1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

CASE NOS. 92-3038

3 92-3039

92-3040

SUGAR CANE GROWERS COOPERATIVE OF )

5 FLORIDA, et. al., )

)

6 Petitioners, )

)

7 vs. )

)

8 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

9 )

Respondent. )

10 )

UNITED STATES OF AMERICA, et. al.,)

11 )

Intervenors )

14 99 Northeast 4th Street

Miami, Florida

15 March 3, 1992

9:20 a.m. - 12:30 p.m.

19 Deposition of Doctor Courtney T. Hackney

21 Taken before Stan Seplin, Certified Shorthand

22 Reporter and Notary Public in and for the State of

23 Florida at Large, pursuant to Notice of Taking

24 Deposition filed in the above cause.

25 - - - - - - -

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 APPEARANCES:

ON BEHALF OF THE PETITIONERS:

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

5 Two South Biscayne Boulevard, Suite 3636

Miami, Florida 33131

6 BY: William L. Hyde, Esq.

7 ON BEHALF OF THE UNITED STATES:

8 United States Department of Justice

Environmental and Natural Resources Division

9 Post Office Box 663

Washington, D.C. 20044-0663

10 BY: Stephen G. Bartell, AUSA

11 ON BEHALF OF THE RESPONDENTS:

12 Popham, Haik, Schnobrich & Kaufman, LTD.

100 Southeast 2nd Street, Suite 4000

13 Miami, Florida 33131

BY: Paul L. Nettleton, Esq.

ALSO PRESENT: Mark D. Maffei, Ph.D.

- - - - - - -

I N D E X

WITNESS DIRECT CROSS REDIRECT RECROSS

18 Dr. C.T. Hackney 3 --

19 GOVERNMENT'S EXHIBITS

Hackney One - Page 111

20 Hackney Two - Page 113

Hackney Three - Page 175

21 Hackney Four - Page 208

Hackney Five - Page 212

22 Hackney Six and Seven - Page 218

Hackney Eight - Page 244

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Thereupon:

2 Doctor Courtney T. Hackney,

3 was called as a witness by the United States, and

4 after being first duly sworn, was examined and

5 testified under oath as follows:

6 DIRECT EXAMINATION

7 BY MR. BARTELL:

8 Q. Good morning. My name is Steven Bartell

9 with the Department of Justice.

10 I'm representing the United States in

11 litigation ongoing over the regulatory program, or

12 SWIM Plan which has been proposed by the South

13 Florida Water Management District.

14 Could you please state your name, for

15 the record.

16 A. Courtney Thomas Hackney.

17 Q. Doctor Hackney, I'm going to be asking

18 you a number of questions. If you don't understand

19 any of my questions, or if anything is unclear, I

20 would ask you to please tell me, or give me the

21 opportunity to rephrase. This will insure you're

22 answering the questions I'm asking.

23 If you've answered the questions, I'm

24 going to assume that you understood the questions

25 I've asked.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Is that agreeable?

2 A. Certainly.

3 Q. Also, at any time if you wish to take a

4 break, please let me know, and we can break for a

5 few minutes, or what have you.

6 A. Okay.

7 Q. Have you ever been deposed before?

8 A. Yes.

9 Q. Can you give me-- tell me when that was?

10 A. It was multiple times.

11 I have been deposed a number of times.

12 Q. Can you tell me approximately how many

13 times?

14 A. I would say, maybe six or less.

15 Q. Could we try to walk through these past

16 depositions and the context in which they were

17 taken, and approximately the dates, to the best of

18 your recollection?

19 A. It will be to the best of my

20 recollection, yes.

21 Q. Let me ask you, have any of those

22 depositions been associated with the case that

23 you're currently-- that you're here on today?

24 A. No.

25 Q. When was the last time you were deposed?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. Between two and four years ago.

2 Q. And can you tell me what that was

3 regarding?

4 A. It was regarding the Concord Naval

5 facility out in California near San Francisco Bay.

6 Q. Were you an expert in that proceeding?

7 Obviously there must have been a court

8 proceeding?

9 A. Yes.

10 Q. Were you a hired expert in that case?

11 A. Yes, and I may have this wrong, so--

12 since I don't remember exactly what my role was

13 totally.

14 I did research for the U.S. Army Corps

15 of Engineers, which related to the case, and I was

16 deposed on matters related to my data, and as I

17 recall, on the case in general.

18 Q. What kind of research did you do for the

19 Corps?

20 A. I did work on the benthic invertebrates,

21 and a marsh adjacent to Suisun Bay, which is the

22 subject of the--

23 Q. Did you say benthic invertebrates?

24 A. Yes, the benthic-- the animals living on

25 the tidal marshes.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. Where was the bay?

2 A. Suisun Bay is a sub-bay of the San

3 Francisco bay system.

4 Q. What conclusion did you reach regarding

5 that past research?

6 A. I don't remember.

7 Q. The-- you mentioned you were deposed a

8 number of times.

9 Can you tell me the time prior to that,

10 that you were deposed, to the best of your

11 recollection?

12 A. I think I'm forgetting one in between.

13 I was deposed on a case in which the EPA

14 was contending that a-- an old landfill was

15 contaminating a large area of tidal swamp and tidal

16 marsh, and I had performed some research to verify

17 some of the hypotheses that the EPA had proposed.

18 Q. Where was that located?

19 A. Near Wilmington, North Carolina.

20 Q. Did you reach conclusions in that case?

21 A. Yes.

22 Q. Do you recall what those conclusions

23 were?

24 A. The conclusion was that the hypothesis

25 that was advanced by the EPA, was invalid.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. Was invalid?

2 A. Yes.

3 Q. Who were you hired by in that case?

4 A. I was working with-- I think it was the

5 City of Wilmington.

6 There were multiple defendants in that

7 case, including the City of Wilmington, New Hanover

8 County, etcetera, but I think I was working for the

9 City of Wilmington, if I recall.

10 Q. Was this a case against the Federal

11 Government or the EPA?

12 A. This was a case that the EPA had

13 brought, contending that there were a number of

14 damages caused by the landfill.

15 Q. Back up to the deposition prior to this

16 case in North Carolina.

17 Do you recall what was the next one,

18 going in reverse chronological order?

19 A. Not the most recent one-- you mean the

20 one prior to that?

21 Q. Yes.

22 A. (No response.)

23 Q. If you don't know them exactly in the

24 right order, that's not necessarily--

25 A. There was a case in which there was a

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 marsh filling under Section 404. I think that's the

2 authority which it was brought, in which the Corps

3 of Engineers was attempting to have the land filled,

4 basically.

5 Q. Were you hired by the Corps in that

6 case?

7 A. Yes.

8 Q. And did you reach conclusions in that

9 case?

10 A. Yes, I think I-- yes, I did.

11 Q. All right.

12 A. My role in that case was an expert

13 witness on the types of wetlands that were

14 involved.

15 I did not give testimony as to factual

16 data. I did not collect my data, myself.

17 Q. Approximately what time period was that?

18 A. '85, maybe, '84.

19 Q. The previous deposition you mentioned,

20 the land fill contamination--

21 A. Yes.

22 Q. Approximately what years were those--

23 was that?

24 A. Right in that same time frame.

25 I'm sorry I can't give you better dates.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 I rely on my notes at home.

2 Q. That's fine. Just going back before

3 that, the case where you were hired by the Corps,

4 regarding the bay in California--

5 A. Yes.

6 Q. That was about two to four years ago,

7 approximately?

8 A. No. That case started, I think, in

9 1982.

10 And that proceeded, as some of these

11 cases do, for a long period of time.

12 I was not deposed until some time, maybe

13 in the last four years. I can't give you an exact

14 date, but I would say in the last four years.

15 Q. Okay. Can you think of some other

16 situations or cases where you have been deposed?

17 A. I think I was deposed in a case

18 involving First Colony Farms.

19 Q. What is First Colony Farms?

20 A. It was a proposed large peat farming

21 operation, in which I was retained by the Corps of

22 Engineers to design a research plan to accomplish

23 the direction given to them by the-- by, I think it

24 was, a federal judge.

25 That was, again, in response to-- I'm

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 not a hundred percent certain, but in response to

2 what I think was a challenge by the EPA, I think, or

3 private groups.

4 I can't remember whether I was actually

5 deposed in that case or not.

6 Q. Did you say you were hired by the Corps?

7 A. By the Corps of Engineers.

8 Q. Do you recall if you reached conclusions

9 in that case?

10 A. Yes. I remember the conclusions pretty

11 clearly, because I wrote a report for the Corps of

12 Engineers on that, and my conclusion was in that

13 particular case, the hydrologic function of the

14 wetland had been clearly removed from a portion of

15 the property, and I think that was the current

16 contention.

17 Q. Do you consider yourself an expert in

18 wetlands?

19 A. Yes.

20 Q. What type of wetland was this, with

21 First Colony Farms?

22 A. First Colony Farms, what is classified

23 as a pocosin, p-o-c-o-s-i-n, in many of the old

24 systems.

25 It's basically a shrub bog, in the more

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 modern classification schemes, with large peat

2 application.

3 Q. Would you characterize the Everglades,

4 as a pocosin wetland?

5 A. No.

6 Q. What were the approximate dates of this

7 First Colony Farms case?

8 A. Some time in the 80's.

9 It all blends together after a number of

10 years.

11 Q. Can you think of any other examples,

12 where you have had your deposition taken?

13 A. No, but I think there's one more that

14 I'm forgetting, and maybe I'll recall it before this

15 is over.

16 Q. If you do recall it, would you bring

17 that to my attention?

18 A. I will.

19 Q. Okay, so what-- my understanding is that

20 we have approximately four-- fully four times that

21 you've been deposed, that you can recall previously

22 at this time, and-- were these all lawsuits where

23 you were deposed?

24 A. I think they were all legal actions of

25 some sort.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. Did you testify in either a judicial or

2 administrative type of hearing, in any of those

3 cases?

4 A. Yes. I know in one of them, I remember

5 testifying in court, and that was a federal judge in

6 that case.

7 Q. Which case was that?

8 A. That was the case of-- that I mentioned

9 in North Carolina, in which there was a 404

10 violation.

11 And I know I testified in some

12 administrative hearings before, and in one case,

13 which I did not give a deposition, I testified as

14 to-- as to whether the-- a particular piece of

15 property was a primary nursery ground for fishes and

16 shrimps and crabs, and that sort of thing.

17 Q. Do you recall any other details about

18 that case?

19 For instance, do you recall who you were

20 hired by?

21 A. I was hired by a landowner.

22 They were questioning the designation of

23 a portion of this property that they put a nursery

24 on, and I don't recall giving a deposition in that

25 case.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 I think I provided a report. I don't

2 remember a deposition.

3 Q. So you've mentioned twice that you can

4 recall, that you've testified; once in federal court

5 and once in an administrative hearing.

6 Do you recall any other times that you

7 have testified?

8 A. Yes, I do.

9 I testified in 1976 or '77, and I

10 believe this was a hearing involving permits for a

11 Dupont facility.

12 Q. Was that Dupont?

13 A. Dupont.

14 That was in Mississippi, on St. Louis

15 Bay, as a matter of fact.

16 Q. What was the subject of your testimony?

17 A. I think most of what I was providing at

18 that hearing was a background as to what wetlands in

19 that bay-- how they worked, what fauna and flora

20 were, that sort of thing.

21 Q. So you didn't actually do sampling

22 necessarily, but you were just testifying as to the

23 natural environment?

24 A. Well, I had worked in that system for--

25 from 1974 through 1981, basically, so before that

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 hearing, I had done quite a bit of work there, so

2 while I wasn't testifying, per se, about anything

3 the plant had done, because it had not been built, I

4 was basically giving testimony as to what I

5 anticipated occurring, given certain parameters.

6 Q. Do you know if the plant was ultimately

7 built?

8 A. Yes, it was.

9 Q. Did your expectations come to pass?

10 A. I really don't know.

11 I have not conducted any research there

12 since they built it.

13 Plus many of my concerns were addressed

14 in the final permit, so I think they limited the

15 environmental impact by what they did with the

16 permit.

17 Q. Do you recall any other examples where

18 you have testified, either in administrative forums

19 or in court?

20 You mentioned three so far.

21 A. That's all I remember.

22 Again, if they pop into my mind, I'll

23 let you know.

24 Q. I appreciate that.

25 Do you have copies of the transcripts of

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 any of those prior proceedings where you testified?

2 A. No.

3 Q. Backing up, could you state what your

4 current address is?

5 A. Professional or private?

6 Q. Let's start with professional.

7 A. The Department of Biological Sciences,

8 University of North Carolina at Wilmington,

9 Wilmington, North Carolina 28405.

10 Q. And your personal?

11 A. 7007 Northbend, one word, Road,

12 Wilmington, North Carolina 28505.

13 Q. Could you describe to me what your

14 current employment is?

15 A. I'm professor of biological sciences.

16 My primary responsibilities are teaching

17 ecology, wetland biology and estuarine biology.

18 Q. What's the third one?

19 A. I said estuarine, e-s-t-u-a-r-i-n-e.

20 Coastal biology is a good analogy for

21 that.

22 Q. Other than when you are teaching or you

23 are a professor-- well, let me rephrase that.

24 What percentage of your time is spent

25 acting as a professor or teaching?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. I--

2 Q. Approximately.

3 A. My designated time for teaching is 100

4 percent, basically. That's considered at my

5 university, 12 contact hours.

6 Q. 12 what?

7 A. Contact hours. 12 contact hours.

8 As part of my job, I also do research

9 and direct graduate students, and serve on state and

10 local commissions, and whatever else, for public

11 service.

12 Q. And I guess in addition to that, you are

13 able to serve as an expert in other proceedings?

14 A. Yes.

15 Q. You mentioned before that you considered

16 yourself an expert in wetlands.

17 We're going to be looking through your

18 CV and your past work, and degrees.

19 That reflects where the basis upon which

20 you can safely feel you're an expert in wetlands?

21 A. Yes, in total.

22 Q. Okay. I know that you mentioned you

23 spend approximately 100 percent of your time

24 teaching, in addition to these numerous other

25 activities.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Approximately what percentage of your

2 time is spent currently, or, let's say, within the

3 last couple of years, acting as an expert or

4 offering your opinions in proceedings?

5 A. You would have to break that down into

6 different time frames.

7 From August of '92 through June of '93,

8 I was not at the university.

9 At that time, I worked for Breedlove,

10 Dennis & Associates as a senior wetland scientist,

11 and head of the wetland section.

12 Q. Let's go to the time period following

13 that.

14 A. Okay. Since that time, I guess during

15 the summer, I guess I would be considered a hundred

16 percent consulting.

17 Q. That's the summer of '93?

18 A. Summer of '93.

19 Q. What was that hundred percent consulting

20 regarding?

21 A. Well, some of it involved this case.

22 It involved a permitting project in

23 Southern Louisiana wetlands, for Kaiser Aluminum.

24 It involved working with NOAA on

25 projects dealing with wetland restoration. In this

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 case, it was a bay in Massachusetts, which

2 apparently is one of the worst polluted sites up

3 there.

4 I can't think of the name right now.

5 It involved a project dealing with

6 permitting, and a marina in North Carolina.

7 It also involved the development of

8 wetland functional index for the U.S. Army Corps of

9 Engineers, and that is a method by which field

10 personnel will be able to evaluate the functional

11 importance or significance of various wetlands

12 anywhere in the country.

13 Q. What do you mean, importance?

14 Did you say functional importance?

15 A. It is-- I lead the-- one section. There

16 are four-- three different groups that the Corps has

17 commissioned and funded to develop methodology for

18 basically allowing a field person from the Corps or

19 any other agency, to go to a site, and very rapidly

20 assess how valuable that is for ecological functions

21 in a quantitative manner, so a ten, for instance,

22 might be a very high quality for a fishery, and a

23 zero might be no value from that function.

24 It's a long, ongoing project, and this

25 summer, they gave increased funding for it, so I was

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 working on that, as well.

2 Q. Is that index complete or finished?

3 A. No.

4 Q. Is that an ongoing process, or will it

5 be completed at some point?

6 A. It's an ongoing project.

7 The completion date is dependent upon

8 how soon and when the Corps can provide funding.

9 Q. All right. You mentioned approximately

10 five different activities or cases pending, that you

11 were working over the summer of '93.

12 After the summer of '93, up until today,

13 what-- approximately what percentage of your time is

14 spent consulting?

15 A. Less than ten percent.

16 Q. All right.

17 A. And it would depend on how you would

18 decide to apportion that.

19 Much of the consulting that I do during

20 the summer, typically involves weekend work, that

21 sort of thing.

22 That I can do, as much hours as I have,

23 and during a semester and during school time, it's

24 pretty limited.

25 Q. When did you first get involved in this

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 case?

2 A. August of '93.

3 Q. And these other cases that you mentioned

4 you worked on over the summer, summer of '93--

5 Kaiser Aluminum, working with NOAA, permitting a

6 marina and this functional index, are any of those

7 legal proceedings?

8 A. Not to my knowledge.

9 MR. NETTLETON: Off the record.

10 (Discussion off the record.)

11 BY MR. BARTELL:

12 Q. Doctor, you just previously mentioned

13 that you started working on this case, August of

14 '93.

15 Did you mean to say August of 1992?

16 A. Correct.

17 Q. Going to when you were first involved

18 with the case-- who were you first contacted by?

19 A. Can you restate that?

20 Q. Sure. Who first initiated contact with

21 you which led to your involvement in this case?

22 A. In terms of the case, the legal

23 proceedings--

24 Q. Yes.

25 A. The-- I'm not sure when I talked with

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 anyone about the legal side of this.

2 Probably as soon as I started at BDA, I

3 was asked to design some methodologies to get at

4 some answers that were pending in the case,

5 technical answers.

6 If you're asking about when I first

7 started working in the Everglades doing research,

8 then it would be August of 1992.

9 If you're asking when I first got

10 involved with the legal part of this, in terms of

11 these sorts of proceedings, it would be after that,

12 and I'm not sure what that date was.

13 Q. So it would-- you were head of the

14 wetland section at BDA?

15 A. Yes.

16 Q. You mentioned from August of '92 through

17 June of '93.

18 A. Correct.

19 Q. It was during that time period you were

20 first acquainted with the Everglades or the current

21 situation that's facing the Everglades?

22 A. I was acquainted with the Everglades

23 before then. I grew up in South Florida.

24 It was the first time that I had gotten

25 involved in any research that pertained to this

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 litigation.

2 Q. And who was BDA working for?

3 A. Let's see. Peeples, Earl, Kavanaugh,

4 Stotts--

5 MR. NETTLETON: You left out somebody

6 else.

7 THE WITNESS: I don't know. It's--

8 MR. HYDE: Peeples, Earl & Blank at the

9 time.

10 BY MR. BARTELL:

11 Q. So BDA was working for, for lack of-- or

12 for ease of discussion it-- let's say the Peeples'

13 law firm, Peeples, Earl & Blank?

14 A. Yes.

15 Q. BDA was working for them, and you were

16 working for BDA?

17 A. Yes.

18 Q. What were you doing for them?

19 I understand that you were head of the

20 wetland section, but more specifically, what were

21 you doing for them?

22 A. Do you want a breakdown of my

23 responsibilities?

24 Q. Yes.

25 A. Okay. Part of my responsibility was

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 administrative, administering, handling personnel,

2 etcetera, evaluations of people.

3 Part of my job was dealing with clients,

4 new contracts, etcetera, writing reports.

5 Part of my job was mentoring my staff.

6 Part of my job was managing contracts.

7 Part of my job was doing research on

8 some of those contracts that were mine and some that

9 were other people's.

10 Q. Did you have previous experience in

11 working with contracts and managing contracts, and

12 things of that nature?

13 A. Yes.

14 Q. Where was that experience?

15 A. Oh, that started as a post-doctoral

16 student at Mississippi State, managing large grants

17 and contracts, and managing labs.

18 It continued as an assistant professor

19 at Southwestern Louisiana, again, managing grants,

20 which are just basically contracts that are fixed

21 fee for research, I guess.

22 Sometimes there's not much difference

23 between them.

24 Then managing, again, contracts at the

25 University of North Carolina, at Wilmington.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. What does BDA do?

2 If you had to describe-- where are they

3 located?

4 Let me start with that.

5 A. They are located in the Metropolitan

6 Orlando area.

7 Q. Approximately how big is this company?

8 How many employees?

9 A. Well, you can--

10 MR. HYDE: You mean formally or--

11 THE WITNESS: You're going to tell me

12 what time period you're talking about.

13 BY MR. BARTELL:

14 Q. Has that changed over a period of time?

15 A. It has.

16 Q. When you were working there, how many

17 people, approximately, worked there?

18 A. During the time frame?

19 Q. Yes. Just throw out maybe some dates and

20 examples.

21 A. When I started working in August, I

22 think there were about 64, is my recollection,

23 total, and that includes scientists and bookkeepers,

24 etcetera.

25 Some time in October or so, there were

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 about 103 or 104, and I think when I left in June,

2 there were about 42.

3 Q. I don't know anything about BDA, so the

4 questions may not make that much sense to you, but

5 I'm trying to get an idea of what BDA does.

6 Can you just try to explain to me what

7 type of company-- they are a company?

8 A. They are a privately held company,

9 privately held corporation.

10 Q. Could you try to describe generally, the

11 types of things they do there?

12 A. I would say the majority of what BDA

13 does, is help clients go through the permitting

14 process.

15 That involves everything from explaining

16 to them what the rules are, and-- to gathering

17 information that's required by agencies, insuring

18 that the engineering or whatever activities that go

19 on, are following the permit guidelines, sort of

20 overseeing projects, and then often, at the very

21 end, also monitoring, doing follow-ups for clients

22 to satisfy the permit requests.

23 I would say that is-- that is the

24 biggest part of what they do.

25 Q. The monitoring, you mean?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. No, the whole facet of going through--

2 Q. Oh, everything you just mentioned?

3 A. Yes.

4 Q. Okay.

5 A. And within that context, there's a

6 component of map making.

7 They have a very sophisticated GIS

8 facility and global positioning system.

9 There are typically investigation of

10 endangered and threatened species, and typically,

11 investigations of wetlands and so forth, and I would

12 say that's the bulk of what they do.

13 Q. When you mentioned helping clients go

14 through the permitting process, what process are you

15 talking about?

16 A. Well, there are multiple permits that--

17 Q. Oh, you don't have any specifically--

18 like 404--

19 A. No, but 404 would be included.

20 I would say that the majority of the

21 permits involved landscape alteration development.

22 Q. So you went to work for them, and-- in

23 August of '92.

24 Did you start working on the Everglades

25 case at that time, or, I understand that we're

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 breaking this apart from the legal aspect, as

2 opposed to your research--

3 A. Pretty shortly after I arrived, I was

4 handed a task that involved the Everglades.

5 Q. What was that task?

6 A. That task was to look at the imbalance

7 issue.

8 Q. Could you explain to me what the

9 imbalance issue was?

10 A. That was part of my task to figure out

11 what it was, what it was intended to be, and how it

12 applied to the Everglades.

13 And I guess the other part of that was

14 to examine the documentation and the literature that

15 might or might not pertain to this particular issue.

16 Q. I understand that you're saying that

17 part of your task was to figure it out, but I'm

18 still not clear what-- they had to have an idea,

19 generally of what the imbalance issue was.

20 A. Certainly.

21 Q. Could you explain to me what that was,

22 or in their minds, what it was they were asking you

23 to figure out?

24 A. Well, I think the first task that I had

25 was to review all the information, the technical

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 information on the imbalance, which was--

2 Q. Before you continue, what imbalance?

3 A. Okay, on potential imbalance.

4 That involves changes in plant, animal

5 composition, in a portion of the Everglades,

6 particularly northern 2-A.

7 Q. So what did you specifically do?

8 A. Well, as I recall, my first task was

9 reviewing all the documents they had put together,

10 which I would characterize as background

11 information.

12 They had done a fairly extensive

13 literature search, and as I recall, had it broken up

14 into sections; fish, birds-- I can't remember all

15 that was in there-- and then they had a little

16 concluding portion, and I guess my first task was to

17 look at the literature and their conclusions from

18 the big picture, sort of backing up and thinking

19 about how wetlands work and how they don't work, and

20 verifying whether their conclusions seemed

21 reasonable, from the big picture of understanding

22 wetlands.

23 Q. What were their conclusions?

24 A. I don't recall. I just don't remember.

25 Q. Was your task to scientifically define

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 the meaning of imbalance of flora and fauna, from--

2 A. No.

3 Q. Can you tell me-- so you don't recall

4 what their conclusions were regarding the imbalance?

5 MR. HYDE: Just for clarity, when you say

6 their conclusion, who are you referring to?

7 BY MR. BARTELL:

8 Q. Okay. You just previously indicated

9 that you didn't recall what the conclusions were

10 that you were looking at.

11 What conclusions were you referring to?

12 A. They were conclusions regarding the

13 literature that was available on all of the

14 different faunal groups, as I recall.

15 I think it was only fauna-- wildlife,

16 fish, etcetera.

17 I don't think it dealt with plants at

18 all.

19 Q. So it was different conclusions and

20 different literature?

21 A. The document was broken up into

22 chapters.

23 Q. What document?

24 A. The document to which I'm referring, and

25 I don't remember what it was titled.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 It was Fish and Wildlife of the

2 Everglades. I just don't remember what that was.

3 Q. Everything we're talking about right

4 now, was contained within one document?

5 A. Yes.

6 Q. Was that document produced to us,

7 pursuant to this latest notice?

8 A. Not by me.

9 I did not have a copy.

10 I had presumed you had seen this before.

11 Q. Do you know who authored that document?

12 A. The document has multiple authors.

13 I think that Jay Exum may have been one

14 of the senior officers.

15 MR. HYDE: Jay Exum?

16 THE WITNESS: Jay Exum.

17 If he's not an author on there, he has

18 reviewed it very extensively, because he a

19 discussion about some facets of it.

20 As I recall, it dealt fairly strongly

21 with an area that he's very knowledgeable, and at

22 that time it-- it's the wildlife component.

23 BY MR. BARTELL:

24 Q. What kind of discussions did you have

25 with him regarding this document?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. We had discussions regarding some of the

2 conclusions, particularly later in the year, when he

3 became involved in the case a little more heavily.

4 As I recall, he was not involved in this

5 in the early part, but got involved a little later

6 in terms of just wanting to review a lot of the

7 background material, and I don't recall whether

8 there was a rewrite of the document which he was

9 involved, or whether he was involved in the early

10 part-- I just don't remember that, but he and I had

11 a discussion later on, where we were talking about

12 their conclusions and whether they made sense, in

13 light of, again, the big picture of how wetlands

14 functioned relative to wildlife; the big picture of

15 about any of the new documents that had been

16 produced that I had seen, at least, or had been

17 discussed at the International Wetlands meeting in

18 Ohio, changed any of the conclusions of that

19 section.

20 I think I was looking to augment what

21 was there, and again, I don't know if that was

22 rewritten or not.

23 Q. I know you previously mentioned this,

24 what you thought was the title.

25 Could you tell me again what you think

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 the title again is of this particular document, what

2 you think it was?

3 A. If I told you, it would be so much of a

4 guess, you would probably be better off looking for

5 wildlife.

6 I seem to remember that wildlife was in

7 the title, but that's all I remember.

8 Q. What was your conclusion regarding this

9 document?

10 A. As I stated earlier, I don't remember

11 what the conclusions were of the individual

12 sections.

13 I do recall having some comment about

14 some of the conclusions, and my comments were

15 relative to the fact that it was-- that the

16 Everglades system was a wetland, and generic

17 understanding of how wetlands and wildlife work,

18 we-- would have probably given some perspective to

19 some of the conclusions.

20 Q. Did you write down your comments or

21 conclusions?

22 A. I'm positive that I wrote some comments

23 on the manuscript.

24 MR. HYDE: I would like to interject at

25 this point.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Again, I don't know precisely what this

2 document is, but Doctor Hackney is not intended to

3 be an expert in faunal impact in the Everglades, and

4 secondarily, the document being referred to here,

5 may well be a product that was prepared in

6 preparation for litigation by BDA on behalf of my

7 law firm.

8 I don't know that for a fact, but based

9 on-- based on what we heard today, I'm not going to

10 foreclose your questioning, but I just wanted to

11 make that clear.

12 MR. BARTELL: I appreciate that.

13 BY MR. BARTELL:

14 Q. So to the best of your knowledge, you

15 made comment on this particular document.

16 Was there only one draft of the

17 document?

18 Do you know if there's a final draft?

19 That's two questions. Let me back up.

20 Was there more than one draft?

21 A. I would think there was.

22 I cannot recall seeing two drafts.

23 Q. All right.

24 A. I don't remember if there is a section

25 of the contract that we had with the attorneys that

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 was approved.

2 I think that was sort of the end work

3 product of that contract, and I don't remember if

4 that section of the contract, pursuing that avenue

5 of understanding in the case, was renewed. I just

6 don't remember.

7 If it was, I don't recall seeing a new

8 draft.

9 Q. So you've never seen a final draft,

10 then?

11 A. I don't recall seeing a draft after the

12 one that I reviewed, no.

13 Q. Okay. You mentioned that your tasks at

14 BDA were to figure out the imbalance issue and to

15 review the literature.

16 Is this the literature that you're

17 referring to, this one document?

18 A. This was some of the literature.

19 Q. What other types of literature did you

20 review?

21 A. The other types of literature dealt with

22 a segment of the controversy, that I think was

23 extremely vague for most people, may still be, and

24 that dealt with the microbial aspect, decomposition,

25 whether microbes are fauna, flora-- some real

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 philosophical things, on occasion.

2 Q. Can you explain to me what is the

3 microbial aspect, the decomposition aspect?

4 A. Well, as I recall, it dealt with some

5 studies that had been done-- I think one was by

6 Jones, and-- Jones, dealing with phosphatase

7 increases in sediment, might be described.

8 The second dealt with decomposition,

9 mostly in northern 2-A.

10 Q. Do you know who the author of that was?

11 A. I think there were actually several of

12 them.

13 I think there was actually more than one

14 paper there.

15 One of them was Davis.

16 Another one was Reeder and Davis.

17 I think there was also a document by

18 Nancy Urban, too, that dealt with-- actually, it

19 dealt with the macrofauna in litter bags, and-- I

20 interpreted that it had some relationship to the

21 microbial process.

22 I would say those are the-- were the

23 ones that were pretty important.

24 And I think that my task-- my charge was

25 to present to the attorneys the scientific logic and

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 argument that was being made, what actually is being

2 said, in simple terms; what are we arguing about,

3 really.

4 Q. You said you asked the attorneys.

5 We crossed the line from where you were

6 doing work for BDA, as opposed to when you were

7 working for the consultants, specifically, the

8 Peeples, Earl law firm?

9 A. No, because when I was at BDA, I

10 basically had two charges within-- at some point in

11 time.

12 One was fundamental research, and the

13 second was answering attorneys' queries as to what

14 does this mean, what does this paper say, in

15 layman's terms, questions of that nature.

16 MR. HYDE: Just for the record, I would

17 raise the objection as to work product, whether it

18 was actually communicated to the attorneys-- you can

19 certainly ask him what conclusion he developed

20 regarding these papers, so-- but I would like you to

21 limit your questions, so you don't ask what was

22 actually communicated to the attorneys, themselves.

23 BY MR. BARTELL:

24 Q. Did you reach conclusions regarding

25 these different documents that you reviewed, and

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 from my notes here, it seems that you have mentioned

2 one document by Jones regarding microbial aspects,

3 and multiple documents regarding decomposition in

4 water conversation area 2-A, and I think you listed

5 approximately three.

6 Again, back to my question-- regarding

7 these documents, did you reach conclusions?

8 A. Those documents are pretty multifaceted.

9 They-- I reached conclusions in a number

10 of different areas.

11 I think we need to be a little more

12 precise as to which area you would like me to

13 address.

14 Q. Let's go through them.

15 Starting with the Jones document--

16 A. Yes.

17 Q. Can you tell me more about what that

18 document was, and if you know the full author's

19 name, what his name was--

20 A. I don't recall.

21 I'm sure I have got it in notes

22 somewhere.

23 As I recall, that work was done in the

24 lab, itself, and I recall asking to get access to

25 the site and was told that wasn't possible.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 I recall investigating the methodology,

2 and I recall recommending to the attorneys an

3 individual who knew a great deal about the methods,

4 itself, and interpreting their conclusions.

5 Q. Who was that individual?

6 A. Who did I recommend?

7 Q. Yes.

8 A. I think it was a professor at Penn State

9 or Pittsburgh--

10 MR. HYDE: I can provide you with the

11 name, if you want.

12 MR. BARTELL: I would appreciate it.

13 MR. HYDE: Doctor Dick Pratt, Penn State

14 University.

15 He's on our list of witnesses.

16 BY MR. BARTELL:

17 Q. Why did you want access to the park?

18 A. Well, I wanted to see the site where the

19 work was done.

20 Q. What was the work?

21 A. Basically, I looked at or concluded that

22 in areas where there were more nutrients, more

23 phosphorus, in particular, there was an increase in

24 activity of particular bacteria.

25 Q. What specific purposes did you want to

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 have access to the site for?

2 A. Well, initially, the access-- my

3 interest in the access was to look at some other

4 measures of microbial activity.

5 I was interested, particularly in

6 looking at fungal activity.

7 Q. Was this document produced to us, either

8 in your first production of documents, or either in

9 this latter production of documents?

10 MR. HYDE: I think it's the document that

11 you already have. It's-- that's what he's referring

12 to.

13 THE WITNESS: Yes. I think you have

14 that.

15 BY MR. BARTELL:

16 Q. Did you-- do you have an opinion as to

17 what Doctor Jones' conclusions are?

18 A. No.

19 Q. Do you feel it was a valid piece of

20 scientific research?

21 A. As I recall, my examination of what was

22 done and the methodology, led me to conclude that we

23 needed to talk to Doctor Pratt about the

24 methodology, because I thought the methodology was

25 critical to understanding whether the

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 interpretations were valid or not, so I passed that

2 task off to Doctor Pratt.

3 Q. So is it fair to say that you doubted

4 the conclusion Doctor Jones reached?

5 A. I'm a scientist. I doubt everything.

6 Q. Do you know if Doctor Pratt has gone and

7 done that work?

8 A. Well, I know that he was retained to

9 discuss the paper, itself, and the methods, but I

10 have not talked to Doctor Pratt about that.

11 MR. HYDE: Just for the purposes of the

12 record, Doctor Pratt has been deposed, and his

13 deposition transcript reflects his analysis.

14 MR. BARTELL: I understand that.

15 BY MR. BARTELL:

16 Q. Do you believe that nutrient levels

17 impact microbial activities?

18 A. Which nutrients?

19 Q. Do you believe that any nutrients affect

20 microbial activity?

21 MR. HYDE: I'm going to object to the

22 question, on vagueness.

23 It's a rather broad, subjective

24 question, that requires endless speculation as to

25 what activities might be affected by the nutrients.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 If you could be more specific, it might

2 help the witness answer the question.

3 BY MR. BARTELL:

4 Q. In your opinion, do you believe that

5 phosphorus levels may impact microbial activity?

6 A. I would say that any change in

7 environment affect microbial activity; seasonal

8 changes, water level changes, inputs or exports of

9 anything.

10 The view that these things are static,

11 is a fairly naive view.

12 Q. Would you say that an increase in

13 phosphorus availability, is a change to the

14 environment?

15 A. Can you state that again?

16 MR. BARTELL: Would you read that back,

17 please.

18 (Thereupon the referred to

19 question was read back by the

20 reporter as above recorded.)

21 THE WITNESS: It's a change, potential

22 change in nutrient availability.

23 BY MR. BARTELL:

24 Q. And could that, then, impact microbial

25 activity?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. Everything can impact microbial

2 activity, in both directions.

3 Q. What do you mean in both directions?

4 A. It can increase activity and it can

5 decrease activity.

6 Q. Do you have an opinion as to whether

7 increases in phosphorus availability, would change

8 it in one direction or the other?

9 A. With respect to what?

10 Q. Well, increase in microbial activity or

11 decrease?

12 A. What kind of microbial activity?

13 I'm trying to get you to phrase this--

14 because there's a tremendous variation.

15 This is not a static system. Even when

16 nothing is happening, things are shifting back and

17 forth, as to who is doing what.

18 Q. Can you just describe to me, generally,

19 what is microbial activity?

20 A. Okay. It's metabolism by bacteria and

21 fungi, as the literature usually uses it.

22 I would refer to it more as a scientist,

23 just to bacteria, but the literature includes

24 microbes, bacteria and fungi.

25 Q. And what are these things? What do these

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 things do?

2 I'm not a scientist, and I'm trying to

3 have a little--

4 A. How many days do we have here?

5 MR. NETTLETON: Plenty.

6 BY MR. BARTELL:

7 Q. If you could summarize--

8 A. Let me just categorize it. I'll put it

9 in several categories, and let you sort of decide

10 which you want.

11 Q. These are categories of different-- what

12 do these categories represent? What do they--

13 A. Different types of activities.

14 Bacteria and fungi have metabolisms, at

15 least some of the microbes, that are extremely

16 different than most of the organisms that we deal

17 with.

18 They use as energy sources and carbon

19 sources, items that are extremely different than

20 what plants and animals typically use, so we have

21 organisms that are aerobic in nature, needing and

22 requiring oxygen, and we have those that are

23 anaerobic, that do not require oxygen.

24 We have ones that can do both. We have

25 microbes that literally get their energy from toxic

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 compounds, and in some cases, some of these microbes

2 are the bases of food chains, and in other cases,

3 they are extremely important in nutrient cycling.

4 In some cases, they are important in

5 creating toxic metabolites to soils and waters.

6 It is probably from a biochemical

7 standpoint, a greater diversity than all of the rest

8 of the organisms on the earth.

9 Q. Are there examples of all of these

10 different types of categories, of microbes in the

11 Everglades?

12 A. I'm sure.

13 Q. Does an increase in phosphorus

14 availability, impact or change microbial activity,

15 specifically the production of alkaline phosphatase?

16 A. Probably.

17 Q. Can you describe how that may be

18 accomplished?

19 A. I would defer that question to Doctor

20 Pratt.

21 I'm not a microbiologist.

22 Q. You mentioned before you felt you were

23 an expert in wetlands.

24 A. That's right.

25 Q. Do you categorize yourself as an expert

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 in any other areas?

2 A. Yes. I'm an expert in estuarine

3 ecology.

4 Q. Other than estuarine, or can we say

5 coastal ecology--

6 A. Yes.

7 Q. Other than that, and wetlands, do you

8 consider yourself an expert in any other areas?

9 A. No, and you should understand within

10 that expertise, there are various subdivisions of

11 each of those, that are extremely different.

12 Q. Could we maybe go through some of

13 those-- well, going into these two categories that

14 you described, yourself, and I understand the broad

15 categories, coastal ecology and wetland.

16 Could we get into these two different

17 categories, and-- let's say the subcategories, or

18 the specific areas?

19 A. Okay.

20 Q. And before I ask you to do that, would

21 that be easier to do by looking through your CV?

22 A. That would probably take us into most of

23 the major areas.

24 Q. It would? Okay.

25 I'm going to come back to that.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 You mentioned that you reviewed this

2 Jones document, as well as approximately three

3 others.

4 This is going back to your work at BDA.

5 A. Let me also say I probably reviewed most

6 of the documents in this case.

7 You, as I recall-- you asked me which

8 ones I was using at part of that imbalance issue in

9 the very beginning of my work.

10 At least that was the answer that I

11 provided.

12 Q. You're talking about in response to my

13 notice?

14 A. No. I was talking about response to my

15 early work at BDA.

16 Q. Okay. Can you-- would you estimate how

17 many documents you looked at in this case?

18 MR. HYDE: Answer to the best of your

19 ability.

20 THE WITNESS: Well, I can-- let me start

21 out doing it this way. This is an easy way to do

22 it.

23 I reviewed all the documents that Nancy

24 Urban provided from her deposition; all the ones

25 that Irv Mendelson provided; all the ones that Steve

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Davis provided through his deposition; all the ones

2 that Lou Toth provided with his deposition.

3 I reviewed-- I'm looking for another

4 category that would lump a lot of these together.

5 I reviewed all documents that pertain to

6 the section at the International Wetlands

7 Conference, you know, in Ohio in the fall of '92.

8 I think most of those were abstracts,

9 but some of them were based on previous work that I

10 was able to look at.

11 I reviewed most of the documents

12 contained in the wildlife report that I mentioned

13 earlier.

14 When I say review, I looked at them,

15 read them, sometimes commented as to whether there

16 were part of them that were really well done, parts

17 that weren't well done, and other avenues of

18 research that could be followed.

19 Q. Where did you get all these documents to

20 enable you to review them?

21 A. BDA library.

22 There was a library of documents in this

23 case, and I think on only one occasion did I find

24 that the document that we did not have, that I

25 wanted, and that was supplied by South Florida Water

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Management District after that.

2 I would have no idea what the number

3 was.

4 Many of the documents consisted of

5 multiple revisions of papers.

6 There wasn't many.

7 Q. So BDA has an extensive library in

8 Orlando?

9 A. Yes.

10 Q. You mentioned you were asked to figure

11 out the imbalance issue as one of your tasks at BDA.

12 Did you ever figure out that imbalance

13 issue?

14 A. Did I ever answer the attorneys'

15 questions as to what it actually is?

16 Q. Yes.

17 A. I doubt it did to their satisfaction.

18 I commented on the biological aspects of

19 what it meant or didn't mean, and the validity of

20 what was described to me, as-- the legal side, in

21 the biological world.

22 Q. Can you describe that-- could you

23 summarize that into a conclusion that you reached?

24 A. My conclusion was that the law was based

25 on the Everglades being a fairly static system, and

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 that in the real world, there's very little static

2 to most wetlands, or particularly, wetlands that go

3 through cycles of disturbance and-- natural

4 disturbance.

5 Q. What law are we talking about?

6 A. With respect to the biological or--

7 Q. You previously just mentioned that--

8 A. The imbalance-- the description-- the

9 legal description of what the imbalance was.

10 Q. Do you recall what that legal

11 description is?

12 A. Not verbatim, sure.

13 Q. Can you tell me generally what that

14 legal description was?

15 A. Generally, it's a shift in the

16 composition of plant and animals, caused by, in this

17 case, phosphorus, I presume.

18 Q. Based on all of these reviews, these

19 numerous reviews that you have done, is it your

20 opinion that phosphorus entering the water in water

21 conservation areas, results in any changes in the

22 ecosystem of the water conservation areas?

23 A. Is it resulting in any changes--

24 Q. Yes.

25 A. What kind of changes?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 It results in phosphorus being in there.

2 That's a change.

3 Q. Can you think of any other examples of

4 changes that it may result in?

5 A. Do you want me to speculate as to all

6 the list of things that could have happened?

7 Is that what you're asking here?

8 Q. Not speculate, but I want to know if you

9 have any opinion as to whether this phosphorus

10 entering the water conservation areas, causes

11 changes, other than the fact that there's a

12 increased phosphorus in the water conservation

13 areas.

14 A. Well, it certainly raises the

15 conductivity in the water.

16 Phosphorus is a nutrient.

17 I think that there is reasonably good

18 data to support that plants respond to increased

19 nutrients, in improved production.

20 I think that areas that have higher

21 phosphorus available to them, have increased

22 production, primarily productivity.

23 Q. Is that what you mean by plant response

24 to increased nutrients, or is that a separate--

25 A. No. I guess that's--

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Could you read that back?

2 THE WITNESS: Well, phosphorus would be

3 expected to increase productivity of plants, if it

4 is, in fact, available to the plants.

5 BY MR. BARTELL:

6 Q. What does it mean to say increased

7 productivity?

8 A. It means that the annual productivity of

9 biomass, the accumulation of complex carbon

10 molecules by plants, leaves, stems, roots, etcetera,

11 would be higher.

12 Q. You said improved production.

13 Can you tell me what you mean by

14 improved?

15 A. Increased.

16 Q. So is it-- would you-- in your opinion,

17 is any increased production and in biomass and

18 plants, the same as improved?

19 A. I was using it in that fashion,

20 improved, increased.

21 There's more biomass than there was

22 previously.

23 Q. Would you say that the amount of

24 phosphorus entering the water conservation areas, is

25 considered a normal change to this static system?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. I would say that the amount of

2 phosphorus entering the system, probably isn't the

3 critical component.

4 It's the amount of phosphorus available

5 to the plant that would be critical.

6 Q. Is there increased phosphorus available

7 to the plant?

8 A. I would presume there would be.

9 Q. Do you consider that to be normal in

10 this system?

11 A. There are parts of the Everglades and

12 times in the Everglades, where that has probably

13 been normal.

14 Q. Would you consider that to be normal at

15 this time, in the water conservation areas?

16 MR. HYDE: I'm going to object to the

17 form of the question, because it asks the witness to

18 speculate as to what it normal at this time, and you

19 don't have a reference point yet.

20 BY MR. BARTELL:

21 Q. Do you have an opinion as to what is a

22 normal increase or normal amount of phosphorus, that

23 would be entering the Everglades?

24 A. I think if you look at the concentration

25 of phosphorus in soils after fires, you probably can

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 use that as a measure of the maximum phosphorus

2 that's probably normal for the Everglades.

3 Q. Do you have an opinion as to, like,

4 reference, in numbers, as to what that would be?

5 A. I would have to pull out documents and

6 look at that.

7 It could be done.

8 I haven't spent a lot of time looking at

9 that.

10 Q. Do you feel that there are different

11 plants or-- well, let me rephrase that.

12 In your opinion, do different plants

13 respond differently to the increase in phosphorus?

14 A. Yes.

15 Q. And in your opinion, how does sawgrass

16 respond to an increase in phosphorus?

17 A. From the data that I have seen, and from

18 my own observations, it responds by growing more.

19 The timespan that it seems to take, is--

20 seems to be in question.

21 But it clearly grows greater with

22 greater nutrients.

23 Q. How would you say that cattails respond

24 to increases in phosphorus?

25 A. It clearly responds to phosphorus

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 increases, as well.

2 Q. Would you say that one cattail-- would

3 you say that cattails and/or sawgrass, respond

4 greater than the other?

5 A. I would say that cattail responds more

6 quickly than sawgrass.

7 I-- now that we're talking about cattail

8 and sawgrass, I would ask you, if I-- it sounds like

9 I said them backwards. Please tell me if I did,

10 because I do that often.

11 I just say the names backward. I know

12 which is which.

13 MR. HYDE: I'll keep that in mind.

14 MR. BARTELL: You're going to take care

15 of that, Mr. Hyde?

16 MR. HYDE: Just ask many questions.

17 BY MR. BARTELL:

18 Q. Do you feel that cattails can survive in

19 areas that don't have increased phosphorus in the

20 Everglades?

21 A. Yes.

22 Q. Are cattails native to the Everglades?

23 A. Yes.

24 Q. Do you feel that the percentage of or

25 the areal extent of--

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. Can I stop and go to the last question?

2 Q. Sure.

3 A. Let me ask you to tell me which species

4 of cattails.

5 Q. My understanding is that there are two

6 species of cattails in the Everglades.

7 Is that incorrect?

8 A. It may be.

9 Q. How many species of-- how many species

10 of cattails are in the Everglades?

11 A. Well, there are two clearly documented

12 species.

13 There may be some other forms that are

14 there, as well.

15 Q. In your opinion, is there a hybrid or

16 another form of cattail in the Everglades?

17 A. I think there's reason to think that

18 there is.

19 Q. Have you done any research to determine

20 whether there is a third or other types of cattail--

21 A. I have not done any research on that

22 subject.

23 Q. Are you aware of any research that's

24 currently ongoing, to determine if there is a hybrid

25 or other type of hybrid in the Everglades?

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 A. No.

2 Q. Can you tell me what reason you have to

3 believe that there may be a hybrid form of cattail?

4 A. A number of reasons.

5 The first being that hybridization in

6 areas that are highly perturbed, particularly with

7 plants that are wind pollinated, is common, and I

8 would site for you examples of Spartina

9 alteniflura.

10 There's apparently a new type of

11 Spartina alteniflura on the West Coast, and numerous

12 others, so from that standpoint, it's the ideal

13 scenario for the ideal situation.

14 I have looked at, keyed out this

15 particular form, taken it back, and looked fairly

16 carefully at it, to see if I could find any

17 morphological variations, and did not find any that

18 were consistent with a new species, but that's not

19 uncommon for varieties, and so forth.

20 The other thing that is interesting is

21 the way that the plants seem to be standing in

22 multiple areas of the Everglades; again,

23 characteristics of new forms.

24 New forms often invade areas that are

25 disturbed or outside of the normal range for the

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 species.

2 I also know that the type of domingensis

3 that I had seen before along the Atlantic Coast,

4 North Carolina, Virginia, and even part of Florida,

5 had different flowering characteristics, and

6 typically cattails that are high in nutrients,

7 flower profusely, and even in areas that are alleged

8 to be high nutrient, cattails didn't-- when I say

9 cattails, I'm talking about domingensis-- it didn't

10 flower, except back in the areas, what I would call

11 the reference sites.

12 Back in Loxahatchee, there were areas

13 where it was flowering, very similar to what I had

14 seen in other parts of the range.

15 I can recall one or two other places

16 around the Everglades, that looked normal.

17 There are other reasons they-- at that

18 time, again, reason to speculate or look at, some

19 sort of high rate in shift of genom.

20 Q. What is the affect on cattails, when

21 they flower more than normal?

22 For instance, does that mean that more

23 cattails are going to grow, because there's more

24 flowers?

25 A. It does not mean that you have-- having

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 more flowering, doesn't mean anything, unless you

2 get higher seed production, and even higher seed

3 production, doesn't necessarily mean you will have

4 more seedlings, but simply means there is more

5 potential.

6 Q. And you found that to exist in areas

7 where there is high nutrients?

8 A. What I noted, there were fewer cattails

9 flowering than I would anticipate.

10 I think what I said, increased nutrients

11 typically, if they are getting all the other

12 micronutrients, causes increased flowering of

13 plants, including cattails.

14 Q. When you say increased nutrients, you

15 mean as opposed to a system that doesn't have

16 increased nutrients?

17 A. Under normal scenarios, there's a level

18 of nutrients that plants are used to having, and

19 that balance frequently shifts back and forth during

20 times which the plants are able to sequester more

21 nutrients, or there's some other disturbance,

22 frequently flowers more heavily.

23 A fire, for instance-- you have seen

24 that the next year, presumably due to increased

25 nutrients, as well as other things.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 As I said, in areas where there's higher

2 phosphorus in the soil and higher phosphorus in the

3 water, I anticipate seeing a lot more cattail

4 flowering.

5 Q. But you say you expected to see more

6 increased flowering.

7 A. Yes.

8 Q. But did you still see increased

9 flowering with-- associated with increased

10 nutrients?

11 A. I never did any studies to look at

12 that.

13 I was simply comparing that to

14 domingensis stands that I have seen before.

15 Q. Do you consider the phosphorus enriched

16 part of the Everglades, to be highly disturbed?

17 A. Say that again?

18 Q. Do you consider-- well, do you consider

19 part of the Everglades to be phosphorus enriched,

20 let's say, beyond what's normal?

21 MR. HYDE: Object to the form of the

22 question.

23 THE WITNESS: I consider parts of the

24 Everglades to be highly disturbed.

25 BY MR. BARTELL:

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. Within that term, would you say that

2 includes increases in phosphorus?

3 A. Increases in phosphorus, above

4 background, and when I say background, I'm including

5 the condition that would exist after fire, for

6 instance, in which you get a concentration of

7 phosphorus.

8 Q. So the condition after a fire-- are

9 fires normal in the Everglades?

10 A. Yes.

11 Q. So after a fire, if you have increased

12 nutrients or increased phosphorus, would that be

13 considered normal?

14 A. Yes.

15 Q. How do you know there would be increased

16 phosphorus after a fire?

17 A. How do I know there would be?

18 Q. Yes.

19 A. Some samples that were taken-- I think

20 they were from the Holy Land, maybe northern 2-A,

21 that were in areas that were burned, heavy peat.

22 Q. Would there be a difference in the

23 amount of phosphorus in the system, after peat

24 fires, as opposed to just surface fires?

25 A. Yes.

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 Q. Which would have more?

2 A. The peat fires would leave more.

3 Q. Would leave more phosphorus?

4 A. Yes.

5 Q. Other than fire, can you think of other

6 examples, or do you know of other examples that may

7 increase phosphorus to the Everglades?

8 A. Well, bird rookeries are certainly one

9 of them.

10 Q. I'm sorry?

11 A. Rookeries, heavy concentration of

12 nesting birds, frequently do that.

13 Q. Okay. Just to clarify, then, these

14 different areas with increased phosphorus, is that

15 considered disturbance?

16 A. Which areas?

17 Q. For instance, after a fire--

18 A. Okay.

19 Q. Would that be considered disturbance?

20 MR. HYDE: Is the fire the disturbance,

21 or the increased phosphorus, after the fire, the

22 disturbance, or together?

23 MR. BARTELL: Could you answer that

24 question?

25 THE WITNESS: Well, I think that what you

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 have to consider is that the Everglades is a wetland

2 characterized by periods of stability, and then

3 periods of disturbance, and the periodicity probably

4 varies a lot.

5 Most wetlands have periods that-- I

6 would say fire would naturally be a disturbance, or

7 could be.

8 BY MR. BARTELL:

9 Q. You also mentioned rookeries could be a

10 disturbance?

11 A. Well, on a spacial scale, it probably

12 changes the norm, the average in terms of what is

13 available in nutrients.

14 It probably leads to increased predation

15 pressure, so forth.

16 MR. HYDE: I think you're using the term

17 disturbance here, rather loosely.

18 Go ahead and put the question any way

19 you want.

20 MR. BARTELL: Let's take a short break

21 right now.

22 MR. HYDE: Good.

23 (Thereupon a recess was taken

24 in the deposition, after which

25 the deposition continued as follows:)

JACK BESONER & ASSOCIATES

150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537

1 BY MR. BARTELL:

2 Q. Doctor Hackney, you previously indicated

3 that increased levels in phosphorus beyond

4 background levels, equals disturbance.

5 What are the background levels?

6 A. The background levels that I was

7 referring to, would be the maximum phosphorus that

8 would be available in the soil after a deep peat

9 fire, and I don't know what that value is.

10 You need to probably do inspection and

11 experiments to verify or look at some deep natural

12 fires, to see.

13 Q. And that is the extent of what you mean

14 by background levels, is after a deep pe