1
1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
SUGAR CANE GROWERS COOPERATIVE OF
3 FLORIDA, INC., ROTH FARMS, INC.,
and WEDGWORTH FARMS, INC.,
4
and
5
FLORIDA SUGAR CANE LEAGUE, INC.,
6 UNITED STATES SUGAR CORPORATION,
and NEW HOPE SOUTH, INC.,
7
and
8
FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
9 ASSOCIATION, LEWIS POPE FARMS, 92-3039
W.E. SCHLECHTER & SONS, INC., and 92-3040
10 HUNDLEY FARMS, INC.,
11 Petitioners,
12 vs.
13 SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,
14
Respondent,
15
and
16
MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA, the UNITED STATES OF
AMERICA, FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, and
FLORIDA WILDLIFE FEDERATION,
19
Intervenors.
20 . . . . . . . . . . . . . . . . . . . /
21
22
23 DEPOSITION OF RICHARD HARVEY
24 January 4, 1993
25
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1
2 DEPOSITION OF RICHARD HARVEY
3 Taken in the above-styled cause, pursuant to
4 notice, at the Department of Environmental Regulation, 2600
5 Blair Stone Road, Tallahassee, Florida, on January 4, 1993,
6 commencing at 11:00 a.m.
7
8 Reported by:
9 JERRY L. ROTRUCK
10 Certificate of Merit
11
12
13
14
15
16
17
18
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Sugar Cane Growers Cooperative
of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,
3 Inc.:
4 William H. Green, Esq.
Hopping Boyd Green and Sams
5 123 South Calhoun Street
Tallahassee, FL 32301
6
On behalf of the Petitioners Florida Sugar Cane League,
7 Inc., United States Sugar Corporation and New Hope
South, Inc.:
8
William L. Hyde, Esq.
9 Peeples, Earl & Blank
215 South Monroe Street
10 Suite 350
Tallahassee, FL 32301
11
On behalf of the Intervenor United States of America:
12
Tom Fitzgerald, Esq.
13 Assistant U.S. Attorney
155 South Miami Avenue, Suite 600
14 Miami, FL 33102
15 On behalf of the Intervenor Department of Environmental
Regulation:
16
Tim Smith, Esq.
17 Deputy General Counsel
State of Florida
18 Department of Environmental Regulation
Twin Towers Office Building
19 2600 Blair Stone Road
Tallahassee, FL 32399-2400
20
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1 INDEX TO WITNESS
2 RICHARD HARVEY Page
3 Examination by Mr. Hyde 6
4
5
6 INDEX TO EXHIBITS
7 No. Marked
8 1 87
9 2
10 3
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1 S T I P U L A T I O N
2 IT IS STIPULATED AND AGREED by and between counsel
3 appearing for the respective parties as follows:
4 THAT the deposition of RICHARD HARVEY was taken by
5 agreement for the purpose of discovery, for use as
6 evidence, and for such other purposes as may be permitted
7 by the Florida Rules of Civil Procedure and other
8 applicable law;
9 THAT all objections, except as to the form of the
10 question, are reserved until the trial of this cause; and
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was not waived.
13
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1 D E P O S I T I O N
2 Whereupon,
3 RICHARD HARVEY
4 was called as a witness, having been first duly sworn to
5 speak the truth, the whole truth, and nothing but the
6 truth, was examined and testified as follows:
7 EXAMINATION
8 BY MR. HYDE:
9 Q Would you please state your name for the record,
10 please?
11 A Richard Harvey.
12 Q And your address, please?
13 A Home address?
14 Q That is --
15 A xxxxxxxxxxxxxxxxxxxxxxx.
16 Q Mr. Harvey, my name is William Hyde. I am with
17 the law firm of Peeples, Earl & Blank, and we represent in
18 this Everglades SWIM Plan proceeding the Florida Sugar Cane
19 League, New South Hope, Inc., and U.S. Sugar Corporation.
20 I will be asking you a series of questions.
21 A Who is New South Hope?
22 Q It is basically -- I am not sure of the
23 relationship, but it is one of the flow zone-related
24 companies. It is a sugar corporation, too.
25 A All right.
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1 Q I will be asking you a series of questions
2 regarding the Everglades SWIM Plan and your role in that
3 plan and the anticipated testimony that you will be giving
4 in any final proceeding on that Everglades SWIM plan. I
5 may also be asking you questions about the permit that the
6 DER has issued recently, a draft permit, that is, to the
7 water management district pursuant to the Marjory Stoneman
8 Douglas Act.
9 If you have any questions or if you don't
10 understand my questions, please tell me and I will try to
11 rephrase my questions to make them more comprehensible to
12 you. Otherwise, I will assume that you understand what I
13 am asking you.
14 If any of the attorneys object at any point, I
15 would suggest that you stop whatever you are saying and let
16 us thrash out what we are going to do about that objection,
17 and then we will proceed on. Is that understood?
18 A That is.
19 Q I would like to ask you a series of questions
20 about your personal background, beginning with your
21 educational experience.
22 A All right.
23 Q Your college degree, where and when did you obtain
24 your degree?
25 A My Bachelor's degree?
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1 Q Yes, sir.
2 A I have a Bachelor's in zoology from the University
3 of Florida. I graduated in March of 1971.
4 Q Was there any thesis that was connected to that
5 zoology degree?
6 A Not for that degree, no.
7 Q Did it have a particular concentration, because
8 zoology is a rather broad field?
9 A No. It was just primarily a general zoology
10 degree.
11 Q Did you seek any postgraduate degree?
12 A Yes, I did.
13 Q What was that?
14 A I have a Master's of Science in Environmental
15 Engineering degree from the University of Florida. I
16 received that degree in June of 1972.
17 Q Was there any special concentration for your
18 environmental engineering degree?
19 A I did prepare a thesis.
20 Q What was that thesis?
21 A Nitrogen and phosphorus removal from dry sewage
22 effluent using Lemna, which is a duckweed, it is a plant,
23 floating plant.
24 Q Was that a theoretical dissertation or did it
25 involve actual field tests?
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1 A It was empirical.
2 Q Where did you do your empirical work in it, in
3 doing your thesis?
4 A At the University of Florida, in Gainesville, in
5 the laboratory, primarily. I obtained samples of the plant
6 from different locations around Alachua County and brought
7 them back to the laboratory and cultured them in contrast
8 with secondary effluent. I measured the changes in
9 nitrogen and phosphorus concentrations over a period of
10 time to see how the plants took up the nitrogen and
11 phosphorus.
12 Q What did your study reveal to you, if you can
13 summarize it?
14 A That the plants would remove significant amounts
15 of nitrogen and phosphorus from secondary effluent and
16 could be used to polish effluent for the purpose of
17 nutrient reduction. That was the primary thesis, and I
18 think it also could be, if they could be harvested and
19 dried, they could be fed to cattle. They were highly
20 digestible plants.
21 Q Did you do any other postgraduate work?
22 A I have taken a lot of courses since I received my
23 Master's degree, from different universities, if that is
24 what you are talking about.
25 Q Yes.
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1 A I took calculus through differential equations at
2 Florida State in the early to mid-'70s, along with a
3 computer programming course.
4 Q Why did you do that?
5 A At the time, I was in a section involved with
6 mathematical modeling for the development of waste load
7 allocations for point source discharges in the state
8 surface waters, and I wanted to beef up my background in
9 mathematics. I had had a couple of calculus courses as
10 part of my undergraduate curriculum, and because the math
11 modeling was so heavy into math, I decided I wanted to beef
12 up expertise in math and computer programming. I took
13 those courses.
14 Q Okay.
15 A I also took, from the mid-'70s to the end of the
16 '70s, I took five or six courses at Georgia Tech in
17 sanitary engineering, hydrology and hydrologic simulation
18 at Georgia Tech.
19 Q Were you living in Atlanta at that time?
20 A Yes.
21 Q What was the purpose behind taking those
22 additional courses?
23 A I had thought that I would get a -- an additional
24 degree in civil engineering from Georgia Tech.
25 Q I take it you decided not to pursue that to its
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1 ultimate conclusion?
2 A Right.
3 Q I note from your resume, at least the resume I
4 have available to me, that you also did some part-time
5 course work at the University of South Carolina in
6 environmental statistics?
7 A Right.
8 Q What did that involve?
9 A That was just taking some courses at the
10 University of South Carolina in environmental science and
11 environmental statistics. We were conducting a study on
12 the Santee-Cooper reservoirs in South Carolina where we
13 were generating a lot of data, and we were going to analyze
14 the data statistically, and although I had a couple of
15 statistics courses previously, I felt like I needed to beef
16 up my expertise in statistical analysis.
17 Q What kind of data were you generating in the
18 course of that work?
19 A Physical, chemical, biological.
20 Q Was it related to, say, sewage effluent or other
21 types of water quality parameters?
22 A It was related to an effluent discharge.
23 Q Was it a sewage effluent discharge or some other
24 type of effluent?
25 A Actually, it was related primarily to a pulp and
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1 paper mill discharge on the Wateree River, which is a
2 tributary of Lake Marion, along with -- there were other
3 dischargers within the basin that impacted the water
4 quality coming into the reservoir system, sewage.
5 Q Were you trying to do something like a waste load
6 allocation or something similar to that?
7 A Well, we were actually -- there was a lot of
8 concern being expressed over the spread of aquatic
9 macrophytes in the upper part of Lake Marion which is -- I
10 believe it is a 70,000-acre reservoir, and we wanted to
11 look at the environmental factors controlling growth and
12 distribution of those macrophytes in the reservoir.
13 Q What aquatic macrophytes were you concerned with?
14 A There was hydrilla, Brigaria, primrose, some of
15 the Potamogeton family; I guess primarily those species.
16 Q What is the common name for Brigaria? I am not
17 familiar with that.
18 A I guess it is Elodea, I think it is Elodea.
19 Q What was the result of that study? Did you follow
20 it to its conclusion?
21 A Well, we published some papers while I was there,
22 or actually we published some papers from data generated
23 while I was there. The study was a ten-year study, and I
24 was only involved with it for a little over four years.
25 Q What did those papers evidence?
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1 A One of the papers that I was primarily author on
2 looked at environmental factors controlling the growth and
3 distribution of aquatic macrophytes in those reservoirs.
4 Q Did you, in the course of that study, attempt to
5 establish a cause and effect relationship between the
6 sewage effluent and the growth of the aquatic macrophytes?
7 A We were looking at a number of environmental
8 factors. We did not establish a relationship between
9 sewage effluent and the growth and distribution of
10 macrophytes through that study.
11 Q What were the factors that you determined were
12 responsible for the growth of those aquatic macrophytes?
13 A The primary limiting factors that we identified
14 were light penetration and a factor that we developed
15 called fetch, or how open the water system was and how
16 susceptible an area was to wave action that would create a
17 physical disturbance of the plants.
18 Q How did light penetration affect the growth of the
19 or presence of the aquatic macrophytes?
20 A Basically, we found that at depths, for upper Lake
21 Marion at depths greater than 10 feet, even though we had
22 quiet conditions and substrate composition that was
23 suitable for plant growth, that at depths greater than 10
24 feet because of the sediment load to the system it didn't
25 give enough light to allow the plants to grow.
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1 Q How did, quote, fetch come into play?
2 A We developed a correlation between fetch where we
3 actually measured from our control stations to the nearest
4 wind break and we -- in several directions, and we
5 developed a fetch factor from those measurements, and then
6 we correlated the fetch factor with the presence or absence
7 of the plants, and used a multiple linear regression to
8 describe or determine how much variability the plant
9 distribution from that factor controlled.
10 Q Would it be safe to say that the narrower and more
11 constricted a body was the more likely it would have
12 aquatic macrophytes?
13 A If it had adequate light penetration and was not
14 subject to be stirred up, yes.
15 Q Did you prepare any other papers in the context of
16 that study?
17 A I think they are listed in the resume. I was the
18 co-author on several papers.
19 Q Were these studies all done with Mr. Patterson and
20 Mr. Pickett?
21 A It was Jenny Pickett, a female.
22 Q Excuse me?
23 A Glenn Patterson. Jenny was one of my staff people
24 on the study.
25 Q Let me just take you through them.
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1 The first publication I see here is one that you
2 did with Harvey, Harvey, Pickett and Bates, 1987,
3 "Environmental factors controlling the growth and
4 distribution of submerged aquatic macrophytes in two South
5 Carolina reservoirs." Is that the paper you were just
6 referring to?
7 A Right.
8 Q It indicates it was for a symposium?
9 A North American Lake Management Society Symposium.
10 Q Was that a presentation that you made at that
11 time?
12 A It was a presentation, and I also submitted the
13 paper for publication in proceedings in the conference, and
14 it was a refereed conference proceedings.
15 Q The next paper, a 1988 publication, with you,
16 G. G. Patterson and J. R. Pickett, regarding an automated
17 positioning system for determining aquatic macrophyte
18 distribution --
19 A Right.
20 Q -- could you give me a short synopsis of what that
21 paper concerned?
22 A We used automatic positioning equipment using
23 microwave transmissions to -- we mounted the receiving unit
24 on an airboat, and we would delineate the boundary of
25 macrophytes' beds, and we would drive the boat -- it is
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1 kind of like a digitizer. We would drive the boat around
2 the boundary of the macrophytes' beds and bring that
3 information back and digitize the distribution of the
4 species composition of the plants throughout the reservoir
5 system, and then we compared those results over time to see
6 -- to look for changes in species composition and
7 distribution in the system.
8 Q That would have been somewhat useful to utilize
9 in the water conservation areas, assuming you had water to
10 go around the various aquatic macrophytes, wouldn't it?
11 A It would be a technique that you could use, right.
12 Q Was that a refereed publication?
13 A I believe that one was, yes. I think that is in
14 the Journal of Aquatic Plants.
15 Q That is what your resume reflects?
16 A Yes.
17 Q The next publication that you did with G. G.
18 Patterson concerned retention times and flow patterns in
19 Lake Moultrie, South Carolina, a 1986 publication.
20 A Right.
21 Q Was that likewise a refereed publication?
22 A No. I think that was a USGS publication. It was
23 extensively peer-reviewed by the USGS, but it was not
24 refereed in terms of external peer review.
25 Q What was the purpose of that study?
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1 A We were looking for detention times, residence
2 times in Lake Moultrie. Lake Moultrie, I think it was
3 50,000 to 60,000 acres, and we dropped several hundred
4 pounds of dye into the lake and traced it, tracked the dye
5 distribution over time to see how long the water would
6 remain in Lake Moultrie, flushing times, retention times.
7 Q Did you have some operative thesis in doing that
8 work?
9 A We just wanted to see -- one of the factors
10 controlling the response of water bodies to nutrient loads
11 is their detention times. The longer the detention time,
12 the longer the nutrients stay in, within the system, and
13 have an opportunity to impact water quality within the
14 system. We wanted to see how long the water stayed within
15 the reservoirs.
16 Q What were the conclusions you reached as a result
17 of that study?
18 A That the system -- I think we documented that
19 within for the flow, the -- I would have to go back and
20 look at it, but it was something -- what we did through the
21 study was determine under high flow and low flow conditions
22 what the detention time was, and to be honest with you, I
23 don't remember what they were. They were on an order of
24 months.
25 Q The final paper you have listed in your resume was
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1 one that you did with J. R. Pickett, 1988, entitled, "Water
2 Quality Gradients in the Santee-Cooper Lake, South
3 Carolina"?
4 A Right.
5 Q Was that likewise for a symposium?
6 A I believe Jenny, she was the primary author on
7 that. I think she did present that at a symposium, and I
8 don't know if she published that in a refereed journal, but
9 it was -- what we did, we established a system of 90 water
10 quality stations in the two reservoirs, Lake Marion and
11 Lake Moultrie. We were connected by a canal, and we looked
12 at water quality gradients and tried to determine where we
13 could take representative samples of different areas of the
14 reservoir system as opposed to the sampling 90 stations
15 every time. We could significantly reduce the number of
16 stations and still adequately characterize the water
17 quality conditions in the reservoirs. That is primarily
18 where that was aimed at.
19 Q Was that the operative thesis of your study?
20 A Yes.
21 Q Just to see what you could do with the reduced
22 number of stations?
23 A Yes.
24 Q Was that operative thesis satisfactory?
25 A I believe it was. There was -- I think we
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1 concluded that you could significantly reduce the number of
2 stations, I think on the order of 20 or 30 stations.
3 Q Why were you concerned with reducing the number of
4 stations, other than maybe simply the cost of it?
5 A Well, the cost was a major factor. It was an
6 ongoing study that would last an additional five to six
7 years. There were a number of sampling efforts going on at
8 the time that would be continued through the Santee-Cooper
9 Power Company in that area, and we disagreed with some of
10 the conclusions they had arrived at in some of their
11 sampling locations and their contention that certain
12 sampling stations represented, adequately represented
13 certain components of the reservoir system, so we used this
14 information to show them where they could better locate
15 their sampling stations primarily, cut down on the cost in
16 the future.
17 Q What by your lights were the factors or reasons
18 that allowed you to employ a lesser number of sampling
19 stations? You would have to deal with circumstances such
20 as positioning or other factors that might make a lesser
21 number equally as good as a greater number.
22 A We looked at -- I believe we sampled for a year,
23 and we sampled every other month. We sampled 90 stations.
24 We looked at a variety of climatic conditions, inflow
25 conditions and used a cluster analysis, statistical
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1 technique, essentially established where you could locate
2 your sampling stations to characterize certain areas of
3 each reservoir.
4 Q What is a cluster analysis?
5 A It is a stipulation of statistical analysis where
6 I am not an expert in it, either. In fact, Jenny was the
7 one who did the statistical, it is just a statistical
8 technique for grouping your data.
9 Q Have you been involved in any other publications
10 other than the ones that are listed on your resume?
11 A I published the results in my Master's thesis in
12 Water Pollution Control Federation Journal, I believe it
13 was, September of '73.
14 Q Was this a peer-review publication?
15 A I don't remember if it was a peer-review
16 publication at that time or not, to be honest with you.
17 Q Have you ever published any documents in your
18 employment with DER or any other agency that would -- well,
19 they may not be peer-reviewed or refereed, but still would
20 be, quote, publications generally distributed to the public
21 or to the scientific community?
22 A I wrote an article in The Overflow, which is a
23 magazine that the Water Pollution Control Operators
24 Association and the Florida Water Pollution Control
25 Association, they were sending it out bi-monthly, I think
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1 it is now a monthly publication, I wrote a paper for that.
2 It had to do with some new rules that we had passed
3 relative to the sewage treatment plants.
4 Q Can you think of any other publications along
5 those lines?
6 A Not right off the top of my head.
7 Q Your resume reflects that from July 1973 to April
8 19 -- excuse me, from April 1973 to July 1973, you worked
9 for the old DPC?
10 A Yes.
11 Q In what capacity?
12 A I was an environmental specialist, environmental
13 specialist, and then I -- when I left the Department, I was
14 environmental administrator, working for primarily the --
15 what is now the point source evaluation section, but it was
16 the waste load allocation section at that time.
17 Q That was in, I guess, your second position with
18 the Department?
19 A Right.
20 Q From April 1973 to May 1975?
21 A Environmental specialist, right.
22 Q I think maybe your resume has an incorrect date
23 here.
24 A There are a couple. I think there are some.
25 Q Your next position with the Department of
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1 Pollution Control, excuse me, was an Environmental
2 Specialist IV?
3 A Right.
4 Q Was that the waste load allocation?
5 A Yes. I was just a supervisor of that section.
6 Q And the next position was as an environmental
7 administrator?
8 A Right.
9 Q Supervising three sections in the development of
10 water quality management plans for all 13 drainage basins
11 in Florida?
12 A Yes.
13 Q Is that a fair synopsis of what your
14 responsibilities were at that time?
15 A I was -- as an EA, environmental administrator.
16 Q Yes.
17 A Right.
18 Q Did you have any other responsibilities beyond
19 what I just described to you?
20 A That group was primarily responsible for
21 developing waste load allocations and effluent limitations
22 from point source discharges around the state, those basin
23 plans.
24 Q Were those basin plans somewhat similar to the
25 current SWIM plans that you work on these days?
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1 A Those basin plans focused their attention
2 primarily on point source discharges.
3 Q Could you give me just a general description of
4 what a basin plan was, other than the fact it concentrated
5 on point sources?
6 A Well, primarily what we did is we inventoried all
7 of the waste water, domestic and industrial waste water
8 treatment plants around the state, looked at where they,
9 what they did with their effluent, whether it was a land
10 application or whether they discharged to surface waters,
11 and then used that information along with available water
12 quality data or some water quality data that we would go
13 out and generate or somebody else would go out and generate
14 to develop mathematical models for the purpose of using the
15 results of those modeling efforts to develop waste load
16 allocations and effluent limitations for those discharges
17 to be incorporated into permits. We did that for all of
18 the basins in the state.
19 Q In 1976, you left the Department and went to work
20 for the EPA?
21 A Right.
22 Q When did you do that?
23 A I was an environmental specialist with the EPA, a
24 scientist, I guess was what they called us, that is what I
25 indicated.
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1 Q Yes.
2 A I think it was environmental scientist. I worked
3 on some Florida projects, some of the 201 facilities plans.
4 201 facilities plan is a plan that a government will
5 develop to look at their existing and future waste water
6 treatment needs. I was involved with that program from the
7 federal perspective, involved with continuing reviews of
8 basin plans for, I believe, Florida and Alabama at that
9 point in time.
10 Q I appreciate your explanation of what you did, but
11 you didn't answer my question directly, which is, why did
12 you move from DER to EPA?
13 A I wanted to try the federal government.
14 Q It didn't involve any pay increase?
15 A Actually, initially there was a slight pay
16 decrease. I wouldn't do it again.
17 Q Your resume next reflects that beginning in 1980
18 you became a facilities planning section chief for EPA?
19 A Right.
20 Q What was that job?
21 A That was for -- I was in charge of the facilities
22 planning program for the states of Georgia and Alabama. It
23 dealt virtually exclusively with the 201 facilities
24 planning process, which is the process I described earlier
25 where you deal with local governments, municipalities to
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1 identify their waste water treatment needs.
2 Q January of 1983 you moved on to the USGS for the
3 state of South Carolina?
4 A Actually, I was on loan to the state of South
5 Carolina from EPA on an Intergovernmental Agency Personnel
6 Act assignment, EPA assignment, to initiate the Santee-
7 Cooper River basin study for the state of South Carolina.
8 Q Is that the study in which you did the greatest
9 majority of your publications?
10 A Yes, and I was affiliated with EPA for the first
11 two years of that effort, and then I switched federal
12 affiliations to the USGS the last two years.
13 Q In May of 1987, you apparently moved back to the
14 Department of Environmental Regulation?
15 A Right.
16 Q Again, why did you make that shift at that time?
17 A My EPA assignment was about to expire. I had an
18 option of staying in Columbia, South Carolina, and working
19 for USGS, the feds, or coming back to the state of Florida,
20 which is my home. I called Randy Armstrong who was -- had
21 just been, I guess, at that point in time had not been
22 named division director but was acting division director.
23 He then became division director, and he had two deputy
24 director positions available, so I sent him my application
25 and was hired as one of his deputy directors.
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1 Q What were the job responsibilities of that
2 position?
3 A We were in the environmental permitting division
4 or permitting division, and my responsibilities actually
5 included just about everything, all of the permitting
6 functions except for dredge and fill that the Department
7 was involved with.
8 Q What does that mean, all of the permitting
9 functions? Did you actually review all of the applications
10 that came in?
11 A No. All of the people reported to district
12 managers at that time, worked for the division, the
13 division director, they actually were the ones who reviewed
14 the permit applications. When issues would come up with
15 respect to rulemaking or lawsuits or policy development or
16 coordination or whatever, we would get involved with
17 individual permits from that perspective.
18 Q Did you get involved in the establishment of water
19 quality based effluent limitations in that context?
20 A Actually, the waste load allocation point source
21 evaluation program was in the programs division, so I would
22 get involved, if it involved a permit that we were about to
23 issue, if there was something contentious about it, I would
24 try to see if I could understand what was going on and
25 resolve the issue.
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1 Q But you didn't actually go through the water
2 quality based effluent limitation process on behalf of the
3 Department?
4 A No.
5 Q Were you, in effect, a troubleshooter for the
6 Department on those kinds of permits?
7 A I did some troubleshooting, right.
8 Q Did that position require you to, for lack of a
9 better term, engage in an interpretation of various state
10 water quality standards that they applied to given permit
11 applications?
12 A Probably did. I can't remember a specific
13 instance, but I would imagine it did.
14 Q Well, if it didn't do that, what was -- what were
15 you actually doing?
16 A Well, I also had the hazardous waste program, air
17 program, drinking water program, as well as the domestic
18 and industrial waste water programs.
19 Q You handled all of those programs, is that
20 correct?
21 A Yes.
22 Q Did you deal with stormwater in that capacity?
23 A To be honest with you, I can't remember if I dealt
24 with a specific situation involving stormwater. I believe
25 the stormwater program was still in the Division of
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1 Environmental Programs at that time.
2 Q Your resume reflects that in June of 1988 you
3 apparently assumed a new position as deputy director of the
4 division responsible for the planning and regulation of
5 drinking water, domestic waste water and industrial waste
6 water treatment facilities. How is that different from the
7 position you occupied from 1987 and 1988?
8 A The Department was reorganized at that time, and
9 -- into the water management facility and the water
10 facilities division, there was a delineation of
11 responsibilities or division of responsibilities within
12 those two divisions.
13 Q Did your responsibilities basically change with
14 that reorganization?
15 A Yes, they did.
16 Q Could you differentiate your current
17 responsibilities from your former ones?
18 A Well, as deputy director of the permitting
19 division, we dealt with all of the programs, like I said I
20 dealt with all of the programs except for dredge and fill,
21 and occasionally I would deal with dredge and fill, but
22 primarily that was handled by the other deputy director or
23 by the division director. In the water facilities
24 division, we only deal with water facilities. We deal with
25 drinking water and domestic and industrial waste water
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1 programs.
2 Q Did you ever have call to deal with stormwater
3 permitting situations in that latter capacity?
4 A Most of the stormwater permitting was handled out
5 of the water management division, and I rarely got involved
6 with stormwater permitting personally.
7 Q Did you ever get involved with the permitting of
8 agricultural runoff?
9 A Agricultural?
10 Q Yes.
11 A We had a dairy rule on the books that is the
12 responsibility of this division, we were involved with the
13 surface water runoff from those operations.
14 Q Were you involved in the -- did you assist in the
15 promulgation of that rule?
16 A No. It was promulgated before I arrived.
17 Q So you basically just implemented that rule,
18 would that be correct to say?
19 A Right.
20 Q In what areas?
21 A The dairy rule only applies to Lake Okeechobee
22 area, north of Lake Okeechobee. Is that what you were
23 asking?
24 Q Yes.
25 A Yes.
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1 Q So you applied it to permit applications that were
2 received from that area?
3 A Right. The rule required the dairies to apply for
4 permits and implement the permit conditions by certain
5 dates, and we administered that along with our district
6 office.
7 Q Did any of those permit applications deal with the
8 issue of phosphorus loading to a lake?
9 A All of them did.
10 Q How did the Department deal with that issue at
11 that time?
12 A There is a presumption in the rule that if they
13 implemented a certain set of best management practices,
14 that implementation of those management practices would
15 provide us reasonable assurance that would allow us to
16 issue the permits for those individual dairy farms.
17 Q Were there instances where people applied for a
18 permit that didn't employ those best management practices?
19 A As best I can remember, there were numerous
20 instances where the initial application was not found to be
21 complete by the Department and they had to go back and
22 revise them.
23 Q Did all of the dairies eventually fall into line
24 and put together a program that complied with the best
25 management practices prescribed in the rule?
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1 A We are still working with them, but most of them,
2 either they left the basin, or the ones that remained,
3 either they have permits or they are under enforcement by
4 the Department.
5 Q Did any of the applicants ever suggest to you or
6 to the Department that an alternative scheme other than the
7 best management practices scheme prescribed in the rule
8 might also be appropriate?
9 A I don't think they suggested that to me. They may
10 have suggested it to the Department, other people
11 representing the Department.
12 Q Were there any instances where the best management
13 practices prescribed in the rule were deemed insufficient
14 for a given dairy?
15 A We have -- not for a dairy as a whole. We had
16 some instances where the components of their implementation
17 we have some problems with that are still creating some hot
18 spots with respect to high phosphorus concentrations.
19 Q How is the Department dealing with those
20 situations?
21 A Well, we have one individual whose primary
22 responsibility out of our West Palm Beach district is to
23 work with the farmers to identify those hot spots, to try
24 to decrease the phosphorus load to be in compliance with
25 the rule.
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1 Q When you say "hot spot," are you talking about a
2 specific geographic location?
3 A There could be, if the rule -- the rule is
4 intended to locate the cows primarily in a certain area
5 that facilitates the collection of the contaminated water
6 from the runoff into an area we call high intensity area.
7 The cows are not supposed to go, for example, out into a
8 pasture, not supposed to be fed or watered or provided
9 shade. If they do, they kind of trample the grass down and
10 decreases the ability of the pasture to assimilate the load
11 deposited in the pasture, and some of those pastures have
12 ditches, and if you get a rainfall, then you have these
13 trampled down areas and you can get contaminated runoff
14 that is not supposed to occur in those areas. That is an
15 example of a hot spot.
16 Q So the hot spot was actually like the ditch,
17 itself, not some receiving body of water, would that be
18 correct?
19 A Well, it would actually be the area within the
20 dairy that is generating the phosphorus that is causing the
21 concentrations to be elevated.
22 Q Did any of these permit applications deal with or
23 did the Department apply in any of these dairy permits this
24 narrative nutrient rule in suggesting that --
25 A Not in the initial permit applications. We
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1 reserved the right to come back later on and through the
2 monitoring effort that is primarily being conducted by both
3 the dairy farmers and the South Florida Water Management
4 District, we reserved the right to impose more stringent
5 limitations, if necessary, to meet water quality standards
6 both in Lake Okeechobee and in the tributaries leading to
7 Lake Okeechobee. We told people that repeatedly.
8 Q Has that, in fact, occurred in any instance?
9 A Not to my knowledge.
10 Q Who are the persons who are your direct
11 underlings, for lack of a better term? I am not asking you
12 to identify all of your people, but who do you look to,
13 primarily the next level down?
14 A The bureau chiefs.
15 Q Who are your bureau chiefs at this time?
16 A Chuck Aller, he runs our drinking water and
17 groundwater protection bureau; Don Berryhill, who is chief
18 of our bureau of Local Government Waste Water Financial
19 Assistance; and Bob Holman, who is our bureau chief of our
20 water facilities planning and regulation bureau.
21 Q Were there any others?
22 A Those are the three most directly underneath me,
23 organizationally.
24 Q Have you ever testified as an expert witness in a
25 judicial or administrative proceeding?
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1 A I have testified. I don't recall, it has been so
2 long ago, I don't recall if I was qualified at that point
3 in time as an expert witness or classified as an expert
4 witness.
5 Q Do you recall the circumstances in which you
6 offered that earlier testimony?
7 A There were two dredge and fill hearings.
8 Q Approximately what time did that occur?
9 A Geologically, or --
10 Q No, the hearing, itself.
11 A They were in the early '70s, early to mid-'70s.
12 Q Have you ever testified in any proceeding
13 subsequent to that time?
14 A No.
15 Q Have you ever been deposed for any proceeding
16 subsequent to that time?
17 A Yes.
18 Q Do you recall that proceeding or proceedings?
19 A I have only been deposed, I think this is the
20 fourth time. One had to do with an Everglades case, with
21 your firm. Another one had to do with a lawsuit an
22 attorney filed against EPA and the state regarding total
23 maximum daily loads. A third one had to do with 298
24 drainage districts around Lake Okeechobee, and this is the
25 fourth one.
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1 Q What was the Chapter 298 district case about?
2 A The 298 drainage districts around Lake Okeechobee
3 were required to apply for permits from the Department, and
4 we were dealing, at that particular time, with East Beach
5 Drainage District, and I was deposed on that permit
6 issuance. We had drafted up a permit or an intent to deny
7 a permit, and they were challenging it.
8 Q Do you recall the outcome of that proceeding?
9 A It has not been finished. It is still ongoing.
10 Q It is still pending?
11 A Right.
12 Q I think I would like to shift gears at this point
13 and ask you for -- concerning your anticipated testimony at
14 the final hearing in this regard.
15 The Department's answers to our interrogatories
16 indicated that you would be offering testimony to the
17 effect that the district's -- and I am referring to the
18 South Florida Water Management District -- Everglades SWIM
19 Plan is consistent with the objectives of the SWIM Act and
20 relative rules of the Department.
21 Would that be a fair synopsis of what you
22 understand your testimony will be?
23 A I guess I can address certain components of that.
24 Q What components?
25 A Well, primarily as it relates to their proposal to
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1 address the water quality standards issues related to the
2 Everglades Protection Area and the Everglades Agricultural
3 Area.
4 Q Is that the only context that you reviewed the
5 Everglades SWIM Plan in?
6 A I spent very little time, to be honest with you,
7 looking at the Everglades SWIM Plan. I did make technical
8 staff available to Bart Bibler, who is really the lead
9 individual on the SWIM Plan process.
10 Q Well, what determinations did you make regarding
11 compliance with state water quality standards?
12 A Well, I had our technical people take a look at
13 the proposal, the BMP rule, for example, the STA design,
14 interim standards that were proposed in the SWIM Plan,
15 those types of things.
16 Q Did you have any input into those areas yourself,
17 or did you just simply rely on your staff for conducting
18 that analysis?
19 A In terms of doing the actual number crunching, I
20 relied on staff.
21 Q What do you understand the state water quality
22 standards to be?
23 A Would you be a little bit more specific?
24 Q What is encompassed by the phrase, "state water
25 quality standards"?
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1 A I would interpret that to be the entire process
2 where we look at, from identification of water bodies that
3 are covered by the standards, the determination of their
4 designated use, to the establishment of specific numeric
5 and narrative and whatever other criteria to protect that
6 designated use for that water body.
7 Q Does it also concern the so-called moderating
8 provisions of the Chapter 17-302?
9 A There are some moderating provisions in the rule,
10 yes, standards.
11 Q Do you understand those moderating provisions to
12 be part and parcel of the state water quality standards?
13 A They are incorporated in 302, yes.
14 Q What determination did you make of compliance with
15 the state water quality standards?
16 A Well, it was actually related to the direction of
17 the Marjory Stoneman Douglas Act for the South Florida
18 Water Management District.
19 The Douglas Act required the district to apply for
20 permits and to develop the Everglades SWIM Plan, and
21 essentially for the permit and the SWIM Plan to be
22 consistent, it required the District to approach interim
23 standards essentially for discharges into the Everglades
24 protection area for phosphorus.
25 Q Did you look at any other aspect of the Everglades
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1 SWIM Plan?
2 A Not really.
3 Q What would your basic opinions been for a final
4 hearing in this regard?
5 A I don't understand your question.
6 Q Will you simply -- will you be saying that, in
7 effect, the interim standards proposed by the District are
8 appropriate?
9 A I presume I will be testifying to that topic.
10 Q Will you be offering any opinions as to compliance
11 or noncompliance of ambient water conditions with various
12 rules such as the narrative nutrient rule or the nuisance
13 species rule?
14 A Probably.
15 Q Will you be discussing the application of the
16 outstanding Florida water criteria?
17 A Yes.
18 Q Will you be discussing in your testimony the
19 application of the moderating provisions set forth in the
20 state water quality standards?
21 A If I am asked, I presume I will.
22 Q Are there any other general categories that you
23 are going to be discussing or testifying about at final
24 hearing in this cause?
25 A I would imagine I would be testifying with respect
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1 to my involvement with the whole permit application and
2 review process.
3 Q Are there any other general areas of testimony?
4 A Not that I am aware of.
5 Q Did you engage in a line-by-line or section-by-
6 section determination of compliance of the plan with the
7 various factors set forth in the SWIM Act?
8 A No, I did not.
9 Q Do you know whether anyone with the Department did
10 that?
11 A No, I do not.
12 Q Let me ask you a few questions about the interim
13 standards.
14 First of all, what do you understand them to be?
15 A The interim standards as described in the Douglas
16 Act?
17 Q Yes.
18 A Or as proposed --
19 Q As proposed by the water management district.
20 A Are you talking about the discharge limit of 50
21 parts per billion, or are you talking about the numbers
22 that were established for the Park and Refuge?
23 Q Let's deal first with the 50 part per billion
24 determination. What is that?
25 A That is the number that we are going to use to
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1 determine compliance of the discharge from the STAs that
2 were proposed in the SWIM Plan and the permit application.
3 Q Do you know how that number came about?
4 A Yes, to a certain extent.
5 Q Could you describe your understanding in that
6 regard?
7 A As I said earlier, I was not involved with the
8 basic number crunching, but basically we looked at the load
9 that was coming into the Everglades protection area, the
10 long-term load. Essentially the period of record for their
11 data, late '70s to late '80s, they determined through
12 discussion with Dr. Del Bottcher, from IFAS, at the
13 University of Florida, that implementation of BMPs could
14 reduce the phosphorus load by approximately 25 percent.
15 Then through the implementation of wetlands treatment,
16 they could get an additional percent reduction of the
17 phosphorus load coming through the STAs, and if you looked
18 at the remaining load through the BMPs and STAs and the
19 associated flows and back-calculate the concentration, that
20 concentration was 50 parts per billion. That is a
21 long-term annual average.
22 Q I would like you to take me through step by step
23 the process by which the 50-part-per-billion figure was
24 arrived at. Can you do that?
25 A Well, clarify what you mean, step by step.
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1 Q You described a process?
2 A Yes.
3 Q Generally?
4 A Right.
5 Q And you said they -- and I presume "they" to mean
6 the district?
7 A Actually, the number crunching to derive that
8 number was done by district staff and consultants to the
9 federal government.
10 Q Do you know who those persons were?
11 A Some of them.
12 Q Can you identify them?
13 A For the district?
14 Q Yes.
15 A Dr. Tom Fontaine, George Shih; there may have been
16 others for the district.
17 For the feds, it was primarily Dr. Bill Walker.
18 Tommy Federico was also involved in the water management
19 district.
20 Q Are you, in effect, relying on the work that these
21 persons have done, or did you independently analyze it
22 yourself to assure the accuracy?
23 A I did not actually do an independent verification
24 of their number crunching. However, I did have our staff
25 duplicate their number crunching efforts.
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1 Q Who was the person on your staff that did that
2 number crunching for you?
3 A Well, I had Frank Nearhoof look at certain
4 components, and also Doug Gilbert.
5 Q What components did Mr. Nearhoof look at?
6 A He looked at primarily the statistical techniques
7 in the number crunching. He obtained the same data from
8 the water management district and the feds that they were
9 using for their calculations, and essentially duplicated
10 the calculations.
11 Q Why did you assign Mr. Nearhoof to do that
12 particular job?
13 A That is part of his general job responsibilities
14 in the point source evaluation section to do those types of
15 analyses.
16 Q Do you feel that he is qualified by his
17 educational background and experience to conduct that sort
18 of analysis?
19 A He has proven that in the past, yes.
20 Q You said that some additional work was done by
21 another person?
22 A By Doug Gilbert.
23 Q What was Mr. Gilbert's responsibility?
24 A Doug was involved in looking at the calculations
25 behind the BMP rule and also the calculations related to
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1 the establishment of some parameters that were used for
2 sizing the STAs.
3 Q Did you independently analyze Mr. Gilbert's work?
4 A No, I did not.
5 Q So is it fair to say, at least for both of those
6 individuals, you were relying on the work they did?
7 A That is correct.
8 Q That is based on work that other people had done?
9 A Right, their verification of the work that other
10 people had done.
11 Q Do you understand the process by which Dr. Walker
12 and the other people associated with the district generated
13 this 50-part-per-billion number?
14 A Just in general the way I described it earlier.
15 Q You don't understand specifically how Dr. Walker,
16 for example, undertook his mathematical analysis?
17 A It was described to us. I can't sit here today
18 and regurgitate that process. It was described to us in
19 detail.
20 Q Do you consider yourself qualified to analyze that
21 kind of determination by Dr. Walker?
22 A Given enough time and with the statistics courses
23 I have had, I feel like I could go back in and duplicate
24 what he did, but I did not do that.
25 Q Do you intend to do that prior to the final
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1 hearing?
2 A No.
3 Q Do you consider Dr. Walker to be the primary
4 architect of this 50-part-per-billion number?
5 A He was one of the primary architects of that
6 number.
7 Q Who else was a primary architect?
8 A I would say it would be Tommy Federico of the
9 water management district. They had a statistical
10 consultant, I believe his name was Doug Robson,
11 R-o-b-e-s-o-n.
12 Q What did you understand Mr. Federico to have done
13 regarding that 50-part-per-billion figure?
14 A Well, Tony is very familiar with the district's
15 data, both the flow data and the quality data. He and his
16 staff made that information available to the federal
17 government, and Dr. Walker, I believe he directed his staff
18 and may have been involved personally with the -- with some
19 of the actual statistical analysis for the flow and water
20 quality data for that area that was used to derive the 50-
21 part-per-billion value.
22 Q He just didn't make the raw data available to Mr.
23 Walker, he and his staff engaged in some statistical
24 analysis on their own part?
25 A He certainly made the data available to Dr.
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1 Walker. It was my understanding that he and his staff also
2 engaged in some of the number crunching themselves.
3 Q Okay.
4 A He may not have personally done the number
5 crunching, but he directed his staff to do so.
6 Q Would that have been Mr. Shih or Mr. Fontaine that
7 did that work?
8 A Probably one or both of them. I know George Shih
9 was involved with actually getting the data in a format
10 that could be utilized for this purpose.
11 Q Who proposed this 50-part-per-billion limitation
12 in the first instance?
13 A I think the first time I heard it mentioned was
14 from Tony Federico.
15 Q Do you recall the approximate date?
16 A Probably late spring or early summer of 1991.
17 Q Would this be before, during or after the
18 settlement negotiations in the collateral federal lawsuit
19 were underway?
20 A During.
21 MR. FITZGERALD: I think we should clarify the
22 record. The witness is not an attorney, and that
23 question could be interpreted to call for a legal
24 conclusion about the status of the case. It is still
25 ongoing.
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1 BY MR. HYDE:
2 Q I am still trying to get at why 50 parts per
3 billion was selected as opposed to, say, 60 or 75 or 30.
4 A I think it is more calculated than selected.
5 Q And you regard Dr. Walker's work as being the
6 basic work that resulted in that calculation?
7 A Well, Dr. Walker and Dr. Robson and the work of
8 the folks at water management district confirmed by Frank
9 and Doug.
10 Q You would, in effect, defer to those people for
11 their analysis in that regard?
12 A Right.
13 Q Well, were you -- by "you," I mean DER -- called
14 upon to pass judgment on that figure, or was it basically
15 presented to you as a fait accompli?
16 MR. SMITH: I am going to object to the form, in
17 that he is required to pass judgment.
18 You may answer.
19 MR. HYDE: You can go ahead and answer.
20 THE WITNESS: The number was presented to us and
21 the method for deriving that number was presented to us
22 as a proposed interim discharge concentration for the
23 BMP-STA combination, and we were asked if we could live
24 with that as an interim number.
25 BY MR. HYDE:
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1 Q Did you make that determination, or did others
2 make it for you?
3 A I did not -- I had no final authority to make that
4 determination. I just reported, primarily to Dan Thompson,
5 the results of those discussions.
6 Q Was it Mr. Thompson that made that ultimate
7 determination that the Department would accept the 50-part-
8 per-billion limitation?
9 A I don't know. I don't remember if it was
10 specifically Mr. Thompson, but it was, I guess, Mr.
11 Thompson, myself, the Secretary and the other staff working
12 on the settlement agreement.
13 Q Was it Secretary Browner that ultimately said, we
14 will go with the 50-part-per-billion figure?
15 A She signed the settlement agreement, but I don't
16 specifically recall an instance where she said specifically
17 we will go with 50 parts per billion.
18 Q Given the testimony you have given here so far on
19 this subject matter, do you intend to offer any testimony
20 about the Department's establishment of this 50-part-per-
21 billion limitation?
22 A In terms of the mechanics that were used to
23 derive it?
24 Q Yes.
25 A No. Only in general, how it was derived, but not
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1 the specific number crunching mechanics.
2 Q You will really be deferring to other persons for
3 the development of that figure?
4 A Right.
5 Q And for its approval by the Department?
6 A Well, I can describe my involvement with the
7 process that ultimately led to the acceptance by the
8 Department in the settlement agreement.
9 Q But you did not yourself make a determination
10 that the 50-part-per-billion level was appropriate?
11 A I did not have that authority.
12 Q Let's talk next about the limits for the
13 Loxahatchee National Wildlife Refuge. What do you
14 understand those limits to be?
15 A We have, I guess, interim levels and long-term
16 levels for the Refuge.
17 Q Let's talk first about the interim levels. First
18 of all, what is their purpose?
19 A They will be used to determine, I guess,
20 compliance for the Refuge with respect to the -- actually,
21 what we are going to do, we will monitor the concentrations
22 and the loads coming out of the STAs going into the Refuge,
23 and we will monitor the response of the Refuge to those
24 loads through monitoring and development of geometric means
25 for 14 sampling stations in the Refuge, to determine
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1 whether or not additional reductions and concentrations and
2 loads are necessary, so they will be used as compliance
3 numbers.
4 Q What do you understand those numbers to be?
5 A In terms of concentrations?
6 Q Yes.
7 A Can I refer to the settlement agreement?
8 Q Sure.
9 A Just to make sure I am not quoting the wrong
10 number?
11 Q Yes.
12 A At high stage A and stages related to some
13 staging gauges in the Refuge, the levels will be eight
14 parts per billion, and low stage, 22 parts per billion.
15 Q Do you know how those two numbers were derived?
16 A Essentially.
17 Q Can you describe your understanding in that
18 regard?
19 A There was a relationship established that is very
20 generally between the water quality phosphorus
21 concentrations at 14 stations within the Refuge relative to
22 stage from three gauging stations within the Refuge, and
23 that relationship, that statistical relationship was used
24 to derive the levels for the high and the low stage
25 situations.
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1 Q Who promulgated this calculation?
2 A There were several people doing the number
3 crunching. I guess initially it was Doug Robson, who is
4 the statistical consultant for the District, along with Dr.
5 Bill Walker.
6 Q Do you regard those two persons as being the
7 primary architects of that, those numbers?
8 A Primarily, yes, along with the other district
9 staff, Tom Fontaine and Tony Federico.
10 Q Did you independently analyze those numbers to
11 determine whether they were appropriate?
12 A I had Frank Nearhoof check the number crunching,
13 check the statistical analysis to see if their statistical
14 relationships were valid.
15 Q You did not do that work yourself?
16 A I did not do that.
17 Q You would be deferring to Mr. Nearhoof who would
18 be reviewing their work?
19 A Right.
20 Q Do you know how the 14 stations were established?
21 A Essentially there were -- I believe there were 16
22 monitoring stations within the Refuge. Two of the stations
23 in the upper end of the Refuge were eliminated because
24 there was significant periods of time when they were dry,
25 so they selected the other 14 stations to be a
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1 representative set of sampling stations for determining
2 compliance.
3 Q Why did they choose those 14 stations as opposed
4 to some other locations?
5 A Well, there were 16 stations for which historic
6 data existed.
7 Q Okay.
8 A And they wanted to continue, for the continuity of
9 the data set, to utilize those stations. There was a
10 general feeling that they were representative of the
11 conditions that existed in the Refuge, but we felt that it
12 was inappropriate to use data from stations that went dry
13 routinely.
14 Q What do you understand the long-term limitations
15 to be, or limits to be?
16 A The actual numbers?
17 Q Yes.
18 A Long-term concentration levels, high stage, seven
19 parts per billion, and low stage, at 17 parts per billion.
20 Q Do you understand how those figures are related
21 to the interim standards?
22 A Primarily, yes.
23 Q What caused that differentiation?
24 A We took a look at the stations, the least impacted
25 stations within the Refuge. As you certainly, as you know,
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1 the Refuge is surrounded by a canal, and the perimeter
2 stations in the Refuge were more impacted by the canal
3 waters, and the canal waters originate from the S5 and S6
4 structures, and we took a look at the cleanest three
5 stations within the Refuge and derived a similar
6 relationship between those clean three, data from those
7 clean three stations in the stage, and that is how those
8 long-term levels were arrived at.
9 Q In other words, you just picked the three stations
10 with the lowest phosphorus levels and that was plugged in?
11 A No. It wasn't the three stations with the lowest
12 phosphorus numbers. It was the three interior stations
13 that happened to have the lowest phosphorus numbers which
14 were also the least impacted, the most interior stations in
15 the Refuge.
16 Q Are you basing that on their relative distance
17 from the perimeter canals?
18 A Actually, I didn't -- we relied on the water
19 management district, and the Refuge folks were more
20 knowledgeable of the flow patterns of that system to tell
21 us those were the least impacted stations.
22 Q So you relied on their judgment?
23 A Yes.
24 Q And didn't do an independent analysis in that
25 regard?
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1 A Right.
2 Q What are the interim standards for the -- let me
3 back up for a second.
4 Do you know whether the 14 stations are now in
5 compliance with or out of compliance with these interim
6 standards or limits?
7 A The most recent data?
8 Q Yes.
9 A I don't know.
10 Q Moving on now to the limits for the Park, what do
11 you understand the interim numbers for the Park to be?
12 A The interim limits for the Park are nine parts per
13 billion during a wet year and 14 parts per billion during a
14 dry year.
15 Q Were the same individuals that were identified
16 previously the persons who were responsible for the
17 promulgation of those numbers?
18 A If you are referring to who actually did the
19 number crunching --
20 Q Yes.
21 A -- Dr. Walker, Dr. Robson and the staff at water
22 management district, yes.
23 Q Did Mr. Nearhoof conduct the Department's analysis
24 of that number crunching?
25 A Yes.
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1 Q So you are relying on their opinions, on Mr.
2 Nearhoof's opinion who is relying in turn on their work?
3 A Right.
4 Q What were the long-term limits for the Park?
5 A I believe they were seven and 13 -- excuse me,
6 they were eight and 13, eight for a wet year and 13 for a
7 dry year.
8 Q And again you are relying upon Mr. Nearhoof's
9 work, who in turn relied upon the district's and Dr.
10 Walker's number crunching?
11 A I am relying on Mr. Nearhoof's verification of
12 their work.
13 Q Do you know whether Dr. Walker was the original
14 proponent of this 50 parts per billion figure?
15 A As I mentioned earlier, the first time I heard it
16 was from Tony Federico.
17 Q Did anyone ever advise you that it was Dr.
18 Walker's work that led to this particular number being
19 chosen?
20 A Not in that context.
21 Q Do you know whether that number was chosen by some
22 person or entity and then these figures were, in effect,
23 backed into it?
24 A It was my understanding that that was not done.
25 Q Do you intend to offer any testimony as to the
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1 application of the narrative nutrient rule to the
2 Everglades SWIM Plan or to water quality conditions in the
3 Everglades Protection Area?
4 A I presume so.
5 Q What will that testimony be?
6 A I guess what my understanding is of a narrative
7 nutrient criterion is how it applies in this particular
8 situation relative to the data that have been generated,
9 have been offered as part of the SWIM Plan and the permit
10 application.
11 (Discussion off the record.)
12 (Lunch recess.)
13 BY MR. HYDE:
14 Q I would like to back up for a minute and go back
15 to the 50-part-per-billion limitation that we were
16 discussing earlier.
17 A Okay.
18 Q I am not sure how to ask this question, but it
19 seems to me that your answer about how Dr. Walker did his
20 calculations is sort of a reasoning after the fact, because
21 it seems that you -- those are just mathematical
22 calculations to reach a given number. Why was that number
23 determined to be ecologically important?
24 MR. SMITH: Object to the form.
25 THE WITNESS: Why the number, I will answer why
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1 the number was determined to be ecologically
2 important.
3 I think if you look at recognizing that the
4 Everglades is an oligotrophic system and developed in
5 response to very low nutrient concentrations, I think
6 if you go in and look at data for those areas that are
7 the least impacted areas from man's activities, you
8 find very low concentrations of phosphorus, on the
9 order of less than 10 parts per billion in some areas.
10 The number that was derived, as I mentioned
11 earlier, if you take the load that comes into the
12 system by BMPs, you get a 25 percent reduction in that
13 load, and you route the remaining load in the flow
14 through STAs, making certain assumptions about the
15 treatment efficiencies of those STAs based upon data
16 available through the literature, through other systems
17 throughout the country and data from Water Conservation
18 Area 2A, and come up with a treatment efficiency for
19 the STAs, and then remove that additional load through
20 the STAs.
21 Then you take and run through your calculations
22 and basically divide through by the volume of water
23 that you still got to deal with, you come up with a
24 50-part-per-billion number.
25 When you compare that 50-part-per-billion number
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1 to the concentrations that are observed in the areas of
2 the Park and the Refuge that are less impacted by man's
3 activities, they are significantly higher, the 50-part-
4 per-billion is significantly higher than those numbers.
5 BY MR. HYDE:
6 Q What you are saying then, in a sense, you apply
7 the BMPs, and then you apply the treatment areas to reach a
8 given number?
9 A It is more or less a technology-based -- I
10 characterize it as a technology-based approach. You apply
11 BMPs and then you apply wetlands treatment through the
12 STAs, and you run through the calculations that the
13 treatment efficiency you would expect with the BMPs, the 25
14 percent reduction from Dr. Bottcher, the treatment
15 efficiency that you would expect to observe through the
16 STAs, then you arrive at the 50-part-per-billion number.
17 Q There are certain assumptions, aren't there, about
18 the treatment efficiencies of the STAs?
19 A Yes, there were.
20 Q One of those assumptions is a settling rate?
21 A Right.
22 Q And another assumption is the size of the STAs?
23 A Yes.
24 Q And don't they have some -- well, they obviously
25 have some relationship to that in the number of 50 parts
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1 per billion. Do you know how they arrived at the notion
2 of, say, 35,000 acres more or less of stormwater treatment
3 areas with a settling rate of X, whatever it is, I think
4 the number is 8, to reach the 50 parts per billion, or why
5 didn't they say 45 and 6, or whatever?
6 A I think they looked at the available information
7 from wetlands treatment systems around the country, and
8 then they looked at the data that were available from the
9 district and others for Water Conservation Area 2A, and
10 then they plotted the data up, and they picked the eight
11 meters per year settling rate removal efficiency rate,
12 whatever you want to call it, as a number that appeared to
13 be reasonable for that time consistent.
14 Q And then at that point, they calculated the size.
15 A Then they back-calculated the size from that
16 calculation and the volumes of water having to deal with
17 it.
18 Q You mentioned that you considered this a
19 technology-based standard?
20 A Yes.
21 Q What do you mean by technology-based standard?
22 A Well, that you don't start with a number that you
23 have to meet and design a system to meet that number, that
24 you look at what you can reasonably expect to achieve with
25 the application of some technology like BMPs or wetlands
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1 treatment system and see what you end up with, and that is
2 the process we used, that was used.
3 Q Do you consider the ordinary stormwater facility
4 to be a, quote, technology-based system?
5 MR. SMITH: Object to the form.
6 THE WITNESS: I don't typically deal with
7 stormwater systems. It is my understanding that there
8 is a presumption associated with most stormwater
9 treatment systems that the Department deals with, and
10 then if you implement a certain type of BMP, that is
11 kind of a technology-based approach.
12 BY MR. HYDE:
13 Q Do you know how the STA acreages were selected or
14 determined?
15 A Only in general through that process that I
16 described. They looked at the volume of water that they
17 would have to deal with and then the settling rate, the
18 eight meter per year value that was derived, and then
19 back-calculated the size.
20 Q Can you give me some representative examples of
21 other technology-based treatment systems or -- I can't
22 think of the right word for it, but a technology-based
23 system?
24 A In a waste water field, we assume basic secondary
25 treatment for domestic waste is the minimum level of
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1 treatment that is usually achieved through typical
2 technology.
3 Q Do you consider this a technology-based effluent
4 limitation?
5 A Right, and then you can go beyond that to come up
6 with a water quality-based effluent limit that, if the
7 technology-based effluent limit is not adequate to meet the
8 water quality criteria, then you go to a water quality-
9 based process.
10 Q In what circumstances does the Department employ
11 water quality-based effluent limitations as opposed to
12 merely applying the technology-based effluent limitations,
13 WQBELs versus TBELs?
14 A Essentially anywhere a TBEL is not adequate to
15 meet water quality standards, then you can go beyond the
16 TBEL and establish a WQBEL for that activity.
17 Q Would you do it in circumstances where the
18 Department is uncertain about whether a technology-based
19 effluent limitation will achieve the desired result?
20 A Typically in those situations we would phase it,
21 we have the option of phasing it -- if we think based upon
22 our analyses that a technology-based approach will achieve
23 water quality standards, we have reasonable assurances that
24 it will, then we can go with a technology-based approach.
25 It could even be that a technology-based approach will do
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1 more than necessary to meet water quality standards.
2 Q Now, the technology-based approach that you have
3 described for the water conservation areas, the stormwater
4 treatment areas and the BMPs are still somewhat uncertain
5 in the Department's eyes, aren't they?
6 A I think it is treatment, it is a treatment
7 process, a combination of treatment process that we feel
8 comfortable with.
9 Q You have interim concentrations --
10 A Yes.
11 Q -- that you are going to look to?
12 A Yes.
13 Q And then you have long-term concentrations?
14 A Yes.
15 Q And the reason you have the long-term limits is
16 because you are not really sure right now whether the
17 entire rule concentration limits are going to be
18 satisfactory, isn't that correct?
19 A The concentration limits themselves to meet the
20 appropriate water quality criteria.
21 Q But wouldn't you agree there is some uncertainty
22 as to whether the 50-part-per-billion limitation is, in
23 fact, appropriate?
24 A Yes.
25 Q Given that uncertainty, why didn't the Department
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1 employ the WQBEL process for the water conservation areas?
2 A Well, I think what we did was comply with the
3 requirements of the Marjory Stoneman Douglas Act where it
4 says to develop interim concentration limits that will
5 achieve water quality standards to the maximum extent
6 practicable at this point in time based on the best
7 available information. We looked at what we felt what was
8 practical at this point in time, which was a combination of
9 the BMPs and STAs, and came up with a 50-part-per-billion
10 number. In association, there is a second phase to it,
11 which is the research and monitoring to see what else, if
12 anything, is necessary to meet Class III standards and the
13 OFW limits for the Park and Refuge.
14 Q Is the Marjory Stoneman Douglas Act provision that
15 you just quoted the only reason why you didn't employ the
16 WQBEL process in this instance? Let me ask the question
17 perhaps a different way. It might be more intelligible.
18 Do you regard the Marjory Stoneman Douglas Act as
19 precluding the Department from utilizing the WQBEL process
20 to determine what is appropriate for the water conservation
21 areas?
22 A No.
23 Q I guess I don't fully understand why you didn't
24 utilize it when it appears to fit this kind of certain
25 situation where there is some uncertainty in the
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1 Department's technology-based effluent limitation.
2 MR. SMITH: Object to the form.
3 THE WITNESS: Well, I think we have established a
4 process that will lead us to developing a WQBEL for
5 those discharges, for these types of systems. We feel
6 comfortable that 50-part-per-billion is not going too
7 far. It is not too low a number usually in light of
8 the data available for the unimpacted -- for the areas
9 of the Park and Refuge that are less impacted in the
10 system, and we have established a process through the
11 research and monitoring that will lead us, I believe,
12 to the final number for the system.
13 BY MR. HYDE:
14 Q Concerning the limits for the Loxahatchee National
15 Wildlife Refuge, you testified earlier that they were based
16 on this calculation that utilized 14 different stations
17 within the Refuge, correct?
18 A The data available from 14 stations, yes.
19 Q And I believe the limits themselves were
20 particularly oriented toward three interior stations, is
21 that correct?
22 A The interim levels were from the 14 stations.
23 Q Right.
24 A The long-term levels were derived from the clean
25 three, we call it the clean three stations.
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1 Q I would like to ask you again how those three were
2 chosen, why those three as opposed to a mixture of
3 stations, one toward the perimeter of the canals and one
4 maybe toward the middle, to get a more representative
5 sample, just for example?
6 A Those three, it was felt that they represented the
7 area of the Refuge that was least impacted by the water
8 coming from the agricultural area, and therefore they would
9 represent the conditions as close as possible based upon
10 the best available scientific information that you would
11 expect to need to maintain, to maintain the biological
12 integrity of the Refuge.
13 If you look at low concentrations within the
14 Refuge that are exemplified from these three clean
15 stations, those are the numbers, or take the long-term
16 health of that system, we felt they needed, in order to
17 protect the long-term health of the Refuge, they needed to
18 be established.
19 Q I would like to ask you a few questions now about
20 some of the specific water quality standards, beginning
21 with the narrative nutrient standard, and I will just read
22 it to you.
23 "Nutrients - In no case shall nutrient
24 concentrations of a body of water be altered so as to cause
25 an imbalance in natural populations of aquatic flora and
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1 fauna."
2 A "Or fauna."
3 Q "Or fauna," excuse me. What do you understand the
4 phrase "body of water" to mean in the context of that
5 rule?
6 A It could be a whole body of water, it could be a
7 portion of a body of water. For example, if you take Lake
8 Okeechobee and call that a body of water, you could take an
9 arm of Lake Okeechobee and call that a body of water, or
10 you could take a portion of that arm of Lake Okeechobee.
11 It really doesn't have any limitation. You don't have to
12 take the entire Atlantic Ocean, for example; you can take a
13 tributary.
14 Q But wouldn't you agree you would have to take some
15 relatively discrete geographic component?
16 A Define "discrete."
17 Q Well, let's say just Lake Jackson as an example.
18 You are familiar with Lake Jackson, are you not?
19 A Yes. The Lake Jackson up here?
20 Q Yes. I guess there are others.
21 A There are others.
22 MR. GREEN: Let the record reflect "up here" is
23 the Lake Jackson in Leon County?
24 THE WITNESS: In Leon County.
25 MR. GREEN: Thank you.
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1 BY MR. HYDE:
2 Q If, for example, nutrients had caused a small
3 area, maybe 10 square feet, to be populated by cattails,
4 would you regard that as being a violation of the narrative
5 nutrient rule?
6 A I certainly could. I don't think the rule has any
7 size limitations.
8 Q Don't you think the rule specifies to the body of
9 water as opposed to a portion of a body of water?
10 A I would say that the rule applies at all places
11 and at all times.
12 Q Well, if that was the interpretation to be placed
13 on it, shouldn't it say something like, in no case shall
14 nutrient concentrations of a body of water or a portion of
15 a body of water be altered so as to cause, et cetera?
16 MR. SMITH: Object to the form.
17 THE WITNESS: I can't say how it should read other
18 than the way it reads. I am just telling you how I
19 would interpret it.
20 BY MR. HYDE:
21 Q All right.
22 A For example, you would not allow an entire body of
23 water to be degraded before we reduce -- before we would
24 determine that a violation had occurred. If a portion of a
25 water body exhibits violations of standards, low DO or
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1 changes in species composition or whatever, we could
2 determine that that is a violation and do something about
3 it before the whole body of water -- the whole defined body
4 of water exhibits problems.
5 Q Does the narrative nutrient rule have any
6 relationship to the designated use of the water body?
7 A Define what you mean by "relationship," please.
8 Q Do you interpret the narrative nutrient rule in
9 light of the designated use of a water body, say, if it is
10 a Class III water body?
11 A That certainly has a bearing on the process. I
12 think it is a narrative criterion because there was a
13 recognition that a water body, a type of water body's
14 ability to assimilate nutrients without causing a problem
15 varies. It may not vary based upon its designated use, but
16 it could vary depending upon the type of water body you are
17 dealing with, be it a river, a lake, estuary or wetland
18 system.
19 Q You just mentioned --
20 A It is more of a relationship to the type of water
21 that you are dealing with, water body, than the designated
22 use.
23 Q You just mentioned the assimilative capacity of a
24 water body. Would you agree that there is an areal
25 component to that assimilative capacity, areal, a-r-e-a-l?
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1 A Sure. I would say more volume.
2 Q Is there a temporal component to it?
3 A For certain parameters, there is.
4 Q And would you say there is also a significance
5 component to it?
6 MR. SMITH: Object to the form.
7 THE WITNESS: Define what you mean by
8 "significance."
9 BY MR. HYDE:
10 Q Well, doesn't the change, the imbalance have to be
11 a significant change as opposed to a slight or transitory
12 change?
13 A It certainly has to be a measurable change.
14 Q Do you regard the narrative nutrient rule as
15 precluding any change?
16 A No.
17 Q What do you understand the term "imbalance" in the
18 narrative nutrient rule to mean?
19 A Generically speaking or specifically?
20 Q Generically first.
21 A Well, it could mean a number of things. Certainly
22 if you completely change the type, nature and function of a
23 water body, change its species composition, change the
24 substrate composition and all of the trophic levels, that
25 certainly constitutes an imbalance.
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1 If you completely alter, I guess, the type, nature
2 and function of the component of the water body, that would
3 constitute an imbalance.
4 Q What do you understand the term "imbalance" to
5 mean in the context of the Everglades SWIM Plan in the
6 water conservation areas?
7 A Well, as I mentioned, certainly, if you cause a
8 complete change in the type, nature and function of a
9 wetland where you had all trophic levels, going from
10 organisms that inhabit the soil column to organisms that
11 live in interstitial water to organisms that live in water
12 just overlying the sediment, to the species composition and
13 the vegetation in the area, that constitutes an imbalance,
14 but you could also have an imbalance of one of those
15 components. You don't have to have all of those changes
16 occurring before you have an imbalance.
17 Q Does the settlement agreement that was executed in
18 the federal litigation speak to this issue of defining
19 imbalance?
20 A I think there is a definition of imbalance in the
21 settlement agreement.
22 Q Is that the definition that you are employing in
23 your review of the Everglades SWIM Plan?
24 A Let me look at it.
25 Q Refer to page 2.
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1 A The first part of the definition is just a direct
2 quote from 17-302.560.
3 Q And that quote speaks specifically to the
4 designated use of a water body, does it not, as a Class III
5 water, with recreation, propagation and maintenance of a
6 healthy and well-balanced population of fish and wildlife?
7 A Yes, it does.
8 Q Is that the standard that you're attempting to
9 achieve in the application of a narrative nutrient
10 standard?
11 A Certainly.
12 Q The definition goes on to describe imbalance as
13 including situations where nutrient additions result in
14 nuisance species.
15 Would you agree, then, that the narrative nutrient
16 standard takes meaning or gloss from the nuisance species
17 standard?
18 A I think if you have nutrient additions that result
19 in the proliferation of nuisance species, then that
20 certainly can constitute an imbalance.
21 Q What about the next phrase which speaks to, "When
22 nutrient additions result in violation of other standards."
23 How does that apply in the context of the
24 Everglades SWIM Plan?
25 A I think if you have nutrient additions that cause
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1 conditions to exist that would cause, say, a violation of
2 DO standard or a long-term depression of DO where the
3 organisms that inhabited the area can no longer inhabit the
4 area because of that DO depression, that constitutes a
5 violation of standards and imbalance in the --
6 Q So you are saying in that context, if it is a low
7 DO situation caused by nutrients, it could well be
8 violative of the narrative nutrient standard because of
9 these ancillary impacts?
10 A Right.
11 Q The definition goes on to state, and I quote, "In
12 the case of the Park and Refuge, imbalance specifically
13 shall include nutrient additions that result in, but are
14 not limited to, replacement of native periphyton algal
15 species by more pollutant-tolerant algal species, loss of
16 the native periphyton community or, in advanced stages of
17 nutrient pollution, native sawgrass and wet prairie
18 communities giving way to dense cattail stands or other
19 nutrient-altered ecosystems, which impair or destroy the
20 ability of the ecosystem to serve as habitat and forage for
21 higher trophic levels characteristic of the Everglades."
22 Going to the first phrase, "replacement of native
23 periphyton algal species and pollution-tolerant algal
24 species," who came up with that notion of that impact
25 constituting or amounting to an imbalance?
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1 A I think it was probably a group effort.
2 Q What was that group?
3 A Well, it included myself, Tom Swihart, probably
4 Ron Jones, the federal consultant, Mark Maffei, Mark
5 Soukup, Tony Federico. Those are the names that come to
6 mind.
7 Q Was any of them, the persons you just identified,
8 primarily architect of this notion, or was it, as you say,
9 purely a group effort?
10 A I think primarily it was a group effort.
11 Q In deciding that this was something that would be
12 indicative of an imbalance, did you consider whether that
13 shift, this alleged shift of periphyton species was having
14 adverse impacts on higher trophic levels?
15 A Was that considered? Yes, it was.
16 Q It is not included in the definition here. Did
17 you just disregard it or think it was irrelevant?
18 A Yes. It goes on to say, "which impair or destroy
19 the ability of the ecosystem to serve as habitat and forage
20 for higher trophic levels characteristic of the
21 Everglades."
22 Q Do you know whether an alleged shift in
23 periphyton species is causing such an adverse impact on
24 higher trophic levels?
25 A Do I know personally?
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1 Q Yes.
2 A I think in Frank Nearhoof's report where he
3 conducts a literature review, he refers to those impacts in
4 that report, and I believe he describes some of those
5 impacts.
6 Q Is that the only information that you are aware of
7 that suggests that there are such impacts?
8 A I believe we heard a presentation early in the
9 process by a researcher from the Park that talked about the
10 impact of changes in the ecosystem on the bird populations,
11 but primarily my source of information in answering
12 questions is from Frank Nearhoof's literature review.
13 Q And that literature review was just his looking at
14 what someone else might have said on that subject?
15 MR. SMITH: Object to the form.
16 THE WITNESS: It is more than that, certainly, his
17 review of papers published on the subject by recognized
18 authorities in the field.
19 BY MR. HYDE:
20 Q Are you dependent on his opinion in that regard,
21 or did you go back and independently review and analyze
22 those papers?
23 A I did not go back and independently analyze those
24 papers.
25 Q Are you aware of any contradictory information
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1 which suggests that there is no evidence of an impact on
2 higher trophic species?
3 A I have heard mention of that fact, yes.
4 Q Do you know a gentleman who is employed by the
5 water management district named David Swift?
6 A Yes, I do.
7 Q Do you know whether Mr. Swift has done some
8 considerable studies in the Everglades ecosystem on
9 periphyton?
10 A He has done a lot of work out there, but I would
11 have to check Frank's report and look at the references
12 that Frank has to that work.
13 Q Do you know that Mr. Swift testified during his
14 deposition that there was no evidence of an adverse impact
15 of this shift in periphyton species in higher trophic
16 levels?
17 A I don't know.
18 Q Assuming that he, in fact, said that that is, in
19 fact, the case, would that have any impact upon your notion
20 of whether there is an imbalance in periphyton species in
21 the Everglades?
22 A No, because you don't have to, you don't --
23 wouldn't necessarily have to exhibit a change or impact on
24 higher trophic levels for there to be an imbalance.
25 If you have a periphyton species that is
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1 indicative of the natural system out there, it is uniquely
2 characteristic of the oligotrophic water, and the change in
3 the periphyton species can cause other changes in response
4 to that, that can in and of itself be an imbalance.
5 Q But don't you want to see if there is some harm
6 that might be affecting the designated use of the water
7 body?
8 A That would certainly be important. It would be
9 something that you would like to know about, but as I said,
10 you wouldn't have to wait until that harm was manifest
11 before you were obligated or before we are obligated to do
12 something, if we think that it would lead to those changes.
13 Q Well, you are assuming that harm will eventually
14 attend a shift in the periphyton species, are you not?
15 A Well, it says an imbalance. The rule says an
16 imbalance in flora or fauna. Flora is -- periphyton are
17 flora.
18 Q What about the next phrase which speaks about
19 native sawgrass, wetland prairie communities giving way to
20 dense cattail stands or other nutrient-altered ecosystems?
21 Is that likewise a product of a group discussion?
22 A Yes, it was.
23 Q Is that the sample that you identified earlier?
24 A I believe so.
25 Q Would you agree that the narrative nutrient rule
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1 requires or imposes a causation test to determine a
2 violation?
3 In other words, merely because there is an
4 imbalance doesn't necessarily mean that the rule is
5 violated, has to be an imbalance caused by nutrients?
6 MR. SMITH: Object to the form.
7 THE WITNESS: I would agree that there had to be
8 some sort of causal relationship.
9 BY MR. HYDE:
10 Q Is it your understanding that these alleged
11 adverse impacts, these imbalances that you have identified,
12 are caused by nutrient additions?
13 A I don't think that nutrient additions are a
14 significant contributor to those changes.
15 Q Significant contributors, are there other
16 contributors?
17 A There may be.
18 Q What might some of those other contributors been?
19 A Well, I have heard it -- a lot of reference to the
20 hydrologic changes in the system, certainly the ultimate
21 insult to a wetlands if you drain it or flood it or let it
22 out, so there could be some hydrologic impacts; but the
23 body of evidence that we have looked at and the reports
24 that I have seen and the discussions that I have heard
25 indicate that nutrients are a significant component
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1 contributing to those changes.
2 Q What do you mean by a significant component? A
3 third, 50 percent?
4 A I would say a major component. I think if you
5 look at some of the dosing studies, for example, that have
6 been conducted in the area, where the system is subjected
7 to identical hydroperiod fluctuations, you see changes in
8 species composition just due to changes in nutrient
9 concentrations, that type of information.
10 Q What dosing studies were you referring to?
11 A There is a dosing study conducted in the Park by
12 the feds that I am referring to.
13 Q Are you aware that that dosing study has been
14 subjected to some rather severe criticism not only by the
15 sugar industry but by other scientists?
16 A I understand it has been subjected to some
17 criticism.
18 Q Can you think of anything else that would be
19 indicative of this notion or determination that nutrients
20 are a major component?
21 A I think if you look at areas in Water Conservation
22 Area 2A that are subjected to the same hydroperiod but
23 different nutrient concentration loads, you see significant
24 differences in the species composition in those areas. The
25 areas that are located close to the S10 structures and to,
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1 I guess it is 7, I would have to look at a map, exhibit
2 significant changes in species composition, cattails,
3 substrate composition, periphyton composition, relative to
4 more interior stations that are subjected to the same
5 hydroperiod, and the only basic difference is the nutrient
6 load and nutrient concentration in the two areas.
7 Q Are there other factors that might bear upon the
8 proliferation of cattails, for example, other than
9 hydroperiod and nutrients?
10 A I guess you could have fire, it has been
11 identified as a factor. I guess you can have hurricanes
12 and wind damage and things of that type that can rip an
13 area out and change the species composition.
14 Q What about man-induced disturbances, like dredging
15 and digging?
16 A Certainly you can alter a habitat by dredging and
17 digging, making it deeper.
18 Q Do you know whether the areas that you just
19 identified as having similar hydroperiods were, in fact,
20 disturbed areas?
21 A Define what you mean by "disturbed."
22 Q Well, they are certainly proximate to the water
23 management structures, are they not?
24 A Yes, they are.
25 Q There is quite a bit of flow that goes through
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1 those structures at various times, doesn't it?
2 A Yes.
3 Q And do you know whether people or -- like the
4 Corps or the water management district, have engaged in
5 various vegetation removal activities in that area?
6 A I don't have any personal knowledge of that.
7 Q But all of those things could have an impact on
8 the presence of cattails there, couldn't they, allowing
9 them to colonize an area that might otherwise have been
10 disturbed?
11 A I am really not an expert in plant physiology, but
12 I would think that some of those factors could influence
13 the presence or absence of cattails in those areas.
14 Q Do you understand what someone means when they say
15 or employ a, quote, "but for," end quote, test?
16 A No.
17 Q Let me see if I can explain it.
18 Maybe you can answer the question this way.
19 Do you agree with the following proposition? But
20 for the presence of nutrient concentrations in waters
21 leaving the EAA to the EPA, there would be no proliferation
22 of cattails in Water Conservation Area 2A.
23 A Define what you mean by "proliferation."
24 Q Dominance of an area by a given species.
25 A We could continue to play the game. How large an
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1 area?
2 Q Let's just say the area that is close to the S10
3 structures in northern Water Conservation Area 2A, I think,
4 is an area that is generally regarded as being dominated.
5 A Your are talking about a several thousand acre
6 area as opposed to, say, an alligator hole --
7 Q Right.
8 A -- is where I am coming from.
9 Q Yes.
10 A I would say that the nutrients coming through the
11 S10 structure, the nutrient loads play a significant
12 factor, significant role in the proliferation of the
13 cattails, and they may not be the only controlling factor,
14 only factor controlling the growth and distribution of
15 cattails in that area, but they are a significant factor.
16 Q Do you know whether they are the causative agent
17 for those, the presence of those cattails?
18 MR. SMITH: Object to the form.
19 THE WITNESS: Most of the presentations I have
20 heard and the reports that I have seen and the
21 literature reviews that I have looked at indicate that
22 they are the causative factor. I have heard several
23 people allude to the impact of hydroperiod on species
24 composition, but I have, even though we requested
25 reports, I have never seen any written documentation of
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1 what mechanism would be involved in dealing with
2 hydroperiod and how that would impact, other than
3 drying out a wetland or flooding a wetland out, how
4 that would impact, just the hydroperiod changes would
5 impact the proliferation of cattails.
6 BY MR. HYDE:
7 Q Do you know of any areas within the Everglades
8 Protection Area where cattails are present in rather
9 substantial numbers but the phosphorus concentrations in
10 the water is very low?
11 A I don't personally know of any, no.
12 Q I want you to assume that such areas exist just
13 for purposes of the hypothetical question. Would that tend
14 to undermine the notion that these cattails are being
15 caused by nutrient concentrations?
16 A Not necessarily.
17 Q Why not?
18 A You could still have the nutrient load coming
19 into the system, and the phosphorus could actually change
20 the composition of the substrate. You might not have the
21 high phosphorus concentration in the water column, but you
22 would have the high concentrations in the actual sediment.
23 Q The soil?
24 A The soil.
25 Q Let me take my hypothetical one step further, that
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1 the soil concentrations of phosphorus are very low and that
2 the water concentrations are very low.
3 A How low?
4 Q Say in the order of 20 to 30 parts per billion,
5 and yet, there is a substantial community of cattails.
6 A I think that is good evidence for the argument
7 that 50 parts per billion is not good enough, that you need
8 to go much below 50 parts per billion.
9 Q That may be, but doesn't it also somewhat
10 undermine the notion that the cattails are being caused by
11 phosphorus?
12 A I think when you look at unimpacted areas of the
13 Park and the Refuge that the natural background
14 concentrations, as best we can determine is the best
15 available scientific information, indicates that phosphorus
16 concentration in those waters might be less than 10 parts
17 per billion, and when you get concentrations that low, the
18 sawgrass has a competitive advantage, being able to utilize
19 the phosphorus at those low levels.
20 Q What do you mean by "competitive advantage"?
21 A It is my understanding that sawgrass has
22 competitive advantage in being able to more efficiently
23 utilize the phosphorus at those low concentrations, and as
24 the phosphorus loads increase in the water column and
25 result in increase in the concentrations in the water
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1 column and increase in concentrations in the sediment, that
2 competitive advantage sawgrass has is lost and allows
3 species that are less efficient in utilizing the phosphorus
4 such as cattails to have -- to either have an equal or a
5 competitive advantage to the sawgrass.
6 Q Do you understand cattails to be less efficient at
7 utilizing phosphorus?
8 A The way I understand it is that sawgrass is more
9 efficient at utilizing phosphorus at low concentrations.
10 Q Does that mean that cattails cannot utilize
11 phosphorus in very low concentrations?
12 A No. What I said is that sawgrass has a
13 competitive advantage. It is my understanding. The way it
14 has been described to me is that sawgrass has a competitive
15 advantage over cattails at those extremely low
16 concentrations, and it loses that competitive advantage as
17 the phosphorus concentrations increase.
18 Q Can you specify where these nutrient-caused
19 cattail-dominated areas exist, other than the northern part
20 of WCA-2A?
21 A It is my understanding that they also exist along
22 the fringes of the Water Conservation Area 1 within the
23 Refuge along the perimeter canal.
24 Q Any place else, say, for example, in Water
25 Conservation Area 2B?
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1 A I don't have any personal knowledge of that.
2 Q Have you read any reports about that?
3 A I may have, but I don't remember exactly what they
4 say about the species composition of 2B.
5 Q What about Water C