indicated, it's been a long time

24 since we've done some of this stuff and what I meant

25 to say in regard to these regressions is that the

1 regressions were not all by me, because I indicated

2 previously that I think we did the water quality one.

3 That was taken from Urban's work, okay, so Urban

4 supplied the water quality in the water column

5 regression. The sediment came from Koch and Reddy

6 and what I had assigned to Brad Jones, since I

7 mentioned his name, was basically to take those two

8 regressions, put them in a spread sheet and run the

9 division of the results of one regression by another

10 one. So in terms of actually making the regressions

11 I did not do that.

12 Q. Okay. Just to make sure I understand,

13 those regressions were actually made by Koch and

14 Reddy?

15 A. They're in -- to the best of my knowledge

16 they were made by them. I didn't make them. They

17 appear in a number of their published pieces of work.

18 Q. So, at your direction, Brad Jones took

19 those regressions and performed the division?

20 A. The division, yeah. That's right.

21 Q. Okay. If I could turn your attention to

22 Page F-8 --

23 A. Okay.

24 Q. -- of Exhibit 3 Appendix F.

25 A. Okay.

1 Q. Referring back to equation number 3 --

2 A. Okay.

3 Q. -- regression for TP concentration in the

4 water column.

5 A. All right.

6 Q. Did you use averaged data or did -- I guess

7 I will correct myself.

8 Is it your understanding that Koch and

9 Reddy in developing this regression used averaged

10 data?

11 A. First of all, equation 3 is Urban.

12 Q. Okay. I stand corrected.

13 A. Okay. I don't really recall. We'd have to

14 go back and look.

15 Q. Do you recall how many data points were

16 used in developing the regression?

17 A. The exact number, no.

18 Q. Do you know if the regression accounts for

19 the variability among stations?

20 A. In general a regression equation accounts

21 for very little --

22 Q. Okay.

23 A. -- in the data that's put into the

24 regression, so --

25 Q. If the regression relied upon was based

1 upon averaged data as opposed to individual data

2 points --

3 A. Okay.

4 Q. -- would you lose information regarding the

5 variability between stations?

6 A. I understand now where you're heading here.

7 The question is: Would you lose information? That's

8 a judgment that will depend on how big the

9 variability is around each data point.

10 Q. Do you know if an analysis of variability

11 was performed in developing these regressions?

12 A. I can visualize the graphs that I have seen

13 where they have data plotted with what appear to be

14 standard error bars associated with them, so that,

15 yes, the answer is, yes, it seems like somebody did

16 some estimation of the variance.

17 Q. Do you recall if that graph appeared in a

18 paper by Miss Urban?

19 A. I don't recall if it's in a paper, no, I

20 don't.

21 Q. Do you recall who prepared the graph?

22 A. No. No way.

23 Q. Go ahead and look at this one.

24 MR. GAINES: What's the date on that, Gary?

25 MR. PERKO: May 21st.

1 BY MR. PERKO:

2 Q. Dr. Fontaine, if you would, take a look at

3 what's been marked as Exhibit 4 to this deposition.

4 A. Okay.

5 Q. Do you recognize that document?

6 A. I sure do.

7 Q. And could you identify it for me?

8 A. This is a document that I wrote to my boss

9 Tony Federico concerning the apparent settling rate

10 coefficient values.

11 Q. Why did you write this memorandum?

12 A. Well, a couple reasons, actually. There

13 was a units problem and this is the primary reason.

14 There was a units problem in the SWIM Plan and that

15 needed to be corrected because it affected the

16 calculation and, secondly, I felt that we needed to

17 spend more time looking at these data to understand

18 the data and to just scrutinize basically the process

19 that led to the meters per year calculation.

20 Q. How did you become aware of the problem

21 with the units?

22 A. Someone mentioned to me one day that it

23 just -- something didn't seem to be right.

24 Q. Can you explain to me what the problem was?

25 A. The problem in the -- I mean it's right

1 there in the text. I mean we can all just read it

2 together, but accumulation rate, the equation has X

3 in miles and it was supposed to be kilometers, so --

4 well, anyway, that's the problem.

5 Q. As I understand this memorandum -- let's

6 back up a little bit.

7 A. Uh huh.

8 Q. You refer to past calculations?

9 A. Right.

10 Q. And those are the calculations used in the

11 SWIM Plan, is that correct?

12 A. Yeah. It's interesting. I mean the short

13 answer is yes.

14 Q. Okay.

15 A. The three equations 1, 2, 3 of this memo,

16 to the best of my recollection, refer to the ones

17 that we originally used.

18 Q. Okay.

19 A. Right.

20 Q. Okay. Was the problem with the units, did

21 that -- was that problem apparent in what appears in

22 the Appendix F?

23 A. I'm not sure what you mean is it apparent.

24 Q. Well, did you have the problem with the

25 units in Appendix F?

1 Let me strike that.

2 A. Okay. I'm working with you. I'm trying.

3 Q. Okay. At the bottom of page 2 on this

4 memorandum --

5 A. Yeah.

6 Q. -- Exhibit 4, you state, "Unfortunately, X

7 in the equation was supposed to have been expressed

8 as kilometers, therefore invalidating these results."

9 A. Yes.

10 Q. Were -- did this units problem invalidate

11 the results of Appendix F?

12 A. Certainly not the whole thing.

13 Q. Okay. Equations 1 through 3?

14 A. No. No. It was this particular

15 accumulation rate.

16 Q. This particular accumulation rate?

17 A. Right.

18 Q. And you're referring to equation number 4?

19 A. What I'm referring to there is number 4,

20 yeah. It says this is how it presently appears in

21 the SWIM Plan. The irony of this, of course, is we

22 could have left the original equations 1 through 3 in

23 this memorandum in the SWIM Plan, but in an attempt

24 to keep the SWIM Plan as current as possible, this

25 units problem crept in and this would have been a

1 non-issue.

2 Q. Okay. So the problem did not creep in in

3 connection with equations 1 through 3?

4 A. As expressed in the SWIM Plan right now?

5 Q. Yes.

6 A. Those, the ones in the SWIM Plan right now

7 have this problem that I refer to in this memo,

8 correct.

9 Q. Okay. How did that problem affect the

10 results of the regressions in the ultimate products

11 of the equation?

12 A. Let me make sure I understand. You want to

13 know how it affected the meters per year term?

14 Q. Exactly.

15 A. Okay. Good. In general it lowered it, as

16 I hope, is clearly stated in this memo. It lowered

17 it slightly. That's indicated somewhere in here. I

18 said, "Nevertheless, they are not different enough to

19 merit extreme concern." That's a quote.

20 Q. Where are you reading from, Doctor?

21 A. From Page 3.

22 But it did end up lowering the results, but

23 I want to point out, as I have indicated in the

24 section below that, that there are other ways of

25 trying to figure out what those coefficients are,

1 which are pretty independent of those regressions and

2 that's what I call the modeling approaches and in the

3 SWIM Plan I show that there's probably a range of 6

4 to 10. And, in deed, if you look towards some of the

5 newer documents, you will find that 10.2 is the

6 number you're hearing now which is quite consistent

7 with what I did.

8 Q. At the bottom of Page 1 of Exhibit 4,

9 Dr. Fontaine, you note that, "When dividing equation

10 1 or 2 by equation 3, the distance over which results

11 were originally reported from the first four miles on

12 the transect south of the S-10C. Upon reexamination,

13 it is probably more correct to report results for

14 data corresponding to data falling between 1 and 5.7

15 miles south of the S-10 structures."

16 A. Okay.

17 Q. "These boundaries on the calculation

18 reflect the constraints of the most limited data set,

19 in this case, the water column data."

20 A. Yes.

21 Q. Could you explain what you mean in the

22 sentence, "These boundaries in the calculation

23 reflect the constraints of the most limited data

24 set"?

25 A. Okay. If -- I'm trying to draw an aerial

1 diagram here for you, but I can't do it. What I'm

2 trying to say is that within say distance X and

3 distance Y there are data for both the sediment data

4 and the water column data.

5 Q. Okay.

6 A. And then outside of X and Y there are data

7 for, I believe it's just the sediment, but not the

8 water column.

9 Q. So, for example, between 0 and 1 mile you

10 had sediment data but not water quality?

11 A. At the time that I wrote this, I believe

12 that was the case, yes.

13 Q. Okay.

14 A. So -- okay.

15 Q. The next sentence you say, "However, if a

16 regression produced negative results the boundaries

17 of the valid results would decrease to eliminate

18 consideration of the negative results."

19 A. Uh huh.

20 Q. Could you explain what you mean by that?

21 A. Occasionally in a regression you will find

22 that if you carry it out far enough you will get

23 nonsensical results. And regressions are best used

24 within the range of the data that you have and if you

25 were to, say, take this regression for either one of

1 these and carry it out, say, for 50 miles away, put

2 50 miles into that regression, you're going to get a

3 negative number probably. That's -- I can't tell you

4 that's what the calculation will be, but I'm telling

5 you that there is a point at which you can get some

6 negative numbers and that would not make sense. So

7 my thoughts here, of course, were to make this make

8 sense.

9 Q. Okay. How did you decrease the boundaries

10 of the results? I don't understand this statement.

11 A. Whenever -- remember you have two

12 regressions and you're putting in distances into

13 those.

14 Q. Okay.

15 A. Let's say that between 1 and 5 miles one of

16 them gives you positive results and that at the five

17 mile marker one of them gives you a negative result

18 just due to the regressions stated. I said well, you

19 know, I can't divide these numbers together, the

20 negative and positive, it just doesn't make sense.

21 So I would say, at that point, let's not think about

22 using that.

23 Q. When you're dividing the regressions --

24 regression results rather --

25 A. Uh huh.

1 Q. -- do you have to use the same distance in

2 developing the regression results? Do you follow

3 what I mean? I'm just trying to understand.

4 A. Yeah. That, you know -- let's see. Just

5 retrace my calculations here. If you predict using

6 the regression, this is what the sediment is,

7 sediment characteristic is at this mile and then at

8 this mile and this mile and this mile, then you

9 should be doing the same with the water column, but,

10 you know, obviously it's a continuum. You can do it

11 at mile 00.1 and 00.2 and slicing the pie very thin.

12 Basically, you are dividing the continuous results

13 into the continuous results of the other one.

14 Q. How do you ultimately come up with a single

15 settling rate? Do you average the results of the

16 number of distances?

17 A. You're asking how I do and I think I've

18 specified that pretty well in here. I said that

19 there's a range and that I would take the average

20 within what I thought were validly constrained

21 regions, so I reported things as ranges. I think in

22 some places you'll see ranges and then an average of

23 those ranges.

24 Q. You state in the next sentence, "Water

25 column data occurred between 2.7 and 3.7 miles.

1 Therefore, the least error in calculations settling

2 rates should occur there." Is that what you were

3 just referring to as the tightest?

4 A. Well, that's slightly different. That's

5 slightly different. I'm just saying when you're

6 looking for, you know, numbers with the least error

7 in them, you obviously deal with errors with the

8 least -- numbers with the least error. At the time I

9 wrote this, that's what I thought, that the water

10 column data showed the tightest standard error

11 measurements between those miles.

12 Q. Would that mean that the value resulting

13 from division of the regression results between 2.7

14 and 3.7 would give you the best estimate of the

15 settling rate?

16 A. That's a tricky question. Not that you're

17 trying to be tricky here. That's a tricky question

18 because if the standard error there is extremely

19 tight and all the other ones, say at the other end of

20 the spectrum are reasonably tight, that doesn't

21 invalidate those ones at the ends of the spectrum.

22 Just says that the ones in the middle are extremely

23 tight. And, as you look at those data, you will see

24 that there's a range in numbers with the lowest

25 settling rates closest to the structures and the

1 highest on the way out. So, you know, I think that

2 there can be -- there could be differences of

3 opinions, but you need to keep in mind that the data

4 along the entire transect can still be quite good.

5 Q. Do you know what the vegetation is in this

6 area between 2.7 and 3.7 miles?

7 A. I could find out, but I can't tell you at

8 this moment.

9 Q. Does the vegetation affect the settling

10 rate at a particular distance along the transect?

11 A. It's possible.

12 Q. How would the vegetation affect the

13 settling rate?

14 A. Well, if the vegetation -- and when you

15 speak of vegetation, I'm assuming that you mean the

16 tall macrophyte type vegetation --

17 Q. Yes.

18 A. -- plus any algae, plus any periphyton. Is

19 that what you're saying?

20 Q. Well, let's limit it now to the macrophyte

21 vegetation. Would the macrophyte vegetation affect

22 the settling rate at a particular distance?

23 A. You know, I just don't have the information

24 to tell you.

25 Q. What would you need to answer that

1 question?

2 A. Some reasonably designed research study or

3 perhaps an analysis of the existing sediment data

4 using -- this is not my area at all -- using some

5 kind of, you know, paleontological research work. I

6 mean some plants probably accumulate, put down more

7 stuff into the sediments than others.

8 Q. If that's the case, would the settling rate

9 be higher for that plant species as opposed to

10 another plant species that doesn't?

11 A. Well, you know, what we're doing here is

12 we're taking this plant out of the context in which

13 it grows, which includes the periphyton and water

14 chemistry, all of those things are affected by that

15 plant, so I just can't answer the question for a

16 plant. That's why I'm struggling with this question.

17 Q. Well, assume,