1 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 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, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF RUSSEL B. FRYDENBORG 24 January 7, 1993 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 1 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. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 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: 13 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 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 1 INDEX TO WITNESS 2 RUSSEL B. FRYDENBORG Page 3 Examination by Mr. Hyde 6 4 5 6 7 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 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 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. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 13 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 14 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 15 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 16 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 17 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 18 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 21 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 23 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 24 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 25 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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 45 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 46 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 47 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 48 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 49 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 50 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 51 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 52 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 53 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 54 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 55 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 56 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 57 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 58 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 59 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 60 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 61 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 62 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 63 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 64 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 your words is what you are trying to do, counsel. 25 MR. HYDE: I am trying to gain clarification of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 1 his answer, that is all. 2 THE WITNESS: I believe the meaning I was 3 attempting to get across was that it would be prudent 4 to begin the steps needed to remove nutrients from the 5 EAA discharges concurrently with determining, say, the 6 number of acreage -- the amount of acreage needed to 7 perform the task. 8 BY MR. HYDE: 9 Q I found a number of documents in your file which 10 related to a study or report you did on the Crescent Lake 11 Basin in central Florida. 12 A Yes. 13 Q Are those studies or the reports you did in that 14 regard going to form and be relied upon by you as a basis 15 for your testimony in this proceeding? 16 A I believe the Crescent Lake document might have 17 been put in there because it dealt with problems caused by 18 agricultural enrichment in another part of the state. That 19 might have been why that document was thrown in with all of 20 the rest of those. 21 Q Do you regard that study as being comparable to 22 the situation that we are dealing with in the Everglades 23 Protection Area? 24 A Not really. It is a lake system, not a marsh 25 system. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 1 Q Will you be referring to or relying upon any 2 studies in that regard to form your opinions at the final 3 hearing on the Everglades SWIM Plan? 4 A Not evidence that is specific to the Everglades. 5 That report is simply another example of the types of 6 community effects that occur when agricultural discharges 7 are not treated well enough before they enter waters of the 8 State. 9 Q Is that the only proposition from that study to be 10 advanced? 11 MR. KILLINGER: I object to the form. 12 THE WITNESS: I don't know. 13 MR. HYDE: I am just trying to determine whether 14 the Crescent Lake Basin study will somehow come into 15 play as support for his opinions at final hearing in 16 this regard, that is all. 17 MR. KILLINGER: I see where you are going. I 18 think he has qualified what he said by stating it is 19 one of a number of things that he gets experience from 20 and may rely on, but might not necessarily specifically 21 cite, and when you used the term "advanced," I don't 22 want that to overshadow the fact that he might refer to 23 it in anything, in connection, he looked at it here and 24 saw something that might be analogous, even though it 25 is not something specifically used to support a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 1 proposition with regard to the Everglades. 2 BY MR. HYDE: 3 Q Maybe I will ask the question, is that something 4 that you will specifically rely upon? 5 A I have no idea what I am even testifying in these 6 Everglades proceedings, no one has told me that yet, so I 7 don't anticipate using that particular document, but -- 8 MR. HYDE: Well, this brings up an ongoing concern 9 of mine in deposing the Department's witnesses. We, 10 that is, my firm, has constantly been taken to task by 11 the United States and advised in the strongest possible 12 terms that our experts have to be ready, they have to 13 have their opinions formed and they have to almost, in 14 effect, have a list of those opinions for their 15 depositions of our witnesses, and we have endeavored to 16 the best of our ability to do just that. 17 When we deal with the Department's witnesses, it 18 seems that there has been little if any effort done in 19 that regard, and we really don't know what if any 20 opinions they are going to ultimately be offering, and 21 I am constantly concerned about that, because I don't 22 even know if I am getting to or will be getting to all 23 of the opinions that a witness may ultimately offer in 24 a hearing, and I am, in effect, almost going on a 25 fishing expedition, just hoping that I cover all of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 1 bases. 2 MR. KILLINGER: I think -- I am not sure this is 3 an appropriate discussion for the record during this 4 deposition, but generally speaking, our witnesses have 5 been listed and their areas of expert knowledge have 6 been set forth, and their opinions, and fairly clearly 7 ones set forth, and I think that the deponents are 8 being asked about what their opinions are. 9 Now, actual testimony has not been formulated, if 10 you want to call the process of preparing a witness for 11 trial the formulation of testimony, and so I think it 12 is difficult for any witness, whether on your side or 13 ours, to state specifically that they are going to 14 testify A, B, C and D until it gets closer and they 15 have a chance to review all of the documents in 16 preparation for trial. 17 They have not necessarily reviewed all of these 18 documents in preparation for deposition, but I think 19 their opinions are not going to change, and if they do, 20 that is the subject of additional discovery. 21 MR. GARVER: I need to clarify for the record that 22 the United States' primary concern is with the League's 23 putting off importance depositions with the excuse that 24 their experts weren't prepared to be deposed, and 25 hopefully that has been clarified at this point, but I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 1 don't necessarily abide with Mr. Hyde's 2 characterization of the United States' position. 3 MR. HYDE: Is it the United States' position that 4 when witnesses are to be deposed they are to have their 5 opinions final and ready? 6 MR. GARVER: It is that that absence of final 7 opinion should not delay needed discovery in this 8 matter, and of course we reserve our right to file the 9 depositions when that is the case. 10 I don't want to get into this here. I want to 11 reserve any arguments I have on this point to another 12 time. It is not appropriate to do it here. 13 MR. HYDE: I would suggest it is coordination with 14 Ms. Ponzoli. She certainly took me to task in Dr. Ross 15 Rader's deposition, and we went through an exercise of 16 laying out just what his opinions were going to be, and 17 I think that there just needs to be some consistency on 18 it. That is all I am concerned about it. 19 MR. KILLINGER: Let's go off the record for a 20 second. 21 (Discussion off the record.) 22 MR. HYDE: Let's go back on the record. 23 BY MR. HYDE: 24 Q I would like to show you a document that has been 25 labeled Exhibit 7. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 1 (Whereupon, Exhibit No. 7 was marked for 2 identification.) 3 BY MR. HYDE: 4 Q Do you recognize this document? 5 A I believe this is one of Frank's really early 6 attempts to formulate that document that he was working on 7 about the Everglades. This might be his very first draft, 8 is all I know. I am not sure. 9 Q Did you prepare the cover transmittal slip? 10 A Yes. 11 Q Had you been requested by Mr. Nearhoof to review 12 this draft? 13 A Frank might have requested that the Biology 14 Section look at it, and Landon might have given it to me. 15 Q In the succeeding pages of what is apparently Mr. 16 Nearhoof's draft, there are some handwritten notes in the 17 margins. Are those your handwritten notes? 18 A Yes. 19 Q If you could just bear with me for a moment, take 20 me through, the first page of that document, the Bates 21 number at the bottom is 0944709. Can you tell me what your 22 handwritten note in the right-hand margin is? I can't tell 23 what that word is. 24 A I think it might say, "the development," "prior to 25 the development of." A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 1 Q Okay. Fine. If you could move now to the next 2 page, the top paragraph, the comment in the left-hand 3 margin, which is apparently referring to your striking out 4 the word "remaining" in the last sentence of that 5 paragraph? 6 A I might have put "existing," question mark. 7 Q Why did you put a question mark after it? 8 A I think it was more of an editorial, whether 9 "existing" or "remaining," which word might sound better in 10 the context. 11 Q The third paragraph, right-hand margin, I think 12 there is the word "cultural"? 13 A Cultural, cultural eutrophication. 14 Q Why did you suggest that change? 15 A Cultural eutrophication implies anthropogenic 16 sources. 17 Q Can you tell me what those handwritten comments 18 are below the "cultural" word? 19 A I can't even read that. It looks like "creating 20 adverse" something. It is cut off of my copy. 21 Q That is the way I received it. 22 And the bottom right-hand comment in the last 23 paragraph, can you tell me what those comments are? 24 A All I can read is, "nature of defining 25 imbalance." I can't make out the other ones. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 1 Q Turn now to the page that is Bates No. 0944714. 2 About halfway down the page, under the subhead, Periphyton 3 Impacts, you have stricken through the words "blue-green" 4 and said in the left-hand margin, "delete," in referring to 5 the author's reference to "predominantly blue-green algae." 6 Why did you suggest that change? 7 A We -- at that point, he is just talking about 8 periphyton in general being a community of microorganisms 9 that live or attach to substrates, and in general, you 10 would not say that they are all blue-green algae. There is 11 very many number of orders and species of blue-green algae. 12 There are green algae and diatoms and Schizothrix and 13 Scytonema and things like that that are present, and I 14 thought he should take that out when speaking in general 15 terms. 16 Q Turn now to the next page. There are some 17 handwritten comments in the left-hand margin next to the 18 second paragraph. Can you decipher what those comments 19 are? 20 A Let's see. I see "thought," and -- that is about 21 all I can make out of that particular copy here. It is 22 difficult to read. 23 Q Can you, by looking at the sentence, reconstruct 24 what you were attempting to address there? 25 A On those particular dosing studies, maybe I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 73 1 thought that there was elimination of the native calcareous 2 periphyton mat, maybe I was suggesting that he ought to 3 mention that the mat was completely eliminated. The mature 4 blue-green algal mat that consists of Scytonema and 5 Schizothrix imposed in making the natural algal mat is 6 found in the location where they perform those dosing 7 studies, and my recollection was that after about six weeks 8 of dosing, the native algal mat was completely eliminated, 9 and you had other species of periphyton that did replace 10 it, but I believe I might have been saying "elimination" 11 there. That is my best guess. 12 Q In the right-hand margin, next to the fourth 13 paragraph, there is some handwritten comment that refers to 14 your encircling the words "early maps" in that paragraph, 15 and then a reference to Davis 1940 something? 16 A '41, I think that is '41. He has got a map that 17 pretty much summarizes all of the plant communities found 18 in south Florida. 19 Q Was that a map that you had in your file that was 20 produced to us? 21 A Yes. I usually keep it on my wall. I think that 22 is -- 23 MR. KILLINGER: I think that is it. They copied 24 it in parts. 25 Off the record. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 74 1 (Discussion off the record.) 2 BY MR. HYDE: 3 Q If you can take a look at this? 4 A These many pieces appear to be the map that I was 5 referring to, except for this. 6 Q That wasn't intended to be given to you. So this 7 would be the Vegetation Map of Southern Florida by John L. 8 Davis, Jr., 1943 date? Is that correct? 9 A It was '43. I guess I put '41 by mistake. 10 Q I am not going to attach it to the transcript. 11 MR. KILLINGER: That is fine. 12 BY MR. HYDE: 13 Q So does this reflect that Davis noted areas of 14 cattails that were existing in the native Everglades 15 environments? 16 A Well, the reason I brought that up, Frank had said 17 early maps show that cattail stands are not found, and I 18 looked at that early map, I think is probably the most 19 complete available, and I scanned that quite well to see 20 what the native vegetation was consisted of, and the only 21 mention I could find of cattails was in one area which is 22 currently in the EAA, and I believe what Davis called it 23 was sawgrass with cattail and ferns, and I just brought 24 that to Frank's attention that there was an early ma