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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 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 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners 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 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of 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 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 1 D E P O S I T I O N 2 Whereupon, 3 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 3210 Shamrock East, Tallahassee. 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 13 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 14 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 15 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 16 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 17 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 18 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 21 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 23 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 24 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 25 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 26 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 27 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 28 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 29 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 30 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 31 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 32 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 33 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 34 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 35 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 36 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"? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 37 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 38 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 39 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 40 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 41 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 42 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 43 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 44 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 45 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 46 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 47 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 48 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 49 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 50 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 51 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 52 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 53 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 54 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 55 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 56 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 57 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 58 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 59 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 60 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 61 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 62 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 63 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 64 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 73 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 74 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 75 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 woul