201 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 II 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 Tuesday February 22, 1994 23 319 Clematis Street, 5th Floor West Palm Beach, Florida 33401 24 9:20 a.m. - 4:55 p.m. 202 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 17 - - - 203 1 - - - 2 I N D E X 3 - - - 4 5 WITNESS: DIRECT CROSS REDIRECT RECROSS 6 Thomas Fontaine 7 BY MR. PERKO 205 8 BY MR. GAINES 281 204 1 - - - 2 E X H I B I T S 3 - - - 4 NUMBER PAGE 5 6 EXB. 13 9-1-93 Draft Work Plan 205 7 EXB. 14 2-4-94 Burns & McDonnell report 260 8 EXB. 15 6-17-91 fax cover sheet to Walker 355 9 and load calculations 205 1 CONTINUED DIRECT (Thomas Fontaine) 2 MR. PERKO: Ready to go back on the record. 3 Will you mark this, please. 4 (The document was marked Exb. No. 13.) 5 BY MR. PERKO: 6 Q. Good morning, Dr. Fontaine. We'll be 7 continuing the deposition this morning. Same rules 8 apply. If you don't understand my question, please 9 tell me and I'll try to rephrase it. If you need to 10 take a break, let me know and we'll do so. 11 A. Okay. 12 Q. If you could, direct your attention to 13 what's been marked as Exhibit Number 13 to this 14 deposition and tell me if you recognize that 15 document, sir. 16 A. Yes. This is a work plan that is -- that 17 addresses field monitoring for the purpose of 18 defining the no imbalance water quality standard. 19 Q. Does this work relate to the transect 20 sampling that you said is currently being conducted 21 in WCA-2A yesterday? 22 A. Yes, it does. 23 Q. Did you have any input into the preparation 24 of this document? 25 A. You can see that my name is the last one on 206 1 the list there and so I know it was -- I was not the 2 main author, but I certainly went over most of it. 3 Q. Was it prepared under your direction? 4 A. Sure. Yes. 5 Q. Okay. I note that it's stamped Draft. Is 6 there a final version of the document in circulation 7 yet or has it been prepared? 8 A. This is definitely a draft. I would have 9 to check to see if there's anything more recent. I 10 don't think there is, but I would have to check. 11 MR. PERKO: Counsel, if I could request 12 that Dr. Fontaine look at his files, if there's 13 a final version, if he could produce it for us. 14 MR. McGRATH: Okay. 15 BY MR. PERKO: 16 Q. Dr. Fontaine, what is the purpose of the 17 field monitoring outlined in this draft work plan? 18 A. Well, the idea is to get at the number, the 19 nutrient threshold number that no imbalance occurs at 20 through field sampling. 21 Q. Okay. If you could direct your attention 22 to Page 2, very bottom paragraph. 23 A. Uh huh. 24 Q. First sentence of that paragraph states 25 that, "SFWMD and the DEP agree that available data 207 1 indicate that the total phosphorus concentration 2 ultimately necessary to fully achieve and maintain 3 compliance with the applicable water quality 4 standards are well below 50 ppb, (cited Nearhoof 5 1992.)" 6 Is it your understanding or do you agree 7 that available data indicate that the total 8 phosphorus concentration ultimately necessary to 9 achieve and maintain water quality standards is well 10 below 50 ppb? 11 A. My opinion, based on what I have been able 12 to see so far, is that the number is below 50 parts 13 per billion. 14 Q. And what is that opinion based on? 15 A. If you look at the transect, the Urban 16 transect along -- well in Conservation Area 2A and 17 then look at the vegetation from impacted to, shall 18 we say, minimal impact, it seems that 50 parts per 19 billion number does not fall in the minimally 20 impacted area. It seems to fall in an area where 21 vegetation would not be considered natural. 22 Q. Okay. When you say minimally impacted 23 area, what are you referring to? 24 A. I'm referring to the end basically of 25 transect down at -- I believe they call it the 217 208 1 station. 2 Q. What do you consider to be the natural 3 vegetation of WCA-2A? 4 A. Well, the Everglades historically have been 5 a sawgrass community with periphyton mats and also 6 tree islands in certain places, but that's -- 7 Q. Are you familiar with what has been 8 referred to as the cattail monoculture immediately 9 south of the S-10 structures? 10 A. Yes. 11 Q. What was the natural vegetation in that 12 area? 13 A. I honestly can't tell you that. 14 MR. FITZGERALD: I'm sorry. I've got to 15 object. That's such a vague question. Are we 16 talking over the 5,000 year history of the 17 Everglades or talking since the construction of 18 the structure? Can you give the witness a time 19 frame? 20 BY MR. PERKO: 21 Q. Dr. Fontaine, when you referenced natural 22 vegetation previously in one of your answers, what 23 did you mean by natural vegetation? 24 A. There have been numerous reports, 25 historical observations, whatever, that say sawgrass 209 1 and periphyton marshes are the natural vegetation. 2 I'm trying to recall the dates of how far back these 3 reports go, but, you know, thinking back to the 4 1900s, basically. I believe that -- and you will 5 have to check with other people on this -- but there 6 has been a progression of cattail in the conservation 7 area, growth outward in terms of area for some time, 8 say the last, you know, 30 years, but don't hold me 9 to the 30 years. I'm just saying that as an example. 10 And it was not evidently there at some point to the 11 extent that it is now. 12 Q. When you say other people who do you mean? 13 A. Well, I would refer you to Ken Rutchey's 14 work and I believe that work was with a person named 15 Jensen. 16 Q. Dr. Fontaine, beginning on Page 5 of 17 Exhibit 13 and then again beginning on Page 8, the 18 work plan describes Phases I, 2 and 3 -- 19 A. Uh huh. 20 Q. -- of this study. Could you briefly 21 describe for me what those phases entail? 22 A. Okay. Well, Phase I is in Conservation 23 Area 2A and that's where we will be doing basically 24 exploratory surveys, working the details out of 25 sampling procedures and things like that. 210 1 Phase 2 will continue in Conservation Area 2 2A, based on the preliminary screening in Phase I 3 sampling and it would represent an enhanced -- 4 enhanced work in 2A. 5 Then Phase 3 will be basically an expansion 6 of the transect in phase -- in 2 into other areas 7 such as Conservation Area 3. 8 Q. Why did you determine it to be useful to 9 expand this study into other areas? 10 A. Uh huh. We feel that there is a need to 11 determine if the numerical standard for imbalance 12 changes geographically. 13 Q. Do you have indication at this point that 14 the numerical standard would change geographically? 15 A. I don't have data that would either support 16 or negate the position that it would change 17 geographically, but it seems to be the right thing to 18 do. 19 Q. Why does it seem to be the right thing to 20 do? 21 A. Well, I think the argument here is kind of 22 circular now, because there could be geographical 23 differences in numeric standards. You may find that 24 communities respond differently as you change in 25 latitude. 211 1 Q. I'm trying to understand why you think the 2 communities may respond differently. 3 A. Well, because, as you change latitude, 4 things change. You know, if you fly over certain 5 areas of conservation areas, you'll see that there 6 are somewhat differing vegetation types and it seems 7 that in order to set standards with communities that 8 may be slightly different, that you would go and 9 perform your experiments in those different 10 communities. 11 Q. Are there differences other than in 12 vegetation types that may make it necessary to define 13 a different number for different geographic areas? 14 A. Well, I think a lot of that is what these 15 studies are proposing to do. There are clearly 16 differences in latitude, okay? But in terms of the, 17 you know, soil conditions and the hydrologic 18 conditions, some of that is yet to be defined and 19 will be as a function of this study. 20 Q. Do you anticipate that this study will 21 result in a single number, if you will, for a 22 particular community? 23 MR. McGRATH: Object to the extent that 24 you're asking the witness to speculate on the 25 results of the study that's not complete yet. 212 1 THE WITNESS: I would have to agree with 2 counsel. I don't know until the data come in. 3 BY MR. PERKO: 4 Q. Dr. Fontaine, if you direct your attention 5 to Page 8 of Exhibit 14 under Section 4.2. 6 MR. FITZGERALD: I'm sorry. Exhibit 13 or 7 14? 8 MR. PERKO: 13, I guess. 9 MR. FITZGERALD: I heard 14. I just wanted 10 to make sure. 11 BY MR. PERKO: 12 Q. Section 4.2 is entitled, Numerical water 13 quality criterion for "no imbalance" phosphorus 14 concentration. Under that Subheading the document 15 states, "We propose the following administrative 16 definition of an area-specific, no observable 17 ecological imbalance for the Everglades." 18 A. Uh huh. 19 Q. The reference to "we" I assume means the 20 authors of this paper, is that correct? 21 A. It certainly could be taken that way. This 22 has been looked at, you know, throughout the 23 District, so I -- you know, I guess the "we" could be 24 the authors, but it may go farther than that because 25 there was review of this document. 213 1 Q. Okay. And who is the administrative 2 definition being proposed to? 3 A. Well, DEP is responsible for the -- I would -- 4 I hope I get the role right, the implementation, the 5 enforcement of these kinds of things. So what we 6 simply did was propose something. It's, of course, 7 up to them to decide what they want to do with our 8 proposal. 9 Q. Okay. Has DEP, to your knowledge, provided 10 any feedback during the proposal? 11 A. They did review this document. I don't 12 recall if they specifically commented on that 13 section. 14 Q. Do you know who at DEP reviewed the 15 document? 16 A. Frank Nearhoof is the only one that I can 17 think of. 18 Q. Okay. How was the proposed administrative 19 definition developed? 20 A. Through basically discussions among staff. 21 Q. Did you receive any input from the Office 22 of General Counsel? 23 A. I didn't, no. 24 Q. Do you know if anyone else did? 25 A. I don't know. 214 1 Q. Do you know if anyone received input from 2 the Executive Offices of the District? 3 A. I don't know that either. 4 Q. The proposed administrative definition 5 states that, "In the segment of the transect where no 6 statistically significant difference can be detected 7 between the impacted transect sites and unimpacted 8 reference sites using the most sensitive, 9 biologically relevant, reliable measures taken over 10 the appropriate spatial and temporal scales, the 95th 11 percentile lower bound concentration of the log 12 transformed total phosphorus concentration in the 13 water column in that segment, (both reference site 14 and "impacted" sites) becomes the threshold 15 phosphorus concentration for biological imbalance." 16 Is it your understanding that a biological 17 imbalance occurs whenever there's a statistically 18 significant difference depicted between an unimpacted 19 and impacted site using the most sensitive 20 biologically relevant and reliable measures? 21 A. Let me make sure I heard the question 22 right. Is it my understanding that a biological 23 imbalance occurs only when there's a statistical 24 difference? 25 Q. Or when there is a statistical difference. 215 1 A. Well, I think biological imbalances can 2 occur, but you may not be able to prove that they're 3 occurring. You know, if you don't, for instance, 4 have the right measurement of some, you know, what 5 you think is biological imbalance and biological 6 imbalance may be occurring; you may not have 7 identified the right measurement, that's one of the 8 purposes of doing the study is to examine a number of 9 measures of biological imbalance. 10 Q. Okay. Have you determined the most 11 sensitively -- most sensitive biologically relevant 12 reliable measures that would be used in this proposed 13 implementation of this proposed study? 14 A. I'm going to thumb through this because I 15 believe we discussed a number of possible indicators 16 of biological imbalance and then narrowed the list 17 down to ones that we thought were the most easily 18 worked with and most relevant and I'm looking for 19 that. I do see in Table 1 towards the back that 20 there's a whole list of things, but I don't see the 21 list here, at least yet, of where it was narrowed 22 down. Part of what needs to be understood in this 23 discussion is that the DEP people have a great say in 24 what they consider to be the best indicators of 25 biological imbalance and that's certainly their call. 216 1 What we did -- I think it's on Page 4. We said based 2 upon the evaluation and collective knowledge, etc., 3 etc. of all the stuff in Table 1 that I just referred 4 to -- 5 Q. Uh huh. 6 A. -- we came up with a proposed list of what 7 we thought what might be the most sensitive measures 8 for defining ecological imbalance. 9 Q. And that's reflected in Table 2 on Page 4? 10 A. Table 2 on Page 4, yes. 11 Q. Just so I understand your -- make sure I 12 understand your testimony, that your current thinking 13 on the most sensitive biologically relevant reliable 14 measures would be reflected in Table 2? 15 A. That's our current thinking. 16 MR. GAINES: Can I ask the doctor to point 17 out where Table 1 is is in this document? 18 MR. PERKO: Yes. 19 THE WITNESS: Table 1 is in the back of the 20 document. Let me take a look at it to see if 21 it's under the appendices. Actually, it's just 22 Table 1 in the back. I don't know why it's in 23 the back. But anyway it's in the back of the 24 document. 25 MR. GAINES: Thank you. 217 1 Sorry to interrupt. 2 THE WITNESS: That's fine. 3 BY MR. PERKO: 4 Q. I note that outgoing phosphatase activity 5 is not included in Table 2. 6 A. Uh huh. 7 Q. Is there a reason why you did not include 8 outgoing phosphatase activity in that table? 9 A. Well, first let me see if it was included 10 in Table 1. Yeah. I can see it there in Table 1. 11 We went through a process to get to Table 2 and those 12 are listed as A through G. I won't read them all, 13 but A through G on Page 4. And it was the thinking 14 of the staff in my division who have, you know, say 15 far greater hands on, you know, capability with these 16 kind of biological indicators, that the list in Table 17 2 would be the best to use. That's our thinking at 18 this time. It is not to say that the outflowing 19 phosphatase activity cannot indicate imbalance. It's 20 just that we feel that what we listed in Table 2 was 21 probably the best that we could manage, so I think 22 that's why we listed it. If you just look through 23 Table 1 at phosphatase activity, its utility, its 24 biological relevance is high; diagnostic power we 25 call medium high; sensitivity is high; signal to 218 1 noise ratio is medium; response time of effect is 2 within hours; time for method to resolve changes is 3 in days; predictive time scale is S-S and I don't 4 have a definition for you right now, so let me take a 5 look and see if that's defined anywhere. So I 6 wouldn't rule it out, you know. It's just that given 7 what we can do, in our thinking at the time, that we 8 would go with what's in Table 2. 9 Q. You mentioned individuals on your staff 10 that have experience in working with these various 11 indicators. 12 A. Right. 13 Q. Who would those include? 14 A. In terms of the indicators in Table 2? 15 Q. Yes. 16 A. The people that have been listed as authors 17 here above my name are -- would be the ones that 18 would have the most experience. Now, let me tell you 19 that also if we're going to look at macrophyte 20 species composition changes, then clearly that 21 requires some kind of aerial photography or could 22 require aerial photography and you would, you know, 23 look to somebody like Ken Rutchey for that kind of 24 information. 25 Q. Referring you back to the definition in 219 1 Section 4.2 on Page 8 I believe you stated that there 2 may be instances wherein a biological imbalance 3 occurs but you couldn't prove it, is that correct? 4 A. You can't prove what you don't measure. 5 That's my point there. If you haven't measured it, 6 it doesn't mean it didn't happen. 7 Q. Okay. Does a statistically significant 8 difference prove an imbalance? 9 A. What it says is that there are differences 10 between this aspect of the community in this place 11 and the same aspect of the community in another 12 place. 13 Q. Okay. Does such a difference mean that an 14 imbalance has occurred in the impacted site? 15 A. If what is in the, quote, impacted site is 16 not natural, what the natural Everglades were at some 17 point, then it would indicate that a change had 18 occurred. 19 Q. Do I understand your prior testimony to 20 mean that you don't have a specific date in mind in 21 determining what is natural? 22 A. Well, at one point Florida was under water. 23 I mean, you know, I -- I'm not really even sure how 24 to answer that question. I mean there are, you 25 know -- there's some documentation of what was 220 1 natural. There's those maps I referred to in the 2 South Florida Study yesterday that indicated what 3 occurred at various times back to, I believe, the 4 early 1900s. That is a history record. There are, I 5 believe, cores that were taken that have examined the 6 peat content of Everglades peat and that there's been 7 some determination as to what made that peat, what it 8 is and there -- I'm just reaching here because I 9 can't exactly remember the reference, but I will try 10 to come up with a name here for you in just a second. 11 The peats were supposed to have been developed as a 12 function of sawgrass communities. There is -- yes, 13 here it is. There is a person named Arthur Cohen, I 14 believe, University of South Carolina, who has 15 published extensively on the peat composition, the 16 plants that, you know, went into making up that peat 17 and I can't recite, you know, his findings for you. 18 Q. Do you recall if he authored a paper or 19 papers with Spackman? 20 A. With who? 21 Q. Spackman. 22 A. Spackman is not a name I'm familiar with. 23 Q. The proposed administrative definition, as 24 I read it, uses a comparison of impacted versus 25 unimpacted sites, is that correct? Or would use 221 1 comparisons? 2 A. Would use, yes. 3 Q. Is it assumed that the unimpacted site 4 contains natural vegetation? 5 A. Well, again, it goes back to this 6 discussion about what's natural vegetation. I think 7 that the thinking at the time was that unimpacted 8 site reflects on what is considered to be certainly 9 more natural than the impacted site. These 10 unimpacted sites have, you know, periphyton mats and 11 sawgrass communities which are typically considered 12 historical Everglades communities. 13 Q. The proposed administrative definition 14 refers to the 95th percentile lower bound 15 concentration of the log transformed total phosphorus 16 concentration in the water column in that segment of 17 the transect where no statistically significant 18 difference can be detected. 19 A. Uh huh. 20 Q. Is there an aerial component of that 21 segment? 22 A. An aerial component? I'm not sure I 23 understand. 24 Q. How do you define segment? Is it any point 25 along the transect or is there -- 222 1 A. Oh, I understand. I understand. Well, 2 there will be sampling locations along the transect 3 and, you know, I can't tell you exactly what the area 4 of the sampling will be. For instance, it's typical 5 to have a meter square or two meter square quadrat in 6 which you sample so, obviously, there are some area 7 being considered. 8 Q. But that has not been decided at this 9 point? 10 A. I don't recall that they have gotten that 11 specific yet. That's -- as I said earlier, this is a 12 draft proposed approach and I think that they are 13 trying to work out what would make scientific sense. 14 Now, from the DEP approach, you know, they would be 15 putting out these hester dendy's which are obviously 16 at a point, but then, they are, you know, circular 17 and so there is some area associated with them. The 18 same thing goes to the periphytometers that they 19 would be working with, so even though it's, you know, 20 at a point, there's still some area. 21 Q. There's another reference in here to using 22 most sensitive biologically relevant reliable 23 measures taken over the appropriate spatial and 24 temporal scales. 25 A. Uh huh. 223 1 Q. What is meant by spatial scales? 2 A. Well, let's imagine in the idealized world, 3 that we have a gradient that goes from totally 4 impacted to no impact at all -- 5 Q. Uh huh. 6 A. -- and if you were to sample along that 7 line you would -- I'm sorry. If you were to sample 8 at the beginning of that transect and at the end of 9 the transect, then you would have -- you wouldn't 10 have as much insight as to where you started to see 11 changes from what is considered impacted to 12 nonimpacted. So, again, in the idealized 13 hypothetical world, let's presume that half way down 14 that transect we start seeing a change from what's 15 considered impacted to what's considered nonimpacted. 16 That can give you a sense of the number, this 17 numerical standard at which imbalance begins to 18 occur. I'm not saying that's how you would identify, 19 but that gives you the sense that this is the place 20 where maybe things are starting to change. So the 21 spatial scale aspect is you would want to, you know, 22 take a number of points down that gradient in order 23 to get the best idea of when things actually shifted 24 to imbalanced and just to -- and just say to do one 25 at the top and one at bottom would not be sufficient 224 1 to do that. That's one aspect of the spatial. There 2 also is the aspect of the geographic allocation in 3 the spatial extent. Is what you do in Conservation 4 Area 1 applicable to 2, applicable to 3, applicable 5 to the Park? 6 Q. Okay. 7 A. So those are the two components of spatial 8 extent. 9 Q. What about temporal scales? What is meant 10 by that? 11 A. Temporal simply denotes time. 12 Q. Sorry. Didn't mean to interrupt. 13 A. Well, time scales such as: Do you see 14 differences at all times of the year? Do you see 15 differences only during the wet season? Do you see 16 differences only during the dry season? So that 17 speaks to the temporal scale. 18 Q. Okay. So it's basically a seasonal 19 component or would it also include a diel component? 20 A. It could include a diel component, yes. 21 Q. In the second paragraph of the proposed 22 administrative definition it states, "In those 23 circumstances where the sediment is the limiting 24 medium for the limiting nutrient, the threshold 25 phosphorus concentration in the sediment will be 225 1 translated into an equivalent concentration in the 2 water column using agreed upon methods." 3 Under what circumstances would the sediment 4 be the limiting medium for the limiting nutrient? 5 A. Okay. Let me try to somewhat rephrase your 6 question. Not that I'm trying to change your intent, 7 okay? 8 There are water quality criteria. 9 Everybody knows about those. Recently there has been 10 recognition of the need for sediment quality 11 criteria. The EPA has done this sort of thing and I 12 believe that they either have come out with or are 13 about to come out with sediment quality criteria for 14 whatever circumstances. That's the intent of what 15 we're saying here. You know, if we believe that the 16 sediments are of a quality that lead to imbalance, is 17 there a way to measure something in the water that 18 reflects what's going on in the sediments? In other 19 words, is it an easier way in a sampling sense to go 20 out and sample water and analyze it than it is to go 21 out and do sediments which require just a little bit 22 more work? 23 Q. Okay. Was this sentence drafted with 24 specific indicators in mind? 25 A. No. It's pretty open, I would say, 226 1 although -- well, let me take that back. It does say 2 the threshold phosphorus concentration in the 3 sediment will be translated, so I think the intent 4 here -- and I must say, you know -- well, the intent 5 here is that if you have growth of, say, Typha, the 6 question that's being begged is: Where is it getting 7 its phosphorus from? And I think that's the intent. 8 You know -- I wasn't -- I can't remember, you know, 9 working with the people on the intent here, so I'm 10 just kind of trying to speculate, although perhaps I 11 shouldn't. 12 Q. I don't want you to speculate, Doctor, but 13 I'm just trying to understand what's meant in the 14 sentence. 15 A. Let me give you a more concrete example. 16 You know, this is drawing on toxic substances. The 17 EPA is trying to put together a sediment quality 18 criteria for toxic substances in sediments and it's 19 known that given a certain situation that you know so 20 much level of mercury or PCPs or whatever toxic 21 substance you have will be harmful to the benthic 22 vertebrate population, so that's an example of where 23 some of this thinking can go because imbalance is not 24 only indicated in plants, it could also be in the 25 animal populations. 227 1 Q. Okay. But, for example, as part of this 2 study, you may attempt to develop a threshold 3 sediments concentration that causes a shift from one 4 macrophyte community to another? 5 A. That's possible. 6 Q. Okay. Does the District currently have the 7 ability to translate threshold sediment 8 concentrations into equivalent water column 9 concentrations? 10 A. To translate? 11 Q. As contemplated in the second sentence. 12 A. Well, I don't think the work has been done 13 yet. I mean I don't want to gloss over what was done 14 and discussed yesterday about relating water column 15 concentrations to sediment deposition rates. That 16 was done yesterday in our previous discussions about 17 settling rates. And, clearly, if you will, the word 18 translation may apply there. You talked about 19 translating. I would say maybe, you know, I would 20 maybe choose a different word, but -- 21 Q. Well I chose the word, "translate" because 22 it appears in the second sentence of the proposed 23 definition. 24 A. Uh huh. 25 Q. That's what I'm referring to. 228 1 A. Okay. So, anyway -- okay. You know, then, 2 I would say that there is a relationship that we 3 developed, as you know, with those regression 4 equations that we talked about yesterday between 5 what's in the water and what's been deposited in the 6 sediment which is an accumulation rate. What I think 7 is envisioned here is not necessarily related to the 8 accumulation rate. It may be just a quantity. But, 9 again, I need to preface all of this, in that this is 10 a draft. This is an approach. This is not 11 necessarily the final approach. These are the best 12 thoughts that we have at the time that this was 13 written. 14 Q. Is there a component of the study that will 15 help -- will provide information relevant to the 16 translation of threshold sediment concentrations to 17 equivalent water column concentrations? 18 A. Well, I think we have to see what the data 19 tell us. I mean if we go along and measure sediment 20 nutrient content and water nutrient content as 21 proposed, we would certainly look for those 22 relationships, but the study has not been done. 23 Q. I was just asking if you think that 24 information will be gleaned from this study that will 25 be relevant to that translation. What I understood 229 1 you to say is the water quality sampling, P sediments 2 sampling may be used for that purpose. 3 A. It's hard to speculate on what is going to 4 be gleaned when we haven't done it yet. 5 Q. You mentioned yesterday that as part of the 6 transect work that's currently ongoing, DEP has been 7 installing biological samplers at various times. 8 Hester dendy's, for example. What individuals at DEP 9 are involved in that sampling program? 10 A. Okay. Give me a minute to think. Frank 11 Nearhoof is the contact point, but the actual people 12 at DEP that are doing the periphytometer and hester 13 dendy work are not Frank. I can picture the faces, 14 but I cannot remember those names for you. 15 Q. Okay. You also mentioned that you first -- 16 I think your phrase was ended up with data last 17 month, is that correct, as a result of that transect 18 work? 19 A. I'd have to go back and read the record to 20 see what I said, but it was recent. Recently, you 21 know, within the last month. 22 Q. What data, to your knowledge, has been -- 23 has resulted from the transect work that's being 24 conducted today? 25 A. Uh huh. There has been some water quality 230 1 data in the water column. I believe there have been 2 some periphyton samples taken. I don't know if they 3 have been analyzed yet. I believe that there has 4 been some work on light penetration through 5 vegetative canopies and some work on metabolism of 6 periphyton and at the moment that's what I recall. 7 Q. Okay. Have you reviewed the water quality 8 data? 9 A. No, I haven't had a chance to look at it. 10 Q. Do you know who would be the custodian of 11 that data at the District? 12 A. Well, that would be in our water quality 13 data base, which is under the Water Chemistry 14 Division. 15 Q. Leslie Wedderburn's division? 16 A. Well, Leslie Wedderburn is the department 17 director. Maxine Cheeseman is the director of that 18 division. That data may or may not be in the data 19 base yet because there's a series of checks that have 20 to be done before it's actually permanently entered. 21 Q. Is it your understanding that the data 22 that's resulted from the transect work so far is from 23 one sampling event or more than one sampling event? 24 A. They have been out -- 25 Q. I'm just asking -- speaking about the water 231 1 quality data at this point. 2 A. Just the water quality? 3 Q. Yeah. 4 A. My understanding is they have just done 5 water quality data one time. Things may have 6 happened this week, that, you know, I'm not aware of. 7 But right now I just know of one. 8 Q. You mentioned that some work has been done 9 to determine light penetration through vegetation 10 canopies. 11 A. Yes. 12 Q. How is that work being conducted? 13 A. Can you define what you mean by how? 14 Q. Is it along several stations along the 15 transect? 16 A. That's my understanding, that that is along 17 several stations. 18 Q. Who's responsible for that work? 19 A. That work is being conducted by Jim 20 Grimshaw. 21 Q. You also mentioned some testing of the 22 metabolism of periphyton. 23 A. Uh huh. 24 Q. What do you mean by that? 25 A. The production and consumption of oxygen. 232 1 Q. By the periphyton themselves? 2 A. By the periphyton community, which may 3 include associated bacteria and -- 4 Q. How is that sampled, do you know? 5 A. How is it sampled? What I know is that the 6 periphyton is in some manner, which I can't describe, 7 placed in a BOD bottle and incubated under various 8 conditions in the field. 9 Q. Who's in charge of that work? 10 A. That would be Paul McCormick. 11 Q. Who's in charge of the water quality 12 sampling? 13 A. Water quality sampling itself, I believe 14 that that is -- samples are being collected by Pete 15 Rawlik. 16 Q. Is the sampling that's been collected to 17 date part of Phase I as outlined in Exhibit 13? 18 A. Yes. 19 Q. Okay. So Phase I has commenced? 20 A. Yes. 21 Q. When do you anticipate that Phase 2 -- 22 well, let me refer you to the back of Exhibit 13. I 23 believe there's a calendar. 24 A. Uh huh. 25 Q. And I assume that this calendar, that -- 233 1 the year isn't provided, but I assume that July on 2 the first page of the calendar, which appears just 3 after Table 3, page after Table 3 -- 4 A. Uh huh. 5 Q. -- July refers to July 1993, is that 6 correct? 7 A. That's correct. 8 Q. Okay. 9 A. So your question was when does Phase 2 10 start? 11 Q. Yes. 12 A. I think we can figure that out by looking 13 at this. That would seem to be starting about 14 October of '94. 15 Q. Okay. To your knowledge is the District 16 still on the schedule reflected in Exhibit 13 or has 17 it been adjusted? 18 A. This is for phase -- 19 Q. Well, for the entire thing. 20 A. For the entire thing, I'm going to have to 21 look through all of these here. I think there's some 22 delays on Phase I A, analyze historical 2A data. I 23 would think that we're behind when you get down to 24 item B in Phase I, analyzing data and writing draft 25 report. That would be T8 and T9. Those indicate 234 1 February and March of '94 and I just don't think 2 we're at that point. There have been some delays in 3 purchasing equipment that have been somewhat 4 extensive, so I think that that's probably three or 5 four months behind. Then any delay I've referred to 6 now would push back other studies as well. 7 Q. Have any draft reports been prepared in 8 connection with Phase I A or B to date? 9 A. Okay. 10 Q. I note that T5 under Phase I A refers to a 11 draft report December of 1993. 12 A. Yes. 13 Q. Has that report been -- 14 A. Let me tell you what has happened. In 15 analyzing historical 2A data there is a publication 16 by Urban and two other authors on the Urban transect 17 in Conservation Area 2A that has been -- if I called 18 it a report I meant a manuscript -- that has been 19 accepted for publication, I believe, in the journal 20 called Aquatic Botany. I don't know if that's out 21 yet. 22 Q. Okay. 23 A. What I have seen are galley proofs and I 24 assume, since it's in galley form, that it has been 25 accepted. You wouldn't see them otherwise. And 235 1 there also is work by Koch and Reddy on the sediments 2 in 2A which has already been published and the 3 reference for that is one of the soil science 4 journals, but I'm not sure which one, so those types 5 of reports are already out. That's not to say that 6 there could be further work done with the existing 7 historical data. 8 Q. Does T5 under Phase I A refer to a new 9 report, a new draft report that's contemplated? 10 A. In my thinking, it's possible that there 11 could be another draft report which looks at the data 12 provided by Urban and relates it to vegetation 13 changes along that transect and perhaps says 14 something to the effect of here is where imbalance 15 occurs or here's where no imbalance occurs, but I 16 don't know of any report that's in draft right now 17 that discusses that. 18 Q. You mentioned a publication by Urban or 19 manuscript by Urban and two others. Are the other 20 authors Nicholas Aumen and Steve Davis? 21 A. Right. I think it was Urban, Davis and 22 Aumen. 23 Q. The title begins with the word, 24 "fluctuations"? 25 A. I don't recall that. 236 1 Q. Under Phase I Part B item T9 refers to 2 another draft report? 3 A. Uh huh. 4 Q. This would be under quantifying baseline 5 characteristics of WCA-2A? 6 A. Yes. 7 Q. And under the schedule that report would 8 come out February or March of this year? 9 A. Like I said, though, that -- 10 Q. That has been delayed? 11 A. -- has been pushed back due to delays in 12 getting equipment. 13 Q. So do I understand you correctly to say 14 that that has not been prepared in draft form to 15 date? 16 A. I have not seen any draft report done on 17 this data collection number. 18 Q. Okay. Dr. Fontaine, on Page 8 under 19 Subheading 5.1, Phase I the second sentence refers to 20 non-parallel north/south transects as shown in Figure 21 5. Unfortunately, my copy and yours as well of this 22 document doesn't have a Figure 5, but I assume it's -- 23 A. I would assume it's this one. 24 Q. The last page? 25 A. Yes. The map, right. You can barely make 237 1 out the transects. 2 Q. Are those same transects indicated on the 3 second to last page? 4 A. Those appear to be the same. The map sizes 5 are different, so I would assume that they scale 6 correctly, but they look proportionately to be the 7 same. 8 Q. Okay. I see -- on the second to last page 9 I see four transects, one labeled G1 through 5, one 10 labeled F1 through 5, another labeled E1 through 5 11 and U1 through 5. 12 A. Uh huh, yes. 13 Q. Are all four of those transects being 14 sampled as part of the current work under Phase I? 15 A. No. 16 Q. Okay. Which transects have been sampled to 17 date? 18 A. I believe we're still on the E transect. 19 Q. That's immediately south of the S-10C 20 structures? 21 A. Right. 22 Q. So did I understand you correctly to say 23 that you have not sampled along any of the other 24 transects as part of this Phase I? 25 A. Well, I didn't say that. It's just my 238 1 belief that we're on transect E. 2 Q. Okay. 3 A. And, you know, we may, in fact, have gone 4 over and looked at or taken some samples along the 5 other transects. 6 Q. Are you aware of a map or list indicating 7 the lat long coordinates of these or GPS coordinates 8 of these stations along the transects? 9 A. Am I aware of a map with this? 10 Q. Or a list. 11 A. Or a list. I personally have not seen a 12 map or a list indicating GPS or lat long coordinates. 13 Q. Do you know if one exists? 14 A. It's common practice to locate stations 15 using the best available technology which you believe 16 is GPS. 17 Q. So I take it, then -- well, do you know if 18 one exists? 19 A. I have not ever had one in my hand, okay? 20 Are we all working from the same document? 21 MR. PERKO: For the record, Mr. Gaines 22 brought his own copy of this document and it 23 appears to have a different map of the transect. 24 Perhaps we'll go through that. 25 Why don't we take a quick break? 239 1 MR. GAINES: Before we take a break let me 2 ask the witness or Dan. Do you have the Holey 3 Land draft memo we talked about yesterday? 4 MR. McGRATH: The District was closed 5 yesterday so there's no way. 6 MR. GAINES: Could you possibly call over 7 there and have it faxed so we could use it 8 during this deposition? I would request that 9 because I would like to make it an exhibit and 10 question on it later. 11 MR. McGRATH: I will make a call over there 12 and get that or have them fax it. 13 (Thereupon, a recess was taken.) 14 MR. PERKO: Back on the record. 15 BY MR. PERKO: 16 Q. Dr. Fontaine, if I could direct your 17 attention back to Page 8 of Exhibit 13, the proposed 18 administrative definition. Did you review any 19 documents when developing this definition? 20 A. The italicized work there? 21 Q. Yes. 22 A. Did I review any documents? 23 MR. McGRATH: Let me just object to the 24 form or at least as far as some vagueness 25 because you've asked some questions in the past 240 1 using the pronoun or stating "you" as in 2 Mr. Fontaine specifically and I don't think 3 we've established exactly what Mr. Fontaine's 4 role was or if "you" as in the general sense, 5 you being the people who authored the paper. 6 BY MR. PERKO: 7 Q. I'm speaking of you personally, 8 Dr. Fontaine. Did you review any documents as part 9 of developing the proposed definition that appears on 10 Page 8 of Exhibit 13? 11 A. No. 12 Q. Do you know if any of the other coauthors 13 of this report reviewed documents in developing the 14 proposed definition on Page 8? 15 A. I'm not aware of anybody looking at other 16 documents. 17 Q. So you're not aware if they reviewed any 18 DEP guidance materials or something like that? 19 A. Well, it's possible, but I'm not aware of 20 it. 21 Q. Who actually drafted the proposed 22 definition? 23 A. I believe the person that drafted this 24 definition was Larry Fink. 25 Q. Did you have any input into the definition? 241 1 Did you suggest any language? 2 A. I don't recall having any input to it. 3 It's possible that I may have said, you know, this 4 wording is better than this wording, but I don't 5 think I had any significant input to it. 6 Q. Dr. Fontaine, when is it or when do you 7 anticipate that this study outlined in Exhibit 13 8 will result in a numeric interpretation of the 9 narrative phosphorus or narrative nutrient criteria? 10 A. I'm going to give you a range of dates 11 because of the realities -- 12 Q. That's fine. 13 A. -- of equipment ordering and things like 14 that. I would anticipate that we'll have some 15 information for Conservation Area 2A only within a 16 two to four year period from today. 17 Q. Okay. What about Water Conservation Area 18 3? 19 A. Well, the way that we were setting these 20 studies up, one staggered after the other, so that 21 would be somewhere after the two to four year period 22 for Conservation Area 2A unless, you know, budgetary 23 resources were made available to conduct all of these 24 at the same time. 25 Q. Is the same true for Water Conservation 242 1 Area 1 and Everglades National Park? 2 A. Right. 3 Q. Do you anticipate that the studies in Water 4 Conservation Area 1, Water Conservation Area 3 and 5 Everglades National Park would be conducted at the 6 same time or is that dependent upon resources 7 available? 8 A. Well, it's really a resource question. The 9 way we laid it out, our work in 2 would -- our work 10 in 3 would then follow 2 and it's not clear what the 11 timing would be in the Park or in the Refuge, were 12 they to do this type of study. I would imagine that, 13 you know, if they decided to do this kind of study, 14 they would do it on their own budget and own time 15 line, so -- 16 Q. They meaning the federal government? 17 A. Yes. 18 Q. Are you aware of any studies currently 19 underway or proposed by the federal government to 20 develop a nutrient threshold for WCA-1? 21 A. For WCA-1? The only thing that I recall is 22 that during some of the TOC meetings there was 23 discussion of some work to be conducted in Area 1, 24 but I haven't seen a plan to do that. 25 Q. What about Everglades National Park? 243 1 A. There is a -- what is labeled as a 2 pre-proposal to do work on the threshold 3 determinations and I'm trying to remember if they're 4 actually setting up the sites in the Park or 5 elsewhere, but I think it is in the Park, so, you 6 know, I've seen a pre-proposal. 7 Q. And who developed that pre-proposal? 8 A. The main author was Ron Jones. 9 Q. Did you review that proposal? 10 A. Yes, I did. 11 Q. Did you provide any comments on the 12 proposal? 13 A. Yes, I did. 14 Q. Did you provide written comments? 15 A. Seems like I did. Let me think about this 16 a second. Actually, in the form of a memo, no, I 17 didn't, that I can recall. What I did do was prepare 18 a briefing, which is not a memo, so to speak, that 19 spoke to the entire issue of threshold determination. 20 Q. Was the briefing in written form? 21 A. Yes. 22 Q. Did it include specific comments regarding 23 Dr. Jones' proposal? 24 A. Yes, it did. 25 Q. Do you recall the substance of those 244 1 comments? 2 A. Well, there's a lot of ground to cover. 3 The general substance of the comments was that the 4 District's approach to determining threshold 5 concentrations, the direction that we chose is 6 different from the direction that Dr. Jones proposed. 7 Q. How was it different? 8 A. Dr. Jones proposed dosing experiments in 9 channels that would be located in the natural 10 environment. 11 Q. Did you provide any comments regarding the 12 usefulness of the channels proposed -- dosing 13 channels proposed by Dr. Jones? 14 A. In the briefing I had a number of diagrams 15 with hopefully some good explanatory power that 16 suggested that information could come from a variety 17 of studies and the approaches of the District as 18 planned, in our mind, in our opinions, provided, if 19 you will, a better bang for the buck. We thought 20 that -- there is a scale from, say, microcosm 21 experiments up to large field transect studies and 22 that there are studies that can fall anywhere in 23 between the small microcosm studies all the way up to 24 a field grading study and there is a range of realism 25 and replication power that goes with studies along 245 1 that gradient of microcosms to the field studies and 2 we have chosen not to do the dosing channels 3 Dr. Jones has proposed. 4 Q. Why did you choose not to do the dosing 5 channels that Dr. Jones proposed? 6 A. Well, there's a number of reasons, one of 7 which, as I already stated, I think we get a better 8 bang for the buck and we feel that the field studies 9 conducted are in the natural environment and that, 10 obviously, gives a large amount of realism to your 11 results. On the other end of the spectrum, which is 12 where we're focusing our work with what I'll call 13 microcosm and that can be interpreted by many people 14 in different ways, but basically we're talking about 15 enclosures of the natural system in an area that may 16 be, you know, a meter or so in diameter or say one 17 meter by one meter quadrat. The details are worked 18 out, but at that level we can perform dosing 19 experiments but we also have a better ability to 20 replicate our experiments which we feel gives a 21 better statistical power. 22 Q. Okay. Let me back up just so I understand 23 your testimony. 24 You said that the field studies conducted 25 in the natural environment give a large amount of 246 1 realism -- 2 A. Yes. 3 Q. -- correct? 4 A. Yes. 5 Q. When you're talking about field studies, 6 you mean a transect study? 7 A. Talking exactly about what is in this 8 document 13. 9 Q. Okay. Now, the microcosms studies, would 10 those be conducted in the laboratory? 11 A. Well, what I was referring to a minute ago 12 was actually microcosms in the field. 13 Q. In the field, okay. 14 A. But we do have planned some greenhouse 15 studies and that's kind of like a laboratory. 16 Q. Did your briefing that you mentioned 17 provide any comments on the studies being conducted 18 by the Duke Wetland Center? 19 A. It didn't comment on any reports that the 20 Duke Wetland Center has conducted or produced. It 21 merely said something to the effect of it would be 22 interesting to find out what the results are, given 23 that they are conducting a channel study in a natural 24 environment. 25 Q. Are you familiar with the experimental 247 1 design of the Duke Wetland Center studies? 2 A. Vaguely. You know, I know they're out 3 there in the field and there's, you know, annual 4 reports that go into that in detail, but I couldn't 5 recite the exact treatments and replications that 6 they are running. 7 Q. Do you have enough knowledge to base an 8 opinion regarding the usefulness of the studies? 9 A. I would rather reserve comments on that one 10 until I see the final report which I understand was 11 due out in October or -- no. I'm sorry. There's a 12 year left on that contract. I have not seen the 13 October '93 report, but I would like to see the final 14 results before commenting on it. 15 Q. Who did you provide this briefing paper to? 16 A. This briefing went to Nat Reed who is a 17 Governing Board member. 18 Q. Did you retain a copy for the files? 19 A. Yes. 20 Q. Do you still have a copy of them? 21 A. Yes. 22 Q. Could you provide us a copy? 23 A. Yes, I can do that. 24 MR. PERKO: Counsel, I would request a copy 25 of that briefing paper. 248 1 BY MR. PERKO: 2 Q. Dr. Fontaine, are you familiar with the 3 formula in what I'll refer to as the EAA Rule or 4 Chapter 40E-63 Florida Administrative Rule for 5 determining compliance with the 25 percent reduction 6 requirement anticipated for the Best Management 7 Practices? 8 A. Yes. 9 Q. I believe you stated yesterday that 10 Dr. Shih actually authored that compliance formula, 11 is that correct? 12 A. That's correct. 13 Q. Are you aware of any plans by the District 14 to modify that compliance formula? 15 A. Well, I don't think I can speak for the 16 District. I don't know of any plans to modify it. 17 Q. Okay. Have you heard any discussions 18 regarding the need to modify the compliance formula? 19 A. No. 20 Q. Are you aware of any investigation of the 21 sensitivity of the compliance formula to values of 22 the independent variables? 23 A. Say that again. The sensitivity of -- 24 Q. Sensitivity of the formula to values of the 25 independent variables. 249 1 MR. FITZGERALD: By formula are you still 2 referring to the compliance formula? 3 MR. PERKO: Yes. 4 THE WITNESS: During the formation of that 5 equation, during the rule making there were 6 error bars associated with that which speak to 7 the uncertainty of the regression and then -- 8 well, let me try to answer your question. I 9 don't know of anybody who has been plugging in 10 values of rainfall and looking at the output of 11 that equation recently. During rule making I 12 know there were a number of people working with 13 this formula and others looking at the response, 14 the sensitivity of the model -- 15 MR. PERKO: Okay. 16 THE WITNESS: -- to variation in the 17 independent variables. 18 BY MR. PERKO: 19 Q. What are the independent variables? 20 A. Well, the equation basically predicts 21 phosphorus runoff from the EAA. As a function of 22 rainfall, the way it -- the rainfall is expressed is 23 in three parts. One is the actual rainfall over the 24 EAA and I believe that's by Thiessen, 25 T-h-i-e-s-s-e-n, a weighting program for rainfall. 250 1 Okay. So there's three components. One is the 2 amount of rainfall and I believe that was expressed 3 in inches and then there was an indication of the 4 variance in the rainfall and the skewness and if I 5 could get that document in front of me -- 6 Q. I believe it was -- 7 A. -- to be sure to check what I just said. 8 MR. McGRATH: 12. 9 MR. FITZGERALD: Do you have those copies 10 of the exhibits? 11 THE WITNESS: Shall I continue? 12 BY MR. PERKO: 13 Q. Whenever you're ready. 14 A. Okay. So it's -- the three variables are 15 rainfall in inches, then the natural logarithm of the 16 coefficients of variation calculated from 12 monthly 17 rainfall totals and then the final independent 18 variable is the skewness coefficients calculated from 19 12 monthly rainfall totals. 20 Q. So, as I understand it your testimony -- 21 correct me if I'm wrong -- I'm not trying to put 22 words in your mouth -- 23 A. Go ahead. 24 Q. -- but you're not aware of any analyses 25 since the rule making development of the sensitivity 251 1 formula to these three independent variables? 2 A. Using this equation? 3 Q. Right. 4 A. Not developing some other equation? 5 Q. Right. 6 A. Okay. I don't remember the timing, but I 7 remember there was a person named McClave who looked 8 at this formula, but I believe that was during the 9 rule making period, so since rule making, I don't 10 have any personal knowledge of anybody, including 11 myself, playing with this formula. 12 Q. Okay. You asked me whether I was referring 13 to some other equation. Are you aware of any 14 development of some other equation? 15 A. That's why I was referring to McClave -- 16 Q. Okay. 17 A. -- because I think McClave proposed 18 alternate equations or was thinking about them, but 19 maybe didn't produce them. I can't remember. 20 Q. Are you aware of any analyses since the 21 rule making development of the sensitivity of the 22 compliance formula to the water year definition? 23 A. Sensitivity to the water year definition. 24 Help me understand exactly what you mean, because 25 water year definition is in October to September. 252 1 Q. Right. 2 A. So -- 3 Q. To determine how sensitive the model is if 4 the definition of the water year -- if you were to 5 use a different water year definition. 6 A. In other words, this one goes from was it 7 May 1st to April 30th, I believe. I may be off a 8 month. May 1st to April 30th, correct. During the 9 rule making process there was a look at different 10 ways of looking at the annual period, but since the 11 rule making process, I don't believe that there has 12 been anything. 13 Q. Okay. Are you aware of any attempt since 14 the rule making development to develop a compliance 15 formula using a different -- or a different 16 compliance formula, period. 17 A. No. 18 Q. Has the District been applying the 19 compliance formula to determine whether the EAA is in 20 compliance with the 25 percent reduction requirement 21 already? 22 A. Well, compliance does not actually start -- 23 Q. I understand. 24 A. -- for some time into the future, but the 25 District puts out quarterly reports that indicates 253 1 whether the EAA has been or would have been in 2 compliance if compliance was being judged and it's 3 done that for the past approximately one year. 4 Q. Who's in charge of doing those analyses? 5 A. Those analyses are run in the Water 6 Chemistry Division. The person who actually does the 7 calculation I'm not sure. 8 Q. Is the Water Chemistry Division Maxine 9 Cheeseman? 10 A. Yes. I'm sorry. It's Water Quality 11 Division. 12 Q. Do you recall the results of the analyses 13 to determine whether the EAA was in compliance if a 14 compliance was required? 15 A. I recall that they put out some graphs and 16 at one point it looked like the EAA was meeting the 17 target or was below the target for -- on a monthly 18 basis now. I -- I do not remember what it was on the 19 date that compliance would have been judged, okay, 20 but on a monthly basis it looked like it was running 21 at a reduction that was below the target more 22 recently. However, they seem to have, I recall from 23 the last graph I saw, been above the target, but 24 again I don't know where -- which month those were 25 falling on. 254 1 Q. Okay. When you say below the target, you 2 mean a reduction of more than 25 percent, is that 3 correct? 4 A. Correct. 5 Q. Okay. Are you aware of any analyses 6 conducted by the District to determine the cause of 7 this apparent shift from being below the 25 percent 8 requirement to above? 9 A. I'm not aware of anybody conducting any 10 analysis to figure out the causation. 11 Q. Do you know if the District calculates 12 subasin loads for the EAA? 13 A. Give me the definition of subasin. 14 Q. For example, S-5, S-6, S-7, S-8. 15 A. Yes, they do calculate those. 16 Q. Okay. Do you know -- 17 A. They do or they can. 18 Q. They can. Okay. 19 Is there a program that they use to do 20 that? 21 A. If you recall the program that we talked 22 about -- 23 Q. EAA TPLD Program? 24 A. -- assuming that I'm remembering this is 25 the correct program that's being used, in order to 255 1 get the total EAA outflow that's used in the rule, 2 they would have to calculate what comes off each of 3 the major structures, so it's got to be part of that 4 program. 5 Q. Okay. So it's your understanding that the 6 subasin loads are used to calculate the total EAA 7 load? 8 A. Yes. 9 Q. And that's still how the District 10 calculates total EAA loads to your knowledge? 11 A. To my knowledge. 12 Q. Who at the District would be most 13 knowledgeable about how loads are calculated? 14 A. For these particular structures? 15 Q. Yes. 16 A. That would be George Shih. 17 Q. Dr. Fontaine, do you currently have an 18 opinion as to whether the STA acreage proposed in the 19 current SWIM Plan will achieve an outflow phosphorus 20 concentration of 50 ppb on a long term average basis? 21 A. Well, all the modeling work that went into 22 the design of the STAs was developed with the target 23 of 50 parts per billion in mind so, you know, based 24 on that work, I would say that on a long term average 25 we will be hitting 50 ppb. 256 1 Q. How long term of an average? 2 A. I haven't run any calculations to help me 3 even answer that question. 4 Q. Could you run calculations to answer that 5 question? 6 A. Given the advancement that's taken place in 7 the models to design the STAs, I would recommend that 8 somebody else run those calculations. 9 Q. But calculations could be developed to 10 answer that? 11 A. I think calculations could be developed to 12 give us an insight into that. The assumptions behind 13 those calculations would have to be laid out very 14 clearly such as all bets may be off if a hurricane 15 hits. 16 Q. Okay. Do any other assumptions -- critical 17 assumptions come to mind? 18 A. Well, there's always unforeseen things. I 19 mean there's -- which, you know, I don't have a 20 crystal ball so I can't look into it. One of the 21 levees could break. You know, who knows? But, you 22 know, given the state of the system as it is now, and 23 given what, you know, obviously a multi-party 24 agreement would have to be reached on what represents 25 future inputs into the STAs and future variability of 257 1 those inputs, it would seem possible to run that 2 calculation. 3 Q. You mentioned that you would suggest that 4 the people responsible for the advancements -- and I 5 don't want to put words in your mouth -- you would 6 propose that they run the calculations. Who are 7 those people? 8 A. Well, for the District there is a firm 9 called Burns & McDonnell who has the responsibility 10 for the STA design models and on the federal 11 government side Bill Walker would be the likely 12 candidate. 13 Q. What about Bob Kadlec? 14 A. Well, it's really the call of the feds. 15 I'm telling you who I think would run them based on 16 previous work that I have seen. 17 Q. Why is it the call of the feds? 18 A. Well, Bill Walker is their consultant and 19 so is Bob Kadlec. 20 Q. But it's the District SWIM Plan. 21 A. I'm just saying -- I gave you the 22 representative from the District and I'm just saying 23 that always with any of these kinds of calculations, 24 many people including your consultants will be 25 running these calculations and I am sure that the 258 1 federal government will be more than interested to 2 run their own to compare it with anything that we 3 would come up with. 4 Q. Do you base your opinion that the STAs 5 proposed in the SWIM Plan will achieve a long term 6 average outflow concentration of 50 ppb on anything 7 other than the analyses in Appendix F, the analyses 8 performed by Burns & McDonnell and the refinements by 9 Bill Walker? 10 A. Those are the major sources of, you know, 11 my opinion, given all the assumptions that I've gone 12 along with those sources, such as using the 13 historical period of record as an input. 14 Q. Do you have any reservations about using 15 the historical period of record as an input? 16 A. No. 17 Q. Have you reviewed the STA design models 18 developed by Burns & McDonnell? 19 A. A long time ago I reviewed -- they have 20 been through several versions and it's not been my 21 main focus to review those, however, given, you know, 22 the timing over them, I'm sure I could become 23 familiar with what they have done. They have not 24 made, in my estimation, lots of changes. 25 Q. Is it your understanding that Burns & 259 1 McDonnell is relying upon the refinements made by 2 Dr. Walker for determining the affected areas of the 3 STAs? 4 A. In the latest Burns & McDonnell report, 5 which is dated February 4, 1994, I believe what you 6 just said is actually almost a word for word 7 statement in their report that they rely on the 8 recent updates by -- I don't know if they name Bill 9 Walker, but they reference some source. 10 Q. Have you reviewed the February 4th Burns & 11 McDonnell document that you just referenced? 12 A. I have skimmed it. I have not done an 13 in-depth review of it. 14 Q. Do you recall the purpose of that 15 memorandum? 16 A. Memorandum or are you talking about the 17 Burns & McDonnell -- 18 Q. Burns & McDonnell, we'll call it report. 19 A. Well, like I said, one of those reports was 20 for determining sizes of STAs. 21 Q. Okay. The February 4th report? 22 A. Well, there's more than one February 4th 23 report. 24 Q. Okay. 25 A. There's one that has to do with sizing of 260 1 STAs, which is what you were referring to. 2 Q. What do the others refer to? 3 A. One of the others had to do with 4 calculation of phosphorus loads leaving the EAA. 5 Q. It's your understanding that that's also 6 dated February 4th? 7 A. Yes. 8 Q. Are there any other Burns & McDonnell 9 reports dated February 4th? 10 A. There is one other and it has to do with -- 11 I believe it has to do with the affects of BMPs on 12 water balance. That one I'm not really sure about 13 and that one I did not read. 14 Q. Any others? Any other Burns & McDonnell 15 reports dated February 4th? 16 A. Those are the only ones I'm familiar with. 17 MR. PERKO: I apologize, but I don't have 18 an extra copy. 19 (The document was marked Exb. No. 14.) 20 (Discussion held off the record.) 21 MR. PERKO: Back on the record. 22 BY MR. PERKO: 23 Q. Dr. Fontaine, if I could direct your 24 attention to what's been marked as Exhibit Number 14. 25 Is this the -- is Exhibit Number 14 the Burns & 261 1 McDonnell report on Recommended Effective Treatment 2 Areas for the STAs dated February 4th that you 3 previously alluded to? 4 A. Yes. 5 Q. And I believe you previously testified that 6 you have skimmed through this report. 7 A. Skimmed through it, yes. 8 Q. What is your understanding of the purpose 9 of this report? 10 A. I think the title says it all. This is 11 their recommended areas, effective areas of the 12 Stormwater Treatment Areas. 13 Q. Why -- I'm sorry. 14 A. They did some things in addition. In the 15 report index they did some sensitivity analyses as 16 well. 17 Q. Why was it necessary for Burns & McDonnell 18 to recommend effective treatment areas for the STAs? 19 A. Well, Burns & McDonnell is a consulting 20 company that is under contract to the District, 21 specifically the Construction Management Department, 22 so let me make it clear that this is a consultant to 23 the District, but is not a consultant to me or to my 24 division. Why did they do this? Well, they're an 25 engineering firm and not only can they make these 262 1 kinds of calculations, but they can also do the 2 engineering behind the construction. You know, in a 3 way I feel like, you know, these are some questions 4 that should really be directed to other people -- 5 Q. Okay. 6 A. -- because I wasn't in the Selection 7 Committee, for instance, to select Burns & McDonnell. 8 Q. I'm trying to understand what prompted the 9 development of this report. Do you have an 10 understanding as to what prompted this report? 11 A. Honestly, if you're looking for motive, you 12 should talk to the people who did the contracting. 13 Q. On Page 4 dash -- IV-8 bates page 1231000 14 the report states -- 15 A. Hold on a second. 16 MR. GAINES: Wait a minute. 17 THE WITNESS: IV-8? 18 BY MR. PERKO: 19 Q. Yeah. 20 A. Okay. Now go from there. 21 Q. Second paragraph states, "Given the above, 22 computation of required effective areas for the STAs 23 is made for each of three basic options as further 24 defined below." 25 A. Uh huh. 263 1 Q. "Option 1. Under this option, all lake 2 releases are assumed to bypass the STAs for the 3 purpose of determining required effective areas. 4 "Option 2. Under this option, historic 5 regulatory lake releases are considered in 6 computation of the effective area of each STA." 7 A. Okay. 8 Q. "Option 3. Under this option, it is 9 assumed that lake releases in any given year are 10 increased to a quantity adequate to offset the 11 reduction in volumetric discharges to the EPA 12 resulting from implementation of the SWIM Plan and 13 are considered (in addition to historic lake 14 releases) in computation of the required effective 15 area of each STA." 16 A. Okay. 17 Q. My understanding is Option 1 as described 18 on Page IV-8 of this report is of the most analogous 19 to the assumptions underlying Appendix F. Is that 20 correct? 21 A. Yes. 22 Q. So, for purposes of Appendix F, you assume 23 all lake releases bypass the STAs? 24 A. Well, what we called it back then, I 25 believe, was water supply -- 264 1 Q. Okay. 2 A. -- bypass or through flow, which I'm not 3 sure is the same thing as all lake releases. That's 4 why I bring that -- it may be a minor point but I 5 bring that to your attention. 6 Q. What is the status of the analyses in 7 Appendix F? Are they being relied upon currently by 8 the District? 9 A. I have a lot of trouble answering that 10 question and I'll try to explain why. Clearly there 11 have been additional analyses, refinements since that 12 time. It would seem that if you pay for a document 13 such as this one to do further refinements -- if you 14 pay for something like this, you're looking for 15 perhaps an improved way of doing what you had 16 proposed initially. I would imagine it's analogous 17 to paying for a prototype of an airplane and then 18 getting the real airplane later or something like 19 that. 20 Q. Were you asked by your superiors to review 21 this document, Exhibit 14? 22 A. No, I don't believe I was. I will 23 anticipate your next question or now you go ahead and 24 ask it. 25 MR. GAINES: Before you do that, I hate to 265 1 interrupt. I keep doing this. I didn't catch 2 his answer while she was handing me that. 3 Could you read back his answer to the 4 previous question? 5 (Thereupon, a portion of the record 6 was read by the reporter.) 7 MR. GAINES: Thank you. 8 BY MR. PERKO: 9 Q. In your opinion, Dr. Fontaine, do the 10 analyses reflected in Exhibit 14 constitute an 11 improved -- an improvement upon Appendix F? 12 A. Well, first, let me reiterate that I 13 skimmed this document, so I haven't read it in great 14 depth, but I have no reason to doubt at this time 15 that this is an improvement or a natural evolution of 16 these analyses. 17 Q. Okay. If I could direct your attention to 18 page -- bear with me here -- IV-28. 19 A. Okay. 20 Q. The first paragraph states that, "The total 21 effective treatment area required under Option 2 --" 22 which we described previously, "-- is 26,759 acres; 23 the total effective treatment area required under 24 Option 3 is 29,788 acres, an increase of 11.32 25 percent. That increased area of 3,029 acres, would 266 1 over the ten year period analyzed, result in a 2 reduction of 56,814 kilograms as compared to Option 2 3 with untreated supplemental lake releases. 4 "The resultant incremental or marginal TP 5 load reduction associated with Option 3 is 1.88 6 kilograms of acres per year, indicative of a 7 relatively inefficient use of lands. That 8 inefficiency, coupled with the high degree of 9 uncertainty as to the required supplemental lake 10 release volumes and timing for hydroperiod 11 restoration in the EPA, renders Option 3 12 unattractive." 13 Continuing on to page IV-29 the second 14 paragraph states that, "Given the present uncertainty 15 in the volume and timing of supplemental lake 16 releases actually required for hydroperiod 17 restoration in the EPA; the inefficient use of lands 18 acquired for STAs in the treatment of supplemental 19 lake releases; and the potential availability of 20 existing facilities for the treatment of those 21 releases, it is recommended this adoption of Option 3 22 not be further considered, and that the calculation 23 of effective areas for the STAs be based on the 24 Option 2 analyses discussed herein." 25 Do you know whether Burns & McDonnell's 267 1 recommendation has been adopted by the District? 2 A. Is this a final report? I mean -- but I'm 3 not sure a final report indicates acceptance of the 4 recommendation, so I don't know if -- I have not 5 heard of any formal adoption of this recommendation. 6 Q. Okay. What is your understanding of the 7 acreage that the District -- the recommended acreage 8 of STAs that the District will present at the final 9 hearing in this matter? 10 A. If it is the defense of the SWIM Plan as it 11 exists now, then there is no other option than to 12 present what's in the SWIM Plan as it is now. I 13 don't understand, you know, the legal end of 14 administrative hearings, so you'll have to bear with 15 me. If the District can, you know, offer up an 16 alternative at that point, they may wish to do so. 17 I'm really not familiar with administrative hearings 18 to really comment on what could happen. 19 Q. I'm not asking you to speculate, Doctor. 20 I'm just asking for your understanding. 21 Referring back to page IV-28, the last 22 paragraph, "The resultant incremental or marginal TP 23 load reduction associated with Option 3 is 1.88 24 kilograms per year, indicative of a relatively 25 inefficient use of lands." 268 1 Can you explain to me what that statement 2 means, Dr. Fontaine? 3 A. I have not done this analysis. I've not 4 even read this page, to tell you the truth. 5 Q. Okay. Let me refer you to page IV- -- 6 A. Which roman numeral? 7 Q. IV-4. 8 A. IV-4, okay. 9 Q. Specifically Table IV-1 on that page and 10 the following paragraph states that, "From the above 11 it is seen that the flow-weighted concentration of 12 total phosphorus and lake releases at the points of 13 discharge to the EPA is estimated to be 0.094 grams 14 per meters cubed, 87.7 percent greater than the 15 discharge concentration desired for EAA runoff." 16 If you could, just take a minute to review 17 that. 18 A. Okay. 19 Q. Do you have any reason to question the 20 figures in Table IV-1 or the conclusions stated in 21 that paragraph? 22 A. Well, let me first address the conclusions 23 stated in that paragraph. I would assume that 24 they're referring -- that 87.7 percent greater than 25 figure is a comparison of 0.094 with .050. If that's 269 1 the case and if they have done their math correct, 2 then I can't argue with the math. 3 Q. Okay. Do you have -- sorry. Didn't mean 4 to interrupt. 5 A. That's okay. 6 Now you want me to look at the table, 7 correct? And what do you want me to do with this? 8 Q. Well, let me ask you this. Do you have any 9 reason to question the accuracy of the estimated 10 flow-weighted concentration of total phosphorus and 11 lake releases of 0.094 grams per meters cubed? 12 A. Well, you know, this is kind of a normal 13 caveat. I have not done the calculation. I have not 14 seen how they do the calculation. My recollection is 15 that the lake itself runs around 100 grams per meter 16 cubed. I'm sorry. Strike that. .100 grams per 17 meter cubed on average and that's very, very close to 18 the .094 grams per meter cubed. 19 Q. That would translate to a 100 ppb? 20 A. 100 ppb, right. 21 Q. I believe you previously testified that, 22 Dr. Fontaine, that your analyses in Appendix F 23 assumed that the STAs treat only 80 percent of the 24 historic annual average flows, is that correct? 25 A. That was a confusing discussion, I must 270 1 say, that we had about that and I believe that that 2 is what I ended up saying, yes. 3 Q. Okay. If the STAs were to treat additional 4 lake releases of the volume necessary to make up that 5 20 percent and those lake releases were of a 6 concentration of 100 ppb, would that affect your 7 opinion that the STAs, as currently proposed in the 8 SWIM Plan, will achieve an outflow concentration of 9 50 ppb on a long term average basis? 10 A. My answer to that is that the calculation 11 would have to be run and then I'll tell you if it 12 affects my opinion. 13 Q. What calculation would have to be run, 14 Doctor? 15 A. We would have to take one of these models, 16 I would say preferably the more up to date models and 17 make that assumption in the model that it received 18 this 20 percent makeup water, as you have said, with 19 that concentration and run it through the model and 20 see, you know, what acreage is required to either 21 achieve 50 ppb or I think, as you've said, see if 22 what's existing -- what is said to be needed at this 23 point in time can still achieve 50 ppb. 24 Q. Okay. In your opinion what model -- what 25 model would you use to run that calculation? 271 1 A. Well, I would use the best model available 2 and I have no reason to doubt that the model that is 3 discussed in this document is the latest version, 4 although, as I've said, I've just skimmed this 5 document and I haven't examined that model in great 6 detail. 7 Q. Are you referring to the 10.2 meters per 8 year settling rate? 9 A. I'm referring to what is specified in this 10 report and they do, if I recall, use 10.2. 11 Q. Okay. As I understand your prior 12 testimony, however, Doctor, as you sit here today, 13 you are not prepared to testify regarding the 10.2 14 meters per year settling rate, is that correct? 15 A. I did not do the calculation of the 10.2 16 meters per year settling rate, however, it is 17 possible, given adequate preparation time, to present 18 that at the administrative hearing. 19 Q. You would need adequate preparation time in 20 order to do that? 21 A. As I said yesterday, I read over the Walker 22 reports, but in order to present it in a clear, 23 concise fashion, I would need some time. 24 Q. Okay. 25 MR. PERKO: Why don't we break for lunch? 272 1 I think I'm finished at this point, but I'd like 2 to review my notes and I may have a couple of 3 questions when we get back. 4 MR. GAINES: All right. Just for 5 everyone's planning purposes, I think it's 6 likely that we're going into tomorrow. I don't 7 think there's any big surprise. 8 (Discussion held off the record.) 9 (Thereupon, a lunch recess was taken.) 10 MR. PERKO: Back on the record. 11 BY MR. PERKO: 12 Q. Dr. Fontaine, I just have a couple of 13 follow up questions. 14 In our discussion about Appendix F 15 yesterday I believe you testified to your knowledge 16 Dr. Walker originally calculated the 8 meters squared 17 per year settling rate, is that correct? 18 A. I believe that he was the first person that 19 I know of that came up with the settling rate 20 calculation. 21 Q. That resulted in the 8 meters per year 22 settling rate? 23 A. Yes. 24 Q. Did Dr. Walker use the same regression 25 analyses that you described in Appendix F? 273 1 A. Let's be careful here because we need to 2 talk about which regression analyses. I would rather 3 refer to the regressions in my May 21st memo. 4 Q. Okay. 5 A. I could tell you what exhibit that is if I 6 had it here in front of me. 7 MR. McGRATH: Exhibit Number 4. 8 THE WITNESS: Because when we're talking 9 about the original thing that Bill Walker did, I 10 believe that those -- yeah. This is Exhibit 4, 11 equations 1, 2 and 3. 12 BY MR. PERKO: 13 Q. Uh huh. 14 A. I believe those are the ones that Bill 15 used. I mean you would have to ask Bill, obviously. 16 Q. Okay. It's your understanding that he used 17 the same regression equations? 18 A. What I recall is that he used the equations 19 from Urban and from Koch and Reddy. 20 Q. Okay. Did you actually calculate an 8 21 meters per year settling rate? 22 A. I used the two regressions that I just 23 mentioned, the Urban and the Koch and Reddy and did 24 the same type of division of one number by the other. 25 Q. Okay. And -- 274 1 A. When I say I, I'm talking about, you know, 2 I had somebody do it -- 3 Q. Brad Jones? 4 A. -- for me. 5 Yeah. 6 Q. But did you, through Brad Jones, actually 7 calculate a settling rate of 8 meters per year? 8 A. Oh. Well, I calculated the numbers that 9 fell out of the analysis between the beginning point 10 in the transect and the end point in the transect 11 and, you know, when you look at those, there are a 12 range of numbers and I'm trying to recall. The 13 average was something like -- now what I say here was 14 that the range was from 4.5 to 22 and the average was 15 9, values between 2.7, 3.7 miles range between 6 and 16 7.5. 17 MR. GAINES: Where are you reading from? 18 THE WITNESS: I'm sorry. Page 2 of Exhibit 19 4. 20 And then the next paragraph I'm talking 21 about -- let's see, starting with complete 22 paragraphs, 1, 2, 3, that was the third 23 paragraph that I read from. Then the next 24 paragraph down from that is another calculation, 25 which has slightly different numbers. 275 1 BY MR. PERKO: 2 Q. Okay. So sometime after you performed 3 those calculations through Brad Jones it was decided 4 upon that the 8 meters per year was appropriate for 5 sizing the STAs, is that correct? 6 A. There was that calculation that led me to 7 believe that 8 meters per year was a reasonable 8 number, since it fell in a range of numbers. It was 9 a reasonable number to use for the scoping 10 calculations of the STA size. 11 Q. Who was ultimately involved in the decision 12 to use the 8 meters per year settling rate for 13 purposes of sizing the STAs proposed in the SWIM 14 Plan? 15 A. Let me hear what you said again. Who was 16 ultimately what? 17 Q. Who was involved in the decision to propose 18 8 meters per year as the settling rate? 19 A. Who was involved in the decision to propose 20 it? Well, it seems as if you had on the one side 21 Bill Walker proposing 8 and then you had on the 22 District side our group talking about a range where 8 23 seemed to fall somewhere in the middle. 24 Q. Okay. Did you -- I mean your group -- 25 well, let me ask you this. Who do you include in 276 1 your group? 2 A. Well, at that time there was, of course, 3 Brad doing the calculations, but Brad did not, you 4 know, really do anything other than just the 5 calculations. He did not provide scientific insights 6 and things like that. This was a long time ago. I'm 7 trying to recall who was in the group. Tony Federico 8 was in discussions about this. I just can't place 9 any other faces. 10 Q. Was it ultimately Mr. Federico's call to 11 propose the 8 meters per year to the Governing Board? 12 A. Well, I think you're asking me to speak for 13 Tony and -- 14 Q. I'm asking for your understanding of who 15 made the decision. 16 A. Well, you know, we presented the results 17 for 8, 6 and 10 meters per year in the SWIM Plan. 18 That was at the request of Tony Federico, but it was 19 also consistent with my feelings from the, if you 20 will, the back door method that showed a range of 21 values between 6 and 10. It was consistent with my 22 feelings that we should make the calculation with a 23 range of numbers. 24 Q. As I understand your testimony -- I just 25 want to make sure I understand it -- that for the 277 1 regression approach used in Appendix F you took the 2 Koch and Reddy regressions and the Urban regression 3 and had Brad Jones do the math. Did you actually 4 develop the Stella model used to back out the range 5 of settling rates? 6 A. Yeah. I programmed it. 7 Q. Assuming the STAs are constructed in 8 acreage set forth in the SWIM Plan, approximately 9 35,000 acres, and that the settling rate is 8 meters 10 per year, if the STAs were to treat lake releases 11 necessary to makeup the reduction of flows associated 12 with BMP implementation at the 100 ppb concentration 13 level that we discussed earlier, would the STAs 14 achieve long term average outflow concentration of 50 15 ppb? 16 A. I don't mean to be argumentative, but I 17 think we already answered this question previously 18 this morning. I think I said I'd have to run the 19 calculation and then I'd be able to tell you. 20 Because there are two factors involved here. One is 21 the volume of water and the other is the amount of 22 phosphorus that goes in. I'm not sure what the 23 analysis would tell. 24 Q. Your previous answer -- I believe you said 25 in your previous answer you said that you would use 278 1 the most current models. 2 A. Okay. That's the same thing as having to 3 rerun the analysis. 4 Q. But I'm asking you to assume that the 5 settling rate is 8 meter per year. 6 A. Okay. All right. 7 Q. And you know the volume. It's the 20 8 percent and you know the concentration. 9 A. Uh huh. 10 Q. Can you say whether the acreage in the SWIM 11 Plan would achieve a long term average outflow 12 concentration of 50 ppb? 13 A. I still maintain that I would want to go 14 back and rerun the calculation. I just don't feel 15 comfortable answering that. The answer may be one 16 way or the other, but -- 17 Q. What is the calculation that you would run? 18 Can you describe that equation for me? 19 A. Well, it would -- you know, whatever 20 version of this model for sizing the STAs you would 21 use, you would simply put in the additional water 22 into that model with the additional phosphorus and 23 that model would transport the phosphorus through the 24 system, so to speak. Some would fall out through the 25 accumulation process and some would go out the end. 279 1 Q. That's where I'm getting confused. I 2 thought the models -- the refined models were used to 3 develop refined settling rates. Is that not the 4 case? 5 A. Ahh. I don't know how you say this. 6 MR. FITZGERALD: A with a lot of H's 7 generally. 8 THE WITNESS: Okay. I can see where I 9 think some of the confusion is here. The work 10 that Walker did, which I told you that I had 11 read some time ago, used a modeling approach for 12 Conservation Area 2A to determine a settling 13 rate. In this case, due to various refinements, 14 he goes into in great detail. He ended up with 15 10.2. Then this Burns & McDonnell work, which 16 is -- which uses a model for defining Stormwater 17 Treatment Areas -- 18 BY MR. PERKO: 19 Q. You are referring to Exhibit 14? 20 A. Exhibit 14, right. 21 Q. Okay. 22 A. They elected to use the 10.2 number from 23 Walker's calculations that were done with a model in 24 Conservation Area 2A. 25 Q. Okay. 280 1 A. Now, the physical coding and structure of 2 this model in Exhibit 14, like I said, I've skimmed 3 this. I haven't looked into it. If it's -- I think 4 it's different from what we originally had -- 5 Q. Okay. 6 A. -- than in the SWIM Plan. I know it's gone 7 through a process of looking at different 8 coefficients for settling. There was a half order 9 coefficient at one time. I'm not sure where they are 10 now in their evolution of this model. 11 Q. Okay. So, as I understand your testimony, 12 the means by which the settling rate is used to 13 calculate the effective area of STAs has changed from 14 what you used in Appendix F? 15 A. Yes. 16 Q. Okay. 17 A. Yes. That's my understanding, having seen 18 this process evolve, but like I said, this particular 19 document, I have skimmed. I have not gone into 20 details of what their model, how their model handles 21 things and I'd have to have the time to review that 22 to say that it is absolutely different or the same or 23 close to, whatever. 24 Q. Okay. 25 MR. PERKO: I have nothing further at this 281 1 time. However, I would like to reiterate the 2 reservations that I made yesterday, that if 3 Dr. Fontaine undertakes the amount of 4 preparation necessary to gain -- formulate final 5 opinions regarding the refinements that 6 Dr. Walker and Burns & McDonnell have performed 7 on STA sizing, or if he undertakes the 8 preparation necessary to develop testimony 9 regarding phosphorus budgets that are not 10 necessary or that are beyond the scope of 11 Appendix F, I reserve the right to continue this 12 deposition or to move to strike that testimony. 13 CROSS (Thomas Fontaine) 14 MR. GAINES: Do you warrant a break? 15 MR. McGRATH: No. It's not necessary. 16 THE WITNESS: We can keep going here. 17 BY MR. GAINES: 18 Q. My name is Jonathan Gaines. Just for the 19 record I represent the Florida Sugar Cane League and 20 United States Sugar in this matter and I also have a 21 few questions for you. 22 MR. FITZGERALD: You should make clear, 23 Mr. Gaines, you represent part of the Sugar Cane 24 League, that as a result of the Settlement 25 Agreement, one of the major players in the Sugar 282 1 Cane League is specifically not involved and 2 contributing to this matter, unless my 3 understanding is incorrect. 4 MR. GAINES: My understanding is I 5 represent the Florida Sugar Cane League. I 6 think maybe in the original suit I represented 7 part of the United States Sugar, but, no one is 8 able to make that clear. I'll stick with -- 9 MR. FITZGERALD: We represent the 10 monolithic United States. No doubt about it. 11 It's the law. 12 BY MR. GAINES: 13 Q. If Mr. Fitzgerald doesn't have any other 14 input on who I represent, let me ask you a couple of 15 questions. 16 A. I have a couple of questions about who you 17 represent. 18 Q. I'm happy to talk to you about that after 19 the deposition. 20 A. I'm just kidding. 21 Q. Let me see if I can educate myself a little 22 bit here on some of these Appendix F issues we've 23 been talking about. 24 The Stella model which you represent -- 25 which you programmed, developed for use in Appendix 283 1 F, was that model used to determine a settling rate? 2 A. Appendix F has two parts to it. One is the 3 actual acreage that would be recommended for getting 4 effluent down to 50 parts per billion. The other 5 part of it is how the settling rate was determined 6 and there's that one section that we keep referring 7 to as backing out. 8 Q. Okay. The backing out part -- I don't mean 9 to interrupt you -- 10 A. Yeah. 11 Q. -- the backing out part, that's the 12 computer modeling? 13 A. Correct. 14 Q. That's the Stella model? 15 A. That is the Stella model. 16 Q. Why do you call it a Stella model? 17 A. Stella is actually the language, is 18 actually the computer language. 19 Q. Is it S-t-e-l-l-a? 20 A. That's correct. 21 Q. And the Stella model was used as a check 22 against the regression analysis that was done? 23 A. That was the idea. It's always good to 24 check things from two different ways. 25 Q. The regression analysis was based upon 284 1 actual measurements or monitoring in the field from 2 the work of Koch and Reddy on one hand and Nancy 3 Urban on the other, is that correct? 4 A. The regression analyses were based on 5 those. The model also used real data, just so that 6 you don't think it's the model that dealt with made 7 up numbers. 8 Q. All right. The point I'm trying to get to 9 is did the modeling that was done for that, you did 10 for Appendix F, did that generate a settling rate 11 that was then used to calculate acreage or was a 12 settling rate generated from outside the model and 13 plugged in as one of the variables? 14 A. Okay. Let's back up. There were two ways 15 that I felt were reasonable ways of looking at the -- 16 determining the settling rate. One was the 17 regression base way which we discussed. You take the 18 Koch and Reddy regression results, divide them by the 19 Urban regression results. That's one way. That got 20 you a series of numbers. The other way was to take 21 this modeling approach that I've called backing out, 22 and given certain inputs and given the Koch and Reddy 23 settling -- I'm sorry -- accumulation rate in the 24 sediments, you could adjust the settling rate in the 25 model. That would be your only unknown, so to speak, 285 1 in these equations. That would be your unknown. You 2 would adjust until you matched what was accumulated 3 in the sediments. 4 Q. All right. So you -- in operating or 5 running the Stella model, the variable that you would 6 adjust would be the settling rate variable? 7 A. For this particular use -- 8 Q. Okay. 9 A. -- right. 10 Q. When you say this particular use, you're 11 talking about how it was used in Appendix F, correct, 12 or was it used in more than one way in Appendix F? 13 A. It was used in more than one way. 14 Q. Okay. 15 A. It was used, you know, once -- once a 16 settling rate or a range of settling rates was 17 decided upon -- 18 Q. Uh huh. 19 A. -- then there were models, you know, that 20 were designed to come up with acreage for STAs, but 21 the way to get to that range of settling rates to use 22 was through the regression approach and through this 23 modeling approach which used Conservation Area 2A 24 data. It was merely a second way of looking at how 25 to define settling rates. 286 1 Q. Okay. At the -- so did you -- in using the 2 Stella model, did you plug in settling rates that 3 ranged between 6 and 10 when you ran the model? 4 A. For the purposes of defining STA acreage 5 required to get to 50 parts per billion, yes, I ran 6 the Stella model with numbers between 6 and 10, I 7 believe. Let me just check the document real quick. 8 Q. All right. 9 A. Yeah. There's a Table 7 on Page F-12 which 10 speaks to three settling rates and please note the 11 footnote on that table, that for whatever reasons, 12 the revisions to the SWIM Plan stopped at some point 13 and this does not include revisions that were based 14 on some revised base acreage and phosphorus loads. 15 Q. Do you know what those revisions were, what 16 the impact would have been on this table or the other 17 information? 18 A. The revisions were taken into account in 19 Table 5 and that table was based on an 8 meter per 20 year term, but I never had time to run any more. 21 Things seemed to have been working rather quickly at 22 that point and I just did not have time to update 23 Table 6 or 7. 24 Q. Okay. I am still not exactly clear on how 25 the Stella model was used. 287 1 A. Uh huh. 2 Q. Was -- did some information that you 3 obtained through running the Stella model allow you 4 to choose 8 as a settling rate? 5 A. It allowed me to see that there was a range 6 of numbers that -- a range of settling rate values 7 that would result in -- if chosen, that would result 8 in observed or measured accumulation rates in the 9 sediments. 10 Q. And did I understand you correctly to state 11 that in running that model what -- the correlation 12 that you were looking for was a correlation with the 13 observed accumulation rates from the Koch and Reddy 14 work to have the model generate something that 15 approximated that and that would allow you to focus 16 in on the settling rate? 17 A. Yeah. I believe that's right. Let me 18 throw one thing out here. When I say the Koch and 19 Reddy work, the Koch and Reddy work is now published. 20 At the time of this analysis, however, it was not 21 published and I can't tell you whether or not the 22 final regression that they have in their published 23 paper was the one -- the same as the one that we were 24 working with at the time. 25 Q. So can you point out -- do you have 288 1 Appendix F in front of you? 2 A. Uh huh. 3 Q. Can you point out to me in here where it 4 describes how the model generated a settling rate or 5 where that is depicted in here? 6 A. Page F-8 about the middle paragraph. It 7 says, "another approach --" 8 Q. All right. 9 A. And that basically describes what was done. 10 Q. And, you know, I hope I'm not repeating 11 myself, but the modeling work generated a range 12 between 6 and 10 or did it focus you in on 8? 13 A. Well, I felt that it gave me a range of 6 14 to 10. 15 Q. At the time that you were doing this work, 16 were you aware that Dr. Walker's number was 8? 17 A. Yes. 18 Q. Were you, in your mind, attempting to 19 verify that number or were you starting with a clean 20 slate in trying to come up with whatever number was 21 appropriate? 22 A. Two parts to this answer. Doing the 23 regression approach it was really a pretty cut and 24 dry, you know, do we end up with the same numbers? 25 But Dr. Walker did not utilize this other approach 289 1 and late one night sitting in the kitchen at the 2 computer I said to myself, gee, there's another way 3 of looking at this; another way that's independent 4 and I, frankly, would feel comfortable, more 5 comfortable if, you know, there was a second way of 6 looking at the numbers. 7 Q. So the regression analysis that you've 8 testified about under the 26 year deposition scenario 9 gave you have an average of 8.4 in the SWIM Plan and 10 I'm looking at the paragraph above the one you're 11 looking at and then the running of the Stella model 12 gave you a range between 6 and 10? 13 A. Again, let's be careful what is here, and 14 what you refer to, I have corrected later in the May 15 21st memo. 16 Q. I understand. We'll get to that. 17 A. Okay. 18 Q. There's some need to focus on the actual 19 SWIM Plan? 20 A. Yeah. Okay. So what you said was 8.4, 21 yes. 22 Q. 8.4? 23 A. Yeah. 24 Q. And then you stated that the Stella model 25 was used for another purpose as well. In Appendix F 290 1 you generated a range of 6 to 10 as far as settling 2 rate and then what else was done with the model? 3 A. Then the model was used to -- used with 4 settling rates of 6, 8 and 10 and that model was then 5 given the loads that would come from the S-5A, the 6 S-6, the S-7, plus 150, the S-8 basins and with that 7 information and the three settling rate estimates, we 8 were able to come up with the areas for the STAs. 9 Q. And where is that information depicted? 10 A. Okay. The 6, 8 and 10, okay, now there's 11 two places. The most up to date calculation is only 12 for 8 meters per year. That's Table 5. 13 Q. Okay. Table 5? 14 A. Table 5. 15 Q. Okay. 16 A. Then where it went 6, 8 and 10 meters per 17 year, where those were evaluated, those were 18 evaluated at an earlier time; were not revised, were 19 not updated to use the information that was used in 20 Table 5. There were also a number of other items in 21 Table 7 that we explored such as different goals for 22 the STAs to meet which would include various parts 23 per billion rates. 24 Q. So Table 5 you're going with 8 meters per 25 year settling rate in calculating your acreage? 291 1 A. Correct. 2 Q. And was the -- is the Stella model used to 3 do that or is that just a simple calculation? 4 A. No. That was a Stella model that was used 5 to do that. A Stella model was provided to millions 6 of other consultants for them to look over and check 7 and have fun with and buy McIntoshes. 8 Q. Table 5 depicts the acreage that you get 9 from the Stella model at 8 meters per year settling 10 rate and a 50 parts per billion target -- 11 A. Correct. 12 Q. -- goal? 13 The regression analysis that was done, that 14 only is used to generate a settling rate, is that 15 correct? 16 A. Correct. 17 Q. So whenever you're going to go from 18 settling rate and calculate acreage, you need to do 19 your Stella model? 20 A. Or somebody else can use their own model, 21 but my choice was the Stella approach. 22 Q. Do you know what model Dr. Walker used to 23 calculate acreage? 24 A. I know that he had a spread sheet model. 25 It was an analytical model. I don't know what the 292 1 spread sheet language was in, but nevertheless it was 2 a spread sheet. 3 Q. Do you have -- did you ever have any 4 occasion to contrast it with the model you were 5 using? Do you know what the differences were, if 6 any? 7 A. We did have opportunities to, you know, 8 contrast our results and generally they were in 9 agreement. There was probably sometimes disagreement 10 in the -- oh, you know, what's the decimal I'm 11 looking for here -- in the ones or the tens decimal. 12 Q. In terms of number of acres? 13 A. Yes. Yes. We weren't off very much from 14 each other. Maybe 10 or 20. I think the most we 15 were off at any one point was maybe 100 acres. 16 Q. So when you plugged 8 meters a year into 17 your model and plugged 8 meters a year in 18 Dr. Walker's model -- 19 A. Sorry to correct you. I never -- when 20 Walker plugged it in. 21 Q. When Walker plugged 8 meters into his model 22 and you plugged it into yours, you got approximately 23 the same acreage with some slight variations? 24 A. Yes. 25 Q. Did Dr. Walker derive his 8 -- do you know 293 1 how he derived his 8 meters a year settling rate 2 originally? 3 A. I believe he took the Urban regressions and 4 the Koch and Reddy regressions and did that 5 manipulation. 6 Q. He did the same type of manipulation that 7 you did with the Stella model? 8 A. No. No. 9 Q. Oh. He did the regression analysis? 10 A. Both of us. You know, there was Walker 11 working with those regressions and then there was the 12 District working with those regressions. Walker 13 later took an approach, a modeling approach to 14 backing out, as I've called it, the settling rate and 15 that is in -- did you pass out that document? No, 16 you didn't. Okay. Anyway, it's in his document 17 called something like Mass Balance Modeling for 18 Conservation Area 2A. 19 Q. Is that the document where he first, to 20 your knowledge, arrived at a 10.2 settling rate? 21 A. That's the first time I saw 10.2, although 22 he may have presented it. Well, I think that 23 happened at the same time. He presented it at a SAGE 24 meeting where he was basically debating Curtis 25 Richardson on setting rates and I think it was a 294 1 handout at that SAGE meeting. 2 Q. At that point in the evolution of the 3 settling rate were you a spectator or were you still 4 an active participant in trying to determine the 5 settling rate? 6 A. I was a spectator. 7 Q. Is it accurate to say that you've been a 8 spectator on that issue since Appendix F was 9 completed, since that time you haven't done any 10 further work yourself to try to determine settling 11 rate? 12 A. Appendix F is the last piece of work that I 13 did concerning the settling rate. 14 Q. Do you know whether when Dr. Richardson -- 15 I mean Dr. Walker did his initial regression analysis 16 with the Urban and the Koch and Reddy equations, did 17 he make a similar error in the units such as the one 18 that you noted in your -- 19 A. No. 20 Q. -- May 21st memo? 21 A. No. I think it's fair to say that we both 22 got it right in the first pass and that the error in 23 the units cropped up later in the SWIM Plan write-up 24 as a result of -- as a result of a new regression 25 that was given to me by staff that I believe included 295 1 a new data point for the station closest to the S-10 2 structures. 3 Q. And so -- well, let me understand what you 4 just told me. At the time the SWIM Plan was being 5 written you had already done this regression analysis -- 6 A. Uh huh. 7 Q. -- once or it had been done by your 8 department? 9 A. Right. 10 Q. And then another -- an additional data 11 point became available and the analysis was run 12 again? 13 A. Correct. 14 Q. And at that time is when the error was made 15 in the units? 16 A. Correct. 17 Q. When the first pass was done what settling 18 rate did that generate? 19 A. That was the original, if you will, 8 20 meters per year settling rate calculation. 21 Q. Well, was there a range such as the ranges 22 that are expressed on Page F-8 under those regression 23 analyses? 24 A. There was a range and that range, I 25 believe, can be found in the before -- this is of the 296 1 original calculation -- before the error was found, 2 okay, in the original regression work. 3 Q. When was the original regression work done? 4 A. I wish I could tell you. If we could find 5 out when I was in the trailers and the trailers were 6 then pulled away or at some point, you know, there's 7 probably a date on that. I know it was when I was in 8 the trailers. 9 Q. Before moving into the new building? 10 A. Well, into the old building, yeah. Don't 11 worry about it. 12 Q. I'm looking for a document that I might 13 have here that might help. Just give me one minute, 14 please. 15 This would have been some time in 1991, 16 correct, around the time of the federal settlement 17 discussions? 18 A. It was definitely around the time of the 19 federal settlement discussions, yes, but I don't know 20 when that was, to tell you the truth. 21 Q. I don't have the document that I thought I 22 had. 23 Now, the additional data point that you 24 were talking about, that was in Koch and Reddy's work 25 on deposition rates? 297 1 A. There was -- okay. The sample location 2 closest to the S-10 structures, that is where the 3 additional data point was determined. There was some 4 question about the first data point collected at that 5 location and I believe that either the core that was 6 taken or an additional core was taken in the same 7 spot to either, you know, confirm or add to the 8 information about the data at that point. 9 Q. What was -- what questions were being 10 raised about the original data from that station? 11 A. That's what I was trying to remember and 12 I -- I really don't recall what the issue was. 13 Q. Do you recall whether that data was 14 significantly out of line with the other data? 15 A. What I recall was that the new data point 16 was -- I believe indicated a higher accumulation rate 17 than the original, although, frankly, now that I 18 think about it, it may have been the other way. 19 There was some difference with the original data 20 point. I'm sorry. I can't remember if it was higher 21 or lower. 22 Q. What impact -- well, do you recall who made 23 the decision to have additional data gathered at that 24 spot? Are we talking about a fixed point on the 25 earth here where data was generated and someone 298 1 questioned the data and so that spot was revisited 2 and an additional core was taken to be analyzed? 3 A. It was either at that same spot an 4 additional core or they took the existing core and 5 reanalyzed it. I don't know who made that decision 6 and I don't know exactly why they made that decision, 7 but there was some question. 8 Q. Did this have a popular name that it was 9 referred to by? 10 A. Did this what? 11 Q. Did this core, this particular data point? 12 A. Well, there is a name, I'm sure, that, you 13 know, people who do the field work call it by. But 14 I'm sorry. I can't tell you. It was the one closest 15 to the S-10 structures. I don't have that sample 16 number in front of me. 17 Q. And was this additional -- well, you have a 18 26 year and a 5 year equation -- 19 A. Uh huh. 20 Q. -- listed in F-8. Was the additional data 21 point added into both of those or were each of those 22 equations adjusted with a specific piece of data? 23 A. I don't recall without looking back at 24 things. 25 Q. You don't recall? Are you still thinking 299 1 or you just don't recall? 2 A. I just don't recall. 3 Q. Were the two data sets, the 26 and the 5 4 year data set, do you know when those -- when the 5 ending date was on those? Were they current up to 6 that time or had they been collected some time 7 previous to when these calculations were being done? 8 A. Let's see. I'm sure the Koch and Reddy 9 paper says when they were collected, but it had to 10 have been collected sometime before the analysis took 11 place because the analysis takes awhile to conduct. 12 Q. Was any adjustment made, to your knowledge, 13 in the additional point of data for -- to account for 14 the passage of time? 15 A. I don't feel qualified to even answer that. 16 That's -- 17 Q. Did you personally raise questions or 18 concerns about this one point? Did you notice that 19 there was a problem or issue with regard to it? 20 A. I don't think I was the one that raised the 21 issue. I could almost categorically say that I was 22 not the one. I think it was somebody else. 23 Q. Did you ever have occasion to, for lack of 24 a better term, roll your sleeves up and dig into the 25 Koch and Reddy work and their equations to critically 300 1 analyze them and determine whether, you know, they 2 would be useful to you in performing this regression? 3 A. I recall asking Marguerite Koch for the 4 data sets and more for just a look see then any 5 rigorous review or analysis. I mean the way we got 6 that review and analysis was through the peer review 7 process that led to the journal publication. 8 Q. Okay. And that was the Koch and Reddy's 9 journal publication of this work and it was peer 10 reviewed? 11 A. Yes. 12 Q. And that was after Appendix F was prepared? 13 A. I think that is the chronology. I won't 14 swear to it, but I think it is. 15 Q. Other than the peer review, was anything, 16 any work undertaken or directed by you to verify Koch 17 and Reddy's work? 18 A. I'm sorry. Would you repeat the question? 19 (Thereupon, a portion of the record 20 was read by the reporter.) 21 THE WITNESS: I sent out a copy of the 22 manuscript which they had submitted to the 23 journal to another person to, you know, look at 24 it. 25 BY MR. GAINES: 301 1 Q. Who was that? 2 A. And that was John Robbins who I referred to 3 in the May 21st memo and I want to point out, so that 4 there is no inconsistency with my testimony 5 yesterday, I was asked whethe