Page 1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA ------------------------------------- SUGAR CANE GROWERS COOPERATIVE : OF FLORIDA; ROTH FARMS, INC.; and : VOLUME I of II WEDGWORTH FARMS, INC., : : Petitioners, : : vs. : DOAH Case No. 92-3038 : SOUTH FLORIDA WATER MANAGEMENT : DISTRICT, an agency of the State : of Florida; et al., : : Respondents. : ------------------------------------- : FLORIDA SUGAR CANE LEAGUE, INC.; : UNITED STATES SUGAR CORPORATION; : and NEW HOPE SOUTH, INC., : : Petitioners : : vs. : DOAH Case No. 92-3039 : SOUTH FLORIDA WATER MANAGEMENT : DISTRICT, an agency of the State : of Florida; et al., : : Respondents. : ------------------------------------- : FLORIDA FRUIT AND VEGETABLE : ASSOCIATION; LEWIS POPE FARMS; : W.E. SCHLECHTER & SONS, INC., : and HUNDLEY FARMS, INC., : : Petitioners, : : vs. : DOAH Case No. 92-3040 : SOUTH FLORIDA WATER MANAGEMENT : DISTRICT, an agency of the State : of Florida; et al., : : Respondents. : ------------------------------------- Page 2 The deposition of DELBERT B. HICKS, taken by Petitioners, pursuant to Notice, before L. V. Partain, Certified Court Reporter and Notary Public, at Suite 1400, 120 Ralph McGill Boulevard, Atlanta, Georgia, on Thursday, the 25th day of February, 1993, commencing at approximately 10:20 a.m. APPEARANCES: On behalf of Petitioners Florida Sugar Cane League, Inc., United States Sugar Cane Corporation, & New South Hope, Inc.: WILLIAM L. HYDE, Attorney, Peeples, Earl & Blank, 215 South Monroe Street, Suite 350, Tallahassee, Florida 32301 904/681-1900 On behalf of the U.S. Environmental Protection Agency: GARY S. GUZY, Attorney, U.S. Department of Justice, Environmental Defense Section, 10th & Pennsylvania Ave., N.W., Washington, D.C. 20530 202/514-2689 and PHILIP MANCUSI-UNGARO, Attorney, U.S. Environmental Protection Agency, 345 Courtland Street, Atlanta, Georgia 30365 404/347-3777 Page 3 I N D E X Examination of: Page Delbert B. Hicks By Mr. Hyde.......................................... 4 Exhibits: Identified No. 1 - Hicks resum 24 No. 2 - Limnology of an Alligator Pond 68 No. 3 - Nutrient Impacts on Everglades Flora & Fauna 73 No. 4 - Effects of Nutrient Enrichment on Everglades 107 No. 5 - Memo 5/10/90 112 No. 6 - Memo 11/26/90 116 No. 7 - Fax Transmission w/Attachments 118 No. 8 - Series of Figures 119 No. 9 - Mercury Contamination in Everglades Ecosystem 121 + + + Page 4 1 P R O C E E D I N G S 2 MR. HYDE: Would you swear the witness, please? 3 THE REPORTER: Would you raise your right hand, 4 sir. 5 WHEREUPON, 6 DELBERT B. HICKS 7 being first duly sworn, was examined and testified as 8 follows: 9 EXAMINATION 10 BY MR. HYDE: 11 Q. Would you please state your name and address for 12 the record? 13 A. Delbert B. Hicks, H-i-c-k-s. I live in Athens, 14 Georgia at 209 Bar-H Drive. Area code 30605. 15 Q. My name is William Hyde, and I represent the 16 Florida Sugar Cane League, U.S. Sugar Corporation, and New 17 Hope South, Inc. in a proceeding that is colloquially known 18 as the Everglades SWIM Plan Proceeding. It has numerous 19 parties in it, and I'm here today to ask you a series of 20 questions directed to your anticipated testimony in that 21 proceeding because you have been listed as an expert witness 22 by the United States. 23 I take it from reviewing your curriculum vitae that 24 you have in the past testified in other proceedings. Am I 25 therefore safe in assuming that you have been deposed before? Page 5 1 A. Yes. 2 Q. Okay. Do you have any questions generally about 3 the deposition process? 4 A. No. 5 Q. What I intend to do is just ask you a series of 6 questions about your anticipated testimony. 7 If you don't understand any of my questions, please 8 tell me and I will try to rephrase them in a way that's more 9 comprehensible to you. 10 Should your attorneys object at any time, I would 11 suggest that you simply stop whatever you're saying at that 12 moment and let us attorneys straighten that matter out, and 13 then we can hopefully move on to the next question. 14 Is that all understandable? 15 A. Yes. 16 Q. Okay. I'm going to do something a little bit 17 different from my ordinary practice, and I think from the 18 ordinary practice of most attorneys when they depose expert 19 witnesses. 20 Most people go through an extensive bit of 21 questioning about a person's educational and work-related 22 experience, and what I would like to do today is to go over 23 some general areas that I would like to find out whether 24 you're going to be offering any opinions in those areas, and 25 I think that might hasten the whole deposition process, and Page 6 1 even my inquiry into your background and credentials. 2 I presume you have been prepared for this 3 deposition, and you are ready to offer your opinions as to 4 your testimony? 5 A. To the best of my ability, yes. 6 Q. Okay. Let me ask you these questions about broad 7 areas, and to the extent you tell me that you're not going to 8 be testifying in those areas, then I can probably limit my 9 inquiry in those areas to a very minimal amount. 10 Are you familiar with the proposed storm water 11 treatment area concept that is proposed in the Everglades 12 SWIM Plan? 13 A. Yes. 14 Q. Do you intend to offer any testimony as to the 15 design, construction, maintenance or operation of those 16 facilities? 17 A. I don't anticipate that. 18 Q. All right. Are you familiar with the proposed 19 discharge limits for those storm water treatment areas as set 20 forth in the South Florida Water Management District? 21 A. Yes. 22 Q. Are you aware that they have proposed an interim 23 limit of 50 parts per billion? 24 A. Yes. 25 Q. Do you intend to offer any testimony as to those Page 7 1 discharge limits? 2 A. No. 3 Q. Okay. Are you aware of the proposed short and 4 long-term phosphorus limits for the Everglades National Park 5 as set forth in the Everglades SWIM Plan? 6 A. Yes. 7 Q. Do you intend to offer any testimony as to the 8 appropriateness or otherwise of those short and long-term 9 phosphorus limitations for the park? 10 A. I would anticipate that being the case. 11 Q. Likewise, are you familiar with the short and long- 12 term limits for phosphorus proposed for the Loxahatchee 13 National Wildlife Refuge? 14 A. Yes. 15 Q. Do you intend to offer any testimony in that 16 regard? 17 A. Yes. 18 Q. Okay. Are you familiar with the Florida Department 19 of Environmental Regulation water quality standard for 20 narrative nutrients? 21 A. Generally. 22 Q. Okay. Do you intend to offer any testimony as to 23 whether phosphorus is causing violations of that water 24 quality standard in what is known as the Everglades 25 Protection Area? which I may refer to simply as EPA. Page 8 1 A. Yes. 2 Q. I know that's a little bit confusing, given this 3 agency. 4 A. Yes. 5 Q. I'll try to endeavor to distinguish between the 6 two, but please assume for purposes of my questioning that 7 I'm referring to Everglades Protection Area when I say EPA. 8 Did you say yes that question? 9 A. Yes. 10 Q. Okay. Similarly, will you be offering any 11 testimony as to whether phosphorus is causing violations of 12 the State of Florida water quality standard that's known as 13 the nuisance species rule? 14 Let me back up for a moment. Are you familiar with 15 the Florida Department of Environmental Regulations rule that 16 sets forth the standard for nuisance species? 17 A. I interpret that as the imbalance rule. 18 Q. Well, actually it's not. The narrative nutrient 19 rule is the imbalance rule. 20 The nuisance species rule is an entirely different 21 rule. 22 MR. GUZY: Let just enter a general objection. 23 When you say Florida Department of Environmental Regulations 24 rule, are you talking about the adopted Florida rule on 25 these? Page 9 1 MR. HYDE: Yes, I am. 2 MR. GUZY: Okay. 3 MR. HYDE: Would it be helpful if I just referred 4 specifically to the rule by its number? 5 MR. GUZY: You can ask the witness what is going to 6 be most helpful to him. 7 MR. HYDE: Would that be more helpful you? 8 THE WITNESS: Yes. 9 MR. HYDE: I'll just get a copy of the rule out, 10 and you can look at it. 11 (Pause.) 12 BY MR. HYDE: 13 Q. What I'm showing you here is a current copy of the 14 Department of Environmental Regulation rules for surface 15 water quality standards, specifically Rule 17-302.510(1)(q). 16 Just for purposes of the record it reads: 17 "Substances in concentrations which result in 18 the dominance of nuisance species - None shall be 19 present." 20 Why don't you take a look at that and review that 21 for a moment. 22 (Pause.) 23 Would you point out the nuisance rule? -- excuse me 24 -- the imbalance rule? 25 A. Yes. Page 10 1 Q. For purposes of the record, the narrative nutrient 2 rule is Rule 17-302.560(27), which reads: 3 "Nutrients - In no case shall nutrient 4 concentrations of a body of water be altered so 5 as to cause an imbalance in natural populations 6 of aquatic flora or fauna." 7 Why don't you take a moment to review that rule? 8 (Pause.) 9 A. To reflect my answer earlier, I anticipate 10 testifying with regards to the imbalance rule. I'm not sure 11 about the nuisance rule. 12 Q. Okay. I understand that you may no be sure about 13 whether you're going to be testifying in that regard as to 14 the nuisance species rule, but if you do intend to do so, or 15 if your attorneys intend that you do so, would you please 16 have them notify me so that we can revisit this issue 17 appropriately at a later date? 18 A. Yes. 19 Q. Thank you. 20 Are you familiar with the Department of 21 Environmental regulations -- and I'll just refer to them as 22 DER from now on -- water quality standard for dissolved 23 oxygen? 24 A. Yes, in general. 25 Q. Okay. Page 11 1 MR. GUZY: Let me just go back. 2 MR. HYDE: Yes. 3 MR. GUZY: By asking that question, you certainly 4 are free to ask him about anything you want about that 5 nuisance rule at this time, so I'm not sure you have real 6 grounds for reopening this deposition. 7 MR. HYDE: Well, my concern is that he may not have 8 formed any final opinions in that regard at this point. I 9 certainly intend to make some at least minimal inquiry into 10 the area. 11 My concern, though, might be whether the opinions 12 in that regard are final for purposes of rendering his 13 testimony at a final hearing. 14 MR. GUZY: You're free to ask him -- 15 MR. HYDE: It's quite possibly it will not present 16 any problem, it's just something that all the parties in this 17 proceeding have done in the event that witnesses come up with 18 additional testimony or opinions subsequent to their 19 deposition. It's not intended to trap anybody. 20 BY MR. HYDE: 21 Q. Do you anticipate offering any testimony at the 22 final hearing in this matter regarding possible violations of 23 the dissolved oxygen rule in the Everglades Protection Area? 24 A. Yes. 25 Q. Okay. Are you familiar with DER's water quality Page 12 1 standard for biological integrity? 2 A. Yes. 3 Q. Do you intend to offer any testimony regarding 4 possible violations of that rule in the Everglades Protection 5 Area in this proceeding? 6 A. Not in the context of a violation. 7 Q. In what context, then? 8 A. The components of the biological integrity is 9 related to assessing the diversity of the macroinvertebrate 10 community of the area, and my testimony will probably reflect 11 some discussion of diversity. 12 Q. Would that be related in effect to the imbalance 13 standard that's set forth in the narrative nutrient rule? 14 A. I do not believe that will be the case. 15 Q. That it will not, okay. But you'll just be talking 16 about generally diversity -- 17 A. Yes. 18 Q. -- as it relates to macroinvertebrates? 19 A. Diversity in the general text, whether it would be 20 invertebrates, periphyton. 21 Q. Okay. Will you be offering any testimony as to the 22 relative contributions of other factors that may be 23 contributing to these alleged water quality violations such 24 as hydroperiod, or water management policies, or other 25 similar factors? Page 13 1 A. No. 2 Q. Are you familiar with DER's water quality standard 3 known as its outstanding Florida water, or OFW rule? 4 A. Familiar only. 5 Q. Do you intend to offer any testimony at a final 6 hearing in this matter as to whether that rule is being 7 violated in any portion of the Everglades Protection Area? 8 A. No. 9 Q. Are you familiar with the phrase "best management 10 practices," or BMPs as the relate to agricultural practices? 11 A. Yes. 12 Q. Do you intend to offer any testimony at a final 13 hearing in this matter regarding the BMPs that have been 14 proposed in the Everglades SWIM Plan and other rules of the 15 South Florida Water Management District? 16 A. I sense there's two parts to that question. 17 Regarding the BMPs, I don't anticipate testifying 18 to the adequacy or the implementation schedules. 19 The other part of the question, you said South 20 Florida Water Management District rules? 21 Q. Rules. 22 A. I don't understand what you mean. 23 Q. Okay. Well, I was specifically referring to the 24 district's rules which set forth what agricultural BMPs are 25 to be for the Everglades agricultural area. Are you familiar Page 14 1 with those rules? 2 A. Yes. And, no, I don't. 3 Q. And you do not intend to offer any testimony 4 regarding that? 5 A. No. 6 Q. Okay. Thank you. 7 The Everglades SWIM Plan proposes as its primary 8 strategy for dealing with phosphorus enrichment the storm 9 water treatment areas that we discussed briefly a few moments 10 ago. 11 Are you aware of any other alternative strategies 12 that have been proposed to deal with that problem? 13 MR. GUZY: Objection as to form. You may go ahead 14 and answer. 15 BY MR. HYDE: 16 Q. You may go ahead and answer. 17 A. Proposed by whom? 18 Q. Proposed by the agricultural industry in the 19 Everglades agricultural area, or otherwise. 20 A. Yes. 21 Q. Do you intend to offer any testimony as to those 22 alternative proposals, whatever they may be, in this 23 proceeding? such as as to their efficacy, cost, efficacy or 24 the like. 25 A. I will be prepared to testify as to their Page 15 1 application to the nutrient removal needs identified in the 2 SWIM Plan. 3 Q. Could you elaborate on that answer for me a bit, 4 then, what you mean by the word "application" to the 5 narrative nutrient rule? 6 A. Yes. There's numerous proposals that have been 7 brought before the standing group called SAGE. These 8 proposals are being evaluated, that evaluation is yet to be 9 completed. 10 The various proposals capitalize on different 11 strategies. For example, the storm water treatment area is 12 what I term a biological treatment strategy. That has 13 consequences that may be different f rom the outcome from the 14 outcome from a chemical treatment strategy. 15 I would be prepared to recommend what I feel would 16 be the most favorable strategy to be implemented. 17 Q. Okay. Do you intend to offer any testimony as to 18 the possible socioeconomic impacts of implementing the 19 Everglades SWIM Plan? 20 A. No. 21 Q. I didn't think so, but I wanted to ask the question 22 anyway. 23 Are you familiar with, or have you reviewed the DER 24 permit to the South Florida Water Management District, 25 proposed DER permit to the South Florida Water Management Page 16 1 District for the district's structures which control water 2 flow in the Everglades Protection Area? 3 A. No. 4 Q. Okay. Do you anticipate offering any testimony 5 regarding that proposed permit or the conditions thereto? 6 A. No. 7 Q. Mr. Hicks, were you involved in the settlement 8 negotiations which led up to the settlement agreement in the 9 related federal litigation before the United States District 10 Court for the Southern District of Florida? 11 A. No. 12 Q. Do you intend to offer any testimony regarding 13 those settlement negotiations or the background of the 14 settlement agreement? 15 A. No. 16 Q. Were you ever a member of the technical team that 17 contributed to the development of that settlement agreement? 18 A. No. 19 Q. Do you intend to offer any testimony as to whether 20 the Everglades SWIM Plan complies with, or is consistent with 21 the settlement agreement in that related federal litigation? 22 A. Would you restate that question? 23 Q. Yes. 24 MR. GUZY: Objection as to form. 25 BY MR. HYDE: Page 17 1 Q. Do you intend to offer any testimony as to whether 2 the terms and provisions and programs of the Everglades SWIM 3 Plan comply with the terms and provisions that are set forth 4 in the settlement agreement in the federal litigation? 5 MR. GUZY: Are you talking about testimony in the 6 federal litigation or testimony here? 7 MR. HYDE: Let me rephrase it again. 8 BY MR. HYDE: 9 Q. Do you intend to offer any testimony in this 10 proceeding as to whether the Everglades SWIM Plan complies 11 with the terms and provisions set forth in the settlement 12 agreement in the related federal litigation? 13 A. I don't know. 14 Q. If there is a change of position in that regard, 15 will you advise one of the attorneys in this proceeding so 16 that we can become aware of that fact? 17 A. Yes. 18 Q. Thank you. 19 MR. GUZY: Same objection as before. Again, you're 20 free to ask him about it if he has anything with respect to 21 those. 22 MR. HYDE: Okay. Again, my concern is just as to 23 whether he will be able to render final opinions today 24 concerning his testimony at a final hearing in this matter. 25 BY MR. HYDE: Page 18 1 Q. Do you intend to offer any testimony as to the 2 consistency of the Everglades SWIM Plan with what is known as 3 the Marjorie Stoneman-Douglas Act? 4 Maybe I should back up for a second. Do you know, 5 or are you aware of the Florida legislation known as the 6 Marjorie Stoneman-Douglas Act? 7 A. Yes. 8 Q. Okay. Do you intend to offer any testimony as to 9 whether the Everglades SWIM Plan is consistent with that act? 10 A. I don't anticipate it. 11 Q. Okay. Are you familiar with some Florida 12 legislation known as the Surface Water Improvement and 13 Management, or SWIM, Act? 14 A. Generally. 15 Q. Generally. Do you intend to offer any testimony as 16 to whether the Everglades SWIM Plan is consistent with the 17 SWIM Act? 18 A. No. 19 Q. Are you familiar with the provisions of DER rule 20 Chapter 17-40 which sets forth the state's water policy? 21 A. No. 22 Q. Okay. May I take it, then, that you don't 23 anticipate offering any testimony as to whether the SWIM Plan 24 is consistent with that water policy? 25 A. Yes. Page 19 1 Q. Do you intend to offer any testimony as to whether 2 there are violations of any other Florida water quality 3 standards or criteria in the Everglades Protection Area other 4 than the ones we've discussed already? 5 A. Would you summarize those that we've discussed? 6 Q. The ones that we've discussed so far are the 7 narrative nutrient rule, the nuisance species rule, the 8 dissolved oxygen rule, the biological integrity rule, and the 9 outstanding Florida water rule. 10 A. No. 11 Q. Okay. I understand that you've been involved in a 12 group known as the South Florida Task Force which is 13 examining mercury-related issues in south Florida; is that 14 correct? 15 A. I don't recognize the title. It's the Mercury Task 16 Group. 17 Q. Okay. Well, maybe I have misstated the title, but 18 are you involved with a task force that is studying mercury- 19 related issues in south Florida? 20 A. Yes. 21 Q. Do you intend to offer any testimony in this 22 proceeding regarding those mercury-related issues such as 23 whether they are caused or exacerbated by phosphorus 24 enrichment in the Everglades Protection Area? 25 A. No, not in this proceeding. Page 20 1 Q. Do you intend to offer some testimony in some 2 other proceeding? 3 MR. GUZY: Objection as to relevance. 4 You can go ahead and answer. 5 THE WITNESS: We are only in developing our 6 understanding of the mercury dynamics in south Florida. When 7 we have completed that, then I will be available for advising 8 the consequences of the mercury dynamics relative to some 9 type of remediation. 10 MR. HYDE: Okay. 11 BY MR. HYDE: 12 Q. In the United States' answers to our 13 interrogatories we were advised that the subject matter of 14 your testimony, expected testimony, will be wetlands ecology 15 and standing. 16 Can you summarize for me what testimony generally 17 you will be offering regarding standing? 18 A. Would you define for me the term "standing"? 19 Q. Okay. Well, I'm at something of a loss here, 20 because I think that was a term used by your attorneys, not 21 by us, but I think it's the standing of the United States to 22 be involved in this proceeding. 23 MR. GUZY: That's right. 24 Q. By "standing," I guess a right under statute or 25 otherwise to participate in the Everglades SWIM Plan Page 21 1 proceedings. 2 A. Yes, that's my understanding. 3 Q. Can you summarize for me, then, what you will be 4 offering us in that regard? 5 A. My testimony will be as an expert in wetland 6 ecology through experience, professional experience in the 7 south Florida area, and utilizing the information of the SWIM 8 Plan will testify that the described changes in the native 9 plant communities associated with the discharges, the water 10 control structures, has adversely affected the native ecology 11 of the receiving areas. 12 Q. And how does that testimony relate to the United 13 States' right to participate in these proceedings? 14 MR. GUZY: Objection as to form. Are you asking 15 for a legal conclusion, or what? 16 MR. HYDE: Well, I don't think I'm asking for a 17 legal conclusion per se. I'm simply asking how that 18 testimony which I understand him to be offering relates to 19 the concept, or the right of the United States to participate 20 in these proceedings. 21 MR. GUZY: Same objection. 22 A. I was requested by, or directed by my regional 23 administrator to support the proceedings of the Department of 24 Justice and U.S. attorneys. 25 Q. Who is your regional administrator? Page 22 1 A. Currently it's an acting regional administrator, 2 Patrick Tobin, T-o-b-i-n. 3 Q. Is Mr. Tobin your immediate superior? 4 A. No. 5 Q. Did he explain to you why he wanted you to do that? 6 A. No. The RA preceding him, Mr. Greer Tidwell, was 7 the party directing me to support the U.S. government's 8 position. 9 Q. Okay. Did Mr. Tidwell explain to you his reasons 10 for requesting that you do that? 11 A. Yes. He was requested by the Office of U.S. 12 Attorney in Miami to provide technical support to their case 13 preparation. 14 Q. Did Mr. Tidwell simply instruct you to support the 15 United States Attorney's office in whatever their action may 16 be, or did he ask you to make an independent evaluation as to 17 whether their proposed actions or theories of the case were 18 appropriate? 19 MR. GUZY: Objection as to form. 20 A. No, there was no given guidelines. 21 Q. Okay. The general guideline was just, you know, 22 provide technical support to the United States Attorney's 23 office? 24 A. Yes. 25 Q. Okay. Were you ever provided with any letter, Page 23 1 memorandum or other written document which set forth how you 2 were to do that task? 3 A. I was copied with a response letter signed by Mr. 4 Tidwell to the U.S. Attorney identifying myself and one other 5 colleague as the technical component that would be involved 6 in these proceedings. 7 Q. Was that document produced by you for review by us 8 and other parties in this case? 9 A. If I had the document, it was provided. 10 Q. Okay. 11 Just a question for your counsel. I don't recall 12 whether a privileged list has been prepared regarding Mr. 13 Hicks' documents. Do you know whether such a privileged list 14 has been prepared yet? I haven't seen any evidence of it. 15 MR. GUZY: There is no independent privileged list 16 for documents which may have been provided in response to the 17 current subpoena duces tecum related to this deposition. 18 MR. HYDE: Okay. 19 MR. GUZY: There are other privileged lists which 20 have been prepared and provided to you in relation to the 21 multiple other productions from documents of EPA or Mr. 22 Hicks. 23 MR. HYDE: Are you referring to the Vaughn Index 24 that was produced in the federal litigation? 25 MR. GUZY: In part. Page 24 1 MR. HYDE: Okay. Is there some other listing 2 besides the Vaughn Index? 3 MR. GUZY: I believe that there were privileged 4 lists provided in the context of production for the state 5 proceedings for EPA documents that were turned over many, 6 many months ago, or last year. 7 MR. HYDE: You're talking about the production of 8 documents in this proceeding, I take it? 9 MR. GUZY: That's right. 10 MR. HYDE: Okay. 11 MR. GUZY: My belief is that there is no other 12 privileged list. 13 MR. HYDE: Okay. 14 MR. GUZY: If I learn of one, I will inform you of 15 that. 16 MR. HYDE: Okay. Thank you. 17 I forgot to say this when I first began my 18 questioning, but if you need to take a break at any time 19 during the course of my questioning, please feel free to do 20 so. 21 THE WITNESS: I will let you know. 22 MR. HYDE: I'm not a real ogre. 23 Could you label this Exhibit 1, please? 24 (Exhibit Number 1 was 25 marked for identification.) Page 25 1 BY MR. HYDE: 2 Q. Mr. Hicks, I'm going to hand to you now a document 3 which has been labeled Exhibit 1 at the bottom right-hand 4 corner with a Bates number 0961490. Would you please 5 identify that document for me? 6 A. Yes. The document includes a brief resum 7 identifying my education, work experience, participation in 8 professional societies, and honors received. 9 In addition to it, there is an appendix called 10 Professional Activity Portfolio that chronologically lists 11 various activities that I have been professionally engaged in 12 that met certain ranking considered primary activities in the 13 course of my career with EPA and the preceding agency. 14 Q. Okay. Did you prepare this document, Mr. Hicks? 15 A. Yes. 16 Q. Is it current and accurate to the best of your 17 knowledge? 18 A. It is not current. 19 Q. What about it isn't current? 20 A. On the last page, next to the last page, the title 21 of the page is October 1986 Through Present, and following 22 that is a description of the principal activities I engaged 23 in. 24 It does not reflect the role that I now have as 25 Chief of the Ecological Support Branch, which is a component Page 26 1 of the Environmental Services Division located in Athens, 2 Georgia, which is one of four divisions of EPA Region IV. 3 Q. Okay. Is that a position you just recently 4 obtained? 5 A. No, sir. 6 Q. Okay. 7 A. I've been in this capacity nearly five years. 8 Q. Okay. Well, the top of the page does indicate that 9 you are Chief of the Marine Wetland Unit, and subsequently 10 the Ecological Support Branch. 11 A. Oh, I apologize. 12 Q. Okay. 13 A. Yes, it does identify this new role as of 1988. 14 Q. Good. Let's go back as they say to the beginning 15 of your resum. 16 I'd like for you to briefly describe for me your 17 educational experience, beginning with your college degree. 18 Your resum reflects that you have a BS in fishery science in 19 1964 from Cal State University at Humboldt. 20 Was there some -- did that degree require a thesis 21 or some other honors presentation by you? 22 A. The bachelor of science degree? 23 Q. Yes. 24 A. No. 25 Q. What was the area of your concentration within what Page 27 1 I perceive to be a rather broad field of fisheries science? 2 A. Water quality. 3 Q. What sort of courses did you take at that time 4 along those lines? 5 A. Undergraduate, graduate courses in chemistry, both 6 inorganic and organic; undergraduate and graduate courses in 7 fishery science that would relate to fishery ecology, fishery 8 dynamics; limnology, chemical, physical and biological; 9 courses in biometrics, which is the science of statistics; 10 general ecological courses at the microbiological level, 11 aquatic plants, aquatic animals. 12 Q. Okay. When you said graduate and undergraduate 13 courses, were you referring to courses you took for both your 14 BS and your MS, or were you talking about courses that you 15 took for your BS that may have happened to be graduate 16 courses? 17 A. Both. 18 Q. Okay. Would that statement of the courses that you 19 took be a fair categorization of the courses you took for 20 your MS as well, then? 21 A. Yes. 22 Q. Okay. Did you write a thesis for your master's of 23 science? 24 A. Yes. 25 Q. What was the title of that thesis if you recall? Page 28 1 A. The Effects of Dissolved Oxygen Tension on the 2 Toxicity of Kraft Whole Effluent Toxicity. 3 Q. Okay. Could you explain in a little more detail 4 just what that thesis was about? 5 A. In brief, kraft whole effluent is a waste product 6 of the kraft processing of wood pulp, or paper production. 7 My focus was the synergistic effects, the 8 relationship between dissolved oxygen concentration and the 9 toxicity of the whole waste to, in this case juvenile salmon, 10 and the essence of the research addressed that in a situation 11 of whole effluent the toxicity of the whole effluent is a 12 function of what the dissolved oxygen content is of the 13 receiving water. 14 Q. Okay. Do you recall who your thesis advisor was? 15 A. Professor John DeWitt. 16 Q. And is he still with California State University at 17 Humboldt? 18 A. He is retired. 19 Q. Okay. Did you have to defend your thesis? 20 A. Yes. 21 Q. I take it that your first work experience after 22 obtaining your degrees was as a fisheries biologist with the 23 California Department of Fish & Game? 24 A. Yes. 25 (A knock on the door.) Page 29 1 MR. HYDE: Do you want to take a five-minute break? 2 MR. GUZY: Yes, it's a good time for a break. 3 (A brief recess.) 4 BY MR. HYDE: 5 Q. I believe prior to our taking a brief break I was 6 about to question you about your work for the California 7 Department of Fish & Game. 8 Can you briefly describe what your activities were 9 for that agency? 10 A. Yes. That was a period of about 1967 through '68, 11 and actually it was during the course of my education that I 12 worked part-time for Cal Fish & Game, and the activities were 13 shared mainly between doing what we call stream survey work 14 -- this is where I would go in and evaluate a stream in terms 15 of its suitability for spawning or utilization by the 16 salmonid fisheries in the area, in northern California. 17 And then at other times I worked with the -- at 18 that time it was called the Division of Commercial Fisheries, 19 and I conducted what we call port sampling. It was mainly to 20 sample the commercial catches that were landed at a given 21 port, and taking samples such as selected species, their 22 length, weight information, and aging them by subsampling 23 growth structures. Very routine. It was all part of the 24 overall commercial fishery management strategy for the state. 25 Q. I take it, then, that you took up full-time Page 30 1 employment with the Environmental Protection Agency in 1968? 2 A. '68. At the time it was then the Department of 3 Interior, Federal Water Pollution Control Administration. 4 Q. Can you briefly summarize what you did during that 5 tenure? 6 A. Yes. I was hired as a fishery biologist for the 7 first year, and then reclassified as an aquatic ecologist, 8 because the type of work was much broader than fishery 9 science alone, and it involved conducting water quality 10 surveys of lakes and streams. 11 Q. I note from your resum that you surveyed benthic 12 conditions, both biological and chemical, along the Missouri 13 River at that time. 14 A. Yes. 15 Q. Could you tell me what the purpose of that work 16 was? 17 A. In those days the agency maintained an Office of 18 Enforcement, and the strategy typical of that era was to do 19 massive enforcement efforts where you would target a stream 20 -- in this case, the Missouri River -- and we would field a 21 group of thirty, forty, up to a hundred professionals, and 22 assess the water quality over a large reach of the stream, 23 and that would become the basis for enforcement efforts. 24 Q. Did this activity result in any enforcement action 25 to the best of your recollection? Page 31 1 A. Not in the context of the formalized enforcement 2 action. It was used to motivate industries to change their 3 ways. 4 Q. Okay. I note that in 1969 you participated as a 5 team member to assess the eutrophic state of Lake -- is that 6 Greenwood? 7 A. Lake Greenwood in South Carolina, yes. 8 Q. What was the purpose of that assessment? 9 A. Lake Greenwood is a water supply for the town of 10 Greenwood, South Carolina. 11 The enrichment through waste water discharge of 12 septic tanks was affecting the algal community that 13 characterized the lake. 14 One aspect of the algal community that was of most 15 interest was its what we call primary production, its ability 16 to convert inorganic carbon CO2 with the benefit of sunlight 17 into plant material. 18 During that process the biochemistry of it, it 19 alters the pH of the water. During high levels of primary 20 productivity relatively speaking the pH of the water will go 21 up in units. That conflicted with the water treatment 22 facility, because they used what we call an alum treatment 23 that required adjusting the pH of the intake water in order 24 to get the aluminum hydroxide to form the flock to sweep 25 suspended material out of the water. Page 32 1 The dilemma was the algal productivity was a 2 function of sunlight, and a certain time of the day the pH 3 excursion would go up to a level that would conflict with the 4 pH that the water treatment plant had to attain, so for them 5 to manage their treatment it became very difficult because 6 they had no steady condition in the input water, and our job, 7 or my job was to try and determine if the algal community was 8 causing those problems. 9 Q. And what did you ultimately determine? 10 A. I believe the consequences was that the 11 productivity did not yield the pH regime that would explain 12 the total problem with treatment. 13 Q. Okay. 14 A. Meaning they may have had internal problems with 15 their treatment strategy. 16 Q. Did this result in any enforcement action or other 17 recommendation by the agency against them? 18 A. Not to my knowledge. 19 Q. What do you understand the term, quote, eutrophic, 20 end quote, to mean? 21 A. That's a classic term developed for fresh water 22 decades ago in the days of Burge and Juday, and I think in 23 its simplest definition would be excessive primary 24 production. 25 Q. Do you regard the term "eutrophic" as having an Page 33 1 essentially negative connotation? 2 MR. GUZY: Objection as to form. If you understand 3 the question -- 4 MR. HYDE: Well, let me rephrase the question. 5 Q. Does the fact that a water body may be eutrophic, 6 is that necessarily a bad thing, ecologically-speaking? 7 MR. GUZY: Objection as to form. 8 Q. Let me see if I can ask you the question from a 9 different vantage point. 10 Aren't some water bodies naturally eutrophic, 11 regardless of any impacts by man? 12 A. I think it's definitely a possibility. 13 Q. Okay. If a water body is naturally eutrophic, why 14 would one be concerned about something being -- that water 15 body having excessive primary production? 16 MR. GUZY: Objection as to form. 17 A. Primary production leads to the creation of organic 18 matter, and organic matter, the fate of it in an aquatic 19 system, it's either exported, stored or assimilated. 20 Excessive storage can lead to negative 21 consequences. Assimilation can lead to negative 22 consequences. I suspect export, given some degree, could 23 lead to a negative situation. 24 Q. You said these things could lead to negative 25 consequences. Do they necessarily lead to negative Page 34 1 consequences? 2 A. No. 3 Q. Okay. What do you understand the term 4 "oligotrophic" to mean? 5 A. The antithesis of eutrophic. 6 Q. So would you say oligotrophic means inadequate 7 primary production? 8 A. Very low primary production. 9 Q. Would it perhaps be better characterize eutrophic 10 as being very high primary production as opposed to excessive 11 primary production? 12 MR. GUZY: Objection as to form. 13 A. Eutrophication is a matter of degrees. 14 Q. Well, my concern is that when you used a term such 15 as "excessive" it has a certain connotation about it that 16 implies too much, and I think your other answers indicated 17 that eutrophication doesn't necessarily mean too much. 18 A. Eutrophication, it becomes -- if the storage, 19 assimilation, export or imbalance, it can be extremely 20 eutrophic and not lead to a situation, a native situation. 21 Q. Your resum also reflects that during the year 1969 22 you did a study to determine the impact of rooted aquatic 23 plants in the upper Potomac River basin on the nutrient 24 budget of the lower Potomac River. 25 Can you describe for me what the purpose of that Page 35 1 study was? 2 Before you describe that -- excuse me for 3 interrupting -- but would you describe for me what a nutrient 4 budget is? 5 A. A nutrient budget is -- it would be analogous to an 6 accounting where the nutrients are synoptically in a system, 7 nutrients are distributed to the sediments, to the biota, the 8 water column. Budget is the summation of those accounts. 9 Q. With that definition in mind, then, what was the 10 purpose of that study of the upper Potomac River basin? 11 A. We have to take them collectively, upper and lower. 12 The lower Potomac area, that would be upstream of the 13 Chesapeake Bay, at that particular time was subject to algal 14 blooms. That would be the excessive production of algal 15 biomass that would lead to changes in water quality. 16 The concern at that point in time, it was nutrient- 17 driven, these excessive algal blooms, and that the source of 18 the nutrients were not solely limited to the discharges in 19 the tristate metro area of Washington, D.C. 20 The concern was that the Potomac River basin, 21 particularly in the upper watershed, supported copious 22 amounts of aquatic plants, and that their death and decay 23 which led to mineralization of stored nutrients within the 24 plant material, flowed downstream into the lower Potomac area 25 and subsidized that nutrient budget, and therefore provided Page 36 1 the excess nutrients to allow for the algal blooms to 2 perpetuate themselves. 3 My task was to test that hypothesis. I studied, I 4 sampled the entire representative areas of the watershed, and 5 did calculations to determine that if the plant materials 6 died and decomposed that the quantity of nutrients released 7 were of any consequence to the nutrient budget in the lower 8 Potomac, and that conclusion was that they were not. 9 Q. Why did you conclude that they were not? 10 A. When I looked a mass balance of nutrients that the 11 nutrients generated by sewage treatment plants through their 12 discharge, the quantity there was many times greater than the 13 quantity potentially released from the aquatic plants. 14 Q. Were you simply looking to the discharges from 15 sewage treatment plants, or were there other anthropogenic 16 discharges with which you were concerned? 17 A. No. The sewage treatment plants at that time were 18 the only sources that were being permitted where I could get 19 a measurement of the mass of nutrients being discharged. In 20 those days the non-point source was not a topic. 21 Q. Would non-point sources have been affecting the 22 nutrient budget of that area? 23 A. Could have. 24 Q. But you don't know for purposes of that study? 25 A. No. Page 37 1 Q. Back in 1969 you also were in charge of a study of 2 periphytic algal communities in the Mississippi River. 3 Again, what was the purpose of that study? 4 A. Well, periphyton is -- the periphytic communities 5 associated with rivers and streams are one of the principal 6 primary producers in the entire ecology of the system, so 7 they're an indicator of water quality because they play such 8 a major role in the dynamics of the system. 9 I selected that as a focal point to assess the 10 effect of titanium oxide discharges from National Lead 11 Company in St. Louis, Missouri in the effect, toxic effect on 12 periphyton, or its stimulus to periphyton growth. 13 Q. I believe you just said that periphyton were a -- 14 and I'm paraphrasing here -- a very useful measurement for 15 determining a pollutant's impact. Could you elaborate upon 16 that thesis a bit, why you believe periphyton to be a good 17 indicator? 18 A. Because they're a primary producer in the system. 19 As I alluded to earlier, they're a mechanism for converting 20 the energy of sunlight and CO2 into organic matter that 21 supports various consumers. 22 It responds to parameters of light very 23 effectively, as well as to nutrients. It's adaptable to 24 being parameterized such as in this case we exposed 25 artificial slides of substrate to the river and followed the Page 38 1 colonization rates in the species assemblage of the 2 periphytic community established on the artificial 3 substrates, and that was relative to the point discharges. 4 Q. What did you mean when you referred to the term 5 "consumers" in that answer? 6 A. In this world of ours there are what we call 7 autotrophic communities and heterotrophic communities. 8 Autotrophic communities are the primary producers, the ones 9 capable of converting sunlight energy and carbon dioxide into 10 organic matter. 11 The heterotrophic communities do not have that 12 capability, they are strictly consumers of the organic 13 matter. 14 You're a heterotroph, I'm a heterotroph, and Steve 15 the lawyer is a heterotroph. That plant over there is an 16 autotroph. 17 Q. Okay. So heterotrophic species would be higher 18 level, or higher trophic species? Would that be a correct 19 assessment? 20 A. No. Throughout the organization of the animal 21 community there's different levels. Bacteria is a 22 heterotroph, a consumer of organic matter. 23 Omnivores that graze on grasses could be considered 24 a heterotroph. 25 Q. Okay. Page 39 1 A. The eaters of the cows are heterotrophs. 2 Q. When you look to impacts upon the periphyton 3 communities, are you looking to see what subsequent effects 4 there are on higher trophic species as a result of changes in 5 the periphyton communities? 6 A. That would be the basis for assessing the potential 7 impact on consumer communities. 8 Q. If it were shown that changes in periphyton 9 community structure or diversity were not having an impact on 10 higher trophic species, would that lessen your concern as to 11 changes that were being wrought on the periphyton community? 12 A. You mean strictly from a food chain? 13 Q. Yes. 14 A. No. 15 Q. Why not? 16 A. Well, the periphyton has other roles than providing 17 organic matter to other organisms. 18 Q. What are those other roles? 19 A. The factors in the habitat quality of the system. 20 Q. Well, what if the changes in the periphyton 21 community structure were not having any adverse impact on 22 habitat structure as well? 23 A. Then they have other roles. They affect the 24 dissolved oxygen dynamics of the aquatic system. 25 Q. Are there any other roles that you can think of at Page 40 1 this time? 2 A. Those would be the three principal roles. 3 Q. Okay. How does the periphyton community affect the 4 dissolved oxygen dynamics of a system? 5 A. In the process of the primary productivity, one of 6 the products is the production of dissolved oxygen. One of 7 the products of their respiration is the consumption of 8 dissolved oxygen. 9 That dissolved oxygen is critical to other 10 organisms, air-breathing organisms that are going to be 11 associated with that environment. 12 Q. Do you look to whether these other species are 13 adapted to the dissolved oxygen conditions that are present 14 in say a body of water, in a system, regardless of whether 15 it's high in dissolved oxygen concentration, or low? 16 MR. GUZY: Objection as to form. 17 A. Give me the question again. 18 Q. Okay. Maybe it would be best to use a specific 19 example. 20 I think some people have alleged in this proceeding 21 that phosphorus enrichment in the Everglades Protection Area 22 has adversely affected the periphyton communities of that 23 area, and thereby adversely affect the dissolved oxygen 24 concentrations present in those waters. By adversely 25 affecting I mean leading to a lowering or lessening of those Page 41 1 dissolved oxygen concentrations. 2 Assuming that to be true, would you then look to 3 whether the species that are found in that habitat are 4 adapted to such swings in dissolved oxygen concentrations? 5 A. Well, I think you've introduced two components 6 within your question. One is the concentration as a factor 7 affecting the distribution of animals. 8 Also, what you term the swing -- that is, its 9 excursion, the dissolved oxygen concentration can excursion 10 over a given time, that's a factor that affects the 11 distribution and the type of animals. 12 Q. Okay. Well, don't dissolved oxygen concentrations 13 swing on a daily basis, diurnal basis in water bodies? 14 A. Yes, they can. 15 Q. Well, how would the periphyton community structure 16 then affect those normal daily swings in dissolved oxygen 17 concentrations? 18 A. As I said before, there are what we call primary 19 producers. One of their roles is to convert inorganic 20 material into organic material, and a product of that is the 21 production of dissolved oxygen, and a product of their -- 22 since they have to assimilate material in order for their 23 existence they consume organic matter in their respiration, 24 and that requires oxygen, so they can affect it in the sense 25 that during the day time when photosynthesis is only capable Page 42 1 of proceeding that they are contributing dissolved oxygen to 2 the oxygen regime of their vicinity, and of course there's an 3 increase. 4 As nightfall, or as sunlight is diminished, their 5 production of oxygen diminishes proportionately. Their 6 respiration -- in other words, it requires energy for them to 7 proceed just like -- that's why you eat and require energy -- 8 they consume some of the organic matter they have produced, 9 and that consumption is constant throughout the 24-hour 10 period, so at night without the production of oxygen to 11 offset their respiration the dissolved oxygen can diminish. 12 Q. Well, then, what adverse affects do changes in the 13 periphyton communities have on this dissolved oxygen 14 fluctuation? Can it go up too much, down too much, or are 15 there other adverse impacts? 16 A. Well, as I said earlier, the periphytic community 17 is a component of the system. 18 There are other organisms living in that system 19 that consume oxygen and do not produce. 20 Collectively they are dependent on the dissolved 21 oxygen that is produced by the periphyton. 22 They consume energy, therefore they respire the 23 oxygen. If there is not enough oxygen produced through the 24 periphytic process, these organisms that are dependent on 25 that oxygen production either alter the metabolism, die, or Page 43 1 leave. 2 Q. I'd like to skip over now to your experiences in 3 1971 through 1973. Your primary activity during that time 4 period was as a senior aquatic biologist to the South Florida 5 Ecological Study. Can you briefly summarize what that study 6 is about? 7 A. Yes. The South Florida Ecological Study was an 8 umbrella study revolving around the proposed construction of 9 the Everglades Jetport. 10 The ramifications of the jetport in terms of long- 11 term consideration, that is the development associated with 12 it, the footprint so to speak, would impact an area of the 13 Big Cypress Swamp, what were some of the ramifications of 14 these particular impacts, whether it would be a change in 15 salinity or surface water flow to the 10,000 Islands, or 16 dewatering of the systems. 17 That was a issue with the -- I think the Department 18 of Interior, the Bureau of Reclamation, or Recreation -- they 19 received funding from Congress to evaluate these 20 ramifications, and that's where the term the South Florida 21 Ecological Study was developed. 22 EPA was basically contracted by the Department of 23 Interior to study a particular area in south Florida called 24 the Faxahatchee Strand. It was considered one of the native 25 cypress strands, relatively unperturbated, in close Page 44 1 association to a planned urban area, i.e., Golden Gate. 2 Our job was to look at the ecological ramifications 3 of forced drainage that was associated with the Golden Gate 4 development plan as it affected these natural systems. 5 Q. So these are two separate studies, then, the Golden 6 Gate/Faxahatchee Strand case, and then the jetport case? 7 A. No, it was all part of the, quote, South Florida 8 Ecological Study. It provided an experimental area to look 9 at the effects of forced drainage on the ecology of the area, 10 because forced drainage was going to be part and parcel to 11 the footprint of the jetport, proposed jetport. 12 Q. Where was the proposed jetport located, or to be 13 located? 14 A. In the western part of the Everglades, and I think 15 it bordered on the Big Cypress Swamp. 16 Q. Do you recall whether it would have been located in 17 one of the water conservation areas that makes up part of the 18 Everglades Protection Area? 19 A. I believe it was 3A. 20 Q. What was the result of your studies regarding the 21 jetport? 22 A. It's separate from the study I spoke of -- Let me 23 back up. 24 I was hired, brought aboard to be the senior 25 ecologist on the South Florida Ecological Study to focus on Page 45 1 the Faxahatchee Strand, Big Cypress. 2 Simultaneously, my parent organization in Athens, 3 Georgia was conducting a monitoring, a long-term monitoring 4 study in the L20A Everglades are, specifically relating to 5 the proposed jetport area, the area that physically was being 6 already -- at that time I believe the runways were already in 7 place. I participated in both of those. 8 The one you spoke of in this time period here is 9 the Big Cypress study. Now, the consequences of the two 10 studies are different, the products. 11 Q. I would like to focus on the study of the Big 12 Cypress area which relates to I take it the jetport? Am I 13 correct? 14 A. The Big Cypress area was a component within the 15 overall ecological, south Florida ecological study. It was a 16 area of experimentation, and the information gained from it 17 would help in evaluating the overall consequences of the 18 jetport area., 19 Q. What was the degree of your participation in the 20 jetport study? 21 A. Mainly assisting with some experiments from the 22 Athens contingency that were I believe about -- I don't 23 recall how frequently they visited the area. 24 Q. Did you visit the area at that time? 25 A. Yes. Page 46 1 Q. Did those visits at that time form any basis for 2 the opinions that you will be expressing in this proceeding? 3 A. No. 4 Q. What happened to the jetport? 5 A. I believe President Nixon decided that for whatever 6 the reasons not to go forward with it. 7 Q. Okay. 8 Q. Do you recall what, if anything, your group 9 recommended in that regard? 10 A. With the termination in our funding, we basically 11 stopped work on the project, and never took the information 12 to fruition and turned over a report. 13 Q. Okay. I would like to move on now to the period 14 from June '73 through June '76. 15 I note here that you provided expert testimony in U.S. 16 District Court proceedings regarding the ecological role of 17 mangroves. Do you recall in which court you offered that 18 testimony? 19 A. It was at Tampa. 20 Q. Okay. Do you recall who the parties were in that 21 proceeding? 22 A. Not by name. 23 Q. Was the United States or one of its agencies one of 24 those parties, the EPA? 25 A. I understand what you're saying. It was EPA, Page 47 1 Office of U.S. Attorney. 2 MR. GUZY: Just to avoid any confusion, when the 3 witness is using "EPA" he may be using it in a fashion 4 different from how you defined it earlier. 5 MR. HYDE: Okay. I have been trying to stay away 6 from it as much as possible, or at least to set it forth in 7 its entirety so there is no confusion. 8 BY MR. HYDE: 9 Q. I assume you meant the Environmental Protection 10 Agency by that answer? 11 A. Yes. 12 Q. Was this for a particular parcel of land in central 13 Florida? 14 A. Yes. 15 Q. Do you recall what it was? 16 A. I refer to it as the Wheaton Island project. That 17 particular case I believe was the precedence in that sense is 18 testing the Clean Water Act that U.S. waters existed above 19 mean low water, jurisdiction existed above mean low water. 20 It's referred to as the Holland Decision. 21 Q. Holland? 22 A. Holland. 23 Q. Is Wheaton Island in Pinellas County? 24 A. Yes. 25 Q. Were you qualified as an expert in those Page 48 1 proceedings? 2 A. I don't recall. 3 Q. Do you recall the outcome of those proceedings? 4 A. Legally I would not attempt to paraphrase it. 5 Q. On the next page of your resum, numbered Paragraph 6 6 says that you were a project leader for assessment of 7 remote-sensing technique (multispectral scanning) for 8 regional wetland inventories. 9 Could you describe that project for me? 10 A. Yes. At that time NASA was developing a technology 11 whereby land-sat data, that is spectral data gathered through 12 a remote sensing detector positioned in a satellite -- or it 13 could be put in an aircraft -- and what it did was capture 14 the infrared reflectance from the Earth and cataloged it 15 according to wavelengths that would give you information as 16 to the chlorophyll parameters of the green plants, and allow 17 you to define different plant communities according to this 18 signature. 19 My role at that time was EPA wanted to know what 20 the adaptability of that technology would be to monitoring, 21 quote, the health of a wetland community. 22 The Big Cypress Swamp was the test area to 23 demonstrate this technology. EPA together with NASA looked 24 at the distribution of plant communities in the Big Cypress 25 Swamp as well as the coastal mangroves areas, using the Page 49 1 land-set technology to describe the boundaries and the type 2 of wetland community involved, with the idea that once we got 3 a base line signature we could repeatedly examine that base 4 line signature on a periodic basis to see if it changes. 5 It's like a nondestructive monitoring strategy. 6 My job, because of my familiarity with the area, 7 was to evaluate this technology. 8 Q. Did that evaluation lead in your mind to any useful 9 results or outcomes for purposes of the agency's work? 10 A. Given the technology at that particular time, no, 11 it did not prove adequate for what we were seeking. 12 Q. Do you intend to offer any testimony in this 13 proceeding as to remote sensing techniques as they might 14 pertain to plant species identification in the Everglades 15 Protection Area? 16 A. No. 17 Q. No? 18 A. No. 19 Q. Okay. Number 10 on Page 5 states that you 20 developed equipment and procedures for assessing sediment 21 oxygen demand and production. 22 Could you describe that in a little more detail for 23 me? 24 A. In doing water quality assessments, one of the 25 principal parameters of interest is dissolved oxygen. Page 50 1 Because of its ramifications from an enforcement perspective 2 it's usually a standard in all waters. 3 Too, in most permitting activities, that is of a 4 discharge, one of the considerations is what is the impact of 5 that discharge on the dissolved oxygen regime of the 6 receiving water, does the waste -- given the characteristics 7 we can pretty well identify what its oxygen assimilation 8 demand would be through what we call BODs. 9 In order to, one, establish the oxygen budget for 10 the receiving system -- as I said earlier, the accounting of 11 dynamics, how much is produced and how much is consumed -- 12 one parameter of most interest is how much oxygen and the 13 rate its taken up through sediment oxygen demand. There is a 14 chemical and biological community in having the, quote, 15 benthic environment, the sediments. They are consumers of 16 organ matter, therefore they are consumers of dissolved 17 oxygen. 18 My job was to figure out how to measure that 19 dissolved oxygen uptake by that sediment community of plants 20 and animals. 21 The other part of the experience here deals with 22 the production of oxygen, because the sediments at the bottom 23 also can be habitat for oxygen-producing communities, 24 periphyton, so I would want to know how much oxygen is being 25 evolved from the system, as well as how much oxygen is being Page 51 1 consumed. That will give me some insight as to what the 2 oxygen dynamics of the receiving system will be in order to 3 evaluate what the impact of that carbonaceous discharge is 4 going to have. 5 Q. Well, did you develop some new equipment or 6 procedures, then? 7 A. Yes. 8 Q. Are those -- is that equipment and procedures still 9 in current use? 10 A. Yes. 11 Q. Could you identify for me what that equipment is? 12 A. Mechanically it's basically an enclosure device 13 placed on the bottom that is entrapped a known quantity of 14 water over a given area of coverage with a known 15 concentration of dissolved oxygen. 16 That enclosure is allowed to incubate on the bottom 17 for a given period of time while you monitor dissolved oxygen 18 content of the enclosure. Over time, since the enclosure may 19 be opaque and excluding light, all the dynamics or 20 respiration, whether it's chemical or biological, take place 21 and consume oxygen at a rate, and that's what I try to 22 measure what that rate of decrease in dissolved oxygen is. 23 Using a transparent chamber, if there are 24 autotrophic communities enclosed, i.e., periphyton, it will 25 produce oxygen, and I measure the evolution or the rate of Page 52 1 increase, if it takes place, in that chamber. 2 Q. Does that piece of equipment have some common name 3 or terminology of identification? 4 A. SOD chambers. 5 Q. Is that a device that's used only by Environmental 6 Protection Agency -- 7 A. No. 8 Q. -- or has it obtained wide usage within the 9 professional community? 10 A. It is used almost exclusively -- I amend that -- it 11 is used most commonly in the Southeastern United States by 12 the states and by the EPA. 13 Q. Do you know whether it's currently used by Florida, 14 such by the Florida Department of Environmental Regulation? 15 A. Yes, they have used it. 16 Q. Do you know whether it's an accepted bit of 17 technology for their purposes? 18 A. It is in the Southeastern United States. 19 Q. Okay. Do you know whether it's utilized by the 20 South Florida Water Management District? 21 A. No, I don't. 22 Q. Do you know whether it's been utilized at all to 23 evaluate sediment oxygen conditions in the Everglades 24 Protection Area? 25 A. No, I don't. Page 53 1 Q. Let me ask you the following general question. Do 2 you intend to offer any testimony regarding sediment oxygen 3 demand and production in the Everglades Protection Area? 4 A. I suspect I will refer to what information is in 5 the SWIM Plan relative to that topic. 6 Q. During the period from August 1978 through 7 September 1980, one of your primary activities was to act as 8 senior aquatic biologist in charge of special studies to 9 develop technical evidence for use by attorneys of the U.S. 10 Department in defense of suit against the government, and 11 involving implementation of Section 404 of P.L. 92-500. 12 Do you recall in what court that case was 13 litigated? 14 A. Although I wrote it, I believe this refers to many 15 cases. I don't believe it was one specific. 16 Q. What was -- was there a common thread to these 17 special studies regarding the implementation of Section 404 18 of P.L. 92-500? 19 Perhaps I could better ask the question by saying 20 what was the government's position in these cases? 21 A. I cannot identify the case. The summary 22 specifically says in defense of a case against the 23 government, and for the life of me I can't recall. 24 Q. Do you recall what position was being advocated by 25 the government in that case? Page 54 1 A. Most all my activities at that time dealt with 2 either a dredge-and-fill violation -- that would be a 3 violation of the 404 Section -- or a denial of a 404 permit 4 by the Corps of Engineers, that we would support the Corps in 5 defending that denial. 6 Q. I note here that you also were involved in site 7 studies and evaluation of two dredge-and-fill proposals in 8 coastal wetlands for Marco Island and Pelican Bay. 9 Did that work result in any expert testimony in an 10 administrative or civil litigation? 11 A. The Marco Island involved a Court of Claims case 12 whereby the Deltona Corporation was suing the U.S. government 13 for taking. 14 Q. Did you serve as an expert witness in that 15 proceeding? 16 A. Yes. 17 Q. Do you recall the outcome of that proceeding? 18 A. Yes. The Court of Claims ruled in favor of the 19 U.S. government. 20 Q. Would your work in the case Deltona versus U.S. 21 government be essentially along the same lines? 22 A. No. Well, as I said, that was a dredge-and-fill 23 permit that led to the taking consideration. I don't believe 24 dredge-and-fill is a subject that I would be addressing in 25 the -- Page 55 1 Q. I'm just asking was the work that you did in the 2 Marco Island case similar to that that you did in the Deltona 3 case. 4 A. Well, they're one and the same. 5 MR. GUZY: Are you referring, just for 6 clarification, to Entry Number 8? 7 BY MR. HYDE: 8 Q. And Number 6. I see two listings here, so I 9 wondered if they were two different cases that you're 10 referring to, or were they one and the same as you seem to 11 have just said? 12 A. What were the items you were focusing on? 13 Q. On the page August 1978 to September 1980 -- 14 A. I have that. 15 Q. -- there's an Item 6 which references dredge-and- 16 fill proposals for, among other areas, Marco Island; and then 17 Number 8 which refers to Deltona versus U.S. government. Are 18 those the same thing? 19 A. No. 20 Q. What's the difference between the two? 21 A. The Marco Island, as I said, there was two distinct 22 dredge-and-fill projects. Marco Island per se is what we 23 call the -- that was litigated in the Court of Claims. 24 The second activity was what we called the Unit 30 25 which was relative to the Deltona Corporation, an area Page 56 1 adjacent to Marco Island. That was challenged in the state 2 hearing process. The state I recall denied water quality 3 certification, and that was adjudicated by the Deltona 4 Corporation. 5 Q. Okay. So your resum here is incorrect insofar as 6 it indicates that the Deltona case was the Court of Claims 7 case? 8 MR. GUZY: Objection as to form. 9 Q. I thought you just said that the Marco Island case 10 was the Court of Claims case. 11 A. See, Marco Island and Deltona, they're one and the 12 same involving a particular dredge-and-fill permit for -- I 13 can't recall the sites. 14 The second was not a Court of Claims, the Unit 30 15 project was not a Court of Claims issue. 16 Q. Okay. And that second one dealt with Deltona, or 17 not? 18 A. Deltona, yes. 19 Q. Well, did both of the cases concern Deltona? 20 A. Yes. 21 Q. Okay. That's where my confusion was. 22 In the period from October 1980 through October 23 1991, in your second listing there you have testified as an 24 expert witness on the subject of wetland ecology, and you 25 referred to two cases, Harmon versus U.S. in the U.S. Page 57 1 District Court in Miami, and Deltona versus State of Florida, 2 an administrative hearing in Tallahassee, Florida. 3 Was that Deltona reference there the same as the 4 one you were just alluding to concerning Marco Island? 5 A. The second part of Item 2, Deltona versus State of 6 Florida? 7 Q. Yes, just that. 8 A. Yes, that was an administrative hearing. 9 Q. What was Harmon versus the United States about? 10 A. That involved a taking issue, whereas the National 11 Park Service was taking land for the Big Cypress Preserve 12 acquisition. Harmon was one of the landholders, and was 13 challenging the taking proceedings, or the condemnation 14 proceedings. 15 Q. In the time period from October 1982 through 16 September 1983, under Item 2 under the subheading of Primary 17 Activities you state that you testified as an expert witness 18 on the subject of wetland ecology, Horvitz versus Florida 19 DER, administrative hearing. 20 Was that an administrative hearing in the state of 21 Florida? 22 A. Yes. 23 Q. It was not a federal proceeding, then? 24 A. No, sir. 25 Q. Do you recall what that case was concerned with? Page 58 1 A. Yes. It had to do with a parcel of mangrove areas 2 in the area of the Port Everglades, the actual port area. 3 I testified as to the functional quality of this particular 4 parcel of mangroves. 5 Q. Okay. In the time period from October 1983 to 6 September 1984 under Item 5 of your primary activities you 7 state that you conducted two studies to evaluate rates of 8 sediment oxygen demand and the exchange of nutrients between 9 sediment and overlaying water. 10 Could you provide me with a little more detail as 11 to what that study was, or studies were? 12 A. I don't recall where the studies were conducted, 13 but what was involved, at this point in time we were able to 14 simultaneously measure -- let me retract that -- that in the 15 process of measuring sediment oxygen demand as I described 16 earlier we could also utilize these enclosures to measure the 17 flux of nutrient exchanging between the sediments and the 18 overlying water. 19 Q. Was that the same type of equipment that you 20 alluded to earlier? 21 A. Yes. 22 Q. Do you intend to offer any testimony in this 23 proceeding as to the exchange of nutrients between sediment 24 and overlaying water in the Everglades Protection Area? 25 A. I will probably consider it in my overall Page 59 1 testimony. 2 Q. Okay. I would like to move on now to your October 3 1986 to the present area. Could you describe for me 4 basically what your duties are as Chief of the Ecological 5 Support Branch of the EPA Region IV offices? 6 A. I manage and supervise the technical and 7 administrative functions of the branch. 8 Q. Okay. Are these -- Is this description under 9 Item 1 a fairly accurate description of what your duties are 10 in that regard? 11 In fact, you might just want to take a look and 12 review that whole page. I don't want to ask you a bunch of 13 questions about what you're doing if this is basically an 14 accurate summary of what your job responsibilities are. 15 A. Yes, I'd say it's a fair representation. 16 Q. Okay. On the next page you have a publication 17 listed entitled Monitoring of Constructed Wetlands for Waste 18 Water, Industrial and Agricultural. 19 Is that the complete title of that document? 20 A. I believe so. 21 Q. What kind of publication is this? 22 A. I would say a rather general publication describing 23 various considerations in developing a monitoring strategy 24 for evaluating constructed wetland performance. 25 Q. Okay. Is it a book, textbook? Page 60 1 A. Yes, it's a chapter within a larger proceedings. 2 Q. So you and this Q.J. Stober coauthored that 3 chapter? 4 A. Yes. 5 Q. What's the name of the book itself, if you recall? 6 A. I don't recall. 7 Q. Okay. Does this chapter in this book form a basis 8 for your anticipated testimony in this proceeding? 9 A. No. 10 MR. HYDE: If we can go off the record just for a 11 moment. 12 (Discussion off the record.) 13 (At 12:15 p.m. the lunch recess was taken. The 14 deposition resumed at approximately 1:20 p.m. in the same 15 place.) 16 17 18 19 20 21 22 23 24 25 Page 61 1 AFTERNOON SESSION 2 MR. HYDE: Let's go back on the record. 3 BY MR. HYDE: 4 Q. Mr. Hicks, as a result of a request for production 5 that my law firm has directed to the United States, we have 6 been provided with a series of documents both in the federal 7 litigation and this litigation which were allegedly from your 8 files. 9 I simply state that as a fact that was represented 10 to me, and I want to go through some of these documents, show 11 you them, and see if they will form the basis for any of the 12 opinions that you intend to express in the final hearing in 13 this matter. I hope that this can be a relatively quick 14 exercise. 15 I have for some of the shorter documents multiple 16 copies; for the longer ones I have harkened to the advice of 17 one of the other attorneys in this case and decided that we 18 were cutting down small forests of trees in order to do that, 19 so I just have the original. 20 The first document I'm going to show you is 21 entitled Mangrove Metabolic Response to Alterations of 22 Natural Fresh Water Drainage to Southwestern Florida 23 Estuaries, which you coauthored with Lawrence A. Burns. 24 Why don't you take a look at that for a moment. Is 25 that document going to be the basis, or form a basis of any Page 62 1 opinions that you intend to express in this matter? 2 MR. GUZY: Can we go off the record for a second? 3 MR. HYDE: Sure. 4 (Discussion off the record.) 5 (Pause.) 6 A. I'd say possibly. 7 Q. Okay. In what regard might you be relying on this 8 particular document? 9 A. The relationship of phosphorus attrition and 10 increased primary production. 11 Q. Well, what does this report say that addresses that 12 particular concern? 13 A. I'd say if I'm going to talk about the interactive 14 nature of nutrients with other parameters of the environment 15 as it relates to the production, the ability of a plant to 16 photosynthesize, the dynamics. 17 Q. Well, did this study concerning mangrove metabolic 18 response look into those kinds of issues? 19 A. Yes, I think the thesis of it relates to the 20 dynamics of the water quality as to how it affects the 21 productivity of these mangrove systems. 22 Q. Is that the thesis of the document, the way you 23 just stated that? 24 A. Yes. 25 Q. Okay. Do you regard the results of this document Page 63 1 comparable or of relevance to the situation found in the 2 Everglades Protection Area? 3 A. No, not directly. 4 Q. Okay. So you're relying upon this document for 5 general principles? 6 A. Yes, that was ancillary type -- 7 Q. Okay. The next document I'm going to show you is 8 entitled The Impact of Agricultural Runoff on the Everglades 9 Marsh Located in the Conservation Areas of the Central and 10 Southern Florida Flood Control District, by Patrick J. 11 Gleason, et al, November 1975. 12 Have you seen that document before? 13 A. I don't recognize it. 14 Q. Do you recall whether you've ever reviewed it at 15 all? 16 A. It does not stick in my mind that I have. 17 Q. The next document is entitled Limnology of an 18 Alligator Pond in South Florida, by James A. Kushlan and 19 Burton P. Hunt, Spring 1979 Edition of the "Florida 20 Scientist." 21 Have you seen this document before? 22 A. Yes, I've seen it. 23 Q. Have you reviewed that document before? 24 A. Yes. 25 Q. Will that document form any basis for any of the Page 64 1 opinions you might be expressing in this proceeding? 2 A. Some aspects of it I would consider. 3 Q. Well, how does this study relate to what your 4 anticipated testimony would be? 5 A. Well, other than it's really done in the Big 6 Cypress Swamp Area rather than the Everglades, the part I 7 would be interested in is the diel variation of dissolved 8 oxygen reported. 9 Q. Okay. Why would you be interested in the diel 10 variation of oxygen concentration? 11 A. Simply because of its lack of dynamics. I think it 12 would be typical of a perturbated system. Even though the 13 alligator hole is a component of the system it's different 14 from the classic Everglades, wet prairies, sloughs, sawgrass 15 areas. 16 Q. So do you regard an alligator pond or a gator hole 17 as being somehow comparable to the alleged nutrient problem 18 that has been created as a result of discharges from the 19 Everglades Agricultural Area? 20 A. No. No, I'm not implying that. I'm simply saying 21 the oxygen dynamics of the alligator hole are different from 22 the dynamics you would expect in an unimpacted area of the 23 Everglades. 24 Q. How are they different? 25 A. The variation in its amplitude, and its Page 65 1 distribution across a 24-hour period. 2 Q. Okay. How does it differ in the variation of its 3 amplitude? 4 A. The dissolved oxygen values are consistently low. 5 Q. To what do you attribute those low dissolved oxygen 6 values? 7 A. The depth, just the general physical features of 8 the pond itself. The depths you see there are not normally 9 encountered say in your sawgrass communities, or your wet 10 prairies. 11 Q. How does the depth of the gator hole influence 12 dissolved oxygen concentrations? 13 A. It could preclude the development of periphytic 14 communities because of turbidity. 15 Q. Are there any other things that might be 16 influencing the dissolved oxygen concentration that simply is 17 a function of depth? 18 A. Not in this particular case. 19 Q. How does turbidity influence dissolved oxygen 20 concentrations? 21 A. Well, it would mainly affect light extinction, 22 which is the intensity of light. 23 Certain levels of light are required for 24 photosynthesis to take place, and without photosynthesis you 25 can't establish a plant community. Page 66 1 Q. So would it be fair to say that the deeper the 2 water the less light penetration there would be -- 3 A. Yes. 4 Q. -- and thus the lower the dissolved oxygen 5 concentration would be? 6 A. From a production standpoint. 7 Q. Okay. Would that be true generally, not just of 8 gator holes, but just of water depth generally? 9 A. Uh-huh. 10 Q. So would it be fair to say that the longer and 11 deeper the hydroperiod is maintained in the Everglades 12 Protection Area the lower the dissolved oxygen concentrations 13 will be? 14 A. No. 15 Q. Why not? 16 A. Because you have to bring in the factor of vertical 17 mixing, a phenomenon that's affected by wind, could be 18 affected by density, changes due to temperature. 19 Simply because it's deep does not mean it's going 20 to result in low dissolved oxygen. 21 Q. But is that a characteristic that can occur when 22 hydroperiod is maintained at a deeper and longer -- Let me 23 start over on that. 24 Would it be fair to say that the deeper the waters 25 are in the Everglades, the more likely it would be to Page 67 1 experience lower dissolved oxygen concentrations? 2 A. No. 3 Q. Well, why is this experienced in the gator holes 4 themselves? 5 A. Because the gator holes are not typical of the 6 surface waters you see in the Shark River slough per se. 7 Q. Well, are you familiar with Water Conservation 8 Area 2A? 9 A. Yes. 10 Q. Did you know that that water conservation area was 11 utilized as an impoundment area in the early 1980s, and that 12 its hydroperiod was maintained at a very -- well, very deep 13 water for a long period of time, several years? 14 A. What part of 2A? 15 A. Northern 2A. 16 MR. GUZY: Objection as to form. 17 A. I don't understand what you mean by deep water. 18 Q. Well, I don't have a precise number, but 19 significantly deeper than is the normal condition even in wet 20 seasons. Could that itself have contributed to a low 21 dissolved oxygen concentration in these waters? 22 A. I doubt it. 23 Q. You doubt it? Why do you doubt it? 24 A. Because what -- I think you're talking increased 25 depth as a matter of a few feet. Page 68 1 Q. Well, how deep are these gator holes? 2 A. Oh, I'd say a meter, a meter and half. 3 Q. Okay. So roughly the same amount of space, isn't 4 it? 5 A. But you look at the perturbation in the gator hole 6 versus 2A. 7 Q. Okay. 8 A. The perturbation from the animal activity. 9 Q. Do you mean just the activities of the alligator 10 getting in there and moving around and stirring things up? 11 A. Yes. 12 Q. Okay. Would you extract anything else from this 13 study to support your opinions in this cause? 14 A. No. 15 MR. HYDE: Why don't we go ahead and attach this 16 document to the deposition transcript as Exhibit 2. 17 (Exhibit Number 2 was 18 marked for identification.) 19 BY MR. HYDE: 20 Q. The next document I will be showing you is entitled 21 Report T-662, Biomass and Primary Production of Microphytes 22 and Macrophytes in Periphyton Habitats of the Everglades. It 23 appears to be a publication of the Everglades National Park, 24 and the principal investigator was Joan Browder, and its date 25 is May 1982. Page 69 1 A. I'm aware of the report, but I haven't reviewed it. 2 Q. Okay. So consequently you're not going to be 3 relying upon it as a basis for any of your opinions? 4 A. I can't say between now and then. 5 Q. Okay. The next document I'm going to be showing 6 you is a publication of the Environmental Protection Agency 7 dated September 1985 entitled Fresh Water Wetlands for Waste 8 Water Management Handbook. 9 I just want to give you an opportunity to review 10 it. Have you reviewed that document? 11 A. I don't remember. 12 Q. Okay. So consequently would it be fair to say that 13 it's not a document you intend to rely upon at this point as 14 a basis for your opinions in this proceeding? 15 A. Knowing the content, I would say it's possible I 16 will. 17 Q. Okay. Are there any specific portions of it that 18 you would be looking to? 19 A. Looking at the effectiveness of wetlands to 20 assimilate nutrients. 21 Q. Okay. I thought you told me in our preliminary 22 questioning that you wouldn't be offering any testimony about 23 the storm water treatment areas. Is that still correct? 24 A. Well, I interpreted your question about the design 25 and the operation. Page 70 1 Q. Would you be offering opinions as to the 2 effectiveness of wetland systems to remove nutrients? 3 A. Uh-huh. 4 Q. Okay. And does this document relate to that 5 subject matter? 6 A. Yes, in addition to others subjects or topics. 7 Q. Okay. How does this document relate? Is it just 8 something in the nature of a general background material, or 9 is it something that would be a specific foundation for a 10 particular opinion? 11 A. This document was a product of efforts by the 12 region to evaluate the use of wetlands for the treatment of 13 waste from small communities, domestic waste, and in it it 14 evaluated based on data from different wetlands, swamps that 15 are receiving, currently receiving or receiving in the past, 16 the effectiveness of the swamp to say diminish phosphorus. 17 Q. Do you recall whether any -- I was going to ask 18 you whether you recalled whether any of these situations 19 dealt with agricultural runoff, but I guess you wouldn't know 20 that because you haven't reviewed that document? 21 A. I don't recall it involving agricultural. 22 Q. Okay. Do you regard situations, or the studies 23 which relate to domestic waste water discharges to wetlands 24 as being comparable to runoff from agricultural areas? 25 A. You have to define it a little better. Page 71 1 Q. Well, in terms of the assimilative capacities of 2 the wetland to remove nutrients. 3 A. I don't know about being comparable. 4 Q. Okay. Well, would you agree that the constituents 5 of domestic waste water effluents are considerably different 6 than the constituents of agricultural runoff such as that 7 which occurs from the Everglades Agricultural Area? 8 A. They could be. 9 Q. Okay. Do you think a study which is addressed to 10 the former situation dealing with domestic waste water 11 effluent is necessarily applicable to the later situation 12 dealing with agricultural runoff? 13 A. Yes, I think it could be used to guide you in 14 designing. 15 Q. Well, how could it be used as a guide, if you will? 16 A. Simply, plants wouldn't know whether the phosphorus 17 came from a sewage treatment plant or runoff with phosphorus 18 as an element. 19 Q. Is this sort of in the nature of like a broad 20 background document that would be utilized by you as opposed 21 to say a specific document like the Everglades SWIM Plan 22 itself? 23 MR. GUZY: Objection as to form. 24 Q. I'm just trying to get a comparison between a 25 document that might specifically be relied upon for a Page 72 1 particular opinion as opposed to generic background materials 2 which we accumulate over a lifetime of work and educational 3 experiences. 4 A. I believe the intent of the document was to be used 5 as a guide for evaluating the use of wetlands for the 6 handling of domestic waste from small municipalities. 7 Q. Okay. The next document I'm going to be providing 8 you is entitled Sawgrass and Cattail Production in Relation 9 to Nutrient Supply in the Everglades by Steven M. Davis of 10 the South Florida Water Management District, and the cover 11 sheet indicates that it was apparently presented at a 12 symposium of the University of Georgia in 1986. 13 Have you reviewed this document before? 14 A. No, I have not reviewed this particular document. 15 Q. Okay. This next document which I am giving to you 16 appears to be a series of hard copies of transparent 17 overheads that were utilized in a presentation, the first 18 page of which is entitled Nutrient Impact on Everglades Flora 19 and Fauna. Do you recognize this document? 20 A. Yes. 21 Q. Do you know who prepared it? 22 A. No. 23 Q. Have you reviewed it? 24 A. Yes. 25 Q. Would you regard the information that's contained Page 73 1 in this document to be relevant to and supportive of the 2 opinions you might be expressing in this proceeding? 3 A. Yes. 4 Q. Do you know where this document is from? 5 A. I believe I was provided this document during the 6 state litigation process. 7 MR. HYDE: Okay. Let's go ahead and mark this 8 document as Exhibit 3. 9 (Exhibit Number 3 was 10 marked for identification.) 11 BY MR. HYDE: 12 Q. On the first page of this document, the first 13 subheading states Increased Nutrient Supply Gives Cattail 14 Competitive Advantage Over Sawgrass. 15 Do you agree or disagree with that statement, or 16 have no opinion? 17 A. I agree. 18 Q. Why do you believe that to be the case? 19 A. The sawgrass community is a native component of the 20 Everglades, and the Everglades is classically recognized as 21 an oligotrophic system, meaning low productivity due to 22 inadequate, or low nutrient supply. 23 Cattails capitalize on the enriched nature of the 24 sediments with phosphorus, and are able to out-compete the 25 sawgrass. They grow more vigorously. Page 74 1 Q. Does increased nutrient supply in effect allow 2 cattails to invade and displace the sawgrass community? 3 A. That would be my opinion. 4 Q. What's the basis for that opinion, just what you've 5 said previously? 6 A. Yes, because of the enrichment of the phosphorus. 7 Q. Can sawgrass utilize phosphorus as well? 8 MR. GUZY: Objection as to form. Do you mean by 9 that also, or as well as cattails? 10 BY MR. HYDE: 11 Q. Can sawgrass also utilize phosphorus? 12 A. Yes. 13 Q. Well, if you have a healthy stand of sawgrass, how 14 can phosphorus enable a cattail community to invade and 15 displace it? 16 A. The cattails are simply more vigorous, out-produce, 17 create greater biomass, and physically displace the sawgrass 18 community. 19 Q. Would you regard cattail as being an invasive 20 species? Maybe that's not the right word, but an aggressive 21 colonizer? 22 A. Yes. 23 Q. Does it respond relatively more quickly to 24 phenomena such as disturbances than sawgrass does? 25 A. Disturbances in what sense? Page 75 1 Q. Well, let me give you a specific example. 2 If an area were to be burned or disturbed by earth- 3 moving equipment or the like, would the cattails be more 4 likely to colonize that disturbed area after the disturbance 5 than say sawgrass would? 6 A. In the short term if we have, for example, not 7 altered the nutrient regime I would say that's very possible 8 there would be a short-term burst of cattail productivity, 9 but in the absence of the enriched substrate they would 10 probably diminish equally rapidly. 11 Q. You think it would diminish over time, then? 12 A. Yes. 13 Q. What's the basis for that opinion? 14 A. It's the belief they can't survive without an 15 enriched -- simply colonizing doesn't assure them of long- 16 term survival, because the constraints on the system aren't 17 adequate for their long-term survival. 18 Q. Is there any study that supports that opinion to 19 your knowledge? 20 A. No, other than observation. 21 Q. Okay. Would you agree that cattails are a species 22 which is native to the Everglades? 23 A. Yes, they can be found in the Everglades. 24 Q. Were they found in the Everglades historically 25 prior to the advent of modern agriculture there? Page 76 1 A. I suspect they were. 2 Q. Do you think disturbance has anything to do with 3 the recent proliferation of cattails in the Everglades 4 Protection Area? 5 A. No. 6 Q. You would attribute it solely to phosphorus 7 enrichment? 8 A. Yes. 9 Q. Would you agree that cattails are able to thrive in 10 deeper water conditions that sawgrass? 11 A. I'll have to ask you to expand on that question. 12 In the absence of phosphorus? 13 Q. Yes. 14 A. Yes, in my experience at large cattails will. 15 Q. So a deeper and longer hydroperiod would be a 16 condition which would be more conducive to cattail growth 17 than sawgrass growth, would it not? 18 MR. GUZY: Objection as to form. It's a compound 19 question, it's not reflecting what you had asked him before. 20 It's basically asking for two different things. 21 BY MR. HYDE: 22 Q. Did you understand my question? 23 A. Not quite. 24 Q. Would you regard an area with a deeper and longer 25 hydroperiod to be more conducive for cattail growth than for Page 77 1 sawgrass growth? 2 MR. GUZY: Same objection. 3 A. In the context of the water conservation areas, I'd 4 say no. 5 Q. Why not? 6 A. By association at least the information which you 7 described, hydroperiod say in Water Conservation Area 1, that 8 the cattail colonization in that area is irrespective of the 9 depth. 10 Q. What information is that? 11 A. It came from the University of Florida study in 12 Water Conservation 1A. 13 Q. Is that the only documentation or study you're 14 aware of that supports that proposition? 15 A. Yes, to my knowledge. 16 Q. Let me just ask you the question, what are the 17 areas of concern in the Everglades Protection Area for this 18 proliferation of cattails? 19 A. Area of concern? 20 Q. Area or areas of concern. 21 A. Oh, I think I'd say the entire Everglades, 22 including Everglades National Park. 23 Q. Well, what areas are currently evidencing cattail 24 monocultures, extensive cattail monocultures? 25 A. Principally in Conservation Area 1 and 2A. Page 78 1 Q. Are there any other areas of the other water 2 conservation areas which have a similar problem? 3 A. Similar in what sense? 4 Q. Well, similar in the sense that they have a cattail 5 proliferation problem attributable to nutrients. 6 A. No, I can't identify any. 7 Q. Okay. Where are the cattail monocultures found in 8 Water Conservation Area 1? 9 A. Mainly along the perimeter canal. 10 Q. Would that be encircling the entirety of the 11 Loxahatchee National Wildlife Refuge, or just a portion of 12 it? 13 A. I would believe principally the western side, and 14 southern. 15 Q. Okay. Have you looked at any information 16 concerning -- Strike that. Let me start over. 17 Have you reviewed any information or documentation 18 which establishes or otherwise discusses the level of 19 disturbance associated with those areas you just identified 20 in Water Conservation Area 1? 21 By disturbances, I mean disturbances associated 22 with the construction of the perimeter canal, fire, and the 23 like. 24 MR. GUZY: I'm sorry. Can you repeat that? 25 MR. HYDE: I'll try. Page 79 1 BY MR. HYDE: 2 Q. Do you know, or did you know that the areas, Water 3 Conservation Area 1 which you just identified as being 4 subject to cattails, cattail monoculture, were also areas 5 that were historically disturbed in the sense of cell 6 disturbance associated with the construction of the perimeter 7 canal? 8 MR. GUZY: Objection as to form. 9 Q. Were you aware of that fact? 10 A. You're talking about the western side of the canal, 11 or the eastern side? 12 A. The western side where the cattail monocultures are 13 currently found. 14 A. No. 15 Q. Okay. Other than that University of Florida study 16 that you just referenced, are you aware of any information or 17 documentation which looks to the relative depths of the water 18 in the cattail monocultures on the southwestern, south and 19 western sides of Water Conservation Area 1? 20 A. Ask that again, please. 21 Q. Okay. Other than the University of Florida study 22 which you just referenced a few moments ago, are you aware of 23 any other studies, documentation or information which 24 addresses the relative water depths of the cattail 25 monoculture found in the southern and western sides of Water Page 80 1 Conservation Area 1? 2 A. No. 3 Q. The next statement on this page reads: Expansion 4 of nutrient-enriched area, WCA-2A, from -- I think that means 5 less than 6,000 acres to 20,000 acres since initiation of IAP 6 (Swift 1987) corresponds with the observed expansion of 7 cattail into sawgrass (Davis 1986(a)). 8 Do you agree with that statement? 9 A. Yes. 10 Q. Okay. What is the IAP? 11 A. I don't know. 12 Q. Do you regard this nutrient-enriched area as being 13 correlated to the observed expansion of cattail into sawgrass 14 area? 15 MR. GUZY: Objection as to form. 16 A. I believe the nutrient-enriched area is greater 17 than the area that the cattails have been established. 18 Q. Okay. What's the basis for that belief? 19 A. Soil work done by the Park Service. 20 Q. Do you know by whom with the Park Service? 21 A. Brian Jones from the Florida International 22 University, mainly. 23 Q. Was this soil work done in Water Conservation 24 Area 2A? 25 A. Yes. Page 81 1 Q. Do you know how much greater the area is of the 2 areas affected by soil phosphorus enrichment than the cattail 3 monoculture areas? 4 I think I worded that statement a little bit 5 awkwardly, but did you understand what I meant? 6 A. I understand what you're saying. I would say 7 substantially. 8 Q. Substantially. Have you seen any document or map 9 which would establish that degree of difference between the 10 two? 11 A. Other than the transects. 12 Q. Okay. 13 A. None other than the transects. 14 Q. None other than the transects. Which transects are 15 you referring to? 16 A. They were transects established at the S-10 17 structures, and proceeded southerly several kilometers. 18 Q. Okay. And again those were prepared by Dr. Ron 19 Jones? 20 A. Yes. 21 Q. Okay. Do you know when he gathered that 22 information? 23 A. Not specifically. 24 Q. Are you relying upon information that was orally 25 reported to you, or have you actually looked at the raw data Page 82 1 which went into that determination by Dr. Jones? 2 MR. GUZY: Objection as to form. 3 A. I have seen the posted transect and the information 4 that goes with it. 5 Q. So you're assuming that information to be correct 6 in stating your opinion here today? 7 A. Yes. 8 Q. Okay. Have you looked at any other information 9 which might reflect a competing or different view of the 10 extent of the nutrient-enriched area? 11 MR. GUZY: Different than this statement in the 12 document, or different than Dr. Jones? 13 MR. HYDE: Different than Dr. Jones' transects. 14 A. You say competing, contradicting? 15 Q. Contradicting is a better word. 16 A. No. 17 Q. Okay. Have you ever been advised as to whether 18 there is conflicting or contradictory information? 19 A. No. 20 Q. Do you know whether the nutrient-enriched area of 21 northern Water Conservation Area 2A has reached equilibrium 22 and is not further expanding? 23 Do you understand what I mean by the term 24 "equilibrium"? 25 A. Yes. That the footprint of the monoculture cattail Page 83 1 is stable? 2 Q. Yes. 3 A. No, I have not. 4 Q. Okay. You have no opinion regarding that? 5 A. No, I have not seen any information saying it is. 6 Q. Is it your belief that it continues to expand? 7 A. I believe it will expand. 8 Q. What's the basis for that belief? 9 A. Cattails are after-the-fact. What allows cattails 10 or stimulates the cattail expansion is available nutrients in 11 the sediments, and I believe those under the current 12 discharge regime are adequate in areas that the cattails will 13 be emerging into. 14 Distribution maps show a gradation of cattail 15 density leading from the monoculture transition to the mixed 16