1

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038

9 ASSOCIATION, LEWIS POPE FARMS, 92-3039

W.E. SCHLECHTER & SONS, INC., and 92-3040

10 HUNDLEY FARMS, INC.,

11 Petitioners,

12 vs.

13 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

18 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

20 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF RUSSEL B. FRYDENBORG

24 January 7, 1993

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2 DEPOSITION OF RUSSEL B. FRYDENBORG

3 Taken in the above-styled cause, pursuant to

4 notice, at the Department of Environmental Regulation, 2600

5 Blair Stone Road, Tallahassee, Florida, on January 7, 1993,

6 commencing at 9:00 a.m.

8 Reported by:

9 JERRY L. ROTRUCK

10 Certificate of Merit

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1 APPEARANCES OF COUNSEL:

2 On behalf of the Petitioners Florida Sugar Cane League,

Inc., United States Sugar Corporation and New Hope

3 South, Inc.:

4 William L. Hyde, Esq.

Peeples, Earl & Blank

5 215 South Monroe Street

Suite 350

6 Tallahassee, FL 32301

7 On behalf of the Intervenor United States of America:

8 Geoffrey Garver, Esq.

U.S. Department of Justice

9 Environmental and Natural Resources Division

General Litigation Section

10 Post Office Box 663

Washington, D.C. 20044-0663

11 (202) 272-4192

12 On behalf of the Intervenor Department of Environmental

Regulation:

Keith Hetrick, Esq.

14 Lee Killinger, Esq.

Deputy General Counsel

15 State of Florida

Department of Environmental Regulation

16 Twin Towers Office Building

2600 Blair Stone Road

17 Tallahassee, FL 32399-2400

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1 INDEX TO WITNESS

2 RUSSEL B. FRYDENBORG Page

3 Examination by Mr. Hyde 6

8 INDEX TO EXHIBITS

9 No. Marked

10 1 9

11 2 31

12 3 57

13 4 58

14 5 60

15 6 61

16 7 70

17 8 75

18 9 80

19 10 81

20 11 102

21 12 131

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1 S T I P U L A T I O N

2 IT IS STIPULATED AND AGREED by and between counsel

3 appearing for the respective parties as follows:

4 THAT the deposition of RUSSEL B. FRYDENBORG was

5 taken by agreement for the purpose of discovery, for use as

6 evidence, and for such other purposes as may be permitted

7 by the Florida Rules of Civil Procedure and other

8 applicable law;

9 THAT all objections, except as to the form of the

10 question, are reserved until the trial of this cause; and

11 THAT by agreement of the witness and all parties,

12 reading and signing of the deposition was not waived.

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1 D E P O S I T I O N

2 Whereupon,

3 RUSSEL B. FRYDENBORG

4 was called as a witness, having been first duly sworn to

5 speak the truth, the whole truth, and nothing but the

6 truth, was examined and testified as follows:

7 EXAMINATION

8 BY MR. HYDE:

9 Q Would you please state your full name and address

10 for the record, please?

11 A Russel Frydenborg, Russel Brant Frydenborg, 109

12 Barbara Street, Tallahassee, Florida, 32304.

13 Q Mr. Frydenborg, my name is William Hyde, and I

14 represent one of the petitioners in the challenges on the

15 Everglades SWIM Plan. Specifically, I represent the

16 Florida Sugar Cane League, U.S. Sugar Corporation, and New

17 Hope South, Inc., and we are going to be conducting here

18 today a deposition to ascertain what your anticipated

19 testimony will be at an expected final hearing in this

20 regard.

21 Let me ask you first, have you ever been deposed

22 before?

23 A No.

24 Q Basically, what I will be doing will be asking you

25 a series of questions. Hopefully you will be able to

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1 answer them. If you have any questions concerning my

2 questions or if you don't understand them, please tell me

3 and I will try to rephrase them; otherwise, I will presume

4 that in responding to a question you have understood it.

5 Should it arise that any of the attorneys in this

6 room raise an objection, I would suggest that at that

7 moment you just halt whatever you are saying and wait for

8 the attorneys to work out that objection, and then we will

9 proceed onward.

10 For the most part, objections are made simply for

11 purposes of the record, and once made, you can go on and

12 continue with your answer. There may, however, be some

13 types of questions where your attorney in particular will

14 believe that there is a privilege involved and will

15 instruct you not to answer or something to that effect, and

16 that is something we will deal with if and when we

17 encounter it.

18 MR. KILLINGER: Could we go off the record for a

19 second?

20 (Discussion off the record.)

21 MR. HYDE: It is my understanding that -- is it

22 Mr. Frydenborg or Doctor?

23 THE WITNESS: Mister.

24 MR. HYDE: That Mr. Frydenborg's testimony will --

25 at least at this point is going to be confined to the

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1 Everglades SWIM Plan proceeding. It is the position of

2 the League and its allieds that should circumstances

3 arise whereby Mr. Frydenborg is offered to give

4 additional testimony concerning the Department's

5 proposed issuance of the Marjory Stoneman Douglas Act

6 permits to the South Florida Water Management District,

7 we should have an opportunity at some later date to

8 redepose Mr. Frydenborg.

9 It is my understanding, however, at this time that

10 he is not being offered to give such testimony, and

11 therefore the questioning that I will be doing today

12 will be confined to the testimony that he intends to

13 give in the Everglades SWIM Plan proceeding alone.

14 MR. KILLINGER: It is the Department's position

15 that Mr. Frydenborg's testimony or deposition here

16 today is being taken for any and all purposes with

17 regard to the SWIM proceeding and with regard to the

18 permit challenge, whether the two are consolidated or

19 not, in accordance with prior stipulation in connection

20 with, I think, Mr. Nearhoof's deposition earlier in the

21 case, and I would like to put on the record that we are

22 not restricting any inquiries with regard to the permit

23 proceeding here today, and that to the extent any of

24 Mr. Frydenborg's testimony on issues in the SWIM

25 challenge are relevant to the permit proceeding, that

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1 his testimony may be offered in that proceeding as

2 well, but that we should avoid duplicative discovery,

3 and Mr. Frydenborg's deposition should only be taken

4 once and this should be that time.

5 MR. GARVER: For the record, the United States

6 concurs in the understanding of the Department of

7 Environmental Regulation.

8 MR. HYDE: Let's mark this as Exhibit 1.

9 (Whereupon, Exhibit No. 1 was marked for

10 identification.)

11 MR. KILLINGER: Did you get this from his

12 documents that we produced?

13 MR. HYDE: Actually, I don't think so. This came

14 from our files, and I think it was provided to us.

15 MR. KILLINGER: I think he has updated it, and the

16 documents he just gave you has, I think, a copy, it may

17 have a bit more of an update on it. If not, we can

18 just do it verbally. I don't know if you got a copy or

19 not.

20 Did you bring another copy with you, by any

21 chance?

22 THE WITNESS: No.

23 MR. HYDE: I don't recall having copied a CV

24 during the production of documents, but maybe we can

25 just go through the example that I have here.

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1 MR. KILLINGER: That is fine.

2 MR. HYDE: To the extent it has been updated or

3 changed, perhaps the witness can so advise me.

4 MR. KILLINGER: Okay, that is fine.

5 BY MR. HYDE:

6 Q Mr. Frydenborg, I have provided you with a

7 document which has been labeled Exhibit No. 1. Can you

8 identify that document for me?

9 A This is a description of my work experience and

10 things like that.

11 Q Did you prepare that document?

12 A Yes.

13 Q Is all of the information contained in that resume

14 or CV accurate, to the best of your knowledge?

15 A Yes. I have, as Lee said, I updated it slightly.

16 I got another commendation that I put down in my new one.

17 I think I have written a few more papers since then.

18 Q What is the commendation that you just referred

19 to?

20 A That was the Department of Environmental

21 Regulation Team Performance Award that I got, about six

22 months ago now, given by Carol Browner.

23 Q For what purpose was the award given?

24 A It was in the field of biological assessment that

25 is currently part of my job, the interaction between the

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1 biology section and various permitting staff making the

2 program more effective for the Department's purposes.

3 Q I think you also referred to some additional

4 publications?

5 A I believe there is a paper on mitigation effects

6 that -- mitigation is data that we performed about a year

7 ago or six months ago having to do with phosphate mine

8 streams, and they would try to recreate them, and we have

9 done some studies on that, and also on artificial marshes

10 that they have created, that is not reflected in this

11 particular resume.

12 Q Were those internal DER publications?

13 A Yes.

14 Q Did you author them yourself or in conjunction

15 with any other individuals?

16 A In conjunction with other people in our section.

17 Q Who were the other persons?

18 A It would be Kathleen Lurding and Landon Ross.

19 Q Are those publications generally available for the

20 public to look at?

21 A They are available to the public if they know of

22 their existence.

23 Q Was this just one publication or two?

24 A Well, there is that one publication, and one thing

25 that I didn't mention, we have an ongoing bioassessment

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1 program. We probably have done about 70 bioassessment

2 reports in the last few years that aren't necessarily

3 reflected in this resume, and I just put a little note that

4 there are 70 bioassessment reports that I participated in

5 producing.

6 Q Let's back up a minute to the phosphate study. Is

7 that a document that will be considered peer-reviewed or

8 refereed?

9 A Well, it had internal review. Various members of

10 DER and various sections reviewed it, went through a review

11 process, and some modifications and revisions resulted from

12 that.

13 Q It wasn't peer-reviewed or refereed in the sense,

14 however, that one submits a publication to a journal or

15 other scientific or technical publication for review by

16 outside experts?

17 A Right, it was not.

18 Q Tell me a little bit more about the 70

19 bioassessment reports. What are they?

20 A Well, they are pretty much routine reports that we

21 produce to provide scientific evidence to determine whether

22 or not a particular point source discharger may be having

23 impacts on receiving water communities.

24 As part of the fifth year permitting cycle the

25 Department is engaged in, a permit is due every five years,

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1 and with this program that we are involved in, about a year

2 before the permit is due we will perform a fairly

3 comprehensive study on the effluents and receiving water

4 communities to determine if there is any noticeable

5 problems, and then based on the results of our

6 bioassessment, the permitting people may elect to change or

7 modify the permit, make it more stringent, or if there are

8 no effects, then that will be evidence that the current

9 permit is adequate.

10 Q Do you intend to rely upon any of these

11 bioassessment reports as a predicate for your anticipated

12 testimony in this proceeding?

13 A Do you mean are any of them about the Everglades?

14 Q Well, yes, answer that first. Are any of them

15 about the Everglades?

16 A I don't anticipate that any of those particular

17 documents really had much to do with the Everglades. I

18 think there was one document about the Pratt-Whitney plant

19 that we looked at, and I think that is near one of the

20 water conservation areas. We did some biological work

21 there, but it is not really in the Everglades. It is over

22 in the West Palm Beach area, but that is about the closest

23 geographic range of any reports that we have done.

24 Q Will those bioassessment reports be utilized by

25 you in any context in this proceeding to support the

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1 opinions that you will be offering in the final hearing?

2 MR. GARVER: Object to the form.

3 THE WITNESS: I am trying to think if there is

4 anything in the reports that would carry over to these

5 proceedings. There are just standard procedural

6 documents that talk about the bioassessment program

7 that is currently in place, and I am not sure that I

8 would refer specifically to any one of those documents.

9 BY MR. HYDE:

10 Q Going back for a moment to the phosphate industry

11 study that you referred to a few minutes ago, do you intend

12 to rely upon that study or publication as a support or

13 predicate for the opinions that you might be expressing in

14 this proceeding?

15 A No.

16 Q I would like to take you through your educational

17 and employment history.

18 According to your resume, you obtained a Bachelor

19 of Science from FSU in 1977, major in biological science,

20 minor in chemistry. Was there any thesis required for that

21 work?

22 A For the degree?

23 Q Yes.

24 A No.

25 Q Did you ever pursue any postgraduate studies?

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1 A I took some postgraduate courses and got my job at

2 DER before I fully enrolled in a postgraduate program.

3 Q Was there some particular concentration to your

4 major and minor?

5 A Well, my interest going into school was always

6 environmental type of work, and if I had an elective class,

7 I would normally intend to make that something dealing with

8 environmental type analysis. Certain directed individual

9 studies that I pursued were under professors at the

10 university that were doing ecological type studies, so that

11 I could learn more about that type of stuff.

12 Q What types of or what courses did you take for

13 your major in biological science, if you recall them?

14 A Oh, boy. There is plant diversity, animal

15 diversity, genetics, water pollution biology, courses of

16 that nature, as well as chemistry and physics courses.

17 That was a long time ago. I can't really remember all of

18 the courses that I had.

19 Q When did you first start working for the

20 Department of Environmental Regulation?

21 A That would be in 1979, I believe.

22 Q I note from your resume that you had some

23 positions prior to your tenure at the Department of

24 Environmental Regulation. Could you explain to me what

25 your first position at the Rosenstiel School of Marine and

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1 Atmospheric Science in Miami entailed?

2 A During that job, I was responsible for maintenance

3 and upkeep of some shark tanks, running the sharks through

4 what we call operant conditioning, behavioral studies to

5 determine the visual acuity associated with the sharks'

6 visual systems, and I think I was involved a little bit in

7 construction of various scientific apparatus that Dr.

8 Gruber had in mind. I was pretty much an assistant to the

9 research he was taking on at the University of Miami marine

10 laboratory.

11 Q Was that a full-time job or a summer type of job?

12 A I did that during the summer.

13 Q The summer of 1975?

14 A Yes, sir.

15 Q Your resume also reflects that you acted as a

16 laboratory and field assistant during your time at FSU.

17 A There were two professors that I did some work for

18 at that time. Dr. Hernkind, with him, I was mainly

19 involved looking at animal behavioral responses with

20 respect to resources that were present in the environment.

21 Some of the work that I did there involved decapod

22 crustaceans that are found here in the Apalachee Bay

23 system, and part of that studies, I co-wrote a paper with

24 Dr. Lindburg, and that was a refereed journal that is

25 present on the resume.

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1 With Dr. Livingston, I participated in

2 environmental studies of the Apalachicola Bay and Apalachee

3 Bay, and that is pretty much where the geographic region

4 was, and in that, I would collect fish and invertebrate

5 samples, and I was involved in the identification of the

6 fish and invertebrate communities, trophic gut analysis

7 from the fish, things like that.

8 Q Were these jobs with Dr. Hernkind and Dr.

9 Livingston compensated positions?

10 A I would get per diem, travel money when we would

11 go out on cruises and things like that. That was the

12 extent of it.

13 Q Were you taking that work for credit or doing that

14 work for some sort of academic credit at the time?

15 A Well, some of it was work for credit and some of

16 it was volunteer work, just for the sake of learning as

17 much as I could about those particular fields.

18 Q Was your position at Rosenstiel a compensated

19 position?

20 A I believe I did get a small amount of money

21 associated with that, I forget what it was, $500 for the

22 summer.

23 Q When did you first begin working with the

24 Department?

25 A I believe it was in the spring of 1979.

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1 Q And what was your first position with the

2 Department?

3 A I cultured the fish and invertebrate samples that

4 were used for bioassay testing procedures and I performed

5 acute toxicity bioassays and wrote up the results. That

6 was the first job I had.

7 Q Your resume reflects that you were a Biological

8 Scientist II from 1979 to 1987. Was that a representative

9 explanation of what your duties were during that

10 approximate eight-year period?

11 A I think on my revised resume, I think it was

12 actually two separate positions I had during that time.

13 When I first started with the Department, I believe I was

14 called an Engineering Technician, and that position only

15 lasted about three or four months, and then I became the

16 Biological Scientist. The duties slightly shifted. After

17 a while, I started doing work on the Kissimmee River

18 Coordinating Council, looking at periphyton and

19 phytoplankton communities and things like that in addition

20 to the toxicity bioassays.

21 Q What was this periphyton and phytoplankton work

22 you did for the Kissimmee River Coordinating Council?

23 A Well, we were studying the ability of these

24 artificial marshes to, I guess, reduce any nutrient loads

25 that would be going into the Kissimmee River. I think the

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1 source of the nutrients were mostly cattle ranching

2 activities and citrus groves, things like that.

3 Q What kind of artificial marshes were these?

4 A Well, say at Armstrong Slough, which is located

5 kind of like where Yeehaw Junction -- are you familiar with

6 that area?

7 Q I am from central Florida. I am familiar with

8 that area.

9 A I believe the system had been artificially

10 channelized and a former marsh system had been drained

11 directly to the Kissimmee, and what the Coordinating

12 Council was trying to do in cooperation with the South

13 Florida Water Management District was put up levee systems

14 to detain the water from the ditch to recreate, I think,

15 70- to 100-acre artificial marshes and get a representative

16 number of macrophytes growing in those marshes in an effort

17 to reduce particulate loading and nutrient loading into the

18 Kissimmee River.

19 I believe that was the purpose behind the whole

20 program, and what I did was go out and do water quality

21 sampling, sampled the phytoplankton and periphyton, those

22 sorts of things.

23 Q How were these artificial marshes constructed, if

24 you know?

25 A Usually they put some kind of a levee or control

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1 structure at the downgradient side and backed the water up

2 to increase the retention time in the area, so that wetland

3 plants would start growing again.

4 Q Did the entities that were responsible for the

5 construction of these artificial marshes do anything to

6 help aquatic type vegetation become established, or did

7 they just simply create a flooded condition that they hoped

8 would result in such emerging vegetation?

9 A I don't really remember for sure, but I don't

10 recall there would be any planting. Is that what you

11 are --

12 Q Yes.

13 A That wasn't really part of my duties, but -- I

14 don't remember seeing anybody ever plant anything, although

15 I did make note of the vegetation community that was

16 present. It was part of site descriptions and stuff.

17 Q What kind of vegetation communities did come to

18 take over these artificial marshes?

19 MR. GARVER: Object to the form.

20 THE WITNESS: The type of community?

21 BY MR. HYDE:

22 Q Yes, if you could tell me what kind of plants.

23 A Emergent marsh system, emergent marsh.

24 Q Could you be more specific? What type of plants

25 were involved?

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1 A Well, some species of Panicum, I believe;

2 pickerelweed I think was one component of those

3 communities; Pacopa Carolina, some other sedges, maybe

4 Eleocharis and Rhynchospora. I can't specifically remember

5 all of the -- it was a fairly diverse community.

6 Q Did sawgrass come to become a constituent member

7 of these artificial marsh communities?

8 A I don't remember that sawgrass was present in

9 these communities. It may have been, but I just don't

10 recall. Let's put it this way, I wasn't getting cut up

11 when I was walking through the marsh, which is --

12 Q That is probably a pretty good sign. What about

13 cattails?

14 A I don't recall seeing any abundance of cattails in

15 those particular marshes, although there may have been some

16 present.

17 Q How did these artificial marshes discharge to off-

18 site waters?

19 A There would be some kind of a control structure,

20 and then the waters would continue along either a ditch or

21 depression in the land, something like that.

22 By the way, speaking of the communities, I do

23 remember there was a publication that the Kissimmee

24 Coordinating Council put out that described the various

25 communities present, and that would probably be a better

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1 source than my 13- or 14-year-old recollection of what was

2 there.

3 Q Do you happen to recall the name of that

4 publication?

5 A Something like Macrophyte Communities Associated

6 with Detention/Retention Wetlands, something of that

7 nature. It was put out by the Kissimmee Coordinating

8 Council, which I believe is no longer an entity.

9 Q You said a few moments ago that you sampled both

10 for phytoplankton and for periphyton. Why were you

11 sampling for phytoplankton?

12 A Well, the theory was that you would see changes in

13 the phytoplankton community that would be associated with

14 the nutrient reduction that the marshes would afford. For

15 example, if you had some elevated nutrients in the water

16 coming downstream from the agricultural operations, that

17 might cause algae to bloom or have high concentrations in

18 those particular community structures, and it was thought

19 that detaining/retaining this water would give time for

20 nutrients to be taken up by the marsh in various methods,

21 so that the downstream communities would be more

22 representative of oligotrophic type conditions. I believe

23 that was the basic theory behind the project.

24 Q Did that theory pan out?

25 A Well, there were some problems with the way the

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1 project developed. For example, the system I was telling

2 you about earlier, Armstrong Slough, they were supposed to

3 have plugged the channel to force the water into the

4 surrounding marsh system, and the channel never got plugged

5 until right towards the end of the study, so we had a lot

6 of before data but not much after data, and so I cannot

7 really recall if we ever documented any substantial changes

8 as a result of the Armstrong Slough.

9 I do remember offhand that once they plugged up

10 the channel and forced the water through the marsh, there

11 was a substantial reduction in the turbidity, and the water

12 became much more clear, particles and things were

13 apparently settled out in the marsh.

14 Q You referred to, I think it was, the Kissimmee

15 River as being an oligotrophic system?

16 A No.

17 Q Well, you used the phrase "oligotrophic" in the

18 context of one of your previous answers, and I wondered

19 what you meant by the use of that phrase?

20 A Well, I believe what I was talking about was the

21 theory behind these marshes was to take water that was

22 fairly nutrient-rich and try to make the populations

23 downstream more oligotrophic than they currently were,

24 through nutrient reduction procedures.

25 Q I see. You used oligotrophic in a sense that I am

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1 not used to hearing it.

2 What do you understand the term "oligotrophic" to

3 mean?

4 A I believe it is defined as a state of low

5 nutrients, nutrient-poor water.

6 Q Does it have some ordinary context in which it is

7 utilized, such as applying to lake systems primarily?

8 MR. KILLINGER: Object to the form.

9 MR. GARVER: Object to the form.

10 THE WITNESS: Scientists generally consider

11 trophic state classifications as just some way to

12 describe overall what is happening in a particular

13 system.

14 BY MR. HYDE:

15 Q Do you regard the Kissimmee River as being an

16 oligotrophic system?

17 A No, I couldn't say that.

18 Q By contrast, would you regard the water

19 conservation areas of the Everglades Protection Area to be

20 oligotrophic systems?

21 MR. GARVER: Object to the form.

22 THE WITNESS: I would say that there are areas

23 that might still be regarded as oligotrophic. The data

24 that I have seen in the case historically, the whole

25 Everglades system was ultra-oligotrophic, extremely low

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1 in nutrient concentrations, especially phosphorus, and

2 they have since indicated that certain areas near

3 structures, near canals and things have been adding to

4 the phosphorus and changing the trophic character.

5 BY MR. HYDE:

6 Q You referred that you were also looking at

7 periphyton communities in your studies in the Kissimmee

8 River Basin. For what purpose?

9 A Periphyton, of course, are your attached algal

10 communities, and what we are trying to do is look at the

11 interplay between phytoplankton and periphyton as an

12 indicator to determine whether or not conditions were

13 improving downstream as a result of these impoundments.

14 Q Was there some particular thesis or theory that

15 you hoped to prove as a result of these studies?

16 A These were not my studies. I just participated in

17 ongoing studies that had already been designed and carried

18 out by the Kissimmee Coordinating Council.

19 Q Well, do you know for what purpose these studies

20 were designed, at least in the sense of the periphyton

21 analysis?

22 A The theory behind the creation of the marshes?

23 Q Just what kind of results did they expect to

24 obtain through or from their studies in the area of

25 periphyton impacts?

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1 A I suppose it would be similar to what I stated

2 regarding the phytoplankton.

3 Q When did this work with the Kissimmee River

4 Coordinating Council complete?

5 A I believe it was around the end of 1980.

6 Q Did you work down in central Florida on that

7 project, or were you commuting from Tallahassee down?

8 A I was commuting from Tallahassee down.

9 Q Was that your sole responsibility at that time?

10 A I believe I was also doing toxicity tests as well

11 as the Kissimmee work during that time.

12 Q What were these toxicity tests performed for?

13 A Basically, we were looking at discharges of

14 various sorts to determine whether or not they were acutely

15 toxic to fish or invertebrates.

16 Q Was this in the context of a monitoring program,

17 or was it as part of a permit application review by the

18 Department?

19 A Well, back then, the program was very new. We

20 were just starting to do toxicity tests for the Department,

21 and I don't really recall why the districts wanted certain

22 facilities tested, why, what their rationale was. We just

23 performed the tests and gave them the results.

24 Q Once you completed this basic work for the

25 Coordinating Council in 1980, did your responsibilities

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 shift to some other area?

2 A I think it was right around then that we started

3 doing a multi-disciplinary study on the Suwannee River, it

4 was right around then. Let me check and see what it says.

5 I can pretty much tell you what I was doing based on the

6 papers I was working on at the time.

7 After the Kissimmee, we did a two-year study on

8 the Suwannee, and that was the next paper, to my knowledge,

9 on the Suwannee River.

10 Q Was that paper your publication alone, or did you

11 do it with others?

12 A No. I was just one co-author of that paper.

13 Q What was the purpose of that study, the Suwannee?

14 A The Suwannee study basically was to document what

15 background conditions were in the river, because there was

16 concern that future human activities might degrade it in

17 some way.

18 Q Your publication, I guess, came about 1985. Did

19 you work on that from 1980 to 1985?

20 A I was working on the Suwannee and also at that

21 time doing bioassay work as well.

22 Q Was the bioassay work of the type you previously

23 identified in one of your earlier answers?

24 A Acute toxicity tests?

25 Q Yes.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Yes.

2 Q Once you completed your Suwannee River study, did

3 move on to some different major area of study?

4 A Well, then we started working on stream

5 impoundments after that up here in north Florida.

6 Q Why were you looking at stream impoundments at

7 that time?

8 A Well, our permitting department was getting more

9 and more requests to build dams on all types of streams up

10 in north Florida, and they were concerned that damming up

11 all of these streams might have negative impacts on the

12 receiving water communities. So in that particular study,

13 we were looking at some differences between the upstream of

14 the impoundment, in the impoundment and then downstream of

15 the impoundment to see if those fears were justified.

16 Q What were the parameters of concern?

17 A Well, we studied macroinvertebrates, the algae

18 communities, standard nutrients and standard water

19 chemistry, maybe some bacteriological sampling and

20 analysis.

21 Q Let me back up just for a moment. Do you intend

22 to utilize any of the work that you performed for the

23 Coordinating Council as a predicate for your anticipated

24 testimony in this hearing?

25 A Did it --

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: Object to the form.

2 THE WITNESS: Did it provide me experience whereby

3 I can understand ecosystems better?

4 BY MR. HYDE:

5 Q Well, answer that question.

6 MR. KILLINGER: Answer the question, if you would.

7 BY MR. HYDE:

8 Q If you don't understand a question, just tell me

9 and I will try and rephrase it.

10 Will your work for the Coordinating Council form

11 or be relied upon you to as a basis for supporting the

12 opinions that you will be offering in the final hearing in

13 this regard?

14 MR. GARVER: Object to the form.

15 THE WITNESS: No. I would say that my opinions on

16 the Everglades were formulated by looking at data from

17 the Everglades.

18 BY MR. HYDE:

19 Q I see in your resume a subsequent investigation of

20 water quality in the Ochlockonee River.

21 A That is correct.

22 Q Could you give me a short synopsis of what that

23 study involved?

24 A We were looking at -- again, it was a multi-

25 disciplinary study with macroinvertebrates. I think we had

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 some fish data on that, algae, sediments, standard water

2 chemistry variables, and we were looking at some alleged

3 problems in the river that were being caused by upstream

4 land uses.

5 Q Let me ask you just a general question about the

6 remaining publications you have here. Are any of these

7 publications going to be relied upon by you for purposes of

8 presenting your expert testimony in this Everglades

9 proceeding?

10 A I don't believe so.

11 Q A very good answer. I will skip all of that

12 inquiry.

13 When did you first come to be involved with

14 Everglades ecosystem-related concerns for the Department?

15 A For the Department?

16 Q Yes.

17 A I think that was around 1987, when LOTAC II was in

18 existence.

19 Q What is LOTAC II?

20 A I think it was called Lake Okeechobee Technical

21 Advisory Committee, something like that.

22 Q Okay.

23 A I guess it was the second incarnation of that

24 group, since it was called LOTAC II.

25 Q Why did you come to be involved with LOTAC II in

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 studying Everglades-related issues?

2 A I was not really involved in LOTAC. I believe Pam

3 McVety was either on the committee or involved in it in

4 some way, and she requested that the biology section review

5 some documents that she had. She provided us with some

6 documents, and we reviewed them.

7 Q Did your review result in the preparation of a

8 report to Ms. McVety?

9 A It was a memo.

10 MR. HYDE: Let's mark this as Exhibit 2.

11 (Whereupon, Exhibit No. 2 was marked for

12 identification.)

13 BY MR. HYDE:

14 Q I would like to show you a document that has been

15 labeled Exhibit 2.

16 Is that the memo that you were just referring to?

17 A Actually, there is some additional papers here

18 that are stapled to this that I was not involved in

19 creating, this second half.

20 Q Okay. Are those additional pages related at all

21 to this, or were they your documents?

22 A No.

23 Q Let's just tear them off at this time.

24 MR. KILLINGER: What are we tearing off?

25 MR. HYDE: The pages beginning with the heading,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Nutrient Uptake By Wetlands.

2 BY MR. HYDE:

3 Q That is the way these documents come to me, so

4 without those additional pages, is this the memorandum that

5 you were speaking of just a moment ago?

6 A Yes.

7 Q In the first paragraph on the first page, you

8 indicate that you, and, I take it, your colleague, Dr.

9 Ross, examined the biological data collected from both

10 control stations and nutrient-enriched stations in the

11 Everglades water conservation areas to determine the

12 existence of three types of violations.

13 How did you obtain that data?

14 A It was provided to us.

15 Q Do you know who provided it to you?

16 A It was Ms. McVety.

17 Q Do you know what her source was for this

18 information?

19 A I have no -- I guess it was LOTAC.

20 Q Do you know whether this document -- which water

21 conservation area was this data from, to your knowledge?

22 A I believe it was a combination of WCA-1, 2 and 3.

23 There might have been some from Everglades National Park in

24 there, too.

25 Q Did you ever have occasion to visit those water

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 conservation areas at the time you were preparing this

2 memorandum?

3 A While I was preparing the memo?

4 Q Yes.

5 A No.

6 Q So is it fair to say that this was a laboratory

7 type study at that time?

8 MR. GARVER: Object to the form.

9 THE WITNESS: No, we did no laboratory studies.

10 There was a literature review.

11 BY MR. HYDE:

12 Q Just a literature review?

13 A Yes.

14 Q I see. So you didn't actually go look at the

15 data, that is, the samples that were taken that formed the

16 predicate for the literature that you were reviewing?

17 A No, I did not.

18 MR. GARVER: I object to the form.

19 BY MR. HYDE:

20 Q Not at that time. Did you subsequently review the

21 field samples?

22 MR. GARVER: Object to the form.

23 THE WITNESS: Did I go to where the samples were

24 taken?

25 BY MR. HYDE:

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q No. Did you -- first of all, were the field

2 samples maintained by any person or entity?

3 MR. GARVER: Object to the form.

4 MR. KILLINGER: Object to the form. I don't think

5 you have established there were any field samples given

6 to Mr. Frydenborg.

7 THE WITNESS: I am not sure what you mean.

8 BY MR. HYDE:

9 Q I guess it bears upon the use of the term, quote,

10 "biological data." What did this biological data that you

11 were reviewing comprise?

12 A What did it consist of?

13 Q Yes.

14 A Data on paper, I mean, publications, things like

15 that.

16 Q Your memo next states that you were looking for

17 three types of violations, the first, dominance of nuisance

18 species, the second, imbalances in the aquatic community,

19 and the third, 25 percent decrease in biological integrity,

20 in parens, (diversity.)

21 Why were you looking at those three types of

22 violations?

23 A Well, it was believed that there were problems at

24 the time regarding those types of rules, and so we looked

25 at the data to determine whether or not it applied to DER's

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 rules, the ones that were listed there.

2 Q Did Ms. McVety request you to look at those

3 particular water quality standards, or is that something

4 that you and Dr. Ross determined to do independently of her

5 instructions?

6 A I don't remember whether she instructed us to look

7 at that or not.

8 Q The first heading under the introductory paragraph

9 to this memorandum concerns the dominance of nuisance

10 species. Did the subsequent paragraphs which discuss this

11 issue comprise -- let me start over again.

12 Were the observations that are expressed in the

13 three paragraphs beneath the subheading "Dominance of

14 Nuisance Species" the result of a literature search by you

15 and Dr. Ross?

16 MR. GARVER: Object to the form.

17 THE WITNESS: I wouldn't necessarily call it a

18 literature search. We didn't do an exhaustive search

19 of the literature. We reviewed documents that were

20 provided to us.

21 BY MR. HYDE:

22 Q Let me ask you, what is meant by the term, quote,

23 "dominance," end quote, in the Department's water quality

24 standard for nuisance species?

25 MR. GARVER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: Object to the form.

2 THE WITNESS: What is the definition of

3 dominance?

4 BY MR. HYDE:

5 Q What do you understand dominance to mean in the

6 context of that rule?

7 A I am not exactly sure what you are asking, is

8 dominance some type of number, or --

9 Q Well, how do you determine whether a nuisance

10 species has become dominant such that the Department's rule

11 is violated?

12 A That would depend on the data, that would depend

13 on the examining data.

14 Q Perhaps you could explain how you determine that

15 there was a dominance of nuisance species as reflected in

16 this memorandum, then?

17 A With regard to the periphyton populations, there

18 was evidence given, I believe it was Swift, with the South

19 Florida Water Management District, that the community

20 became dominated by pollution-tolerant types, taxa,

21 t-a-x-a, in the presence of elevated nutrient

22 concentrations.

23 Q Well, he may have concluded that these species may

24 have become dominant, but did you just accept his

25 representation that they were dominant, or did you make an

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 independent assessment of whether they were, in fact,

2 dominant?

3 A Well, generally, you look at the data that the

4 investigator offers. Generally, they have species lists

5 with abundances and things like that, graphs. I did not

6 enter any data in the computer and reanalyze it. I just

7 looked at the types of data that he provided in the

8 literature, in his document.

9 Q I would like to call your attention to the

10 definition of nuisance species in the Department's rules,

11 17-302.200.

12 Quote, "`Nuisance species,'" end quote, "shall

13 mean species of flora or fauna whose noxious

14 characteristics or presence in sufficient number, biomass

15 or areal extent may reasonably be expected to prevent or

16 unreasonably interfere with a designated use of those

17 waters."

18 Are you familiar with that definition in the

19 Department's rules?

20 A Yes, I am.

21 Q Can you tell me how you determined that the taxa

22 that you have identified in this paragraph may reasonably

23 be expected to prevent or unreasonably interfere with the

24 designated use of those waters?

25 MR. GARVER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: Object to the form.

2 THE WITNESS: Well, if you look at a natural

3 background community in a particular water body and

4 then you see a shift from the organisms that belong

5 there to a shift to organisms that are indicative of

6 polluted conditions, that is what I would define as a

7 nuisance.

8 "Nuisance" to me means that -- means harm, harm to

9 the system, and a change such as that is very well

10 documented in the literature, that community shifts are

11 negative in the context that we saw in this report.

12 BY MR. HYDE:

13 Q Is a mere shift or change reflective of a nuisance

14 species?

15 MR. GARVER: Object to form.

16 MR. KILLINGER: Object to form.

17 THE WITNESS: I don't know exactly what you mean

18 by shift, but I would say a shift from clean water

19 organisms to polluted water organisms would certainly

20 be classified as a shift to nuisance species.

21 BY MR. HYDE:

22 Q Well, let me ask the question this way. Is any

23 shift in the species indicative of a violation of the

24 narrative nutrient rule?

25 MR. GARVER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: Object to the form.

2 THE WITNESS: I thought we were talking about

3 nuisance species.

4 BY MR. HYDE:

5 Q I am sorry, nuisance species rule. We will get to

6 that in a moment.

7 A Could you restate that question?

8 Q Well, let me approach it from this vantage point.

9 The definition of nuisance species speaks to flora

10 or fauna whose noxious characteristics or presence in

11 sufficient number, biomass or areal extent may reasonably

12 be expected to prevent or unreasonably interfere with a

13 designated use.

14 Don't you have to look to some, where there is,

15 the number of species involved or the weight of the species

16 or the geographic extent that they are taking over to

17 determine whether they have, in fact, become a nuisance

18 species?

19 A That would be one part of the equation.

20 Q So you would look to whether there -- the extent

21 of the geographic impact of these, this type shift?

22 MR. GARVER: Object to the form.

23 THE WITNESS: That is, generally would be the last

24 thing you look at.

25 BY MR. HYDE:

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q What is the first thing you would look at?

2 A The number of individuals. Generally in the type

3 of work we do, you have community structure data, you have

4 got taxa and you have got numbers of individuals associated

5 with that taxa. When you see shifts in the numbers of

6 individuals among the various taxa, that is probably the

7 first symptom that you are getting a shift to nuisance

8 species.

9 Q Is any shift, no matter how slight, indicative of

10 a shift to nuisance species?

11 A I suppose that the shift in question would have to

12 be answered by anthropogenically induced.

13 Q I don't think you quite answered my question. I

14 think I asked you whether any shift, no matter how slight,

15 was indicative of a shift to nuisance species.

16 MR. GARVER: Object to form.

17 MR. KILLINGER: Object to the form.

18 THE WITNESS: It would depend on the nature of the

19 data.

20 BY MR. HYDE:

21 Q Let me see if I can ask the question this way.

22 Doesn't a shift have to be significant in order to

23 result in a violation of that rule?

24 MR. GARVER: Object to the form.

25 MR. KILLINGER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 THE WITNESS: It depends on how you define

2 "significant."

3 BY MR. HYDE:

4 Q I guess I go back to my original question. Is any

5 shift, even an extremely slight shift in the taxa,

6 indicative of a violation of the nuisance species standard?

7 MR. GARVER: Asked and answered; object to form.

8 MR. HYDE: I asked it; I don't think he answered

9 it yet.

10 MR. KILLINGER: Object to the form still.

11 THE WITNESS: I believe I tried to answer that

12 question before by stating it depends on what the data

13 say. Some shifts may appear small to certain

14 individuals that -- without knowledge of the particular

15 ecosystem. They may be important or significant to how

16 that ecosystem operates. So when you say minor, or

17 small shift, there is really no context to answer that

18 question except by looking at actual data.

19 BY MR. HYDE:

20 Q Is there some yardstick that you utilize to

21 measure the shift, some operative test, or, say, if it is a

22 shift of 10 percent or more, it is considered to be

23 significant, if it is 10 percent or less, it is not of any

24 great concern, something along those lines?

25 A We do use percentage changes as part of the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 formula, but it just depends on the amount of data you have

2 as to when you would suspect that a shift, a certain

3 percentage shift, would become a problem.

4 Q Did you determine that the shifts that you have

5 observed in these, in this memorandum, in fact constituted

6 a violation of the nuisance species rule?

7 MR. KILLINGER: Object to the form.

8 THE WITNESS: That is what we wrote. Dr. Ross, by

9 the way, is my supervisor.

10 BY MR. HYDE:

11 Q How did the shifts that you observed here

12 unreasonably interfere with or prevent the designated use

13 of those waters?

14 A I believe the designated use of those waters is

15 the propagation of healthy fish and wildlife, and when you

16 interfere with the background operation of any of those

17 aquatic communities, then you would be interfering with

18 that designated use.

19 Q Did you make a determination, or was there any

20 evidence that supported the notion that this shift in these

21 algal species was causing any adverse impacts on higher

22 trophic species?

23 MR. KILLINGER: Object to the form.

24 THE WITNESS: I don't believe that is necessary,

25 it is not necessary to show that. Algae themselves are

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 an important community that deserve their own level of

2 protection, although it is true algae are important to

3 higher ecosystems. I don't believe there is any

4 requirement that you show that by shifting one

5 population it has to also have an effect on other

6 populations, although they very well might.

7 BY MR. HYDE:

8 Q Have you seen any evidence that, or are you aware

9 of any evidence that would suggest that a shift in these

10 algal species has had such adverse impacts on higher

11 trophic species?

12 MR. GARVER: Object to the form.

13 MR. KILLINGER: Object to the form.

14 THE WITNESS: I have read that the native

15 periphyton community in the Everglades is important to

16 other trophic levels for a variety of purposes, such as

17 habitat framework, dissolved oxygen production, food

18 source, a microhabitat or refugia that is -- helps

19 organisms survive periods of desiccation. I have read

20 evidence that the periphyton mat is very important to

21 other trophic levels and other communities.

22 BY MR. HYDE:

23 Q Do you know a person named Dave Swift?

24 A He is one of the authors of the paper.

25 Q Do you know whether he is employed by the South

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Florida Water Management District?

2 A I don't know if he is now. I think he was at the

3 time of writing these papers.

4 Q Would you consider him to be an expert in the

5 issue of periphyton?

6 A Yes, I think that would be fair to say. I think

7 Dave Swift has the reputation of being extremely

8 knowledgeable.

9 Q Would it be surprising to you if Dave Swift had

10 testified in his deposition that he has seen no evidence

11 that supports the conclusion that shift in periphyton

12 species communities are having an adverse impact on higher

13 trophic levels?

14 A Would it surprise me?

15 Q Yes.

16 A Yes, it would surprise me, since that is not what

17 he wrote in his documents.

18 Q Would it surprise you if he testified that there

19 was no -- he had seen no evidence that proved that the

20 shift in periphyton species was having an adverse impact on

21 Everglades ecosystem habitat?

22 MR. GARVER: Object to form. Mr. Hyde, are you

23 going to be showing this deposition or anything?

24 MR. HYDE: I didn't bring it with me, but I can

25 get it during lunch if I need to.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. GARVER: I wondered -- you are paraphrasing.

2 MR. KILLINGER: That is what I wondered, too. I

3 don't want to object to every question.

4 BY MR. HYDE:

5 Q Assume that he said that. Would you be surprised

6 by that observation?

7 MR. GARVER: Object to form.

8 MR. KILLINGER: Object to form.

9 THE WITNESS: I would be surprised, because it

10 appears to conflict with some of his publications that

11 we got the data from.

12 BY MR. HYDE:

13 Q If he had, in fact, made the conclusions that I

14 just stated, would that cause you to reconsider your belief

15 that there have been violations or that periphyton shifts

16 are indicative of violations of the state water quality

17 standards?

18 A No.

19 MR. KILLINGER: Object to the form.

20 BY MR. HYDE:

21 Q Let's move on now to page 2 of your memorandum.

22 Referring to the -- what I call the narrative

23 nutrient rule --

24 A Yes.

25 Q -- which reads, "In no case shall nutrient

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 concentrations of a body of water be altered so as to cause

2 an imbalance in natural populations of aquatic flora and

3 fauna."

4 A "Or fauna."

5 Q "Or fauna," excuse me.

6 I would like to call your attention to the phrase,

7 quote, "body of water," end quote, in that rule language.

8 What do you understand that phrase to mean in the context

9 of this rule?

10 A I understand it to be waters of the State, any

11 part of waters of the State.

12 Q Does that mean that -- let me provide the

13 following hypothetical for you.

14 Let's say that in a body of water you have one

15 square meter of an intense, well, very dense monoculture of

16 cattails. Would you regard that one square meter as being

17 indicative of an imbalance in the body of water?

18 MR. KILLINGER: Object to the form.

19 BY MR. HYDE:

20 Q In the context of this rule?

21 A Well, if the body of water you are looking at is

22 one square meter, then it certainly would be.

23 Q What if it is many thousands of acres?

24 MR. KILLINGER: Object to the form. Can you be

25 more specific about the location of the water body or

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 what its normal state is?

2 MR. HYDE: Well, my questions really are not

3 related to any specific water body. I am just trying

4 to determine what or whether there is a geographic

5 component to determining whether there is an imbalance

6 in the context of the rule.

7 MR. KILLINGER: That is fine, but I think you are

8 using specific species, for instance, cattails, and

9 specific terms, that is, monocultures. I think it

10 depends entirely upon where you are and what the water

11 body is whether or not it is nuisance species or

12 whether or not it is a natural pond. I would like you

13 to clarify it a little more. I don't think you need to

14 get that specific to get whether that is a geographic

15 component, I guess, is my point.

16 BY MR. HYDE:

17 Q Let's look at Lake Jackson in northern Leon

18 County. Are you familiar with Lake Jackson?

19 A Yes.

20 Q Would you say it is a rather large lake, many

21 thousands of acres?

22 A Yes.

23 Q Let's say that cattails came to take over one acre

24 of that lake, a very dense monoculture of cattails. Would

25 you regard that cattail monoculture as being a violation of

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 this narrative nutrient rule?

2 A I suppose that would depend upon whether or not

3 you believe that there was an ongoing effect and that this

4 would be continually spread to other parts of the lake.

5 Whenever you deal with these types of nutrient

6 narrative standards, I think it is very important to know

7 what the natural background conditions are, so that you can

8 judge it in the context of the natural background, and if

9 you do not expect -- what did you say, 100 acres, one acre?

10 Q One acre.

11 A Say, if historically one acre of cattail in a

12 particular area of the lake was not found, and you started

13 seeing this one acre develop, and you have reason to

14 believe it is in response to some anthropogenic nutrient

15 source, then I believe that may well be interpreted as the

16 first sign of an imbalance in the lake. I don't believe

17 you need to wait until the entire lake is dominated by the

18 species until you say that there is an imbalance.

19 One of the reasons we study biological communities

20 is that you look for early symptoms of change to prevent

21 degradation. That is part of the whole reason behind it.

22 Q So I guess one of the things you are looking for

23 in this kind of situation is whether this community is

24 expanding or relatively static. Would that be one of the

25 concerns that you would have?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. GARVER: Object to the form.

2 MR. KILLINGER: Object to the form.

3 THE WITNESS: That may be a component, depending

4 on the particular data set.

5 BY MR. HYDE:

6 Q Is the term "imbalance" defined anywhere in the

7 Department's rules?

8 A The term "imbalance" defined in the legal sense?

9 Q Yes, in a written rule or regulation.

10 A If it is, I am not aware of it.

11 Q Have you been advised or are you aware of a

12 definition of "imbalance" that the Department is using

13 regarding the Everglades SWIM Plan?

14 MR. KILLINGER: Object to the form.

15 THE WITNESS: I don't think there is a definitive

16 document that states what imbalance is composed of, if

17 that is what you are referring to.

18 BY MR. HYDE:

19 Q Have you -- are you aware of a settlement

20 agreement involving the Department, the water management

21 district and the United States Government in the now

22 infamous litigation that was instituted by the federal

23 government in south Florida?

24 A I am familiar with the settlement agreement.

25 Q Have you read that document?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A I have not read it. I might have seen parts of

2 it.

3 Q So you don't know whether there is a definition of

4 "imbalance" contained in that document?

5 A I believe -- I would have to go look at the

6 document. I believe it talks about imbalances, but I am

7 not -- it has been such a long time since I have seen it

8 that I don't remember how it talks about imbalances.

9 Q I would like to call your attention to the bottom

10 of the second page of this memorandum, where you are

11 discussing benthic macroinvertebrate changes as measured by

12 Terczak in 1980.

13 A Yes.

14 Q Are you aware of any other evidence besides

15 Terczak's 1980 study which would suggest that there is an

16 imbalance of -- as reflected by changes in benthic

17 macroinvertebrate communities?

18 A I think there is an Urban study -- well, at the

19 time of this memo, is that what you are talking about?

20 Because this was written in 1987.

21 Q Well, that is a good point. At the time you wrote

22 this memo, were you aware of any other studies beyond

23 Terczak to support this proposition?

24 A Well, when I contributed to writing this memo, we

25 were dealing with a certain body of literature, and at that

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 time, we didn't, like I say, do an exhaustive literature

2 review to determine if there were other data available, due

3 to time constraints, so there may have been data we are

4 unfamiliar with.

5 Q But at least at the time you were conducting or

6 preparing this memorandum, you were looking solely at

7 Terczak's study, is that correct?

8 A I believe that is true.

9 Q When measuring impacts to, for example, benthic

10 macroinvertebrates, is it important to compare similar

11 habitats?

12 A Yes.

13 Q So, in other words, you would compare a -- an open

14 water slough in a water conservation area to an open water

15 slough in another water conservation area, would that

16 essentially be the exercise that you would employ?

17 A That sounds logical.

18 Q You wouldn't compare an open water slough in one

19 area to a sawgrass, dense sawgrass stand in another area,

20 would you?

21 A I would have to see the characteristics of how you

22 define open water slough and dense sawgrass. Their

23 definition might be different from mine.

24 Q Well, generally speaking, would you agree with the

25 proposition that you compare lake habitats to lake

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 habitats?

2 A Yes.

3 Q Do you know whether Terczak did that in his

4 study?

5 A I would have to go check in his actual report, but

6 I believe he attempted to stay in similar habitats during

7 his study.

8 Q Do you know whether Terczak compared

9 macroinvertebrate populations in dense stands of

10 macrophytes in an enriched area with an open water slough

11 in an unenriched area?

12 A Do I know if he did that?

13 Q Yes.

14 A I would have to go check the document.

15 Q If he did that, would that cause you to question

16 his conclusion of shifts in benthic macroinvertebrate

17 populations?

18 MR. KILLINGER: Object to the form.

19 THE WITNESS: Well, let's say that a particular

20 area was once an open water slough and it had changed

21 its character as a result of anthropogenic factors. I

22 could see a validity in comparing what the system

23 should be naturally to using the natural condition as a

24 control. I can see some logic behind that.

25 BY MR. HYDE:

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q But you would have to know what the preexisting

2 condition was of that area, would you not?

3 A That would be fair to say.

4 Q I believe you relied on this same Terczak study

5 for your conclusions expressed on the next page about

6 biological integrity violations?

7 A Yes.

8 Q Have you since seen any additional information

9 which would support the proposition that nutrient

10 enrichment is leading to violations of the biological

11 integrity standard?

12 A I am not aware of any other studies that used

13 Hester-Dendys, except one that we participated in, a short

14 study that used Hester-Dendy samplers in collecting the

15 macroinvertebrate community.

16 Q When was this study conducted, this later study,

17 apparently, that you are referring to?

18 A It was sometime this summer, I believe. I would

19 have to go check and see the actual date.

20 Q Do you know what were the results of that study?

21 A Well, unfortunately, it was a flawed study.

22 Q Well, what did that flawed study show?

23 A One of the things it showed me is that you don't

24 put Hester-Dendys in alligator holes, because they are

25 liable to be tampered with and have a tendency to reduce

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 any credence that you give to the data. That is one thing

2 I found out, although I did not place the samplers in that

3 location. I would recommend in the future that other

4 studies not locate Hester-Dendys where they might be

5 tampered with by alligators, so that is one of my major

6 conclusions.

7 Q Was that the reason why you said the study was

8 flawed?

9 A That was one of the reasons it was flawed.

10 Q Were there other reasons why?

11 A I believe that many of the samplers had detritus

12 pretty much covering half of the sampler. In a situation

13 like that, I am not sure what was going on with regard to

14 the sample. Maybe it was under the muck for a period of

15 time. That is generally not what you want to see when you

16 recover your samplers.

17 Q Didn't these allegedly flawed studies, in fact,

18 reveal no violation of the biological integrity standard?

19 A Well --

20 MR. GARVER: Object to form.

21 MR. KILLINGER: Object to the form.

22 THE WITNESS: There were -- I don't think that you

23 could draw a conclusion from a flawed study that

24 violations were or were not taking place.

25 It is my contention after seeing what happened

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 that additional sampling would be needed to further

2 clarify that.

3 BY MR. HYDE:

4 Q Is such additional sampling going on? Is it being

5 proposed?

6 A Not by us in the Department. I believe there is a

7 component in the Everglades research plan that addresses

8 macroinvertebrate communities. The last time I was

9 involved in helping formulate some of the future research

10 needs, macroinvertebrates were one community that was

11 stressed as being important to get some more data on.

12 Q Is it fair to say then that the only basis you

13 have for concluding that there is a violation of the

14 biological integrity standard is this 1980 Terczak study?

15 MR. KILLINGER: Object to the form.

16 THE WITNESS: That is the only data that I

17 reviewed.

18 BY MR. HYDE:

19 Q Do you think it is a good idea to rely upon data

20 that is 12 years old to determine a violation of a

21 standard?

22 MR. KILLINGER: Object to the form.

23 THE WITNESS: I don't necessarily think that the

24 time since the study would be necessarily detrimental

25 to the conclusions if the anthropogenic sources that

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 were implicated in causing the decreases in diversity

2 were ongoing and continued to actually increase in

3 their geographical extent.

4 Just because Newton found out that gravity worked

5 hundreds of years ago doesn't mean that the theory is

6 any less valid today.

7 BY MR. HYDE:

8 Q What if more contemporary studies of benthic

9 macroinvertebrate populations that were done in strict

10 accordance with the methodology prescribed in the rule

11 revealed that, in fact, there weren't violations of that

12 rule, would you -- would those results cause you to alter

13 your opinion or reliance upon the Terczak 1980 study?

14 MR. KILLINGER: Object to the form.

15 THE WITNESS: Well, the way science works, when

16 new data comes in, when new valid data comes in, you

17 change your opinions to reflect what the data indicate.

18 Basically that is the way science works.

19 BY MR. HYDE:

20 Q So if new data came in that indicated there was,

21 in fact, no violation of the rule, and you were satisfied

22 that that data was appropriately and properly collected,

23 would you then discard your reliance upon the Terczak

24 study?

25 MR. KILLINGER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 THE WITNESS: Well, I would be concerned that if I

2 had some data that indicated that there were some

3 violations, I would just want to make sure that when

4 additional studies were done, that they were of

5 acceptable experimental design or whatever to support

6 any new conclusions.

7 BY MR. HYDE:

8 Q Assuming that that were done, would you find the

9 more contemporary studies to be more probative of whether

10 such violations exist in a 12-year-old study?

11 A What do you mean by "probative"?

12 Q More likely to demonstrate that there are, in

13 fact, no violations of the standard?

14 A I think that there -- well, I would certainly take

15 good heed of any data that demonstrated no violations.

16 However, I still would be concerned that there might be

17 some temporal component to the violations, maybe even

18 certain times of the year they are more prevalent than

19 others. It would just depend on the body of data that I

20 was analyzing.

21 Q I would like to show you a document that has been

22 labeled Exhibit No. 3.

23 (Whereupon, Exhibit No. 3 was marked for

24 identification.)

25 BY MR. HYDE:

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Would you identify that document for me?

2 A This is data that I received from Jim Milleson

3 down at the water management district back in 1987. These

4 were the raw data sheets. These were the sheets that we

5 relied on to analyze the data.

6 Q Is this the raw data that you utilized to or upon

7 which you relied to express the conclusions in Exhibit 2

8 that there were violations of the biological integrity

9 standard?

10 A I believe it was.

11 Q That is the only question I had on that.

12 I would like to show you a document that has been

13 labeled Exhibit 4.

14 (Whereupon, Exhibit No. 4 was marked for

15 identification.)

16 BY MR. HYDE:

17 Q Can you identify that document for me?

18 A This looks like the handwritten versions of the

19 document we went over earlier, that memo to Pam McVety.

20 Q So you would consider this basically a rough first

21 draft of that memorandum?

22 A I suppose so.

23 Q Did your opinions materially change from the

24 drafting of this first rough draft to the final draft that

25 is Exhibit 2?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Well, I would have to compare the documents. I

2 don't see that there is much change.

3 Q Do you recall whether you reached any different

4 results, generally speaking?

5 A Generally, I would say no.

6 MR. GARVER: I am not sure the witness has had a

7 chance to look at both of the documents.

8 BY MR. HYDE:

9 Q Would you like to take a moment to review it?

10 MR. KILLINGER: He stated that on the record.

11 THE WITNESS: I think your last question was --

12 BY MR. HYDE:

13 Q Whether there were any material changes.

14 A I am looking through here, and I don't see any

15 differences, any substantial differences.

16 Q When did you first become involved in the

17 Department's review of the Everglades SWIM Plan for the

18 South Florida Water Management District?

19 MR. KILLINGER: Object to form. I don't know if

20 he stated that he was involved in the review of the

21 SWIM Plan. Correct me if I am wrong. That is my

22 recollection.

23 MR. HYDE: Well, I assumed since he was being

24 deposed here today on the subject matter he had to

25 become involved in it at some point.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: That may be, but on the specific

2 points or the whole plan? That is what I am trying to

3 get clarified.

4 BY MR. HYDE:

5 Q Well, do you understand my question?

6 A When did I --

7 Q When did you first become in review of the

8 Everglades SWIM Plan or in the Everglades SWIM Plan

9 promulgation process?

10 A It was either in '89 or '90, somewhere along

11 there, I think. I would have to look -- if I looked at my

12 documents, I could probably tell you when.

13 Q I would like to provide you with a document

14 labeled Exhibit 5.

15 (Whereupon, Exhibit No. 5 was marked for

16 identification.)

17 BY MR. HYDE:

18 Q First of all, can you identify that document for

19 me?

20 A This looks like a memorandum that I wrote to Peggy

21 Mathews about a review that I did on an early draft of the

22 SWIM Plan.

23 Q Does this memo refresh your recollection as to

24 when you first became involved in the review of the SWIM

25 Plan?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Yes, it does. It says September 6, 1989.

2 Q In the first paragraph, you state that,

3 "Construction of water management areas (WMAs) should occur

4 primarily in private agricultural lands of the EAA, not

5 state or federally owned lands."

6 Was that a personal expression of opinion on your

7 part, or did it represent agency policy at the time?

8 A I am not sure what agency policy was. It has

9 always been my understanding that water quality rules apply

10 to all waters of the State, and I guess I thought it

11 wouldn't be appropriate to take waters of the State and

12 turn them into pollution treatment facilities.

13 Q That is the only question I have on that

14 particular document.

15 Let me go back for a moment.

16 After you conducted this review of the draft

17 Everglades SWIM Plan in September of 1989, did you do --

18 when did you next do any work concerning the Everglades

19 SWIM Plan?

20 A Maybe six months later, something like that, maybe

21 1990.

22 Q I would like to provide you with a copy or

23 document labeled Exhibit No. 6.

24 (Whereupon, Exhibit No. 6 was marked for

25 identification.)

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 BY MR. HYDE:

2 Q First of all, can you identify that document for

3 me?

4 A This looks like another memo that I wrote to Peggy

5 Mathews concerning the Everglades SWIM Plan.

6 Q Does this document refresh your recollection as to

7 when you might next have worked on the Everglades SWIM

8 Plan?

9 A It sure does.

10 Q Who requested you to review the Everglades SWIM

11 Plan on or before May 11, 1990?

12 A I don't know if the request was directed at me.

13 Generally, what happens is people will send a

14 document to the Biology Section, generally to my

15 supervisor, Landon Ross, and depending on the situation, he

16 will either review it himself or have someone else do the

17 review if he is too busy, so I -- apparently, Peggy Mathews

18 gave a document to Landon and he would have given it to me.

19 That is generally how I am involved in reviewing anything.

20 Q In the first paragraph of this memorandum, that is

21 the first numbered paragraph, you discuss the Everglades

22 Nutrient Removal Demonstration Project, and then, quote,

23 "This way farmers could use the minimum amount of land

24 needed for acceptable nutrient reduction."

25 First of all, do you know what the Everglades

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Nutrient Removal Demonstration Project is?

2 A As I recalled, it was a -- an experimental marsh

3 design with many different cells where they were trying

4 different types of different nutrient removal strategy to

5 determine the effectiveness of various strategies, as far

6 as I remember.

7 Q Do you know whether that demonstration project is

8 in place and operational?

9 A I am not really 100 percent sure as to how far

10 along they are in the ENR project.

11 Q What did you intend by this phrase, "This way

12 farmers could use the minimum amount of land needed for

13 acceptable nutrient reduction"?

14 A It is logical that you don't want to place undue

15 burdens on any of the regulated community, generally. You

16 don't want violations occurring. However, you don't want

17 to place an undue burden to make sure those violations

18 don't occur, and in looking at research like that would be

19 one way to more or less figure out what treatment

20 strategies will work best.

21 Q Are you saying, then, that you would like to know

22 whether this demonstration project will work or at what

23 levels it will remove nutrients before you go into a much

24 larger program?

25 MR. GARVER: Object to the form.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 MR. KILLINGER: Object to the form.

2 THE WITNESS: Well, I mean, I think there has been

3 clear evidence that nutrient removal is needed in the

4 Everglades Agricultural Area. I think that it would

5 probably be a good idea to start before we have further

6 damage to the system, so I think that it would probably

7 be reasonable to start on those types of nutrient

8 removal procedures and maybe concurrently finish up

9 whatever studies are needed to definitively determine,

10 say, the amount of acres needed for various nutrient

11 removal strategies, whatever.

12 BY MR. HYDE:

13 Q Let me see if I can paraphrase what you just said

14 and tell me whether you agree with it.

15 Would you agree, then, that it is appropriate to

16 determine first whether a small scale project such as the

17 Everglades Nutrient Removal Demonstration Project will work

18 before you go to instituting much larger stormwater

19 treatment areas?

20 MR. GARVER: Objection to your attempt to

21 characterize the witness's pretty clear answer.

22 MR. KILLINGER: Objection.

23 MR. GARVER: You are trying to get him to use some

24 of