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.                 )
17 
                          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.
21 
   
22 
     Monday February 21, 1994
23   319 Clematis Street, 5th Floor
     West Palm Beach, Florida 33401
24   9:10  -  11:50 a.m.
   

                                                 2

 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
 6 
          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
10 
          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
13 
          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
16 
          Also Present:  Ronald Munson
17 
   
18                         -  -  -

                                                 3

 1                         -  -  -
 2                      I  N  D  E  X
 3                         -  -  -
 4 
 5  WITNESS:             DIRECT  CROSS  REDIRECT  RECROSS
 6  Thomas Fontaine
 7 
    BY MR. PERKO            5
 8 
   

                                                 4

 1                         -  -  -
 2                     E X H I B I T S
 3                         -  -  -
 4  NUMBER                                                    PAGE
 5 
 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

                                                 5

 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.

                                                 6

 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.

                                                 7

 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 --

                                                 8

 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?

                                                 9

 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

                                                 10

 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

                                                 11

 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.

                                                 12

 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

                                                 13

 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?

                                                 14

 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.

                                                 15

 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

                                                 16

 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?

                                                 17

 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?

                                                 18

 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

                                                 19

 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

                                                 20

 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

                                                 21

 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

                                                 22

 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

                                                 23

 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

                                                 24

 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.

                                                 25

 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

                                                 26

 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?

                                                 27

 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

                                                 28

 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

                                                 29

 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.

                                                 30

 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.

                                                 31

 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.

                                                 32

 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

                                                 33

 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.

                                                 34

 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

                                                 35

 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?

                                                 36

 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

                                                 37

 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

                                                 38

 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

                                                 39

 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.

                                                 40

 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

                                                 41

 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.

                                                 42

 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?

                                                 43

 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

                                                 44

 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

                                                 45

 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

                                                 46

 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:

                                                 47

 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 --

                                                 48

 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.

                                                 49

 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?

                                                 50

 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?

                                                 51

 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

                                                 52

 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

                                                 53

 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

                                                 54

 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.

                                                 55

 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.

                                                 56

 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

                                                 57

 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.

                                                 58

 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

                                                 59

 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.

                                                 60

 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?

                                                 61

 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.

                                                 62

 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

                                                 63

 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.

                                                 64

 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?

                                                 65

 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

                                                 66

 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.

                                                 67

 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

                                                 68

 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

                                                 69

 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

                                                 70

 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

                                                 71

 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

                                                 72

 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

                                                 73

 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?

                                                 74

 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

                                                 75

 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.

                                                 76

 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

                                                 77

 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

                                                 78

 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

                                                 79

 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

                                                 80

 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.

                                                 81

 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

                                                 82

 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.

                                                 83

 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

                                                 84

 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?

                                                 85

 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

                                                 86

 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,

                                                 87

 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

                                                 88

 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

                                                 89

 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.

                                                 90

 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.

                                                 91

 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

                                                 92

 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

                                                 93

 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, then, that -- assume my
18   question is for the whole community and not just the
19   macrophyte.  Would you expect to see a difference in
20   the settling rate between one community and another?
21   For example, a cattail marsh versus a sawgrass marsh?
22       A.    Uh huh.  The uh huh is I'm just uh huh-ing
23   your question.  Doesn't indicate agreement.  It's not
24   a Pepsi commercial either.
25             I think it's possible, but I don't think

                                                 94

 1   the experimental evidence has yet been either put
 2   together or run.  And it may exist out there, but I
 3   don't have it in my mind.  It's really not my field.
 4       Q.    Do you know if there's any research ongoing
 5   or planned in connection with the ENR Project that
 6   would have a bearing on that question?
 7       A.    We plan to measure the accumulation of
 8   sediments and associated, you know, nutrients in the
 9   ENR Project.
10       Q.    What is the predominant vegetative
11   community in the ENR Project?
12             First of all, has the ENR Project been
13   constructed?
14       A.    The ENR Project is constructed.
15       Q.    What's the predominant vegetative
16   community?
17       A.    Depends on where you are.
18       Q.    Okay.
19       A.    In the upper cells -- are you all familiar
20   with the cell structure?  Probably not.  Anyway, in
21   the upper cells, cells 1 and 2, it is predominantly
22   either Typha as we speak or it is envisioned to be
23   Typha.  In cell 3 that is a planted mixed marsh that
24   is planted with approximately 810,000 plants of
25   varying species and then cell 4 is what we're calling

                                                 95

 1   an algal polishing cell where there will probably be
 2   sparse emergent macrophyte growth, but largely the
 3   planktonic periphyton under water macrophyte type of
 4   growth.  We don't expect the big emergent plants to
 5   be there.
 6       Q.    What type of communities do you anticipate
 7   that the STAs will have -- include?
 8       A.    Well, I would imagine it's -- you know,
 9   it's hard to hold the crystal ball open here, but I
10   would imagine that they are going to have cattails.
11       Q.    Throughout?
12       A.    Well, you know, you need to specify at what
13   time period, okay?  There will be a succession
14   possibly, but in the end, just as we saw in 2A, I
15   would expect to see cattails.  You know, I must say
16   some of what grows there depends on how the water is
17   managed.
18       Q.    How so?
19       A.    Well, if you never put water in them you
20   probably won't get anything.  If you turn them into a
21   lake you probably will have phytoplankton.  There's
22   all kinds of extremes.
23       Q.    Is it your understanding that the STAs will
24   be allowed to dry out?
25       A.    I remember discussions on this point

                                                 96

 1   several years ago or two years ago probably, but I
 2   don't recall what was discussed -- what was
 3   determined at the end.  There was discussion of
 4   whether or not they should be allowed to dry out.
 5       Q.    Do you recall discussions about maximum
 6   water depths?
 7       A.    In the STAs?
 8       Q.    Yes.
 9       A.    I don't recall those discussions, although
10   they may have taken place.
11       Q.    Do you recall discussions about minimum
12   detention time?
13       A.    Yes.  There was discussion of minimum
14   detention times, absolutely.
15       Q.    Was a -- to your knowledge, was a minimum
16   detention time ultimately decided upon for the STAs?
17       A.    There was always talk of about a 14 day
18   detention time and then the discussion moved around
19   that number and I'm not sure where they ended up,
20   because that's work that came after mine.
21       Q.    After your --
22       A.    After my initial scoping calculations.
23       Q.    By what time were your initial scoping
24   calculations complete?
25       A.    What's the date on the SWIM Plan?

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 1       Q.    March 13, 1992.
 2       A.    That would be the outward, outer edge of
 3   the envelope.  I don't remember.  You know, it was
 4   obviously before that.  Between there and March 1990.
 5       Q.    I believe you mentioned that the farther
 6   along you go along the WCA-2A transect you see higher
 7   settling rates, is that correct?
 8       A.    That's what the -- when you divide -- let
 9   me make clear.  When you divide the results of those
10   two regression equations, that's what you see.
11       Q.    Okay.  To what do you attribute that
12   increase in settling rates?
13       A.    I haven't a clue.
14       Q.    Do you have a hypothesis?
15       A.    I don't know what to tell you at this
16   point.  I don't have a hypothesis.  Usually I don't
17   get that much freedom to even think about hypotheses
18   any more.  That is freedom from the administrative
19   end of things.
20       Q.    How do you know at which point to stop your
21   analyses?
22       A.    Well, I tried to outline that in this memo.
23   I think I've stated it pretty clearly, how I felt it
24   should be done.
25             You are speaking of just the regression

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 1   analyses at this point, I assume?
 2       Q.    That's right.
 3       A.    Okay.
 4       Q.    If the STAs ultimately become cattail
 5   infested, is it appropriate to use settling rates
 6   from areas in WCA-2A that are not dominated by
 7   cattails in designing the STAs or sizing the STAs,
 8   rather?
 9       A.    I think what we need to keep going back to
10   is that we have a history of nutrients being
11   accumulated in the soils of 2A.  That is a very
12   noticeable accumulation based on the loads that came
13   in over a 30 year period.  That accumulation has
14   taken place and at the same time you've seen changes
15   in vegetation associated with that.  There is a plant
16   succession qualifier that has to be added into this
17   discussion.  The Typha did not immediately appear as
18   a big wedge that is equal to the phosphorus wedge in
19   the sediments.  I'm trying not to be academic with
20   this answer, but it's hard to believe that given the
21   history that 2A has experienced that nutrients will
22   not accumulate.
23       Q.    But will they accumulate in the STAs at the
24   same rates as WCA-2A if there's different vegetation?
25       A.    Well, you know, I don't think that

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 1   experiment has been done.  At the time of the sizing
 2   of the STAs it was the best professional judgment of
 3   all of those involved that you had a data set out
 4   there that showed what happened when elevated
 5   nutrient inputs were put into it and, based on that,
 6   we had to go forward and size the STAs.  It's one of
 7   the best data sets for this kind of thing I've seen
 8   and it's not terribly inconsistent with some other
 9   data sets that have been looked at in the world,
10   so --
11       Q.    Will the ENR Project -- data from the ENR
12   Project tell us whether the settling rates of WCA-2A
13   are transferable to the STAs?
14       A.    Well, I guess I have two answers to that
15   question.  One is that the 2A data was the best we
16   had available and that it's transferable.  The other
17   is that the ENR Project will accumulate phosphorus or
18   other nutrients over a period of time.  Obviously, to
19   get a 26 year record like exists in 2A, would take 26
20   years.  So there's a very long term answer to your
21   question.  I would hope that we can see accumulation,
22   you know.  That's what we think it's going to be in
23   the first five years, but the trouble was nobody was
24   around 26 years ago or 30 years ago making those
25   kinds of measurements as the Typha started to grow in

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 1   or as the vegetation in 2A started to change,
 2   whenever it did start changing.
 3       Q.    I think you said that you had hoped that
 4   you would get information about the accumulation
 5   rates that are ultimately going to be achieved within
 6   five years, is that correct?
 7       A.    Well, I can hope for anything.  You know,
 8   it's -- we have experiments planned to measure it,
 9   but we actually are planning to make those
10   measurements and perhaps I've been in the business
11   too long.  You hope that things work out, you know,
12   like hurricanes don't come along and rip your
13   equipment out of the ground and things like that.
14       Q.    How long will it take the STAs to
15   stabilize, if you will, to the point where you have a
16   settling rate of 8 meters per year?
17       A.    Well, you know, the 8 meters per year term,
18   if we're going to focus on that, is what comes out of
19   a long term analysis.  It's an average number.  The
20   number in the beginning of the STAs may be greater.
21   It may be less.  It may be just right on it.  I won't
22   be able to tell you when you're going to see that.
23       Q.    Do you anticipate that there will be a
24   point at which you reach equilibrium, so to speak, to
25   see a long term settling rate consistent over time?

                                                 101

 1       A.    Equilibrium is a funny term.
 2       Q.    Okay.
 3       A.    I think -- God, I don't know what to tell
 4   you.  It's a great question.  It's a great question
 5   that we're going to have to follow.  I think you may
 6   see some numbers that are higher than 8 in the
 7   beginning and they may go down and they may go up and
 8   they may go down.  It's like a sign wave.  It may
 9   start out big and then start damping, coming more
10   around to the 8 meters per year and how that sign
11   wave --
12       Q.    Do you know how the settling rate -- if the
13   settling rate has changed over time in WCA-2A?
14       A.    Give me the time frame.
15       Q.    In the past 26 years.
16       A.    Changed over time means what?
17       Q.    Increased or decreased.
18       A.    We know the average over 26 years.
19       Q.    So we don't know how, if at all, that
20   settling rate has changed?
21       A.    I personally cannot draw a graph showing it
22   was 8 this year, 6 one year, 5, 10, 12.  I can't do
23   that for you.  I don't know if anybody can.  There
24   may be techniques out there that can do it for you.
25       Q.    If -- it's my understanding that the

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 1   current loadings to WCA-2A are somewhere around 60
 2   tons per year, is that correct?
 3       A.    I haven't recently looked at that
 4   information, so I really can't tell you.
 5       Q.    Assume that the loadings to WCA-2A remain
 6   the same.
 7       A.    Okay.
 8       Q.    Will there reach a point where the
 9   system -- where the settling rate decreases?
10       A.    Where it decreases?  I have no idea.  I
11   mean all I can tell you is that we have seen a net
12   accumulation over 26 years and that's inescapable.  I
13   can't tell you if you're going to start seeing -- are
14   you talking about ad infinitum, adding nutrients
15   forever?
16       Q.    Uh huh.  Yes.
17       A.    Forever.  Boy.  Forever.  Geological time.
18             MR. FITZGERALD:  I'm going to object on
19        that one.  That's so obviously patent.  Calls
20        for rank speculation.
21             THE WITNESS:  I guess that's where I was
22        heading, but I was pondering it because
23        geological time and events kind of fall in those
24        kinds of answers.
25   BY MR. PERKO:

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 1       Q.    What about 20 years?
 2       A.    20 years.  20 years.  Let's see.  You know,
 3   I have really no basis to answer that question and
 4   that's not to say that somebody else wouldn't, but I
 5   don't feel like that's in my bag of tricks right now.
 6       Q.    Do you have an opinion as to how long the
 7   STAs can be expected to remove phosphorus at the
 8   rates calculated for WCA-2A?
 9       A.    I think that's almost part and parcel of
10   the same question you've been asking and aren't you
11   asking it just in a different way?
12       Q.    I'm asking if you would expect a change in
13   the effectiveness of the STAs to remove phosphorus
14   over time.
15       A.    I think I need to try to summarize this all
16   because I'm honestly getting a little tired of trying
17   to go down this path.  I don't know where to go with
18   you on this one.
19       Q.    Okay.
20       A.    The long term records in 2A indicate that
21   there's been net accumulation and that's that.  You
22   know, that's that.
23       Q.    You mention that the 2A data is
24   transferable to the STAs.  What is that opinion based
25   on?

                                                 104

 1       A.    What it's based on is the best available
 2   information that we have in this South Florida
 3   region.
 4       Q.    Well, I'm a little bit confused,
 5   Dr. Fontaine.  You said that your conclusions
 6   regarding the Holey Land --
 7       A.    Uh huh.
 8       Q.    -- may not be directly transferable to 2A,
 9   for example.
10       A.    Uh huh.
11       Q.    Okay.  Why did you make that qualification
12   with respect to the Holey Land and 2A --
13       A.    Uh huh.
14       Q.    -- in light of the fact that you believe
15   that WCA-2A data is transferable to the STAs?
16       A.    A equals B equals C therefore A equals C.
17       Q.    Well --
18       A.    I'm just trying to get the math here or the
19   conceptual guidance here.  I believe what I said is
20   that the factors responsible for growth of Typha in
21   the Holey Land are the same factors that can cause
22   growth in 2A, but their relative importance is
23   probably different.  That's the 2A and Holey Land
24   comparison.
25       Q.    Okay.

                                                 105

 1       A.    Now, take me from there to where you're
 2   going.
 3       Q.    Okay.  Are the factors affecting phosphorus
 4   uptake in 2A the same that you would expect from the
 5   STAs?
 6       A.    The factors, yeah.  Yes.
 7       Q.    Will the relative importance of those
 8   factors be different in the STAs?
 9       A.    From 2A?
10       Q.    From 2A.
11       A.    Well, we haven't built the STAs yet, so
12   that's kind of hard to figure.  You want -- if you
13   want a direct comparison, we don't have a way to
14   compare them.  It has been our best professional
15   judgment that the accumulation records that you see
16   in 2A, that same type of accumulation will occur in
17   the STAs.
18       Q.    Do you anticipate that there will be
19   periphyton based polishing cells in the STAs?
20       A.    Well, I haven't been involved -- directly
21   involved in the much more recent work that has to do
22   with making the STAs.  It's possible that there could
23   be, but I don't know if anybody has decided that.
24       Q.    If I could, again, refer you to Exhibit
25   Number 4, the third page --

                                                 106

 1       A.    Okay.
 2       Q.    -- under the heading Modeling Approaches.
 3       A.    Sure.
 4       Q.    You state that, "Several attempts have been
 5   made to back out the settling rate coefficient by
 6   using known loads and hydrologic conditions in a
 7   model of WCA-2 total phosphorus dynamics that has the
 8   settling rate as the only unknown.  This approach is
 9   independent of calculations described above and
10   resulted in estimates of 6 to 10 meters per year,
11   (SWIM Plan Appendix F) and approximately 8 meters per
12   year, (Burns & McDonald)."
13             Could you explain to me these attempts to
14   back out the settling rate coefficient?
15       A.    Uh huh, sure.  I'll be glad to.  Unlike the
16   regression approach where you simply divided two
17   numbers, the results of two regressions and got two
18   numbers, the idea here is basically to have a set of
19   equations where there's only one unknown in that
20   equation so that if you know what the loads are and
21   other things, you -- the only thing that's unknown is
22   the settling rate.  For instance, you knew what the
23   accumulation record was in the sediments.  You knew
24   basically what the water quality and the water column
25   settling were and the only way to -- the only thing

                                                 107

 1   missing was the meters per year settling rate so if
 2   you apply the meters per year settling rate and found
 3   that your model output act