381

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3 SUGAR CANE GROWERS COOPERATIVE )

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

4 WEDGEWORTH FARMS, INC., )

Petitioners, )

5 V ) DOAH

SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.; )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

V ) DOAH

10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

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

and HUNDLEY FARMS, INC., )

14 Petitioners, )

V ) DOAH

15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040

DISTRICT, an agency of the State )

16 of Florida; et al., )

Respondents. )

VOLUME III

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.

Wednesday February 23, 1994

23 319 Clematis Street, 5th Floor

West Palm Beach, Florida 33401

24 10:10 a.m. - 12:30 p.m.

382

1 APPEARANCES:

2 On behalf of the Petitioners Florida Sugar

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

3 and New South Hope, Inc.:

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

4 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

5 Miami, Florida 33131

By: JONATHAN L. GAINES, ESQUIRE

On behalf of the Respondent SFWMD:

7 Popham, Haik, Schnobrich & Kaufman, Ltd.

100 S.E. Second Street

8 Miami, Florida 33131

By: DANIEL J. McGRATH, ESQUIRE

On behalf of the Intervenor United States of America:

10 Department of Justice

155 South Miami Avenue, Suite 627

11 Miami, Florida 33130-1693

By: THOMAS A.W. FITZGERALD, ESQUIRE

- - -

383

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Thomas Fontaine

BY MR. GAINES 385

384

1 - - -

2 E X H I B I T S

3 - - -

4 NUMBER PAGE

6 EXB. 16 3-15-90 Memo to L. Wedderburn from Dr. Fontaine 395

7 EXB. 17 10-3-91 Memo to Distribution list from Schattner 440

8 EXB. 18 July '93 Draft Research Planning Process 451

9 EXB. 19 July '93 Research Implementation Plan 451

10 EXB. 20 10-22-93 Draft paper by Dr. Fontaine 552

11 EXB. 21 3-12-91 Memo to MacVicar from Dr. Fontaine 564

12 EXB. 22 February '93 ENR Project 568

13 EXB. 23 11-23-93 Memo to Governing Board from Dempsey 579

14 EXB. 24 Figure 20, Page 121 from SWIM Plan 583

385

1 MR. GAINES: Why don't we go on the record?

2 CONTINUED CROSS (Thomas Fontaine)

3 BY MR. GAINES:

4 Q. Good morning, Dr. Fontaine. We're on the

5 record now. You had just stated that you wish to

6 clarify one of your previous answers, is that

7 correct?

8 A. That's correct.

9 Q. Okay. And related to -- relating to what

10 topic, sir?

11 A. The other attorney Gary had asked some

12 questions regarding the -- what we've called the

13 backing out calculation of the meters per year term

14 in Conservation Area 2A and this is related to

15 Appendix F.

16 Q. All right, sir.

17 A. And basically he asked two questions which

18 I will not be able to give verbatim, but the first

19 question was: Is there distance -- a distance term

20 in the model that you used to back out the meters per

21 year term? And my response was no. And that is --

22 Q. This is in the Stella model?

23 A. In the Stella model, yes, that's correct.

24 The answer was no and that was an accurate answer,

25 however, I needed to go further and say that distance

386

1 is implicit in the model, but it is not an explicit

2 term and I will try to explain that.

3 Q. What distance are we talking about here?

4 A. This is distance down the transect through

5 the impacted area of Conservation Area 2A.

6 Q. Okay.

7 A. Okay. And my explanation will tie in with

8 this second question, which I will try to state.

9 Q. And what is the second question that you

10 would like to clarify?

11 A. The second question that he asked was is

12 there any -- I'm going to have trouble giving exactly

13 as he said it, but is there any direct linkage or

14 connection of the accumulation data in the cores with

15 the cells from the model in the Appendix F

16 documentation and, again, I said no to that and I

17 think I was probably either misinterpreting or over

18 interpreting his question, but there is a

19 relationship, but it's not necessarily a one to one

20 relationship, which is the way I was interpreting the

21 question.

22 Q. Let me ask you a couple of preliminary

23 questions before we decide to go off down this road.

24 A. Okay.

25 Q. Is the Stella model still being utilized by

387

1 the District in sizing the STAs?

2 A. No, it's not.

3 Q. Is Appendix F still being relied upon at

4 this point in sizing STAs?

5 A. There have been newer models developed to

6 size the STAs since the development of Appendix F.

7 Q. So is Appendix F essentially moot at this

8 point in terms of --

9 A. Depends on what we're defending in the --

10 Q. Okay.

11 A. -- in the administrative hearing.

12 Q. Let me finish my question.

13 A. Okay.

14 Q. Is it moot in terms of what the District is

15 actually doing with regard to the STAs?

16 A. I'm not sure how to answer that question,

17 because, again, it goes back in my mind, which is not

18 a legal mind, back to what is being presented at the

19 administrative hearing.

20 Q. Well, I'm asking you not to -- not to

21 speculate on what's presented at the administrative

22 hearing or what the legal niceties or requirements

23 are, but with regard to what the District is doing,

24 to your knowledge, with regard to STA development, is

25 it relying on Appendix F at this point, the contents

388

1 of Appendix F?

2 A. I would say they have moved on from that to

3 the Burns & McDonnell document which we discussed

4 yesterday. It was a document dated February 4, 1994.

5 Q. Is it your understanding that that document

6 is based on a different computer model than was

7 utilized in Appendix F?

8 A. Like I said, I had a chance to skim that

9 document, but it appears to use an analytical version

10 of a set of equations as opposed to the kinds of --

11 kinds of approach that I took.

12 Q. And what about with regard to the

13 regression equations contained in Appendix F, are

14 those still the basis of any of the conclusions, to

15 your knowledge, of the Burns & McDonnell Study?

16 A. As I said, I think, previously, Burns &

17 McDonnell have now adopted the 10.2 meters per year

18 settling term.

19 Q. Is that term based on those regression

20 equations, to your knowledge?

21 A. That term, from my once over reading of

22 Walker's work, came from his analysis that used those

23 data plus other data. Curtis Richardson's data to be

24 specific.

25 Q. Does throwing additional data into the mix

389

1 make that a different equation or different

2 regression analysis?

3 A. Well, again --

4 Q. Just generically.

5 A. It makes -- let me make sure I can explain

6 this here. Having read Walker's work one time, I

7 would have to say that the approach that he's using

8 is a mass balance modeling approach, but the form of

9 that mass balance modeling approach is different.

10 His is what they call an analytical solution

11 technique and mine was not. Mine was a simulation

12 technique, so using that analytical approach and new

13 data, he was able to come up with the 10.2.

14 Q. What I would like to do, Dr. Fontaine, and

15 I hope this is acceptable to you, is to ask the

16 questions in the areas that I have left that I want

17 to cover and allow your counsel on cross-examination

18 to elicit any clarification on the Stella model, you

19 know, that is deemed necessary, if that's not

20 objectionable, because I don't want to really go down

21 a long a complicated road in that direction right

22 now.

23 A. Okay.

24 Q. I want to make sure, you know, we follow my

25 agenda and cover what I want to cover.

390

1 A. And I understand that completely and -- but

2 I -- I want to -- you know, if it's okay with

3 everybody here, to just finish my train of thought,

4 which will probably take another two minutes so that

5 I can complete my explanation of my re-clarified

6 testimony.

7 Q. Okay. If that's the extent of it, then I

8 don't have any problem and you can clarify your

9 thoughts.

10 A. It should be quite easy to get this out of

11 the way and go onto the agenda you need to follow

12 which I agree we need to do.

13 Q. Okay. That's fine.

14 A. The second question was was there a match

15 up basically between the accumulation data and the

16 cells and series of the model and I responded no, but

17 what was missing and what led them, I'm sure, to that

18 question, what was missing in my documentation in the

19 SWIM Plan was an assumed width of the impacted area.

20 I did refer to an acreage of the impacted area. It

21 was not stated in the SWIM Plan that there was an

22 assumed width. If, in generic terms, if you follow

23 that, you have a total acreage and a total width,

24 then you can then figure out length and therefore

25 each cell in a series could be implicitly assigned a

391

1 length and therefore the figure in the SWIM Plan

2 Appendix F, and it's Figure 4, could therefore be

3 generated where there are comparisons of the model

4 output versus distance with the accumulation rate

5 over distance. So it was an unfortunate omission on

6 my part to not include it, the specification of

7 width, and I can see why the questions were being

8 asked, but there was a width.

9 Q. Are you satisfied that you've clarified

10 that?

11 A. I am satisfied and I hope everybody else

12 is.

13 Q. Okay.

14 A. So now your agenda.

15 Q. Well, as long as we're looking at Appendix

16 F let's just finish up with what we were talking

17 about yesterday on that.

18 Is there a margin of error stated in

19 Appendix F or expressed in some fashion?

20 A. A margin of error in regard to what?

21 Q. The effective acreage treatment area,

22 acreage for the STAs based on the various settling

23 rates and the settling rates themselves.

24 A. Okay. If you look at what is included in

25 Table 7 of Appendix F, even though that's not been

392

1 revised to reflect updated loads, that conceptually

2 is what they call a sensitivity analysis and that's

3 basically where parameters have been varied over a

4 range of possibilities. It is not what I would call

5 an accounting for error. Error I think you are

6 referring to in the statistical sense.

7 Q. I'm referring to it, yes, in the sense of

8 plus or minus whatever the value would be, an error

9 bracket. For example, in Table 7 here on the first

10 line, if your goal is 40 parts per billion and you

11 have no load reduction and no water reduction from

12 BMPs, this reflects in the settling rate 6, 65,125

13 acres for all STAs are required. Now, there's no

14 error bracket on that number.

15 A. On that particular number?

16 Q. Or any of these numbers.

17 A. Okay.

18 Q. Is there a way to articulate the margin of

19 error on that particular calculation?

20 A. I would imagine that there is. I certainly

21 didn't do that here.

22 Q. Okay. Did you do it in any other arena or

23 did you make that calculation?

24 A. No, I didn't. At least I don't recall

25 doing it. I think, if you will -- if, for instance,

393

1 you said something was 6 plus or minus -- well, let

2 me choose the number 8 for this demonstration. If

3 you chose number 8 and said it was -- plus or minus 2

4 was your error, then clearly we've bracketed that

5 here.

6 Q. There you are talking about the settling

7 rate?

8 A. Yeah. Yeah. But for each number there was

9 not like an 8 plus or minus .1 calculation.

10 Q. What about on the acreage end of the

11 equation, is there a way to express that in terms of

12 an error bracket?

13 A. Well, I think the important way of dealing

14 with -- I guess there's a couple ways of getting at

15 error. One is by doing the sensitivity analysis

16 which is -- an example of which is given here. The

17 other way, which is the way I personally did not do,

18 was to focus in on a number for a settling rate and

19 then say statistically associated with that

20 particular number is the following plus or minus, but

21 I believe that that calculation was done later.

22 Q. By whom?

23 A. By Bill Walker, in one of the two reports

24 that he put out.

25 Q. Is that -- is that type of analysis what's

394

1 referred to as an uncertainty analysis in this

2 context?

3 A. Uncertainty analysis has a number of

4 definitions of which Bill's approach could be

5 qualified as one.

6 Q. Okay. But, at any rate, outside of what's

7 reflected in Appendix F, you have not undertaken to

8 do that type of an analysis with regard to the STA

9 acreage, is that correct?

10 A. That's correct.

11 Q. And have you evaluated anyone else's

12 analysis with regard to the STA acreage other than in

13 a cursory fashion?

14 A. Well, like I said, I've read over Walker's

15 reports once and I'm not sure I would call that an

16 in-depth reading, however, in my reading of them,

17 things appeared to be done in a scientifically

18 engineering credible way and I don't have any reason

19 to doubt at this point that there would have been

20 problems with the approach that he used.

21 Q. Is -- is Appendix F reflective of what's

22 called a mass balance approach?

23 A. Yes. That is the general idea in terms of

24 modeling that has been -- that was done.

25 Q. Okay. Let me show you --

395

1 (The document was marked Exb. No. 16.)

2 BY MR. GAINES:

3 Q. Dr. Fontaine, take a look at what's been

4 marked as Exhibit 16, a memorandum from yourself

5 dated March 15, 1990, Subject Matter: Shingle Creek

6 Basin Water Quality Study.

7 A. Okay.

8 Q. Do you recall or recognize this document?

9 A. Yes, I do. This was written approximately

10 two weeks after I started at the District.

11 Q. I'd like to direct your attention to the

12 second numbered paragraph there.

13 A. Okay.

14 Q. Ask you to take a look at that --

15 A. Okay.

16 Q. -- read through it for a minute and then

17 I'll ask you some questions about it.

18 A. Okay. Did you intend for me to just read

19 the first two paragraphs?

20 Q. Yeah. Well, there's not much more than

21 that.

22 A. Okay. Go ahead.

23 Q. Paragraph -- in the second numbered

24 paragraph --

25 A. Uh huh.

396

1 Q. -- it refers to the mass balance approach

2 and you state that there are several -- there's "a

3 generic concern for all such water quality studies;

4 that the uncertainty in the mass flux estimates

5 should be acknowledged up front."

6 Is this generic concern applicable to any

7 portion of the contents of Appendix F?

8 A. Let me first draw the distinction between

9 these two issues. One is that this was a manuscript.

10 Q. Which two issues?

11 A. The issues in Appendix F and the issues I'm

12 dealing with here, which is Shingle Creek Basin Water

13 Quality Study. One was a report that was to go out.

14 That's the Shingle Creek and the Appendix F

15 calculations I have characterized as scoping

16 calculations. I don't think it -- what I'm saying

17 here invalidates the scoping nature of the

18 calculations in Appendix F.

19 Q. Let me just make sure I'm understanding

20 that, okay? Is it implicit in what you're saying

21 that this generic concern would be applicable to the

22 contents of Appendix F if it was not used as only for

23 scoping purposes but was used for some more finalized

24 purpose, is that correct?

25 A. I feel it's -- in any setting that I would

397

1 be in, that it is appropriate to go through a scoping

2 calculation like was done and then refine

3 calculations, if that's what the client requires or

4 that's what is required by whatever situation. And,

5 of course, you can find that the -- uncertainty

6 analysis is an interesting field of study because you

7 can find that something may be uncertain, but

8 relative to other input, say, in a mass balance, it

9 may be totally of no consequence. It may be a very

10 small number. It may like have the number 1

11 associated with it if it had a broad uncertainty. It

12 may have been actually 0 or 2, but if you have

13 another number that's a hundred with a very tight

14 uncertainty, so that it's either a hundred or 101 or

15 99, then you have to be careful in how you look at

16 the results of an uncertainty analysis.

17 Q. Does Appendix F reflect somewhere it's

18 only -- when you say scoping, does that mean -- what

19 does that mean, like a first pass, rough cut?

20 A. That's basically the idea. I call it

21 scoping. It's not what I would call the, you know,

22 final, final word, but it gets you in the ball park.

23 Q. And does Appendix F reflect somewhere that

24 that is what it is intended to be?

25 A. I'd have to read back and see if I said

398

1 something like that.

2 Q. Okay.

3 A. I certainly talk about this being a mass

4 balance approach and I'm looking for wording which

5 may indicate my intent of the scoping calculation and

6 I'm not finding it at this point, but I have said

7 things that, you know -- this is reading from Page

8 F-2 -- "a model built to design the STAs should be

9 able to reasonably reproduce major phosphorus

10 filtration characteristics of WCA-2A." And, to me,

11 reasonably reproduce is, you know, along those lines

12 of the intent of scoping.

13 Q. When you say reasonably reproduce, that a

14 model built to design the STAs -- well, let's look at

15 the entire sentence.

16 A. Uh huh.

17 Q. It states beginning on Page F-1 --

18 A. Uh huh.

19 Q. -- "Given adequate information on

20 phosphorus inputs to WCA-2A and its hydrologic

21 characteristics, a model built to design the STAs

22 should be able to reasonably reproduce measured

23 phosphorus filtration characteristics of WCA-2A."

24 A. Right.

25 Q. Okay. By that you're saying that if you

399

1 have adequate information on phosphorus and

2 hydrology, a computer model should be able to

3 reproduce the WCA-2A characteristics and when you say

4 reasonably reproduce, that, to you, indicates that

5 it's a rough cut or first pass or scoping?

6 A. Since you went back to the beginning of the

7 sentence and said the word, "adequate information" I

8 feel I need to comment on that too. You know,

9 adequate is in the eye of the beholder and there's a

10 lot of flexibility in that word, "adequate," and so,

11 you know, I don't want to try to argue the semantics

12 of the word argument -- of the word, "adequate," but

13 I guess I would say the intent here was that, hey,

14 give me the approximate numbers and I can probably

15 come up with something that will get you in the ball

16 park.

17 Q. Let me ask you. What -- well, if Appendix

18 F was not intended as a scoping analysis but was

19 intended as the final analysis to determine what size

20 STAs are actually going to be built, put in the

21 ground --

22 A. Uh huh.

23 Q. -- would you at that point feel that the

24 type of expression contained in Paragraph 2 of the

25 Shingle Creek memo would be a required statement of

400

1 the uncertainty in the mass flux estimates and the

2 other statistics discussed in there?

3 A. Well, in fact, the Burns & McDonnell work

4 has done the sensitivity analyses.

5 Q. First, can you answer the question that I

6 asked? And then you can explain it. The question

7 was more generic. Would the final version or cut

8 require this type of information in your mind?

9 A. I'm going to reread the paragraph again to

10 make sure I work with the right words here. Okay.

11 I'm going to try to talk to the context of this memo

12 which is Shingle Creek. Where mass balance --

13 Q. Let me ask you --

14 A. I've got to do this, Jon.

15 Q. Excuse me, sir.

16 A. Okay. Then you're saying I can't explain

17 it.

18 Q. You can explain it, but you mention in here

19 that this is a "generic concern for all such water

20 quality studies."

21 A. What I'm trying to get to if you will let

22 me get there --

23 Q. Wait a minute. I would like you to answer

24 my question first and then you can explain it any way

25 you see fit. But, if you could, answer my specific

401

1 question. And if you can't answer it with a yes or

2 no, then explain your answer, you know, tell me why

3 you can't.

4 MR. McGRATH: Let me just object to the

5 argumentative nature that this questioning is

6 leading to. The witness is obviously trying to

7 answer the question. I mean you can't define

8 the terms in the boundaries in which he can

9 answer a question. He can only answer the

10 question as he believes he needs to answer the

11 question. You can't say you can only answer it

12 this way and not this way.

13 MR. FITZGERALD: I join in the objection.

14 MR. GAINES: I understand your objection.

15 I don't intend to be argumentative. As I said,

16 he can explain his answer any way he sees fit

17 for as long as he likes.

18 MR. FITZGERALD: I join in the objection.

19 MR. GAINES: We heard that.

20 BY MR. GAINES:

21 Q. If you can't answer that yes or no just

22 tell me that and then you can explain it.

23 A. I didn't realize not being able to answer

24 yes or no was actually an answer. Is that actually

25 qualified as an answer in this setting?

402

1 Q. What you just said is an answer.

2 Do you recall what the question was?

3 A. Well --

4 Q. Tell you what. I think I'm giving you

5 difficulty. Explain what you were going to explain

6 and then I'll ask my question.

7 A. We'll get there one way or the other. What

8 I was trying to say is that this memo was written in

9 regard to a study that had been done where there was

10 mass flux estimates on the upstream end of a marsh

11 and on the downstream end of the marsh. Those were

12 data that were already taken, measured in the field,

13 calculations were done. The model in Appendix F, he

14 has masses in, but it predicts masses out and there's

15 a difference there and that's the distinction I'm

16 trying to make.

17 Q. The masses in are based on field data?

18 A. Yes. Yes. And what I'm trying to get at,

19 and I hope I'm not being too academic here, but if

20 we're trying to determine is there a difference

21 between what goes in and comes out and you have data

22 that you've already measured, you know, to make that

23 comparison, then it is useful to, if you can, if you

24 have the data to do it with, to do an uncertainty

25 estimate on input and uncertainty estimate on the

403

1 output and if you find, through whatever statistics

2 that you want to use, that you can't distinguish the

3 upstream from the downstream numbers, then it's

4 difficult to come to a conclusion that the marsh did

5 anything.

6 Q. In other words, what you're saying is if

7 the differential is smaller than the error bracket,

8 it's not meaningful? Is that sort of what you're

9 saying?

10 A. Let me do it in my own words. If the input

11 is 10 and the output is 9, but it's plus or minus 5

12 for each one of those numbers, then you're going to

13 be really hard pressed.

14 Q. I understand what you're saying.

15 And would the same -- is it your testimony

16 the same is not true where your input is based on

17 field data and your output is based on the results of

18 a computer model? Would the same not be true that

19 you need to articulate your uncertainty up front in

20 order to have a meaningful result from the modeling?

21 A. My feeling has always been that for

22 managers to make effective decisions they need to be

23 aware of the uncertainty of calculations and that

24 would include doing some kind of uncertainty analysis

25 or sensitivity analysis, if you will, which there's a

404

1 slight difference on the input side for models such

2 as this.

3 Q. Okay. Thank you.

4 Let me ask you. Are there variables which

5 could impact on the transferability issue, the data,

6 the use of the data generated in WCA-2A to design

7 STAs in the EAA where they're intended to be by the

8 SWIM Plan? Are there any variables that impact on

9 the direct use of the 2A data in those EAA areas?

10 A. There are variables that one could name,

11 but their importance in the transferability issue is

12 something that can be debated.

13 Q. Without assigning any weight to the

14 variables, can you tell me what the variables are

15 that you could name?

16 A. Okay. The EAA is a farmed area.

17 Conservation Area 2A is not a farmed area, so there

18 are, you know, obviously some differences. You

19 haven't run a cultivator through Conservation Area

20 2A.

21 (Discussion held off the record.)

22 BY MR. GAINES:

23 Q. So sorry to interest interrupt.

24 The EAA is farmed and WCA-2A is not farmed?

25 A. Correct.

405

1 Q. That was number one.

2 A. Okay. But again the question is what --

3 Q. You know, I don't want to slow you down by

4 getting you to assign weight or evaluate the

5 variables. I just want to get a list.

6 A. I understand. Well, I guess I feel like I

7 need to talk about differences between the areas and

8 then there's a question of, even despite differences,

9 is anything transferable? So obviously the EAA is

10 farmed. Conservation areas are not. Water has been

11 managed differently in the EAA on the farm soils than

12 it has been on the conservation areas.

13 Q. Is that one variable or two that you just

14 mentioned? In other words, you mentioned the water

15 management and you also mentioned the soils.

16 A. Well, that's two.

17 Q. Okay.

18 A. Two variables.

19 Q. Is there a different soil type, to your

20 knowledge, in the WCA-2A area that is being utilized

21 for these calculations and the areas where the STAs

22 are intended?

23 A. There's a couple answers to that one. One

24 is I'm not sure exactly where the STAs are going to

25 end up.

406

1 Q. Assuming that we're focussing on the SWIM

2 Plan itself.

3 A. Okay. I have not gone out and done core

4 analyses of the soils there versus 2A. They may have

5 all started off the same, but I think that that's not

6 my area of expertise. I think they all started off

7 probably as sawgrass, but that's, I think, for

8 somebody with that kind of expertise to answer.

9 Q. Who in your research department or at the

10 District in general would be expert in that area?

11 A. Soil characteristics, just looking at

12 what's there now, Sue Newman is a person with a soil

13 science background.

14 Q. All right, sir. Any other variables or

15 differences?

16 A. Well, clearly there's vegetation

17 differences right now between the two areas, you

18 know. One is planted with whatever it's planted with

19 and the other has got Typha growing in it, but as

20 we've seen in the ENR, which was formerly farmed,

21 Typha does grow. So the question is kind of begged:

22 Well if Typha can grow in farmed land then why can't

23 they act likewise in Water Conservation Area 2A?

24 Q. Typha is cattails?

25 A. Typha is cattails.

407

1 Q. Are there any others that come to mind?

2 A. There's a whole laundry list of stuff I

3 could come up comparing the two areas as they stand

4 now. I mean you may have benthic, b-e-n-t-h-i-c

5 vertebrates.

6 Q. Those are bottom dwelling --

7 A. Bottom dwelling critters.

8 Q. -- little snails and slugs?

9 A. Yes. Chirinomid worms. There are -- there

10 may be, you know, microbes that are different. You

11 know, the list can be endless in what the differences

12 are as things stand now. The question is, in my

13 mind: Would the ag areas become like Conservation

14 Area 2A given the appropriate nutrient inputs and

15 time?

16 Q. Did the STA sizing analysis that you were

17 involved in in Appendix F attempt to account or

18 assign a weight, account for or assign a weight to

19 any of those types of differences or variables?

20 A. No.

21 Q. Do you know whether the current sizing

22 analysis -- is it safe to say that the Burns &

23 McDonnell February 4, 1994 report that has been

24 marked as Exhibit 14 is the most current STA sizing

25 analysis that the District is using for the STAs

408

1 depicted in the SWIM Plan?

2 A. As far as I know it is.

3 Q. Do you know whether in this analysis any

4 attempt was made to account for or assign weight to

5 those types of variables in sizing the STAs?

6 A. Well, as I said yesterday, I skimmed that

7 report and I did not read it in detail. It may or

8 may not have. I simply don't know.

9 Q. Ask you take a look at Appendix F, please.

10 Couple of other quick questions.

11 A. Okay.

12 Q. Take a look at Figure 2.

13 A. Okay.

14 Q. This is a diagram of the Stella model -- or

15 what does this diagram depict?

16 A. This depicts conceptually how the Stella

17 model works.

18 Q. Did you just tell me -- in various boxes

19 what does -- what do the letters A, S and U, U-S-A

20 stand for?

21 A. This is an olympic diagram. Well, they are

22 clearly not indicated there and I'm trying to recall --

23 Q. That's why I'm asking.

24 A. -- what my intent was. The A I'm sure has

25 to do -- had to do with some type of atmospheric

409

1 input, hence the letter A. The S, I am sure, meant

2 surface, so this was a surface water phenomena and

3 the U was, I believe, uptake.

4 Q. Okay. And are these letters and arrows

5 intended to depict the way the phosphorus is moving

6 around or how it's entering and leaving the various

7 cells? In other words, is it a series of phosphorus

8 budgets?

9 A. I understand the question. I'm trying to

10 make sure that I agree with what you just said. Yes,

11 I think it adequately represents the equations that

12 are in the various tables. There's atmospheric

13 input; there's uptake which is called settling and

14 there's output and input, okay, so it adequately

15 represents --

16 Q. We touched the other day briefly on -- in

17 Table 1 you stated that the ET --

18 A. Uh huh.

19 Q. -- evapotranspiration element should not

20 be -- should not have been reflected in there. Can

21 you explain why that is?

22 A. Well, as far as I can figure, there was

23 probably a typographical error somewhere along the

24 way. The -- just to make sure that the record is

25 clear, it's in the term that starts with "minus

410

1 output" and that is where the ET term that appears

2 underneath that line should not be there. It should

3 have been of the form bracket volume kilometers cubed

4 times a coefficient which would have the units of one

5 over year.

6 Q. So the -- as I look at Table 1, ET appears

7 in three spots and you're saying the first two spots

8 it is supposed to be there?

9 A. Yes.

10 Q. Okay. Take a look at Page F-4.

11 A. Okay.

12 Q. We've already talked about the assumption

13 that the STAs will treat none of the -- maximum 20

14 percent water retention by BMPs. Following the

15 sentence that refers to that, there's a sentence that

16 begins, "Precipitation" at the bottom of Page F-4.

17 A. Uh huh.

18 Q. For your model that was assumed constant

19 across the STAs, "Precipitation of 1.14 meters per

20 year and evapotranspiration of 1.34 meters per year."

21 A. Yes.

22 Q. Where did those values come from?

23 A. They came, I believe, from the SWIM Plan,

24 other sections of the SWIM Plan and discussions I had

25 with other staff. These are reasonable estimates for

411

1 these values.

2 Q. Was -- is the precipitation estimate based

3 upon historic data, the 1.14 meters per year?

4 A. When you say historic, are you referring to

5 a certain period?

6 Q. Is it based on the District's data base or

7 whatever?

8 A. I'm sure it's based on the District's data

9 base or data bases the District accesses. I can't

10 recall a period of record associated with that

11 number.

12 Q. What about the ET number, was that based on

13 data or modeling?

14 A. Well, it was based on, again, a number that

15 I believe was in the SWIM Plan and then that number

16 was based on whatever techniques the person used that

17 came up with that number.

18 Q. Okay. Do you know where in the SWIM Plan

19 that would be located?

20 A. I would have to dig for it. And, as I

21 said, you know, I believe that that's where it came

22 from, but I just cannot remember where that source

23 was and I also remember that I probably talked to

24 some people about these numbers and whether or not

25 they were reasonable.

412

1 Q. Was it considered that the

2 evapotranspiration rate across the STAs would be

3 increased from historic ET rates in those areas?

4 A. Was it considered? In other words, would

5 it be different in the STAs from what was measured?

6 Q. Right.

7 A. It was not assumed that there would be a

8 different ET rate.

9 Q. So an ET rate -- look at Page F-6.

10 A. Okay.

11 Q. In the first text paragraph there, it talks

12 about bulk, total phosphorus inputs from atmospheric

13 sources were set at 30, 30, 30, and 50 ppb for STA 1,

14 2, 3 and 4 respectively.

15 A. Yes.

16 Q. Why the different -- do you know what the

17 source was of those values, why they're different?

18 A. Yes. The sources of those values was that

19 I was given those numbers to use in the calculation.

20 Q. Who gave you those numbers?

21 A. Tony Federico as I recall.

22 Q. Do you know where he derived those numbers

23 from?

24 A. I would be speculating if I guessed. I

25 don't know.

413

1 Q. Did you have any conversation with him

2 about his source for that information?

3 A. At the time I was just trying to work with

4 what people were giving me.

5 Q. Take a look at Figure 5, please. This is

6 the graph we talked about yesterday.

7 A. Uh huh.

8 Q. Can you explain this graph to me? What

9 does the line going -- sort of running across the

10 middle of the graph horizontally indicate?

11 A. That line refers to the 8 meter per year

12 value which is explained in the Figure 5 legend.

13 Says, "The 8 meter per year value used in calculating

14 STA size is indicated by horizontal line." So it's

15 that horizontal line.

16 Q. What does that tell us? What does that

17 depict, that horizontal line across this graph?

18 A. It's basically comparing what we used in

19 calculating STA size against other meter per year

20 values found in other places.

21 Q. So the axis that's labeled Uptake

22 Coefficient that tells you where these 50 wetland

23 sites are; how many meters per year the settling rate

24 has been measured in these 50 sites and it shows

25 where which ones are above and below 8, is that

414

1 correct?

2 A. That's correct.

3 Q. And the other axis says Average Total

4 Phosphorus. What is that value indicating? Is that

5 input, output or what?

6 A. I'm afraid we're going to have to have Bob

7 Kadlec respond to that one. This is his graph.

8 Q. It states, "personal communication,

9 Dr. Robert Kadlec, University of Michigan, 1991"

10 underneath the graph. Does that indicate that that

11 is his graph?

12 A. This is his graph.

13 Q. How did he -- did he communicate this to

14 you? Is that the personal communication?

15 A. No. I think it was communicated pretty

16 widely at some meeting in the past, whether it was a

17 TOC, a SAGE or something else. There was an STA

18 Design Committee at one point that may have been

19 there.

20 Q. And he distributed this graph?

21 A. Yeah. It's widely distributed.

22 Q. And did you have access or did you have

23 access to the data that generated this graph?

24 A. No.

25 Q. Is that why it's labeled "personal

415

1 communication"?

2 A. Well, the personal communication usually

3 indicates you got it from somebody else. It does not

4 indicate, you know, an access or nonaccess to the

5 data but, in this case, there was no access to that

6 data.

7 Q. Have you seen any of this data or have you

8 seen the data that supports this graph since the SWIM

9 Plan was prepared?

10 A. No. My understanding is that this is a

11 classified data set that has not been released yet.

12 Q. Classified by whom?

13 A. I -- this is -- I don't know what you call

14 it in the legal world, but, you know, I understand

15 that it's an EPA data set.

16 MR. FITZGERALD: Probably should make sure

17 for the record that's not classified in the

18 sense of national security.

19 THE WITNESS: Okay. I think it was

20 classified in the sense that he was allowed to

21 work with it before it was ruled he could use

22 it.

23 MR. FITZGERALD: Classified has a special

24 meaning within the government. Didn't want the

25 hearing officer to think the government

416

1 classified it.

2 THE WITNESS: Sorry.

3 BY MR. GAINES:

4 Q. Take a look at exhibit -- wait a minute.

5 In a minute I'm going to look at Exhibit 14 if you

6 want to dig it out here.

7 A. Thanks.

8 Q. We touched on this yesterday -- I think

9 Mr. Perko did -- but what is Burns & McDonnell's

10 function at this point in the STA design continuum,

11 let's call it?

12 A. Okay.

13 Q. What role do they play on behalf of the

14 District?

15 MR. McGRATH: Obviously, you're asking for

16 Dr. Fontaine's understanding of what their role

17 is, right?

18 MR. GAINES: Yes.

19 THE WITNESS: I tried to make it clear

20 yesterday that this contract is not with me.

21 It's with Construction Management. So if you

22 want it from the horse's mouth, then you need to

23 contact Construction Management.

24 BY MR. GAINES:

25 Q. As far as what your understanding is.

417

1 A. My understanding is they have gone forward

2 past the SWIM Plan calculations, have made, you know,

3 additional calculations, a few revisions here and

4 there and have ended up with some recommended STA

5 acreage, but I think they have also gone further in

6 that. My understanding is that they are also an

7 engineering design firm that will be able to say

8 things like the levee height needs to be, you know,

9 this tall and this wide and this is the kind of pump

10 you put in.

11 Q. Is your research department still involved

12 in determining the STA acreage?

13 A. No.

14 Q. Is Burns & McDonnell's -- are they now

15 fulfilling -- at least in part, is what they're doing

16 playing the same role that you were playing at the

17 time that you were preparing Appendix F on behalf of

18 the District?

19 A. I think that they're fulfilling that role

20 and additional roles.

21 Q. Take a look at Exhibit 14. On the first --

22 there's, I guess, a cover letter inside the front

23 cover. The last paragraph on the first page -- the

24 letter is dated February 4, 1994. It's to Zan Kugler

25 from Joel Cerwick and Galen Miller.

418

1 Do you see the paragraph that starts with,

2 "The basic analytical tool?"

3 A. Yes, I see it.

4 Q. Could you please read that for me out loud

5 for the record?

6 MR. FITZGERALD: It's already in the

7 record, counsel.

8 THE WITNESS: I don't understand why I need

9 to read it, but --

10 BY MR. GAINES:

11 Q. Because I want it to be in the transcript

12 at this point and I want to ask you some questions

13 about it.

14 A. I'm just curious why you're not reading it.

15 You've read everything else.

16 Q. I think we took turns.

17 THE WITNESS: Is the witness required to

18 read?

19 MR. McGRATH: I'm not going to object to

20 it, unless, of course, you can't read it.

21 BY MR. GAINES:

22 Q. I'm not going to make you read the entire

23 document.

24 A. All right. It says, "The basic analytical

25 tool described herein for calculation of the required

419

1 effective area of any given Stormwater Treatment Area

2 was developed by technical consultants to the United

3 States Department of Justice. Burns & McDonnell

4 assumes no responsibility for the applicability or

5 accuracy of that analytical tool; we are not aware of

6 any other more suitable analytical tool."

7 Q. Okay. And then take a look at Page S-1 in

8 the summary. I'll read this one.

9 A. Hold on a second. Let me get there.

10 Q. The second full paragraph on that page

11 starts with the sentence, "The basic form of

12 analytical expression employed in calculating the

13 effective area of any given STA has been revised from

14 that presented in the March 31, 1992 conceptual

15 design to reflect the form of analysis used by

16 consultants to the United States Department of

17 Justice in their continued analysis of data for Water

18 Conservation Area 2A and which forms the basis for

19 the estimated performance of the STAs."

20 MR. McGRATH: Jon, just out of curiosity,

21 is there going to be a question here or are we

22 reading stuff in the record?

23 MR. GAINES: I thought I would read

24 excerpts from the Burns & McDonnell report for

25 the remainder of the deposition, yes.

420

1 BY MR. GAINES:

2 Q. Let me ask you, Dr. Fontaine. You

3 testified yesterday that what initially prompted you

4 to begin working on Appendix F was that the only

5 calculations were coming from Dr. Walker, the federal

6 consultant and you felt someone from the District

7 needed to pick up the gauntlet and check that work,

8 do your own calculations on behalf of the District,

9 is that correct?

10 A. That's correct.

11 MR. McGRATH: Let me object for the record

12 just to the extent that you may have

13 mischaracterized his previous testimony.

14 MR. GAINES: Okay. Well, he says it was

15 correct.

16 THE WITNESS: But, if my counsel thinks it

17 was mischaracterized, then I'll have to go along

18 with my counsel.

19 BY MR. GAINES:

20 Q. Let me ask you this.

21 A. After all, he's a lawyer.

22 Q. Why do you not see a similar need at this

23 point to have someone pick up the gauntlet and say

24 that the only calculations are coming from William

25 Walker and someone needs to check this or do their

421

1 own calculations? What's changed?

2 A. Well, I became with my work satisfied that

3 what Bill was doing was scientifically and

4 engineering-wise defensible, correct and good work.

5 He has obviously made some enhancements to that work

6 and he's put that into various documents that we

7 referred to earlier and people have read those

8 documents and, you know, I can't speak for everybody,

9 but I've read them once and there was nothing there

10 that alarmed me, so given Dr. Walker's reputation and

11 my knowledge somewhat of how he works and I -- I

12 personally have seen no reason for me to doubt that

13 he's doing good work and, given the fact that my

14 responsibilities as Director of this division are

15 exceptionably time consuming and that all of this

16 Appendix F was basically done as an addition to that,

17 I don't really have a lot of time now to go back and

18 check people's calculations, but I am quite certain

19 that people from, you know, Sugar Cane League or the

20 Sugar Cane Co-op have gone back and checked his

21 calculations and I have not heard any objections yet.

22 Q. So you're saying it's now the Sugar Cane

23 League and the Sugar Cane Co-op's turn to pick up the

24 gauntlet and be a check on William Walker because the

25 District no longer sees the need based on his

422

1 reputation?

2 A. I can't speak for the District. That's not --

3 Q. Then speaking for yourself?

4 A. I think I just basically gave you a long

5 explanation of how I feel about Dr. Walker's --

6 excuse me -- Dr. Walker's works. I'm not going to

7 repeat that.

8 Q. Is it your understanding, based on the

9 statements in the Burns & McDonnell report, that they

10 are accepting Dr. Walker's current settling rate

11 using it without endorsing it or without testing it

12 in the fashion that you did in Appendix F?

13 A. That's interesting, because they assume no

14 responsibility for applicability of or accuracy of

15 that analytical tool and the analytical tool is a

16 model. That is not necessarily the settling rate,

17 okay? Those things should be looked at as two

18 separate things.

19 Q. Okay.

20 A. That's how I read this without, again,

21 having read this in great detail.

22 Q. And I guess over time originally Dr. Walker

23 was at 8 and he's now at 10.2. Was there an interim

24 settling rate somewhere in there in his evolution

25 from 8 to 10.2 as that you can recall?

423

1 A. As I spoke about yesterday, there were two

2 documents that I have read once. One has to do with

3 getting at the 10.2 number and there was another one

4 called refinements to the settling rate calculations,

5 something along that line. There was another number

6 that I cannot remember the exact number, but it was

7 an interim number.

8 Q. Are you now satisfied on a scientific level

9 that the evolution of the settling rate has stopped

10 and it's appropriate to go ahead and build the STAs

11 based on the current settling rate?

12 MR. FITZGERALD: Objection. Calls for

13 speculation.

14 BY MR. GAINES:

15 Q. You may answer.

16 A. Well, in a generic sense I don't know when

17 we ever stop questioning anything, but I -- am I

18 satisfied that we've gotten down to the 99 percentile

19 of the answer? Yeah, I think we're there. We may

20 see some minor improvements in the future, but when I

21 mean improvements I mean, you know, slight changes in

22 the calculation. But I believe we've gotten about

23 where we're going to get. And just to mention, if

24 you recall in the SWIM Plan, I said that there was a

25 possible range of settling rates between 6 and 10 and

424

1 his 10.2 is not inconsistent with my possibility of

2 10.

3 Q. You testified that the difference between

4 the 6.1 and the 8.4 was not a significant enough

5 difference enough to warrant concern and would the

6 same be true, that the difference between the 6.1 and

7 now the 10.2 is not a significant enough difference

8 to raise concerns?

9 A. Well, we have to talk about whose concerns.

10 Q. Well, I guess your concerns.

11 A. As I said yesterday, I would have been

12 extremely concerned if I had seen the number drop to

13 0 or going into the negative world. When the

14 settling rate is changed it obviously has an affect

15 on the acreage required. At that point I basically

16 think the concerns are in the court of the, you know,

17 agricultural interests who would be affected by the

18 sizings of the STAs and then there, of course, is the

19 concern of the environmental advocate side, you know,

20 that says we want to protect the Everglades. So

21 concerns is, I guess --

22 Q. If they don't function the way they're

23 intended to, it's the concern of everyone, isn't it;

24 the District, the people who are paying for them,

25 whoever that is? Isn't it sort of a generalized

425

1 concern?

2 A. Well, again, you know, concerns. You know,

3 are we dealing in the world of possibilities? Sure,

4 everybody would be concerned that they might not

5 work, but we have to deal I think more with the

6 probability will they work? And what I have been,

7 you know -- my sense, based on everything that I've

8 worked with over these last couple of years, is that

9 they'll work.

10 Q. Your feeling is there's adequate scientific

11 research and support that the STAs will function as

12 intended by the SWIM Plan?

13 A. I think given the best available

14 information we had at the time of the SWIM Plan,

15 there is absolutely no doubt that nutrients can

16 accumulate in marsh systems. This is adequately

17 demonstrated in Conservation Area 2A which received

18 agricultural nutrient input.

19 Q. Let me ask you this. Did the best

20 available information that you had at the time of the

21 SWIM Plan scientifically justify the decision to move

22 forward and build STAs as the primary phosphorus

23 removal strategies to the exclusion of other possible

24 regional alternatives and to the exclusion of

25 conducting additional research studies to further

426

1 develop better available information before making

2 that decision?

3 MR. FITZGERALD: Objection. Calls for a

4 legal conclusion by the witness.

5 MR. GAINES: I asked him if it was

6 scientifically justified.

7 MR. McGRATH: Let me --

8 MR. FITZGERALD: Still calls for a legal

9 conclusion.

10 MR. McGRATH: Let me also --

11 MR. GAINES: Underline that one on the

12 record.

13 MR. McGRATH: Let me object to the form,

14 beyond being extraordinarily long, the question

15 as phrased, you're asking Mr. Fontaine, as the

16 question is stated, to speak for --

17 MR. GAINES: Dr. Fontaine.

18 MR. McGRATH: -- Dr. Fontaine to speak for

19 the entire scientific community everywhere.

20 MR. GAINES: I'm asking him -- I'm asking

21 him -- I'm not asking him to speak for the

22 entire scientific community and I think

23 Dr. Fontaine has a pretty decent attention span,

24 so I don't think the length of the question is

25 objectionable.

427

1 If you would like, we can have it read

2 back.

3 THE WITNESS: No. I understand the

4 question. Let me try to answer it.

5 There are clearly many ways of removing

6 phosphorus and the alternative approaches that I

7 believe you're referring to have been evaluated

8 as part of this continuum, I think as you

9 referred to it, by a consulting firm named Brown

10 & Caldwell and I think your question has to do

11 with sequencing more than whether or not it's

12 been done because they did.

13 BY MR. GAINES:

14 Q. I mean -- we'll, I'll be happy to get into

15 what happened after the SWIM Plan was promulgated,

16 but my question at this point focuses on what was

17 available at that time and what was scientifically

18 justified in your opinion.

19 A. Well, let me go at it from this point of

20 view. All I had before me was what we saw happening

21 in Conservation Area 2A That was a very large scale

22 basically wetland treatment system, which is

23 unsurpassed in size by anything else that I had ever

24 heard of or knew about. So, you know, to me at the

25 time, that was basically the best information I had

428

1 to work with.

2 Q. And as a research scientist was that

3 information -- that best information that you had at

4 the time, did that scientifically justify, in your

5 mind, the decision to take that information and plan

6 to go ahead and build the STAs depicted in the SWIM

7 Plan as opposed to taking some other course of action

8 with that information such as additional research and

9 study or whatever other appropriate course you might

10 come up with?

11 A. You know, you can research something to

12 death.

13 Q. Is that -- was that done with the STAs?

14 A. Well, it was done to the extent that we

15 worked with the best available information at the

16 time.

17 Q. Let me ask you this. You keep going back

18 to "we worked with the best available information at

19 the time" in your application of scientific method

20 and analysis to a problem. What was it that at that

21 point in time said we've got to go with the best

22 information we have and plan to build these things?

23 Was there something out there outside the science

24 that was driving that decision to your knowledge?

25 A. My feelings are that there was a solution

429

1 apparent using this approach and that there was

2 little time to do full blown analysis of alternative

3 solutions. I didn't even know if alternative

4 solutions existed. I was not --

5 Q. Why was there little time to do full blown

6 analysis of alternatives?

7 A. As I stated many times before, not only was

8 I Director of Water Quality Division at that time and

9 had to assume all of those responsibilities, but I

10 was basically bootlegging this work and the little

11 time I had left, I spent --

12 Q. You are saying there was little time for

13 you personally to do full blown analysis of

14 alternatives, is that what you're saying?

15 A. Correct.

16 Q. Why -- do you have any knowledge as to why

17 in the SWIM Plan in process or the District as a body

18 had little time or did the District have little time

19 to do the full blown analysis of alternatives that

20 you're talking about?

21 A. I really can't speak for the District's

22 motivation or approach to this issue.

23 Q. Okay.

24 A. I know what I did. And any decisions

25 regarding evaluation of other alternatives were being

430

1 handled at another level.

2 Q. Did you play any role in the decision

3 whether to go forward with the STAs to the degree

4 that the SWIM Plan does? Did you play any role in

5 that decision?

6 A. I presented in numerous settings my

7 analyses of the STA concept and the settling rate. I

8 presented it to the Governing Board. I presented it

9 at, you know, various SAGE meetings or I'm not sure

10 which meetings, but yes, I certainly went forward and

11 I said this is a solution that seems to be a good one

12 and we have a good expectation that it will work.

13 MR. McGRATH: Jon, are you getting up to a

14 logical break point? We've been going for an

15 hour and half I've got to take a break real

16 quick.

17 MR. GAINES: Let me just finish up this

18 area.

19 BY MR. GAINES:

20 Q. Did they -- was your opinion solicited as

21 to whether additional research was necessary to

22 evaluate alternatives at the time or to evaluate STA

23 related issues on whether they would work,

24 transferability issues, other issues that might

25 impact on that?

431

1 A. No.

2 Q. Did you have an opinion at the time on

3 those topics?

4 A. You're asking me to recall thoughts that I

5 had three years ago. I'd be hard pressed to tell you

6 what opinions I had at that time concerning other

7 approaches.

8 Q. And you mention the Brown & Caldwell work

9 that's been done on behalf of the District.

10 A. Yes.

11 Q. Have you played any role in that process?

12 A. No. None whatsoever, other than just to

13 glance over the report.

14 Q. Are the results of the Brown & Caldwell

15 analysis being accepted by the District?

16 A. Well, I'm not the one who's accepting those

17 results, okay?

18 Q. Who would be the one, the Governing Board?

19 A. Let's see. Let me think about that one. I

20 believe that contract was left with the Construction

21 Management Department so they would clearly have the

22 primary responsibility of accepting the results.

23 From then on I'm not sure who accepts it.

24 Q. Have you played any role or had any

25 connection to the topic of chemical treatment,

432

1 chemical treatment alternative for region or basin

2 scale phosphorus removal technology? Have you had

3 any connection with the decisions on that as to

4 whether to analyze and research that as an

5 alternative to STAs?

6 A. I've had no role in any of those decisions

7 that I can recall. Nobody has asked me to analyze

8 the chemical treatment technology. I'm aware of that

9 type of technology, but I have never been asked to

10 evaluate it.

11 Q. Have you ever -- did you become aware of

12 Burns -- I mean of Brown & Caldwell's conclusions

13 about chemical treatment versus STA technology?

14 A. The last version of their report, you know,

15 it's clearly a matter of record and I guess I feel

16 like it's -- you know, I only have some general

17 impressions that I recall and I can't give you the

18 exact comparisons. I believe that they fell on the

19 side of STAs being cost effective, but that's

20 something that I would just have to go back and read

21 that report and draw that conclusion.

22 Q. Have you ever tried to make any kind of

23 comparison yourself between STAs and chemical

24 treatment technologies?

25 A. No.

433

1 MR. GAINES: All right. We can break.

2 (Thereupon, a recess was taken.)

3 BY MR. GAINES:

4 Q. Dr. Fontaine, am I correct in understanding

5 your prior response -- I don't really want to tie it

6 to your prior response, but I know this was touched

7 on with Mr. Perko earlier. I thought I understood

8 you to testify that your analysis of the STA size for

9 purposes of that analysis, it did not matter to you

10 whether the impacted area in WCA-2A was expanding or

11 not. Is that a correct statement?

12 A. Help me understand it does not matter to

13 me. I'm not sure.

14 Q. It does not impact on the results of your

15 analysis. It does not enter into it.

16 A. First let me state for the record that I do

17 not remember Mr. Perko's original question and my

18 original response.

19 Q. That's fine.

20 A. Let me try to say that -- address it this

21 way, that when we did the analysis, the modeling

22 analysis in 2A to back out the deposition rate, we

23 assumed an area that was impacted. Now, where do I

24 go from there?

25 Q. Did you assume that the area that was

434

1 impacted was growing or was constant?

2 A. The inputs to the model were, to the best

3 of my recollection, something like the average 10

4 year phosphorus loads. During that time, that 10

5 year period, there may have been changes in

6 vegetation coverage. The model for that 10 year

7 period of record started depositing phosphorus into

8 the sediments at a certain rate and basically were

9 independent of what was going on in the aerial extent

10 of any particular vegetation.

11 Q. Well --

12 A. But the comparisons of that model were with

13 the long term accumulation rate.

14 Q. All right. Let me -- I'm not sure if I'm

15 asking it in the right way. Let me try a little

16 simpler way.

17 A. Okay.

18 Q. If the impacted area in 2A is continuing to

19 expand, what implications, if any, does that have for

20 the appropriate sizing of the STAs and the long term

21 viability of the STAs?

22 A. Oh. Okay. The first part of this is if

23 the area is continuing to expand and we certainly

24 have seen an expansion over time. At this point in

25 time I don't know if it's continuing that rate of

435

1 expansion, so that's the first part of this answer.

2 We know that we're talking about an expansion in

3 terms of distance, say, from the S-10 structure, but

4 there is the other element of expansion which is in

5 the vertical direction, that there is accumulation of

6 the peat, okay? So what implications, I think was

7 what you said, does this have for STA --

8 Q. Sizing and the long term viability.

9 A. -- sizing and long term viability?

10 Well, let's refer to the record that we

11 have from the Conservation Area 2A. We know that

12 peat has been laid down for at least a period of the

13 26 years since the cesium peak, so we know that that

14 marsh has functioned as a net depositor of peat for

15 at least 26 years. So, in very simple terms, if the

16 STAs are built or if and when they are built, you

17 know, I think it's reasonable to expect that they can

18 do what 2A has done, which is clearly documented in

19 the sediments cesium record. Past that point I don't

20 know what 2A is going to do, so I can't tell you what

21 the STAs will do. One would expect peat to continue

22 to accrete in some areas.

23 Q. Are you stating that if you build -- if you

24 size the STAs based upon the current aerial extent of

25 the impacted area in 2A, you know you're giving

436

1 yourself 26 years of STA viability?

2 A. Well, that's an interesting question

3 because the cesium peak, you know, was at 26 years

4 ago, but accumulation of peat there, I am almost

5 certain occurred before that peat -- before that

6 cesium peak, so it would be wrong for me to say 26

7 years is the cut off on the lifetime of STAs.

8 Q. Do STAs have a finite life span, I mean,

9 you know, that you can articulate in some fashion?

10 A. Well, nobody's built this kind of thing of

11 this magnitude ever before, so there's nothing that I

12 can reference in the literature to tell you one way

13 or the other. The best approximation we have, as I

14 said, is in Conservation Area 2A where we know, at

15 least based on cesium, they have done it, they have

16 accumulated for at least 26 years. There are --

17 honestly, though, I think that if, you know, you get

18 into the general reference on peat deposition

19 worldwide, which is an area I'm not familiar with,

20 but it's -- you know, the peat in the EAA that was

21 formed by the sawgrass, if I recall, was laid down

22 over a period of 10,000 years. Now that's

23 information that I would have to go back to

24 literature and read to give you the exact numbers or

25 exact references, but that's, you know, conceivable

437

1 that peat could go on for a long time.

2 Q. But, based on the fact that man made

3 marshes of this scale have never been attempted

4 before, it's difficult for you to answer that

5 question, is that correct?

6 MR. McGRATH: Let me object to the form of

7 the question. I think his testimony, if read

8 back, would just indicate the fact that because

9 the man made marshes of this size have not been

10 built before, he's got no reference source to

11 rely on. I think he then spent the next five

12 minutes answering the question.

13 BY MR. GAINES:

14 Q. Do you understand my question, Doctor?

15 A. Why don't you give me your question again?

16 I agree with what my counsel just said, by the way,

17 but I will listen to your question again.

18 Q. You feel you've answered the question about

19 whether there are size or life span implications for

20 the STAs based on whether or not the 2A area is

21 expanding or not?

22 A. I think I gave you the best answer I can

23 give you at this time.

24 Q. Okay. I can't ask for more than that, I

25 guess.

438

1 A. Okay.

2 Q. Are the STAs a technology based -- is the

3 50 parts per billion standard a technology based

4 standard?

5 A. That is the terminology that was used

6 sometime back. That's a commonly used term that the

7 50 parts per billion number was, you know, technology

8 based.

9 Q. What does that mean to you as a scientist

10 when something is technology based?

11 A. Let me just rephrase this because I think

12 the verbiage I heard was technologically feasible,

13 not technology based. I'm not trying to pick words,

14 but I kind of remember the phrase being "this is what

15 is technologically feasible." This is what people

16 have said.

17 Q. That 50 parts per billion was

18 technologically feasible?

19 A. Right.

20 Q. Is that different in your mind then saying

21 that that standard is technology based?

22 A. Probably not. I'm just trying to make

23 clear what I heard. You know, I never, you know,

24 said those words as the originator of those words, so

25 the person who originated that phrase, I'm -- I can't

439

1 say what they were thinking, but they must have had

2 some reason for saying it. 50 parts per billion was

3 a target for me to shoot at.

4 Q. If it's a technology based number, does

5 that mean that there is -- does that indicate to you

6 that there is not technology, that that technology

7 won't get you to, let's say, 40 parts per billion?

8 Is that what that means?

9 A. Well, I honestly haven't thought much about

10 that. This is the first time I've really given

11 serious consideration to what that means. When

12 somebody said that it was technologically feasible it

13 did not negate the possibility that a lower value was

14 feasible through technology, it just basically was a

15 statement that it's feasible through some technology.

16 Q. You don't know -- do you know what other --

17 any other variables were that went into the choice of

18 the 50 parts per billion standard?

19 A. I was not involved in any discussions about

20 the choice of 50 parts per billion other than just to

21 be given the 50 parts per billion as a target to

22 shoot for.

23 Q. That was given to you by?

24 A. I would imagine it was Tony Federico.

25 MR. GAINES: Let's have this marked as

440

1 Number 17.

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

3 BY MR. GAINES:

4 Q. Dr. Fontaine, there's a memorandum dated

5 October 3, 1991 from Bernard Schattner to

6 Distribution List that's been marked as Exhibit 17.

7 It appears that there's a handwritten paragraph on

8 the bottom of this memo with your signature on it.

9 Is that your handwriting?

10 A. Yes.

11 Q. Okay. Are you able to read that for us,

12 just for the record?

13 A. Okay. I said -- let's see. This is review

14 of Draft Conceptual Design for Stormwater Treatment

15 Areas, STA-2, 3, 4.

16 Q. You're not reading your writing at this

17 point?

18 A. No. I'm sorry. I'm trying to get the

19 background here.

20 "This is a large document to assimilate,

21 but what I gather is that the implicit assumption in

22 the designs presented is that phosphorus uptake will

23 be the same in the storage cells as well as the

24 flow-way cells and polishing cells. The original

25 STAs were designed as all marsh systems, so I'm not

441

1 sure if the original intent is captured by designs

2 that are solely based on hydrologic considerations.

3 Deep storage cells may act as plankton driven

4 sedimentation basins with higher or lower particle

5 settling rates than marshes. We need to build

6 ecological reality into these designs to see if we

7 still meet our 50 parts per billion discharge goals.

8 We also need to know if the proposed designs are

9 consistent with the settlement language." And then

10 it's signed by Tom Fontaine and copied to a number of

11 people.

12 Q. This was in response to a Burns & McDonnell

13 analysis as the memo indicates?

14 A. Yes.

15 Q. Do you know what, if anything, was done in

16 reaction to your comments?

17 A. I don't know of anything that was done in

18 reaction to these comments.

19 Q. Is it correct that the -- originally in

20 your understanding the STAs were designed to have a

21 single sheet flow under -- compartmental sheet flow

22 across the entire expanse of each individual STA?

23 A. That was my original understanding that we

24 were dealing with a basic sheet flow emergent marsh

25 with associated, you know, periphyton and whatever,

442

1 system.

2 Q. Thank you.

3 Take a look, please, Dr. Fontaine, at what

4 was marked as Exhibit 13 earlier, the work plan dated

5 September 1, 1993. The -- this document which has

6 been marked as Exhibit 13, is this the most current

7 document depicting the -- this field monitoring work

8 that's taking place in WCA-2A?

9 A. It appears to be, but there might have been

10 some revisions to it since September and --

11 Q. If there were revisions would the date on

12 the document change?

13 A. It should.

14 Q. Did you -- have you done any revision since

15 September?

16 A. No. No.

17 Q. Is there something that is making you think

18 that maybe someone has?

19 A. Well, the only thing that comes to mind --

20 September was four months ago -- it's uncommon for

21 things to stay around without having revisions,

22 especially when they're a work plan. This one

23 appears to be the one that I recall being the most

24 recent, but it's the best I can work with right now.

25 Q. In the first paragraph of this there's a

443

1 statement right around the middle that states that,

2 "Imbalance will be defined relative to a set of four

3 reference sites that are minimally impacted by

4 anthropogenic nutrient additions."

5 A. I see that.

6 Q. What is the reference to the -- what is

7 that? What are the four reference sites referred to

8 there?

9 A. The four reference sites are indicated on

10 the maps towards the back of the document and I hope

11 they are identified also in the text, because what I

12 see in the back that I think were intended to be the

13 reference sites are U1, 2, 3, 4 and that would be 5

14 and I'm just a little concerned that one of those may

15 not, in deed, be a reference site, but the intent was

16 that if you get farther out away from the input of

17 the S-10 structures that you would, in deed, be at a

18 reference site.

19 Q. How many different numerical definitions of

20 imbalance will this study generate in WCA-2A?

21 A. How many different --

22 Q. Numerical definitions of imbalance.

23 A. -- numerical definitions will this

24 generate? Ideally, this should generate one

25 definition of imbalance in regard to phosphorus.

444

1 Q. Okay. And what would the aerial extent of

2 that numerical phosphorus standard be?

3 A. You mean their application to?

4 Q. Yes.

5 A. Okay.

6 Q. How large of an area or community or water

7 body is intended to be covered?

8 A. Okay. Well, we, in the development of this

9 plan, envisioned that there could be different

10 numerical standards in different geographic areas so

11 the one that is developed in 2A obviously would, you

12 know, be most applicable in 2A or communities like 2A

13 that are located elsewhere.

14 Q. So am I understanding that as a result --

15 there won't be more than one number, one threshold

16 number developed within 2A, is that correct?

17 A. Well, I was very careful in picking my

18 words there because I said there the intent is to

19 have one number for phosphorus.

20 Q. Okay. Well let's just focus on phosphorus.

21 A. Just focusing on phosphorus, okay. I would

22 envision, although, you know, obviously I don't have

23 the results of this study yet, but the idea behind it

24 is to come up with a number. You may, as a result of

25 this study, find a number of numbers, one of which is

445

1 associated with, say, highly impacted; one which is

2 associated with moderately impacted and one which is

3 associated with no impact, you know, some kind of a

4 grading of numbers. But the number at which

5 imbalance is not observed should be one number and it

6 will probably have some type of variability

7 associated with it. It may be -- and bear with me

8 here -- there may be a seasonal component to that

9 number and when I say seasonal, I mean there's a lot

10 of things that fall into seasonal. There is

11 temperature differences. There is rainfall

12 differences. So seasonal is an umbrella for a number

13 of things. You need to do the study first.

14 Q. Well, is it possible that as a result of

15 doing the study, is it possible that you will derive

16 more than one number for phosphorus within WCA-2A in

17 different areas of 2A?

18 A. It's possible. Let me draw an analogy of

19 an EPA rule regarding heavy metals to help with my

20 explanation here. There are water quality criteria

21 for heavy metals that depend on the hardness of the

22 water. So you have basically one equation that

23 defines the criteria as a function of the hardness of

24 the water. I wouldn't want to close the door on that

25 kind of approach if we find that that is a reasonable

446

1 approach to take.

2 Q. And what would -- so rather than having a

3 fixed numerical standard of X parts per billion of

4 phosphorus, you would have, under your scenario

5 there, an equation of some type?

6 A. Yes.

7 Q. And what would that be a function of? I

8 assume it's not hardness of the water.

9 A. Well, it would be a function of whatever we

10 find out there and I don't know what those terms

11 would be yet because we haven't really gotten that

12 study done, but I'm just saying in theory similar to

13 how the EPA did their metals criteria, that kind of

14 approach is possible.

15 Q. Are you aware of the extent of any water

16 quality violations at this point in WCA-2A, whether

17 any have been documented and, if so, where?

18 A. I can't list them for you here, but there

19 has been a compilation of comparing water quality

20 with water quality standards for parts of the

21 District which may include Conservation Area 2A. I

22 don't recall if the analysis dealt with 2A

23 specifically.

24 Q. Who did that analysis?

25 A. In a general sense I think it came out of

447

1 the Water Quality Division, but I can't put a name to

2 it.

3 Q. Are you specifically aware of any water

4 quality violations that have been determined in

5 WCA-2A?

6 A. Well, the standard for nutrients is a

7 narrative standard. It's a no imbalance standard and

8 in my best professional judgment I would say that

9 there was imbalance occurring. That's not a

10 comparison with a numeric standard, however.

11 Q. Does the standard for nutrients have a

12 causation element to it?

13 A. Does it have a causation? I don't remember

14 the exact wording. There's something like

15 contributes or causes. Somebody's going to have to

16 read me that standard for me to answer that question.

17 Q. Okay. I guess it will speak for itself.

18 A. Okay.

19 Q. Are you -- in -- you're familiar with what

20 we've been referring to as the impacted area in 2A.

21 Have you, either through your research or review of

22 other's research, separated the effects of nutrients

23 in hydroperiod alterations in WCA-2A areas in terms

24 of causation of the changes there?

25 A. Again, I go back to the rule which says

448

1 causes to or contributes to.

2 Q. No. That's not my question at all.

3 A. Okay.

4 Q. I'm not asking you to try to remember the

5 rule. I'm -- do you want to have the question read

6 back?

7 A. No. I understood the question. You're

8 asking has anybody separated out basically the

9 causation of what we see there.

10 Q. I'm asking you whether you have.

11 A. Okay.

12 Q. Whether you're aware of anybody having done

13 that.

14 A. I personally have not. There are -- I'm

15 trying to remember if they have been published or

16 not. There are overlays of cattail growth that have

17 been put on -- I'm sorry. There's maps of cattail

18 growth that have been overlaid over phosphorus

19 content of the sediments and they almost match one to

20 one --

21 Q. Okay.

22 A. -- which certainly indicates that there is

23 a strong correlation.

24 Q. Okay. And you've reviewed those maps or

25 seen them?

449

1 A. I have seen those maps.

2 Q. And how do those maps deal with hydroperiod

3 alteration issues in that same area?

4 A. Those two maps do not have indication of

5 hydroperiod variation on them.

6 Q. Are you familiar with the issue about -- as

7 to whether hydroperiod is a causal factor or a

8 contributing factor to the changes in WCA-2A?

9 A. I've heard that document expressed.

10 Q. Have you formed any opinion as to what role

11 hydroperiod plays in the impacted area 2A?

12 A. Well, I'll say this. There are a number of

13 factors that contribute or could contribute to the

14 growth of cattail species. It's the relative

15 importance of those factors that needs to be

16 quantified.

17 Q. Has the relative importance of nutrients

18 versus hydroperiod been quantified, to your

19 knowledge, in WCA-2A?

20 A. I'm trying to recall any peer review

21 literature that I have seen that speaks to that issue

22 and I'm not coming up with any references. There may

23 be some, but I'm not coming up with them at this

24 point.

25 Q. Is that the -- is that what you would need

450

1 to see, to at least satisfy yourself, peer review

2 literature on an issue such as that?

3 A. Well, you know, there are clearly data that

4 are good that have not gone through the peer review

5 process. The peer review process, it adds, if you

6 will, another ounce of credibility, assuming the peer

7 reviewers were good.

8 Q. Is there any specific data that is good

9 that you're aware of that qualifies the relative

10 importance of hydroperiod and nutrients in WCA-2A?

11 A. I think I'm going to beg out of this one

12 because I think there are people that this question

13 is better asked to, people who do plant physiology

14 and plant growth.

15 Q. I believe that. This is your deposition.

16 I'm asking you what you're aware of. If you're aware

17 of such data we'd like to know about it. If you're

18 not, then that's fine too. I just want to know.

19 A. Well, I don't know of any and I'm saying

20 that I may not have kept up with the literature most

21 recently, but, again, given some of the demands of my

22 job, it's tough to read all the literature.

23 MR. GAINES: All right. I'm a man of my

24 word. It's 12:30. Let's break for a half hour.

25 (Thereupon, a lunch recess was taken.)

451

1 MR. GAINES: You can mark these as the next

2 two exhibits.

3 (The documents were marked Exb. Nos. 18-19.)

4 BY MR. GAINES:

5 Q. Dr. Fontaine, prior to our break we were

6 discussing the Field Monitoring to Support the

7 Ecological and Numerical Interpretation of no

8 Imbalance Water Quality Standard in the Everglades, a

9 Work Plan, September 1, 1993.

10 For shorthand I have been referring to

11 that, at least to myself, as the gradient study. Is

12 that how you refer to that or can we refer to that

13 for our purposes?

14 A. Sure. That's fine.

15 Q. I want to try to make sure I have the

16 gradient study in its proper context in terms of the

17 overall Everglades research that's taking place at

18 the District.

19 A. Okay.

20 Q. So I have two items I'd like you to take a

21 look at before we get back into the gradient study

22 itself. The first has been marked as Exhibit 18 --

23 A. Okay.

24 Q. -- a document dated July 1993 entitled

25 Draft Research Planning Process and what I have here

452

1 is Volume 1 --

2 A. Yes.

3 Q. -- and Volume II --

4 A. Okay.

5 Q. -- and then some additional attachments.

6 A. Okay.

7 Q. The copy goes from bates number 1174860 to

8 1174999. I'm not sure if this is the entire document

9 or not. Let me ask you. Do you recognize this

10 document which we've marked as Exhibit 18?

11 A. Yes, I do.

12 Q. Can you tell me what this document is, sir?

13 A. This document in its entirety represents a

14 research plan for future research in the District of

15 which the Everglades is one part --

16 Q. Okay.

17 A. -- and it includes details of studies and

18 time lines and things like that.

19 Q. Okay. I don't want to make this document

20 an exhibit unless I have to. Let me just show it to

21 you. I'll refer to it. There's a document entitled

22 Draft Everglades Research Plan, dated July 10, 1992.

23 A. Yes. I see that.

24 Q. Is this -- are you familiar with this

25 document?

453

1 A. There have been many versions of this

2 document, but generally, yes.

3 Q. Would the document, this July 10th

4 document, be an earlier version of Exhibit 18 or

5 portions of Exhibit 18?

6 A. Can I see that?

7 Q. Yes. If we need to get to it in detail we

8 can mark it.

9 A. I want to make sure, because you see, at

10 that time I'm not sure there was a Volume I and

11 Volume II overview kind of chapters. This may have

12 been just the Everglades section.

13 Q. Would the Everglades section or sections of

14 Exhibit 18 supersede the July 1992 document?

15 A. Yes. The '92 document is a couple years

16 old.

17 Q. I'm just making sure that was an effort to

18 kind of pull together the same kind of categories of

19 information that we're seeing in the July '93

20 document at that time, at least with regard to the

21 Everglades stuff.

22 A. Same idea. All the stuff in this 1992

23 package is obviously not included in Exhibit 18 that

24 you have handed me.

25 Q. Right. But I mean in terms of the

454

1 operative document --

2 A. Uh huh.

3 Q. -- July '92 is moot --

4 A. Moot.

5 Q. -- at this point?

6 A. Give moot the boot.

7 Q. Okay. Now, recognizing that Exhibit 18 may

8 not be a complete copy --

9 A. Yes.

10 Q. -- of what the title page indicates --

11 A. Okay.

12 Q. -- is Exhibit 18 the July 1993 research

13 planning process document, the most current version

14 of such a document?

15 A. No, it is not.

16 Q. Okay. What would the most current version

17 be?

18 A. Most current version is a 1994 document.

19 It's either January or February.

20 Q. When would that document become available

21 or is that document now available? Let me ask you

22 that.

23 A. Well, I -- you know, I guess my answer is

24 under the, you know, assumption all of these

25 documents are available.

455

1 Q. I'm not asking you for a legal -- I mean

2 has that been distributed?

3 A. I don't know if it's been widely

4 distributed, no, but it's certainly there.

5 Q. Do you know when that document was

6 prepared?

7 A. The most recent version was put together in

8 January or February.

9 Q. Did you work on it?

10 A. Yes.

11 Q. Who else did? Who else worked on that

12 document?

13 A. Nearly everybody in the division.

14 Everybody had a look at it basically.

15 Q. Do you know whether the document that we're

16 discussing was produced or did you produce that

17 document in connection with the deposition subpoena?

18 When I say produce, I mean provide it to us.

19 A. The most recent edition?

20 Q. Yes.

21 A. I personally did not produce that.

22 Q. Okay. Do you know why?

23 A. No. Certainly wasn't any intentional, you

24 know, withholding.

25 Q. Okay.

456

1 A. Some of these things tend to go over to

2 legal via other routes and not from me.

3 MR. GAINES: Well, I do request a copy of

4 the document. I don't know if it's practical to

5 try to get it here this afternoon or not. Dan,

6 what do you think?

7 MR. McGRATH: I can make an inquiry. You

8 know, I obviously can't agree to make it

9 available this afternoon and, just for the

10 record, there have been a couple of instances

11 where documents have been requested and, just to

12 make it clear, I do not agree on the record to

13 produce those. I don't think there's any

14 problem. I've got to check with my client

15 first, make sure the document is available and

16 then afterwards, if there's no problem, you

17 know, we'll produce them. But I can't agree on

18 the record. I can make an inquiry right now and

19 find out if it's possible to get this over here.

20 I would tend to doubt it just because -- I can

21 make an inquiry, make an attempt to.

22 MR. GAINES: You know, I can go through

23 with him what the differences are and if we

24 can't get it today I would like to reserve the

25 right to question Dr. Fontaine on that document

457

1 when it becomes available to us.

2 MR. McGRATH: Okay. Also, just for the

3 record, everybody seems to be reserving for the

4 record. I do not agree, you know, that the

5 District will produce anybody, let alone

6 Dr. Fontaine, again. You can preserve the

7 record however you want, but just so that it's

8 clear, I am not agreeing on behalf of my client

9 to do anything.

10 MR. GAINES: Okay. I mean, you know,

11 whatever. We've both protected the record. I

12 think this is a document that we've clearly

13 requested. It's relevant. If you want to stop

14 right now for two minutes and see if you can get

15 it over here, that's fine. Otherwise, you know,

16 I think I'm going to be at some future point

17 wanting to ask Dr. Fontaine some questions about

18 it.

19 MR. FITZGERALD: I join in the objection

20 and I do not accept the notion that it may be

21 relevant, a document prepared this calendar year

22 with regard to a SWIM Plan that goes back to

23 1992 and I'm not foreclosing the possibility

24 that there might be some relevance, but I'm

25 certainly not conceding it at this juncture.

458

1 And, if after review, it didn't appear relevant,

2 of course, we would raise that as a basis for

3 objecting to an additional deposition.

4 MR. GAINES: Tom, you're not suggesting

5 anything prepared after 1992 is not relevant in

6 this matter?

7 MR. FITZGERALD: Didn't say that, did I?

8 MR. GAINES: I don't know. I'm not sure

9 what you said.

10 MR. FITZGERALD: It's on the record.

11 MR. McGRATH: You want me to make a phone

12 call and see what I can do?

13 MR. GAINES: That's fine. Why don't we?

14 Yeah. You can go ahead and do that now. I was

15 going to ask him what the differences are

16 between the two documents.

17 MR. McGRATH: Do that first.

18 BY MR. GAINES:

19 Q. What are the differences between the two

20 documents? Are they extensive?

21 A. Between the July 1993 and the 1994

22 document?

23 Q. Yes. And I'm not asking you to give me a

24 page by page. Just generally.

25 A. First of all, let me tell you that what

459

1 you've handed me here is -- what do you call it --

2 document Number 18.

3 Q. Exhibit.

4 A. Exhibit. Thank you. It is not nearly

5 complete.

6 Q. Okay.

7 A. It has Volume I, Volume II but then there

8 should be six, what we call research implementation

9 plans, of which you have two.

10 Q. Okay. Let me give you Exhibit 19 as well

11 which has already been marked which you have in front

12 of you.

13 A. Yes.

14 Q. These are some pages that, you know, I had

15 faxed to me earlier today because I figured out I

16 needed to ask you some questions about them.

17 A. Okay. This is one of the ones that is

18 missing.

19 Q. All right. Let me ask you this. Just in

20 terms of the structure of the document, on the first

21 page of Exhibit 19 we see sort of a flow chart and

22 underneath Everglades Research Goal there are six

23 boxes for objectives.

24 A. Yes.

25 Q. One of the boxes is enlarged on Exhibit 19

460

1 and there's some other information below that. Would

2 it be accurate to state that in the complete document

3 each of these six boxes would have a wellspring where

4 that box is enlarged and it is discussed in the six

5 sections?

6 A. Yes.

7 Q. And I think Exhibit 18 contains two of

8 those.

9 A. That's correct.

10 Q. All right. So you're saying we don't have

11 the entire document here. Let's see how far we can

12 get on the portions that we have.

13 Given that we now have sort of established

14 what the scope of the original July '93 document is,

15 what basic changes are there from Exhibit 18 to the

16 1994 document?

17 A. I can tell you that in the newer documents

18 I believe we took out the pages that -- I don't know

19 how to describe something; I'll hold them up to you --

20 that look like this, which are --

21 Q. You're indicating -- give me the bates

22 number.

23 A. Like a project number and a project leader

24 and an objective and title and task description.

25 Q. Could you just read the six or seven digit

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1 number that's stamped on the page?

2 A. Yeah. Thank you. 1174925 is an example of

3 the kind of page that has been taken out from the

4 main body of the document and has been basically

5 repeated with whatever enhancements have been made

6 since July '93 into an appendix which is the output

7 of a project scheduling software package. It

8 basically repeats the same information.

9 Q. Different format?

10 A. It looks similar but it's the same idea.

11 Q. Are there -- is this document intended to

12 be a comprehensive reflection of the ongoing and

13 planned research projects of the District?

14 A. Let me speak for the Everglades section.

15 For the Everglades section, yes, this is what we have

16 planned. Of course, we reserve the right to have

17 some flexibility in the future case of where we need

18 to, you know, investigate something that's related or

19 important.

20 Q. Okay. And so with regard to non-Everglades

21 research the document may not be as comprehensive?

22 A. Well, non-Everglades research would refer

23 to research with Lake Okeechobee Kissimmee Basin and

24 I didn't have a role in writing those. I can't even

25 comment.

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1 Q. You can speak to the Everglades?

2 A. Yeah. The general idea of the Okeechobee

3 work is the same.

4 Q. Let me ask you this. In the -- does the

5 1994 document reflect any additional research

6 projects or planned research projects regarding the

7 Everglades that are not reflected in the July 1993

8 version?

9 A. It is certainly possible. There may have

10 been additions or deletions or reprioritization of

11 projects.

12 Q. Are you aware of any specific additions,

13 deletions or reprioritizations as we sit here?

14 A. That would be hard to tell you one way or

15 the other without actually, ah, having the two

16 documents side by side, but it's certainly possible.

17 Q. Obviously, we can all sit down and put the

18 documents next to each other.

19 A. I don't want to have to.

20 Q. You're the Director --

21 A. Yeah.

22 Q. -- of the Everglades Research? Are you

23 aware of any new research projects that you have

24 planned or included in this project since the July

25 1993 version? I mean if you just don't recall, I

463

1 guess the document, when we get it, will speak for

2 itself, but let's try to cut through some of this.

3 A. Give me a second to reflect on this

4 question.

5 Q. Okay.

6 A. I can recall at least one instance where a

7 project was either renamed or newly added and that

8 was when we decided to develop the water quality

9 module that links to the water quantity model. I

10 believe that change occurred between July '93 and

11 1994.

12 Q. That was the model development you

13 discussed with Mr. Perko earlier in the deposition?

14 A. Right. For which there is a RFP.

15 Q. Just looking at bates number 1174913 --

16 A. Yes.

17 Q. -- where would the addition of that project

18 or renaming of it have any impact on the contents of

19 this flow chart here?

20 A. Are you speaking specifically to this flow

21 chart or --

22 Q. Right.

23 A. -- any particular?

24 It would appear at the bottom in those

25 bottom boxes under Summary of Information Needs.

464

1 Q. Okay. With regard to which -- what would

2 the wellspring be of that project within the six --

3 A. Let's called them implementation plans.

4 That's what we call them.

5 Q. Okay.

6 A. That would be the one that -- under the one

7 called Manage Water Resources to Meet Multi-objective

8 Demands.

9 Q. Let's see if that happens to be in one of

10 our exhibits.

11 A. There may be a number of other changes in

12 priorities on the implementation plan that had to do

13 with evaluative effectiveness of BMPs.

14 Q. A change in priorities, is that what you

15 said?

16 A. Yes. That's what I said.

17 Q. What would trigger a change in priorities

18 on research projects or what did trigger that

19 particular change in priorities?

20 A. Well, the first part of your question was

21 what, in general, would trigger the change? The

22 change would usually come about by, you know,

23 discussing things with scientists and determining

24 which project should be done first. We try to do

25 things in an orderly fashion so we don't get the cart

465

1 before the horse and then there's different areas of

2 priorities. As you can see, we handle many

3 biological things, but we handle the engineering

4 water quantity modeling things and if, for instance,

5 a request from the Planning Department came down to

6 revise the water management model for water supply

7 needs, then -- and let's pretend that that had never

8 been expressed before, we would say, oh, we should

9 adjust our resources. Instead of putting a

10 technician here, we'll put him over there. Something

11 like that.

12 Q. Do you recall exactly what projects

13 regarding evaluating the effectiveness of BMPs were

14 reprioritized?

15 A. If they, in deed, were reprioritized during

16 this time period, which I'm a little bit fuzzy on, I

17 don't recall which ones it would have been. I'm

18 sorry.

19 Q. We won't try to do the changes from memory.

20 We'll get a copy and look at what it tells us.

21 A. That would be our safest thing to do.

22 MR. GAINES: You know, I do have questions

23 for him on this document, so however you want to

24 handle it --

25 MR. McGRATH: At this point, after

466

1 listening to the further discussions since this

2 was first brought up, I don't think it's

3 particularly reasonable, certainly not

4 practical, given that the document is fairly

5 voluminous and only portions of which we have

6 now, plus the fact that the document is two

7 sided copied, by the time it's tracked down and

8 it would have to be copied one sided and then

9 you're talking about faxing potentially hundreds

10 of pages --

11 MR. GAINES: I would probably say just

12 deliver it.

13 MR. McGRATH: And delivering it. Then

14 there's questions of whether that's reasonable,

15 whether we should have to do that. I'll make

16 inquiry on the availability of the document. If

17 there's no problems with my client, I'll

18 certainly produce it to you once I've received a

19 copy of it. But I don't think -- any efforts to

20 try to get over here right now probably aren't

21 going to be fruitful.

22 MR. GAINES: I'll leave it up to you, if

23 you want to take a break and make that effort, I

24 think that's fine. I think it's responsive to

25 what we asked for. I'm entitled to question the

467

1 doctor on it. We both made our record on that.

2 MR. FITZGERALD: One other point ought to

3 be borne in mind. It may be something Dan can

4 explore in the context with the District. I'll

5 be absolutely amazed if your clients are not

6 already in possession -- your firm is not

7 already in possession of the 1994 version based

8 on the repeated public records request filed

9 with the Water Management District.

10 MR. GAINES: We will note your amazement

11 for the record.

12 MR. FITZGERALD: And if, in fact, you are

13 in possession of it, I would say that is a

14 substantive basis on which to resist any further

15 effort of producing public documents. It has

16 been the practice throughout this several year's

17 of effort that documents publicly available that

18 have generally been received or bandied back and

19 forth have not had to be reproduced at every

20 deposition and this seems to be one of those

21 types of documents. I suspect that the District

22 has a record of whether or not, in fact, it was

23 provided to you.

24 BY MR. GAINES:

25 Q. Dr. Fontaine, take a look at the first page

468

1 of Exhibit 19, the one --

2 A. Got it.

3 Q. Okay. You've got that.

4 Does the gradient study that we've been

5 discussing, the work plan, Exhibit 13 to this

6 deposition, fit into this chart somewhere?

7 A. Yes. It's down at the bottom left corner

8 and it's labeled Everglades Biogeochemical Gradient

9 Analysis Program.

10 Q. The EBGA?

11 A. EBGA.

12 Q. So the EBGA study, that is the work plan,

13 Exhibit 13?

14 A. Well, now in this case, since this document

15 is dated July 1993, there was clearly an earlier

16 version to the September --

17 Q. But I mean this is --

18 A. -- but the correlation between the two is

19 correct.

20 Q. The gradient study we've been discussing,

21 this is the niche that it fits into in the overall

22 scheme of things?

23 A. That's right.

24 Q. Beautiful.

25 Is the overall research effort which is

469

1 depicted on Exhibit 19, first page of Exhibit 19, is

2 that referred to as the Everglades Nutrient Threshold

3 Research Plan?

4 A. No.

5 Q. Okay.

6 A. No. No. This is -- what we're referring

7 to here in document 19 is what we called EEP.

8 Q. E-E-P?

9 A. E-E-P, Everglades Ecosystem Processes and

10 as part of that there is the gradient study which is

11 to get thresholds.

12 Q. Is the name Everglades Nutrient Threshold

13 Research Plan familiar to you? Is that a different

14 name for the same study that we're talking about?

15 A. Are you referring to document 13?

16 Q. Yes.

17 A. It may have been called that one time.

18 Q. Let me -- I'm just trying to figure out

19 where all of these various studies fit in with each

20 other. There's another document that I don't have a

21 copy of this one, but we can make copies if we need

22 to.

23 A. Okay.

24 Q. You can take a look at it. Everglades

25 Nutrient Threshold Research Plan July 3, 1992. Can

470

1 you tell me what that document is and where that fits

2 into this overall picture?

3 A. Okay. This Everglades Nutrient Threshold

4 Research Plan was developed as part of the Tech