254
1
2 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
3
CASE NOS. 92-3038
4 92-3039
92-3040
5
SUGAR CANE GROWERS COOPERATIVE OF )
6 FLORIDA, et. al., )
)
7 Petitioners, )
)
8 vs. )
)
9 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, )
10 )
Respondent. )
11 )
UNITED STATES OF AMERICA, et. al.,)
12 )
Intervenors )
13
14 99 Northeast 4th Street
Miami, Florida
15 March 4, 1994
8:36 a.m. - 12:19 p.m.
16
17
18 Continued Deposition of Doctor Courtney T. Hackney
19
20 Taken before Stan Seplin, Certified Shorthand
21 Reporter and Notary Public in and for the State of
22 Florida at Large, pursuant to Notice of Taking
23 Deposition filed in the above cause.
24 - - - - - - -
25
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1 APPEARANCES:
2
3
ON BEHALF OF THE PETITIONERS:
4
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.
14
15 - - - - - - -
16 I N D E X
17 WITNESS CROSS REDIRECT RECROSS
Dr. C.T. Hackney 256 488 497
18
19 EXHIBITS
Hackney 9 through 13 - Page 440
20 Hackney 14 - Page 441
Hackney 15 - Page 482
21 Hackney 16 - Page 492
22
23
24
25
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1 Thereupon:
2 Doctor Courtney T. Hackney,
3 was recalled as a witness by the United States, and
4 after being previously duly sworn, was examined and
5 testified under oath as follows:
6 CROSS EXAMINATION
7 BY MR. NETTLETON:
8 Q. Doctor Hackney, my name is Paul
9 Nettleton, representing the South Florida Water
10 Management District in this case.
11 Before we get started this morning, Mr.
12 Bartell has agreed to allow me to pick up at this
13 stage, and that he will finish up afterwards, if
14 that's acceptable with Mr. Hyde.
15 MR. HYDE: It is.
16 BY MR. NETTLETON:
17 Q. Doctor Hackney, I would like to go back
18 over specifically some of your opinions, and I'll
19 try to be as unrepetitive as possible, with the
20 understanding that there may be some repetition,
21 just to put things in context.
22 Specifically, what I would like to deal
23 with first, are the six or so areas that you
24 mentioned that you expect to be presenting testimony
25 or conclusions at trial.
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1 The first of those was the fungi
2 bacteria relationship to decomposition.
3 I'm going to skip that one now, and go
4 through the other ones.
5 The second one you mentioned, was
6 cattail and sawgrass growth.
7 Am I correct in that your opinion on
8 this particular area, is that nutrient and hydrology
9 are inseperable, as they affect cattail and sawgrass
10 growth?
11 A. I would say that those two, as well as
12 probably some other variables, all work
13 interactively.
14 Q. Can you tell me what you base that
15 opinion on, that they are not seperable?
16 A. Well, I can tell you-- I can give you a
17 couple of approaches that I would use.
18 I-- the first, and probably the most
19 compelling, is that the level of water over a soil,
20 over a plant, influences both the plant's
21 production, and influences the ability of that
22 particular plant to take up nutrients, for
23 instance.
24 It does it in a-- in many ways,
25 depending on the individual species, individual
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1 circumstance, so forth.
2 I think the manner that is probably best
3 documented, is what happens to the soil when it's
4 flooded continuously and all the time, in that the
5 redox potential is typically different. The amount
6 of oxygenation in the soil is different, and those
7 nutrients are typically different, more available,
8 less available, etcetera.
9 Secondly, I would base it upon the
10 general literature, which typically finds that the
11 physical characteristics of the site, mostly
12 hydrology, nutrient availability, water quality--
13 when I say that, composition of water, for instance,
14 acidic, basic, salty, less salty-- all those things
15 together, work synergistically to determine whether
16 a plant grows better or not as good.
17 Q. Anything else that you're basing that
18 on?
19 A. Yes. I would say that I'm also basing it
20 on some of the documents that you have seen,
21 documents like the Nancy Urban, et. al., study, in
22 which they looked at nutrients in a variety of ways,
23 and also attempted to look at some hydrologic
24 characteristics, and I would submit that if any of
25 those characteristics were working independently--
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1 hydrology, for instance, being the only one, or
2 nutrients, being the only characteristic, I think
3 that their ability to discriminate areas with high
4 nutrients, low nutrients or more water, less water--
5 I think their ability would have been far greater
6 than it turned out to be.
7 Their statistics were less confusing to
8 them, as well as everyone else.
9 It wasn't anything unexpected, I don't
10 think.
11 I think what they saw from that
12 initial-- that initial experiment, was, in
13 retrospect, probably what one would expect.
14 I would have probably carried out
15 something similar to that, if it were me doing the
16 same kind of studies, from where they were at that
17 time.
18 The fact they didn't get something
19 fairly distinctive, suggests what one would expect,
20 they are interactive.
21 I think I also mentioned that that was
22 one of the areas in which I could see my opinion
23 changing, maybe dramatically, given the two
24 manuscripts that I mentioned, perhaps being
25 available sometime in the near future, and that was
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1 the Newman, Grace lab study, also.
2 This is a lab study that may shed some
3 light on those interactions, and also the Kraft,
4 Richardson study, which would include all the years,
5 because the only one I have seen was one year, and
6 there are also some tidbits from some of the other
7 manuscripts.
8 I'm trying to recall exactly which ones
9 they were, in which people were looking at nutrient
10 effects on plant growth, looking at plant production
11 across the Everglades.
12 My recollection is that it was one of
13 Davis' papers, but I would have to sit down and go
14 through them.
15 Q. Referring to Steve Davis?
16 A. Yes, but as I said, there really, in my
17 opinion, has not been really a definitive study done
18 on that particular subject, and I'm hoping that some
19 of these will be a little more definitive than
20 what's happened in the past.
21 Q. When you say these, you're referring to
22 the Newman, Grace or Kraft, Richardson studies?
23 A. Yes.
24 Q. Can you think of any other bases that
25 you may be relying on to form this particular
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1 opinion?
2 A. Well, I would say that my own
3 observations, too, would certainly be a part of the
4 way in which I look at that.
5 I would not use my own observations as
6 the sole source, particularly if there were good
7 documented studies that clearly demonstrate
8 something that appeared different than the
9 hypothesis one might develop being out there, but
10 they certainly have to influence--
11 Q. Anything else that you may be basing
12 this opinion on?
13 Again, just so we're clear, what we're
14 talking about is the cattail and sawgrass growth, as
15 opposed to zonation, which is a different issue.
16 A. So we're just talking about growth now?
17 Q. That's what I understood your testimony
18 was related to.
19 Were you talking about that?
20 A. Yes. I think it's pretty difficult to
21 separate the two entirely.
22 I mean, I think that there are a number
23 of other studies.
24 If you're concentrating primarily on
25 growth, that demonstrates, for instance, that
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1 cattail resonds to nutrients fairly quickly, fairly
2 rapidly, and sawgrass doesn't seem to respond as
3 rapidly, but clearly, from, again, my observations
4 and some of the data that are out there, is a
5 response from sawgrass, but it seems to be much more
6 reduced, in terms of how quickly it happens.
7 I-- the observations, for instance, in
8 the Loxahatchee. The most luxuriant stand of
9 sawgrass that I ever saw within the Loxahatchee, in
10 areas that have been reported to-- or you might
11 think would have somewhat higher phosphorus
12 exposure, but I don't know exactly how that affects
13 the plants.
14 I would have guessed, before starting to
15 read all this literature, that there was a-- there
16 would be a direct relationship between soil
17 phosphorus.
18 I'm not convinced that is true, and I
19 don't know why, but part of this may have have to do
20 with the mechanism by which one measures the
21 phosphorus in the soil, and most of them are total
22 phosphorus, and one would like to know what would be
23 available phosphorus, on sort of a short-term basis,
24 and there's reference to that in one of Richardson's
25 reports, looking at how you analyze phosphorus in
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1 soil, and what's available and what's not.
2 Q. The testimony you just gave concerning
3 the literature that refers to cattail uptaking, if
4 that's the right word, phosphorus more, efficiently
5 than sawgrass-- would that relate more to the
6 question of the zonation?
7 A. No. It would relate more to
8 productivity.
9 Zonation is related to productivity at
10 some particular level.
11 For instance, if a plant is not doing
12 well enough under the set of physical conditions to
13 be able to continue to maintain itself. If it's
14 basically spending more money, more energy to stay
15 alive than it's making in photosynthesis, then
16 productivity is going to be related to the zonation,
17 because ultimately those plants are going to die,
18 and once that happens, there's a potential for
19 zonation, a shift in plant species, so there's a
20 minimum level at which the plants have to be growing
21 to maintain their position in the environment, so
22 yes, it is related to zonation, but extreme growth
23 is not necessarily related to zonation.
24 Q. I would like to back up, and the first
25 item that you mentioned, that--
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1 A. I'm--
2 Q. I'm sorry?
3 A. No. Go ahead. I jumped ahead. I was
4 anticipating. I'm sorry.
5 Q. The first item that you mentioned as a
6 basis for this opinion, was that water over plant
7 affects the-- the water over the plant, affects the
8 plant production, and affects nutrient
9 availability-- I'm sorry, I guess nutrient uptake is
10 what you were talking about.
11 Can you tell me what you're relying on
12 for that opinion?
13 A. That's a pretty-- pretty large body of
14 literature.
15 The best developed body of literature on
16 that aspect, is-- comes from work with salt marshes,
17 in which the degree of flooding has been changed,
18 increased, and which the plants are having a
19 difficult time maintaining their status relative to
20 oxygenation of the soils.
21 You asked about the literature. Some of
22 the literature-- much of the literature comes from
23 Louisiana. In fact, I seem to recall the Irv
24 Mendelson study has been pretty heavily involved in
25 quite a bit of that.
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1 Some of it comes from looking at redox
2 potential across wetlands that are flooded, more or
3 less, in which the more it's flooded, the-- the more
4 it's flooded, the lower potential is to lower the
5 PH, which makes some nutrients unavailable.
6 The ability of a plant to maintain
7 itself, particularly under anaerobic conditions, is
8 greatly reduced when the plant does not have enough
9 energy to pump oxygen into its roots, so more
10 flooding covers more of the leaves, so they have
11 less photosynthetic time, photosynthetic ability.
12 I think I would also add that each
13 species typically has unique attributes to take up
14 nutrients, under a variety of conditions, and
15 although there are similarities between species,
16 there are often typically differences, too, that
17 relate to the seasons which they are likely to be
18 found.
19 That, in fact, relates to zonation.
20 Q. Are you saying that it's best to look at
21 each system individually, to determine how these
22 effects are occurring?
23 A. One needs probably to look at individual
24 species, and look at their nutrient uptake
25 capabilities, along gradients, for instance.
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1 Greenhouse experiments are fairly
2 universal for that.
3 But also, one has to look at the
4 interaction of the plant with the microbial
5 community, as well, and I mention the fungi as being
6 a potential employer in this, and I wouldn't go very
7 far out on a limb on that, because we simply don't
8 know very much about fungi and plants and wetlands
9 yet, but all of those variables can play towards who
10 is going to be where, in terms of which plant
11 species.
12 Q. This body of literature that you've
13 mentioned that discusses these various things, have
14 you made a particular effort to study that
15 particular body of literature for your testimony in
16 this case, or are you simply relying on your general
17 background?
18 A. I'm relying on my general background in
19 this area, because it's an area that I'm fairly
20 familiar with.
21 Salt marsh zonation is one of my main
22 interests, and also, one of my other interests is
23 the impact of sea level rise on coastal wetland, and
24 one of those impacts is increasing water over a
25 wetland, and so what happens to those wetland as
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1 they get more flooded, is of interest to me, and how
2 it directly impacts the individual species of
3 interest, so I keep up with that general body of
4 literature.
5 I didn't particularly look at that in
6 terms of this testimony. I consider that for
7 background.
8 Q. Would you expect that there would be a
9 difference in the effects between a salt water
10 wetland and a freshwater wetland in this particular
11 area?
12 A. Well, I think that there will be--
13 clearly there will be differences, because one
14 system is-- got more stuff in the water, it's more
15 saline, but in other ways, it-- there are going to
16 be similarities, too, particularly as it relates to
17 oxygen in the sediment.
18 That's primarily driven by the
19 difficulty that oxygen has moving through water, and
20 the high oxygen uptakes of decomposition in the
21 surface of the marsh soil which takes it up, and so
22 just a little bit of drainage, for instance,
23 oxidizes the soil. That can change PH, so forth, and
24 that can-- so the plant has the option to take it up
25 and change nutrient availability.
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1 Q. Have you, yourself, or in combination
2 with others, personally been involved in any
3 research in the Everglades, to specifically look at
4 the effects of water over plants on the production
5 and effects of nutrient uptake?
6 A. No.
7 Q. Are you aware of anyone that has
8 conducted that research?
9 A. I--
10 Q. In the Everglades?
11 A. The only literature of which I'm aware
12 that I hope will address some of those points, and
13 I'm not sure if it's the way that I would approach
14 it, are the two studies that I mentioned earlier;
15 Newman, Grace, Richardson--
16 Q. Kraft?
17 A. Kraft.
18 I know that at one time there was an
19 attempt to do a study on sawgrass and cattail in the
20 greenhouse, under different water levels, in-- under
21 different nutrient regimens, at Duke, and my
22 understanding was that they couldn't get cattails to
23 grow, as I recall.
24 That's all I remember about that
25 conversation, and-- and to the best of my knowledge,
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1 that was not finished, or if it was, that was
2 finished with just one species.
3 It was part of a masters thesis, as I
4 remember.
5 Q. Do you know who was doing that masters
6 thesis?
7 A. No. It was being done-- it may have
8 been one of Curt Richardson's students, or he was on
9 their committee.
10 I couldn't tell you for sure.
11 MR. HYDE: Paul, it was one of Curt's
12 graduate students, a young lady whose deposition was
13 taken by Susan Ponzoli in the first round.
14 MR. NETTLETON: I heard about it.
15 BY MR. NETTLETON:
16 Q. Did that not add enough phosphorus to
17 get the cattails growing?
18 A. Well, it's those kind of almost
19 anecdotal data that are always just a little bit
20 disturbing, and that's not an uncommon problem in
21 trying to grow wetland plants, some of which seem to
22 grow with wild abandon in the wild, and in the
23 greenhouse, under nice, neat, controlled conditions,
24 with wonderfully augmented soils, refuse to
25 cooperate, and it's that sort of information that
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1 makes many of us wetland scientists think that there
2 are connections between the soil community and the
3 plants, themselves, and that's what probably is
4 going to make the teasing of these various
5 environmental factors that are related to plant
6 growth, potentially to zonation, difficult to figure
7 out in short terms, without really detailed
8 experiments that go for some period of time.
9 I would suggest it's going to be an
10 iterative process, and although I have high hopes
11 for the two studies I mentioned, I predict some of
12 what they are going to get, will be predictable in
13 other aspects, are going to be confusing, because of
14 those other variables that are hard to measure at
15 one time.
16 Q. Do you know what did go wrong with the
17 Duke greenhouse study?
18 A. No, I don't.
19 Q. Have you discussed that with anyone at
20 Duke?
21 A. No.
22 My conversation with Curt-- I think I
23 initiated it and called him, and asked him would he
24 consider or had he thought about designing a
25 greenhouse experiment to look at competition between
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1 two species, who start out on an even plane, you
2 know, two in a pot, one of each, and we had a
3 conversation about that experiment that had been
4 started, because I think that was the initial idea.
5 Q. And did he tell you his view of why it
6 wasn't successful?
7 A. Not that I recall, no.
8 Q. When was the last time you have spoken
9 with Curt Richardson?
10 A. The last time I spoke with Curt
11 Richardson, was-- I think that was before June, '93.
12 Maybe even earlier than that-- at least
13 about this case.
14 I can't even remember speaking to him
15 since that time. I can't remember speaking to him
16 since I left BDA.
17 Q. Do you recall when the last time you
18 spoke with Chris Kraft was?
19 A. I--
20 Q. If you've ever spoken with him?
21 A. Of course. I have spoken with Kraft a
22 number of times.
23 Most of the time when I was trying to
24 get a hold of Curt, I would get Chris.
25 I have known-- I don't know. I would
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1 say it would be back in the same time frame when I
2 was back in BDA.
3 Q. Without a specific time frame on the
4 last time you spoke with either Chris Kraft or Curt
5 Richardson, do you recall discussing their dosing
6 study?
7 A. No, I don't.
8 I think I mentioned yesterday, I was in
9 charge of review of his article submitted to
10 wetland-- when I say in charge, I was the one who
11 was responsible for picking people to review it, and
12 so I communicated when that was returned to-- I'm
13 sure it went back to Chris.
14 I communicated with him, relative that
15 manuscript, but I don't believe I have talked with
16 him since I left BDA.
17 Q. And that manuscript, is that the one
18 that you're talking about, that contains the first
19 year of data?
20 A. Yes.
21 Q. Do you have knowledge of whether data
22 was collected after that first year?
23 A. I have no direct knowledge.
24 In other words, I didn't see it
25 collected.
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1 My understanding was that that study was
2 ongoing, and was going to last multiple years.
3 Q. Where did you get that understanding
4 from?
5 A. It's either been from a conversation
6 with Curt or Chris, or it may be contained in the
7 manuscript, itself.
8 I just don't recall.
9 Q. Does that manuscript-- does that deal
10 with the dosing study? Is that right, or--
11 A. That's the manuscript that I think I
12 wrote on.
13 Q. Are you familiar with the fertilizer
14 study that Curt Richardson is engaged in?
15 A. Was it-- can you tell me if it was in
16 one of the annual reports?
17 Q. I believe it was.
18 A. There were quite a few studies that were
19 initiated, in which the methods were reported in
20 those reports, and I recall seeing those, although I
21 couldn't swear under oath that that's what it was.
22 My recollection was that there were some
23 fertilizer studies going on, but that there hadn't
24 been any data produced up to the time I read those
25 reports.
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1 Q. I just want to clarify, the study,
2 though, you're referring to in your testimony, is
3 the dosing study that Curt Richardson and Chris
4 Kraft are engaged in?
5 A. The field study, as I recall.
6 But as I said yesterday, if there are
7 documents out there or studies going on that I have
8 not seen, or that are different than I was
9 anticipating, that yield information on interaction
10 between plants or how the plants respond to nutrient
11 or hydrology, they, too, would go into the big pool
12 of data, and hopefully, some wonderful synthesis
13 come out.
14 Q. Have you seen any date from the Duke
15 wetlands study, relating to this particular study,
16 since the manuscript?
17 A. No.
18 Q. What is the latest annual reports from
19 Duke wetlands that you have seen, if you can put a
20 date on it?
21 A. It would have been whatever was
22 available before I left BDA, so that would be spring
23 of '93, whatever was available then.
24 Q. Are you aware of any drafts of the '92,
25 '93 or '94 annual reports being circulated
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1 anywhere?
2 A. I'm not aware of anything that was
3 available in terms of final form, after spring of
4 '93.
5 I have not reviewed any documents or any
6 drafts for Curt or anyone from Duke.
7 Q. Okay. My question isn't whether you
8 reviewed them, but my question is whether you are
9 aware of any being in existence.
10 A. Personally, I'm not aware of them.
11 I assume that they are coming, because
12 there have been sort of annual ones, but I'm not
13 aware that there are.
14 Q. Have you spoken with Jim Grace at all
15 about his study?
16 A. I have spoken with Jim Grace.
17 I--
18 Q. Let me rephrase the question, then.
19 Have you spoken with Jim Grace,
20 specifically about the issues involved in this case?
21 A. Other than to say, "You're working on
22 this. I'm working on this. It's kind of a mess,
23 yes," and I think that was probably the extent of
24 our conversation, since he was involved with it and
25 I was involved with it, and I'm not sure what side
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1 he's on, to be real honest with you.
2 Since he worked for a federal agency, we
3 just decided we weren't going to discuss it, which
4 was unfortunate, because I think we could both have
5 gained something.
6 Q. Am I correct, then, you have not
7 discussed the Grace, Newman study with Jim Grace at
8 all?
9 A. No. I would love to.
10 If you give me permission to talk to
11 him, I would love to.
12 Q. The second bases that you mentioned for
13 your opinion, was that flooding affects the redox in
14 such a way that it can affect the availability of
15 the nutrient.
16 Is that correct?
17 A. Yes.
18 Q. Again, what are you basing that position
19 on?
20 A. On a fairly large body of data,
21 including soil information from farming studies,
22 agricultural studies.
23 Much of it or many of the papers on
24 that, are generated by Bill Patrick and the group at
25 LSU.
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1 That is a fairly extensive set of
2 literature.
3 I cannot recall there being a study-- at
4 least I haven't seen one, or I would have surely had
5 it here and you would have seen it-- on exactly what
6 happens, reference in the Everglades, specifically,
7 or either of the two species that we're talking
8 about in their natural environment.
9 It's an obvious thing to do, perhaps,
10 but no one has done it.
11 Q. So as far as you know, you're not aware
12 of any research directed, specifically related to
13 this issue of redox from flooding, affecting
14 availability of nutrient, conducted in the
15 Everglades system?
16 A. There are some studies of redox
17 potential in the Everglades that I have seen, and I
18 have details of it.
19 I do remember looking at it and trying
20 to see whether there were some nice, neat patterns
21 that maybe jumped out at me, and I don't recall
22 there being any.
23 But I don't recall there being any
24 specific studies looking at the plants, per se, and
25 the nutrient availability, per se.
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1 I think there's some-- there's obviously
2 some indirect evidence that plants take up nutrients
3 in the Everglades, and Davis-- how phosphorus and
4 some other nutrients, in high nutrient, what they
5 call background sites-- there's evidence that the
6 plants take that up; I mean, good evidence, but how
7 that is influenced by hydrology, is not clear.
8 There's interesting factual information
9 in Urban's paper, where cattails disappear in years
10 of droughts, for instance, in the high nutrient
11 areas, that has some suggestions of maybe what's
12 happening relative the plant uptake of nutrient or
13 not uptake of nutrients, as it relate to hydrology,
14 but all those would be suppositions; I mean, just
15 little pieces of information that make you curious,
16 that don't really tell you anything, per se.
17 Q. Wouldn't you expect cattails to die out,
18 even in a high nutrient situation, if there's no
19 water?
20 A. I would expect them to be influenced by
21 hydrology, as I said earlier, as well as nutrients.
22 I find it a little bit surprising that
23 they disappear at low water.
24 There are a lot of places where sites
25 dry to some degree, and cattail species, including
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1 domingensis, maintain themselves in the soil,
2 rhizomes and so forth.
3 Without being able to have seen exactly
4 how extensive that drying was; in other words, how
5 dry did the soil get, and maybe some other data,
6 it's hard to know what to make of that, other than
7 it responded to the dropping water levels.
8 A. You're referring to the Urban study?
9 A. Yes.
10 Q. The next thing you mentioned as a bases
11 for your opinion here, was the fact that the general
12 literature indicates that the physical
13 characteristics control the plant growth, and you
14 mentioned hydrology, nutrients and general water
15 quality.
16 Again, my question will be the same as
17 before.
18 Have you done any specific literature
19 analysis to support that opinion, or are you just
20 basing th at on your general background and
21 knowledge?
22 A. Could you read that back?
23 (Thereupon the referred to
24 question was read back by the
25 reporter as above recorded.)
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1 THE WITNESS: You mean the influence of
2 the multiple variables, physical variables?
3 BY MR. BARTELL:
4 Q. Well, specifically, as I recall your
5 testimony, you indicated that the general literature
6 indicates that the physical characteristics which I
7 believe you defined as including hydrology, nutrient
8 and general water quality parameters, is the
9 dominant controlling factor of plant growth.
10 Is that correct?
11 A. The dominant factors-- all those
12 together, yes.
13 Q. My question is simply, have you done any
14 specific research into this area for purposes of
15 your testimony here?
16 A. The answer is no, for purposes of these
17 proceedings.
18 I recently completed a study with a
19 group of students in a tidal marsh, looking at
20 physical variables, multiple physical variables, and
21 how they affect plant communities, and in this
22 particular case, there was six distinct vegetative
23 communities along a number of gradients, a gradient
24 of flooding, a gradient of salinity, and a gradient
25 of differential reduction potential in soils, and
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1 what we found basically, again, supports the general
2 literature, that no individual variable explained
3 the distribution of the plant zones, but when those
4 variables were combined, one could explain quite a
5 bit of the variation across all of the zones, except
6 two.
7 Two of the growth zones overlapped with
8 respect to their preference for physical variables.
9 There were two groups that overlapped,
10 and the rest of them were fairly distinct, and in
11 our analysis of our sites, we concluded that at
12 least one of the two zones which did overlap, we
13 could have separated with a number of physical
14 characteristics at the site.
15 Those data are not unusual. That is
16 sort of the norm as to what people find.
17 There's another study by Warren and
18 Gosley, or Gosley and Warren, from New England,
19 that's been submitted for publication, which
20 basically shows the same sort of phenomena, that a
21 multiple group of physical chemical variables,
22 influenced which species are going to be in a zone,
23 and their study goes even further.
24 It's a longer study done in an area
25 about which they knew a lot, and in that study, what
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1 they found was that some communities were really
2 well defined by physical variables, but then there
3 were some communities that were in transition, in
4 which the physical variables, at least one or more,
5 had been exceeded in terms of the capacity of the
6 plant community to uptake, and show the plant
7 communities start dying, it's not-- and at that
8 point, the community undergoes a fairly dramatic and
9 rapid shift of one form to the other, and their
10 study also documents another phenomena that I guess
11 relates here, and that is that the plant community,
12 itself, has a high degree of resiliency, can sort of
13 hold out against the odds for quite a while, until
14 it just finally loses, and then there's a very rapid
15 and dramatic shift of one form of vegetation to
16 another, ultimately results in a stable zone of
17 another type of plant, and I would say that both of
18 those studies have relevancy in the generic sense,
19 in that that is the way that physical variables
20 typically work on wetland communities.
21 Q. Taking that from the generic sense to
22 the specific sense, are you aware of any similar
23 studies being conducted in the Everglades?
24 A. No.
25 It would be a straightforward thing to
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1 do.
2 I'm a little bit surprised that it
3 hasn't been done. I'm not aware of any.
4 Q. With regard to the Urban study you
5 mentioned yesterday, I believe that a reviewer of
6 that paper had concluded that there was a
7 relationship between between hydrology and the
8 cattail, sawgrass dominance issue.
9 Do you recall that?
10 A. I recall that.
11 It may not have been a reviewer that
12 made those comments.
13 It may have been one of the co-authors,
14 as I recall, of-- the history of that document, was
15 that it was originally a report or something by
16 Nancy Urban, maybe Steve Davis-- I can't remember
17 the authorship-- and it went through a series of
18 what looked like in-house reviews, or maybe even out
19 of house reviews, too, and there were numerous
20 versions of it, and at some point in time, a third
21 author, who was a statistician, was added, and did
22 just what we discussed yesterday, that-- looked at
23 the data in lots of different ways.
24 And as I recall, there was some
25 statement in one of the comments, relating to the
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1 fact that there weren't nice, neat patterns of
2 phosphorus in cattail, and that the only patterns--
3 and I cannot remember whether these were
4 statistically significant or whether they would have
5 been appropriate for publication, but the only
6 patterns that seemed to be emerging, had some
7 relationship to hydrology, which doesn't really
8 surprise me at all.
9 I-- that study probably would have
10 yielded a whole lot more universal information, if
11 they had really known-- if they were interested in
12 knowing something about hydrology, because they did
13 not measure hydrology between the two different
14 communities at each of their stations, and so some
15 of the ability to tease out hydrologic impact
16 probably was lost because of the methods they used.
17 I'm not critisizing their method. It was
18 probably appropriate for their space and time and--
19 when they started it, and-- well, I guess I answered
20 your question.
21 Q. Well, you mentioned that there was a
22 pattern, and one of these authors or reviewers
23 mentioned a pattern.
24 Have you done any independent work to
25 look at that data and determine whether or not there
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1 is a statistically significant relationship between
2 hydrology and cattail?
3 A. No, because I, as I said-- I don't think
4 they collected appropriate data.
5 Their measure of hydrology at each
6 station, was-- their method, in fact, in the paper,
7 is very misleading.
8 Their method in the paper, suggests that
9 they measured the elevation in each of the different
10 communities, and, in fact, what they did is they
11 measured 100 points around each station, some of
12 which were in cattail, some of which were in
13 sawgrass, and they used that as their elevation to
14 the site, and if, for instance, hydrology was
15 extremely important, and there was a difference
16 amongst stations, then when you're in a site with
17 mostly cattail and some sawgrass, your
18 interpretation of the elevation at which sawgrass is
19 growing, is going to be based upon any cattail
20 samples, and the opposite would be true at the other
21 end; in a site with little cattail and lots of
22 sawgrass, your analysis of water depth would be
23 based on random points of the sawgrass, rather than
24 the cattail stand, and what should have been done
25 was for them to have measured the elevation in their
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1 cattail stand and in their sawgrass stand.
2 That would have given them some ability
3 to separate or to see and look at the interaction of
4 hydrology and phosphorus, but again, I don't think
5 that was their intent in the beginning.
6 Also, one of their stations, their water
7 level measurements actually came off of a permanent
8 water level core some distance away, so it was kind
9 of a different measure.
10 Q. What is the source of your understanding
11 of how they determined these elevation numbers?
12 A. From Nancy Urban, in her deposition.
13 Q. Did you attend her deposition?
14 A. Yes.
15 Q. If you were to take the elevation data
16 at face value, the water level data at face value,
17 does-- would it reflect a statistically significant
18 relationship between hydrology and cattail
19 distribution?
20 A. What do you mean at face value?
21 Q. Well, I understood when I asked you a
22 similar question before, you said that you couldn't
23 do that, because the data had been collected not
24 within the plots, but on the outside, so it doesn't
25 reflect the true water elevation.
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1 My question is, if you assume the data
2 they did collect were in there-- and I understand
3 that is not the case, this is a hypothetical-- if
4 you assume that, would those numbers reflect a
5 statistically significant correlation between
6 hydrology and cattail?
7 A. I haven't looked at the numbers, myself.
8 I mean, that is certainly within the
9 realm of possibility, particularly if there's an
10 elevational gradient across that gradient, as well.
11 In other words, if the water is deeper
12 where cattails are more prevalent, and shallower
13 where sawgrass is more prevalent, then
14 theoretically, you would get that.
15 On the other hand, if the elevation were
16 something different, you might not get a
17 correlation.
18 You also find a real, nice neat
19 correlation, if you look at cattails distance from
20 edge of canals, so correlations are a little bit
21 suspect, as you, I'm sure, are aware.
22 Q. Well, do you recall whether, in fact, in
23 the Urban paper, itself, as finally released-- did
24 they make a conclusion concerning the question of
25 whether or not there was a statistically significant
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1 relationship between hydrology and cattail
2 distribution?
3 A. In a final draft?
4 I think you would have to let me take a
5 look at that paper, and make sure I'm thinking of
6 the final draft.
7 What I recall most from that paper was
8 that there-- their bottom line relative to
9 phosphorus, was that phosphorus loading, as they
10 describe it, and how they explained their
11 information, was related to cattail growth.
12 I don't specifically recall them saying
13 there was a correlation in hydrology.
14 Q. Well, that was my question.
15 Do you recall them ever making that
16 particular finding?
17 A. Not in their final draft, and I said
18 earlier, what I recalled about the reviews, and so
19 forth, was that as part of their statistical
20 approach, looking at things in multiple ways, that
21 was one of the things that popped out and that they
22 paid some attention to.
23 That does not mean that there's a
24 statistically significant cause and effect
25 relationship that they found, or even if that's what
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1 that was referring to.
2 I interpret that to be just what I find
3 when I do my own research, do my own statistics, is
4 that one looks at all of the relationships that you
5 see, and ask the kinds of questions we discussed
6 yesterday, does this make sense, does it not make
7 sense, are these correlations valid, in light of
8 what I know about my own data, and I presume that
9 they decided that it was not valid in light of their
10 own data.
11 I'm sure they were up and up scientists.
12 Q. Well, am I correct, then, Doctor
13 Hackney, that the Urban study would not support the
14 conclusion or collusions that there is a
15 statistically significant relationship between
16 hydrology and cattail distribution?
17 A. I think you would be correct if you were
18 to say that the Urban, et. al., paper, does not
19 directly answer the question of hydrology, and the
20 only thing it does say about hydrology, is that the
21 loading variable that they used, could be very
22 easily correlated with hydrology, but there's no way
23 to test that, because they are looking at water
24 coming through those-- the amount of phosphorus
25 coming into northern 2-A, as they are loading-- as
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1 their loading variable, and that could very easily
2 be related to hydrology.
3 I wouldn't say that it is, but I also
4 wouldn't say it wasn't.
5 It would be what I would look at fairly
6 carefully.
7 It's unclear for me, how, for instance,
8 there could be a direct linear relationship between
9 phosphorus loading and availability of that
10 phosphorus at various points along that transect,
11 and I say that, because if you were to look at what
12 happens when water comes through those gates, if
13 there's just a little coming through, and the water
14 is real low, then much of the water is going to
15 travel differently, in terms of how it gets to the
16 plant, and if you have got very high water, and
17 there's the same amount of phosphorus coming
18 through.
19 Their assumption in that, and it's--
20 it's an appropriate assumption, given that they
21 don't know anything more than they did, was that
22 there is a linear relationship, and as I recall,
23 that was their approach, that there is a linear
24 relationship along that gradient.
25 At least that's implied in the way they
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1 did it, so I would say that it does not directly
2 answer the hydrology question.
3 Either way, it begs the question and
4 tantalizes one with some possibilities, and I think
5 that what we saw in some of the early drafts, was
6 that they are being tantalized by that, too, but
7 their study was not set up to look at hydrology.
8 Let me just add one last thing to that.
9 Their study does show, in effect, an effect of
10 hydrology, but not through the manner which we were
11 discussing.
12 We were-- at least I was thinking in
13 terms of statistical analysis.
14 They study does shows a pattern of
15 hydrology, related to the dry areas and wet areas,
16 and as you mentioned earlier, the cattails
17 disappeared when there was no water, and
18 disappeared-- much more than I would have
19 anticipated, assuming this was just a normal
20 dry-down, but not knowing what the soil did, one
21 doesn't know how the plants responded, but that does
22 say something about extreme hydrology.
23 It doesn't say anything about the
24 intermediate stages, perhaps.
25 Q. Well, does the latter part of your
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1 answer, does that-- have you analyzed that data to
2 determine whether there's any statistical
3 relationship between the dry-downs and the cattail
4 distribution?
5 A. No, I haven't.
6 Q. Have you or to your knowledge, anyone
7 else--
8 A. Can I stop you one second?
9 Let me-- I had some notes to myself.
10 I lost my-- I had some details at one
11 time, and I cannot recall if it was that, if it was
12 analysis by someone of their data, or not.
13 Q. Okay.
14 A. I'm trying to think of that.
15 It was something that I think Irv
16 Mendelson said last week, that prompted me to think
17 about that.
18 No, it was just that I wrote down, there
19 may be a way to analyze Urban's data.
20 Q. Before you put your note away, can you
21 tell me what those were?
22 A. Those were questions that I had for Irv
23 Mendelson last week.
24 MR. NETTLETON: Are they on your
25 privileged list, Bill?
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1 MR. HYDE: I don't think they are, but
2 they are pretty clearly things that would be work
3 product, because they were used as things-- an aid
4 to Mark Kobelinski to ask questions.
5 MR. NETTLETON: What I just looked at was
6 a question that I had written down to Mark
7 Kobelinski regarding potential things to do, in
8 terms of looking at some other data that might be
9 available.
10 MR. NETTLETON: Mr. Hyde, do you have an
11 objection if we have copies of those notes made--
12 MR. HYDE: Let me examine them at a
13 break, and if there's no problem, I will turn them
14 over to you.
15 MR. NETTLETON: I think in light of the
16 fact Doctor Hackney has reviewed them for purposes
17 of refreshing his recollection, I think we're
18 looking at them.
19 BY MR. NETTLETON:
20 Q. Just following up on that a bit, Doctor
21 Hackney, what specifically were you suggesting or
22 what data were you suggesting should be statistcally
23 analyzed or looked at?
24 A. I couldn't figure it out from my own
25 notes.
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1 It had something to do with a data set
2 that apparently existed, and I didn't write enough
3 notes, to be honest with you, to figure out, at
4 least in the very short time I spent, what it was.
5 As you recall, I was busy trying to
6 develop questions to ask Irv Mendelson.
7 Q. I mean, were you specifically referring
8 to using the data collected in the Urban study?
9 A. No. I-- asked me, and I was trying to
10 give you an honest answer, as best I recollected it,
11 and it clicked something in my mind, and when I
12 looked at that, I realized it had absolutely nothing
13 to do with Urban's study.
14 Q. Well, do you know-- I think I started to
15 ask you, and I didn't finish-- have you, or to your
16 knowledge, anyone else, taken the data collected in
17 the Urban studies, and attempted to create any type
18 of statistical relationship between the water levels
19 or any aspect of hydrology, and the cattail
20 distribution?
21 A. I have not, and I do not know of anyone
22 else that has.
23 Q. Am I correct, in light of your
24 understanding of how the water level data is
25 reflected, that any such attempt to do that, would
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1 essentially lead to invalid results, in any event?
2 A. Could you repeat that question?
3 (Thereupon the referred to
4 question was read back by the
5 reporter as above recorded.)
6 THE WITNESS: I think it would be
7 difficult to interpret the results in a very
8 straightforward fashion.
9 BY MR. NETTLETON:
10 Q. All right.
11 A. Again, referring to the statistical
12 analysis.
13 Q. Another document you made reference to
14 as a bases for your opinions, is, I believe you
15 said, one paper by Steve Davis.
16 Was there more than one, or is it just
17 one that you recall from Steve Davis that relates to
18 this issue?
19 A. Specifically which issue?
20 Q. The issue of the inability to separate
21 the variables of nutrient hydrology or other
22 variables, concerning the affect on cattail and
23 sawgrass growth.
24 A. I think the paper that I was referring
25 to, was probably the primary productivity paper.
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1 Q. How does that paper support your
2 opinion?
3 A. Well, it provides generic information--
4 more than generic, but specific to the species in
5 question and individual populations in question.
6 As I recall, it shows that-- you really
7 need to-- before I would tell you details of what it
8 showed, I would just tell you that it shows that
9 cattails respond to nutrient, which tells me that
10 they are getting them under a certain set of
11 conditions.
12 And I would really ask, if you want a
13 lot of details on that, to let me sit down and go
14 through that, and tease out the parts that I would
15 consider significant.
16 Q. Well, based upon your recollection, if
17 you've indicated that there's something in there--
18 what is your understanding of what the paper shows,
19 with the understanding that you are not looking at
20 it right now, but that would support your opinion
21 that the variables are inseperable?
22 A. You would have to let me take a look at
23 the manuscript, but I'm not sure if I've got the
24 experimental designs of the different studies that
25 he's participated in totally separate in my mind.
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1 I think I know what I'm going to tell
2 you, but if this is for the record, I would like to
3 be 100 percent sure, since I don't have the paper
4 here, that's why I'm asking you, with the
5 qualification that you may be speculating-- I'm just
6 trying to get an understanding of what you think is
7 in that paper, that would support the inseperability
8 of the variables.
9 A. Well, I would say that I would like to
10 have a break.
11 I realize I'm not thinking clearly right
12 now.
13 I know it's in my mind. I can't make it
14 come out. It's very fuzzy in terms of his two other
15 studies, whether he did it and the design.
16 MR. NETTLETON: Fine. Let's take a
17 break.
18 (Thereupon a recess was taken
19 in the deposition, after which
20 the deposition continued as follows:)
21 BY MR. NETTLETON:
22 Q. Doctor Hackney, coming back from the
23 break now, do you have a better recollection of what
24 in the Steve Davis paper, would support your opinion
25 that the nutrient hydrology and other variables are
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1 inseperable, as they affect cattail and sawgrass
2 growth?
3 A. Yes.
4 Q. What is that?
5 A. There's differential growth along the
6 the gradient, and the gradient that was selected,
7 going from what's considered a high nutrient to low
8 nutrient.
9 There is no clear indication of whether
10 there is a hydrologic gradient with that, as well.
11 Also, the data, again, comes with
12 nutrients, and knowing what I know about the loading
13 phenomena, how it affects water height along that
14 gradient, one would-- I would suspect that there is
15 an interactive effect.
16 The degree of that interactive effect, I
17 don't know. There's nothing definitive in that
18 study, though.
19 Q. Am I correct, then, that-- if I
20 understood you correctly, the Davis paper simply has
21 no information concerning whether or not there is
22 also a hydrology gradient that occurs with the
23 phosphorus gradient?
24 A. (No response.)
25 Q. Let me rephrase.
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1 A. I think I kind of just lost the first
2 part of it.
3 Q. Am I correct, then, that the Steve Davis
4 paper simply contains no information concerning
5 whether or not there is a hydroperiod gradient,
6 along the areas that were sampled for purposes of
7 that study?
8 A. The hypothesis that they used in setting
9 up their study, was directly related to phosphorus,
10 itself.
11 They did not have a mechanism for
12 separating hydrologic impacts, and having been in
13 that area, myself, and gone through how one would
14 set up a study, it's very clear why they did what
15 they did.
16 It would have been a lot more time
17 consuming to have done both.
18 So the answer is, they did not establish
19 their hypothesis to test that at all.
20 Q. And you mentioned your knowledge
21 concerning the hydrology in the area.
22 What are you referring to?
23 A. My knowledge is based upon, again,
24 observations, having been in the area, on the basic
25 rules of hydrology, that water flows downhill,
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1 things of that nature, but as I said yesterday, I
2 did not carry out any hydrologic measures in that
3 site or at any of Steve Davis' sites.
4 Q. Yesterday when we were discussing your
5 opinion on zonation in the Everglades, you had
6 mentioned that you had-- in regard to evidence of
7 hydrology's influence on the cattail, sawgrass
8 dominance question, that you observed cattail in
9 deeper water; is that correct?
10 A. Yes. As a general statement, that's
11 correct.
12 Q. And when you say as a general statement,
13 that means you didn't actually go out and measure
14 the water depth at any of these particular places?
15 A. I did not collect data and put it in a
16 notebook, on water depth, and many occasions,
17 particularly in my first couple of excursions into
18 the Everglades, I asked to stop wherever I saw
19 cattails, and did things, for instance, like walk
20 between-- walk the transition between sawgrass and
21 cattails.
22 My best example of this is in the lower
23 part, where cattails seemed to be invading many of
24 the slough areas, or at least the ends of the
25 slough, and when one steps off the sawgrass and
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1 takes a step down ten centimeters or more, one is in
2 then in cattail, and the observation, that very
3 uniformly there was a gradient, elevational gradient
4 between the dense sawgrass stands and the not very
5 dense cattail stands.
6 I observed the same thing in background
7 sites in the Loxahatchee, in areas up near northern
8 2-A, where there are fairly dense stands of
9 cattails, with some stands of sawgrass remaining.
10 Q. When you started your answer, you made
11 reference to the lower part where they were invading
12 slough areas.
13 Lower part of what?
14 A. WCA 2-A.
15 Q. Did you observe this same phenomena of
16 cattail growing in deeper water, in areas other than
17 2-A and the Loxahatchee?
18 A. I, personally, did not observe it, no,
19 not that I could see-- not where I actually
20 measured, no, I could not.
21 Q. And these places-- in these places where
22 you've observed the cattail growing in the deeper
23 water, did you collect any data to determine what
24 the phosphorus levels were in the surface water in
25 those areas?
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1 A. No, I did not.
2 Q. Did you collect any data in those areas,
3 as to the phosphorus levels in either the soil or
4 the interstitial water in those areas?
5 A. No, I did not.
6 Q. Would it surprise you to find out that
7 the phosphorus levels were elevated in those areas?
8 A. In some areas, it would surprise me.
9 In other areas, it would not.
10 I took your elevated, to mean something
11 above background.
12 Q. In what areas would you not expect to
13 see elevated phosphorus, where you saw cattail
14 growing in deeper water?
15 A. In some of the areas that were further
16 from the canals.
17 The areas that were further from the
18 canals, in the southern part, getting towards the
19 middle part.
20 Q. In which area?
21 A. WCA 2-A.
22 There were areas in the Loxahatchee--
23 and again, I would have to look at the data that
24 were provided to you today, the phosphorus data, and
25 look back at some of the field notes in which there
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1 were cattails growing in areas that were close to
2 what we were calling background-- but we did not
3 have cores from the cattail stands, per se, and that
4 could have been different from the areas where we
5 collected the cores, so I couldn't say for sure that
6 it was background.
7 Q. In the 2-A area where you saw cattail
8 growing in deeper water in this background location,
9 what was the circumstance which created the deeper
10 water?
11 A. They appeared to be sloughs, just
12 natural deeper bodies.
13 I did not take cores there.
14 It wouldn't have surprised me, if, in
15 fact, in those cores, I found, for instance,
16 evidence of past burns.
17 Again, I know that area had dried out at
18 one time, and there were fairly extensive fires, but
19 I don't have any maps showing where the areas were
20 and how deep a burn, so would it not surprise me
21 that some of those areas were as a result of fires,
22 and also resulted from alligator holes.
23 There are a number of hypotheses
24 concerning the deeper areas.
25 Q. Yesterday I believe you testified that--
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1 consistently that-- you mentioned burns and
2 alligator holes as the areas where you saw cattails
3 growing in deeper water.
4 A. Right.
5 Q. Would you agree, Doctor Hackney, in
6 areas where there's been burns or where alligator
7 holes existed, that you would expect to find
8 elevated phosphorus levels?
9 A. I would agree with that statement.
10 Q. And in these background areas, such as
11 an alligator hole where you have cattails growing,
12 do you see the cattail expanding spacially, outward
13 from the hole over time, historically?
14 A. I can't say what would happen with
15 time.
16 Obviously I didn't follow a particular
17 site for a long period of time.
18 In the instance or instances, one
19 could-- one could suppose expansion, if you looked
20 at the distribution of individual colonies, and the
21 general pattern was up in the-- adjacent to the
22 sawgrass, there would be the most typha colonies
23 growing.
24 These were not real dense, compared to
25 the high nutrient, and as one gets into deeper
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1 water, into the slough, the density of the cattail
2 would drop off, ultimately, for example, if the
3 water was real deep, and at the other end of the
4 gradient, in the sawgrass stand, there would
5 frequently be very little overlap of the two, so
6 nice, neat dividing line, for the most part.
7 I couldn't say that that was the result
8 of a temporal expansion or contraction.
9 Q. Are you aware of any evidence to suggest
10 that cattails have expanded in any significant
11 fashion in background areas, where they have been
12 introduced or established in areas, such as
13 alligator holes?
14 A. I am not aware of specific studies that
15 have followed the expansion of cattails, per se,
16 into a specific area.
17 I am aware of a cattail map that shows
18 the distribution of cattails, and whether you
19 consider that a study or not, I don't know.
20 That expansion is in areas that are
21 outside of what is normally considered the high
22 nutrient areas.
23 Q. Whose cattail map is this?
24 A. This is the cattail map produced by BDA,
25 the '93 cattail map.
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1 Q. Are you relying on that map to support
2 any of your opinions?
3 A. My answer is no. Nothing I have said is
4 dealing, with-- again, I looked at that map for the
5 first time, the finalized version of that map,
6 Wednesday, so I really haven't had a chance to sort
7 of track my personal observations with that map, but
8 no, I'm not really relying on that at this time.
9 I intend to look at it and see if it
10 changes my views, and look at it fairly carefully.
11 MR. HYDE: Paul, this map is being
12 prepared for the deposition of Mike Dennis, so you
13 should have it in reasonably short order, but it's
14 not something that Courtney Hackney is relying on.
15 I just showed it to him the other day
16 when we were standing in the hall.
17 MR. NETTLETON: See what you're doing--
18 what happens when you do that?
19 THE WITNESS: We're attempting to be as
20 honest and forthright as we can.
21 MR. NETTLETON: Off the record.
22 (Dicussion off the record.)
23 MR. NETTLETON: Before we move on to my
24 next area, just during the break, Mr. Hyde, you had
25 a chance to look at the notes that Doctor Hackney
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1 had looked at during his earlier testimony, and am I
2 correct, it's your position still that those are
3 protected work product, and you will not turn them
4 over?
5 MR. HYDE: Yes. That is my position.
6 They reflect almost exclusively, they
7 were proposed questions that Doctor Hackney had
8 prepared for Mark Kobelinski during the Irv
9 Mendelson deposition.
10 I'm not going to preclude you from
11 asking any questions you feel you need to follow up
12 on your earlier line of questions, but I do not wish
13 at this time to turn over the document.
14 I think you have covered everything that
15 you needed to on this matter.
16 MR. NETTLETON: Just for the record, we
17 believe that the document is discoverable, and we
18 don't believe there's a work product privilege
19 attached to a testifying expert in this situation,
20 and secondly, the fact that he used it to refresh
21 his recollection, to some degree, would make it
22 discoverable, in any event.
23 MR. HYDE: Well, I think he used it to
24 refresh his recollection in response to your
25 questioning.
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1 MR. NETTLETON: I understand that.
2 THE WITNESS: You had asked me something
3 about whether I was aware of it, and before I could
4 say no, I had to find out if that had anything at
5 all to do with your question, because I just could
6 not remember whether it had anything to do with that
7 or not, so again, trying to be forthright and honest
8 in the answer to your question, to the best of my
9 ability.
10 BY MR. NETTLETON:
11 Q. And you found it necessary to review
12 that document, in order to refresh your
13 recollection, to, in fact, answer that question the
14 way you did, which was no?
15 A. I couldn't remember whether it had
16 anything to do-- there were so many topics at that
17 deposition, and one of them involved looking at some
18 information, data, reanalyze it, and I couldn't
19 remember what that reanalysis was, what data set was
20 involved.
21 Q. Yesterday during your deposition, you
22 stated that in your opinion, there is an imbalance
23 in the Everglades ecosystem occurring, and that it
24 will continue to occur.
25 Do you recall that testimony?
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1 A. Yes, I do.
2 Q. And you made specific reference to
3 exotic species introduction.
4 Is that right?
5 A. Yes.
6 Q. And the exotic species you mentioned,
7 were the maleluca, and possibly exotic fish and bird
8 species, as well?
9 A. Potentially.
10 Q. Can you tell me what the cause is, in
11 your opinion, of the introduction of these exotic
12 species to the Everglades system?
13 A. What is the cause?
14 They were brought in.
15 Q. By--
16 A. Someone-- some human being,
17 inadvertently or intentionally, moved them into this
18 habitat.
19 Those are the ones that I would consider
20 exotic, from a differential standpoint.
21 One could probably make the argument,
22 some of the ones could find their way here by
23 themselves, but to my definition, they wouldn't be.
24 Q. Other than the introduction of exotics
25 into the Everglades system, do you believe that
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1 there is any other imbalance that the Everglades
2 ecosystem is currently experiencing?
3 A. I think that the Everglades ecosystem is
4 doing what the Everglades ecosystem has historically
5 done, to the extent that what has occurred in the
6 Everglades, is not outside of its normal maximum
7 range of change, and that is that the Everglades
8 ecosystem is attempting to store organics to bring
9 itself back in line with the idealized, or the
10 present hydrologic regimen.
11 The presence of more water, I would say,
12 is the driving force.
13 The lack of water in the past, has also
14 done exactly the same thing.
15 The system has attempted to reach
16 equilibrium.
17 I would say that the addition of
18 phosphorus or any other nutrient, is going to
19 probably drive that force faster.
20 In other words, if there's more nutrient
21 and more growth, the plant community is going to
22 respond more rapidly, accumulating sediment,
23 organics at a faster rate, attempting to heal
24 itself, if you will, to reach that equilibrium
25 again.
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1 I would not consider that an imbalance.
2 Q. You answered my next question.
3 Am I correct, Doctor Hackney, other than
4 the introduction of exotics into the system, you do
5 not believe that the Everglades system is currently
6 experiencing any other type of imbalance?
7 A. As I stated earlier, I think there may
8 well be some imbalance in portions of the
9 Everglades.
10 I, for instance, looked at some maleluca
11 stands, and it is very difficult to suggest that
12 vegetative community that we know as the maleluca,
13 has any of the characteristics that are normal for
14 the Everglades.
15 It's a different species. Its mode of
16 productivity is different. Its shading of the
17 surface of the marsh is different.
18 I would suspect that its accumulation of
19 organics is different.
20 Its ability to be consumed by organisms,
21 to be decayed by organisms, you would expect to be
22 different.
23 I consider that a major imbalance.
24 I observed fishermen in one of the
25 canals, catching a fish known as the common Oscar,
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1 astronautus ocellatus.
2 This is a cyclette from a tropical
3 system. There are many cyclettes that have been
4 noted as being in South Florida, some of which have
5 clearly found their way into some of the canals, and
6 as I also stated yesterday, disturbances are the
7 normal avenues by which exotics typically get
8 established in these systems, and the changes are
9 probably a wonderful avenue for many of those
10 introduced fishes.
11 Q. Let me try to rephrase my question,
12 then.
13 Is it your opinion that with the
14 exception of anything related to exotic species, if
15 we take those out of the picture-- is it your
16 opinion that the Everglades system is not suffering
17 from any other type of imbalance in any area?
18 A. Yes. That would be my opinion.
19 Q. So am I correct, then, that you do not
20 believe that either phosphorus or hydrology, is
21 currently causing any type of imbalance in the
22 Everglades ecosystem, again, excepting out anything
23 related to exotics?
24 A. I think that increased phosphorus and
25 increased hydrology, both lead towards certain kinds
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1 of vegetative communities, that are a natural part
2 of the ecosystem of the Everglades, and I would say
3 that within the history of the Everglades, that have
4 been times and spaces where both hydrology that's
5 experienced in many of those areas we're discussing,
6 and phosphorus levels, have been at those levels in
7 the past, and that the process of returning to
8 whatever the hydrology is dictating, is one-- is
9 somewhat normal.
10 Q. Are you familiar with the expansion of
11 cattails in the area of 2-A, over the last 25 to 30
12 years?
13 A. I have seen the maps. I'm familiar with
14 the report of the expansion.
15 Q. Do you have any knowledge or
16 understanding of any similar expanse of cattails-- I
17 mean spacial, by expanse-- monocultures or mixed
18 stand of cattails, historically in the Everglades,
19 more than-- going back more than 30 years?
20 A. No.
21 Q. When you said that the Everglades has
22 historically had instances of phosphorus levels
23 similar to those being experienced at the present
24 time, what are you referring to?
25 A. I'm referring to the impact of fires and
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1 what the soils look like after fires, in terms of
2 nutrient concentrations, in terms of phosphorus
3 concentration, specifically.
4 Q. Do you have any data to establish what
5 the phosphorus levels were during those historic
6 fire events?
7 A. Not for the historic fire events, no.
8 Q. And am I correct that these historic
9 fire events, would be somewhat localized?
10 A. I think that there would be different
11 degrees, because there are clearly different cycles
12 that are operating at different time spans.
13 There certainly are in many large
14 wetlands, like the wetlands-- the Okeefenokee--
15 there certainly are periods of time in which there
16 are extreme dry conditions and fairly large burns,
17 typically in most of those fires, although the first
18 fire is extensive-- the peat burns, typically are
19 localized from spot to spot.
20 It's not a uniform burn that burns the
21 whole thing down X-centimeters or X-inches.
22 How large those areas would be, I don't
23 know.
24 Q. What is your understanding of the
25 current levels of phosphorus e