152
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
-------------------------------------
SUGAR CANE GROWERS COOPERATIVE :
OF FLORIDA; ROTH FARMS, INC.; and : VOLUME II 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. :
-------------------------------------
153
The continued deposition of DELBERT B. HICKS, taken
by petitioners, pursuant to Adjournment, before L. V.
Partain, Certified Court Reporter and Notary Public, at Suite
1400, 120 Ralph McGill Boulevard, Atlanta, Georgia, on
Friday, the 26th day of February, 1993, commencing at
approximately 8:50 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
154
I N D E X
Examination of: Page
Delbert B. Hicks
By Mr. Hyde 155
By Mr. Guzy 221
By Mr. Hyde 223
Exhibit: Identified
No. 10 - Letter 1/21/93 w/attachment 218
155
1 P R O C E E D I N G S
2 THE REPORTER: Mr. Hicks, you were sworn yesterday,
3 and you are still under oath.
4 THE WITNESS: Yes, sir.
5 WHEREUPON,
6 DELBERT B. HICKS
7 being previously sworn, was examined and testified further as
8 follows:
9 FURTHER EXAMINATION
10 BY MR. HYDE:
11 Q. Mr. Hicks, could you tell me when you first became
12 involved in the Everglades SWIM planning process?
13 MR. GUZY: Objection as to form.
14 Q. Just a time of year, or month, not a specific day
15 is necessary.
16 A. I would say on the order of three years ago. I
17 believe one of the documents I reviewed for you yesterday
18 where I was commenting on Draft Number 2 was probably the
19 same year.
20 Q. You're speaking about an earlier draft of the SWIM
21 Plan?
22 A. Yes.
23 Q. Approximately 1990?
24 A. Yes.
25 Q. Okay. Had you been involved in the federal
156
1 litigation regarding the Everglades Protection Area prior to
2 that time?
3 A. Yes.
4 Q. Okay. When did you first become involved in that?
5 A. Right around that period.
6 Q. Approximately the same time, then?
7 A. Yes.
8 Q. Were you called upon to be a witness in that
9 federal proceeding?
10 A. The request to the regional administrator that
11 directed me to participate as a supporting technical resource
12 to the federal litigation team I recall specified that it was
13 technical assistance. It didn't describe a role as an expert
14 witness at that point in time.
15 Q. Were you ever deposed in that matter?
16 A. No.
17 Q. Okay. Other than the document that we discussed
18 yesterday, did you prepare any other reports or memoranda or
19 the like concerning the earlier drafts of the Everglades SWIM
20 Plan?
21 A. Not to my recollection.
22 Q. Do you recall whether your agency, that is the
23 Environmental Protection Agency, took any official position
24 on those earlier drafts of the Everglades SWIM Plan?
25 A. Not to my recollection.
157
1 Q. When did the current adopted version of the
2 Everglades SWIM Plan -- I believe it was adopted March 13 of
3 last year -- first come to your attention?
4 A. Right around that date.
5 Q. Had you read earlier drafts of that particular
6 document?
7 A. No.
8 Q. You just read the --
9 A. Well, earlier drafts -- there was a sequence of
10 drafts, I want to say at least three. I commented on one;
11 whether I reviewed the in between I don't recall.
12 Q. Okay. When I say earlier drafts I'm not talking
13 about drafts that go back to like 1990 for example, but some
14 variation of the draft that was actually adopted in March of
15 1992.
16 A. Not to my recollection.
17 Q. Okay. Does the adopted SWIM Plan, the March 13th
18 -- I think it's March 13th, 1992 -- document form the primary
19 basis for the opinions that you will be expressing in this
20 matter?
21 A. Yes.
22 Q. Okay. I would like to take you through what those
23 opinions will be. I think we discussed some of the areas
24 yesterday, but I believe that you mentioned one as being the
25 efficacy of nutrient removal in the storm water treatment
158
1 areas -- I'm paraphrasing, of course. Would that be a
2 general subject matter on which you would testify?
3 A. I could.
4 Q. Okay. What would your testimony in that regard be?
5 A. The concept of a storm water treatment area in
6 conjunction with BMPs in my judgment would be an effective
7 combination to significantly reduce the phosphorus
8 concentrations as well as other nutrients, i.e. nitrogen
9 compounds, originating from discharges from the EAA area to
10 the environmental protection areas.
11 Q. What is the basis for your opinion that the storm
12 water treatment area will serve that function?
13 A. I consider the -- one, the technology of
14 constructed wetlands as reached a level where we can look to
15 these organized and managed wetlands as assimilators of
16 nutrients. I believe the literature at large would support
17 that.
18 Two, in my opinion we have a living experiment for
19 example in the area downstream from the S-10 structures, that
20 being the northern, northeastern edge of Water Conservation
21 Area 2A, and that living experiment shows a measurable
22 diminution of the phosphorus load as well as I believe the
23 nitrogen load across a defined area.
24 Q. Anything else that would be a basis for that
25 opinion about the storm water treatment areas being an
159
1 effective tool to reduce nutrient levels?
2 A. The storm water treatment areas -- and I'll
3 inadvertently refer to them as STA -- offer a management
4 opportunity to maximize their efficiency.
5 Q. Can you explain that statement to me?
6 A. The uptake of phosphorus, or the sequestering of
7 phosphorus, whether it be through settling or biological
8 uptake, will be a function of the hydraulics of a design
9 system.
10 You can manipulate the flow to a desired level, and
11 consequently since you have bounded the area physically you
12 can establish and control the extension time.
13 And finally the concept of STAs, as at least
14 proposed in the SWIM Plan, will be sized so there will be no
15 passthrough during high flow conditions as a sort of a
16 passthrough bypass.
17 Q. Okay. Can you recall some of the literature
18 sources that you noted that stand for the general proposition
19 that constructed wetlands will function like that?
20 A. There's copious publications. I think they're
21 probably best summarized in a publication sponsored by the
22 Tennessee Valley Authority edited by Donald Hammer.
23 I can only give you the title as I best recall, and
24 I think it was "Constructed Wetlands for the Treatment of
25 Waste, of Waste Water."
160
1 Q. Okay. Is that a recent publication?
2 A. I believe it's about three years old.
3 Q. Okay. Back to your comment about Northern WCA-2A
4 being a living experiment, I believe yesterday you spoke to
5 me about a concern that the phosphorus or nutrient gradient
6 would continue southward, thus promoting among other things a
7 continued march of cattails southward. What's to -- Well,
8 let me ask you this first.
9 Does that mean that the existing cattail
10 monocultures in the northern part of the WCA-2A are losing
11 their filtrative or assimilative capacity to remove
12 phosphorus from the waters?
13 A. No.
14 Q. Then why is the nutrient gradient continuing to
15 expand, then?
16 A. Because of the excess phosphorus found in the
17 inflow water that the ability to detain the phosphorus in the
18 sediments reach a saturation level, and then at that point
19 phosphorus is allowed to move downstream to a new area where
20 the equilibrium has not been reached.
21 Q. Okay. How do you know that the storm water
22 treatment areas themselves will not reach that kind of a, or
23 max out on their assimilative capacities for phosphorus?
24 A. As I mentioned earlier you have a management
25 opportunity, and you can harvest the sequestered phosphorus
161
1 if need be until you can expand the size of the STAs if need
2 be.
3 Q. Are you currently comfortable with the proposed
4 size of the STAs?
5 A. I'm comfortable with the, at least the design
6 criteria that I have been exposed to.
7 Q. Okay. Do you have an opinion as to whether the
8 current proposed size of the STAs is adequate to ensure the
9 proposed discharge limitations for those areas?
10 A. Yes.
11 Q. What's the basis for that opinion?
12 A. The sizing permit as I understand from the
13 engineering work that's been presented is principally a
14 function of the settling rate as described in Water
15 Conservation Area 2A, the living experiment area.
16 Q. Who calculated that settling rate?
17 A. South Florida Water Management District.
18 Q. Do you recall who in particular did?
19 A. Only that it originated out of the research group,
20 I believe.
21 Q. Okay. What to your recollection is that settling
22 rate?
23 A. Eight meters per year.
24 Q. So you're assuming that that settling rate is
25 correct for purposes of sizing the STAs?
162
1 A. Yes.
2 Q. If it were demonstrated that that settling rate is
3 something else, would that alter your opinion as to the
4 adequacy of the sizing for the proposed STAs?
5 A. It would be a definite factor.
6 Q. You commented earlier that one could as a
7 management opportunity harvest the phosphorus. Can you
8 explain that concept to me a bit further?
9 A. Since the STA is a controlled structure -- valves,
10 switches, gates -- inflow had to be managed such that a cell
11 could be harvested of its standing crop of macrophytes.
12 Q. Are you suggesting that someone go down and like
13 mow the macrophytes or whatever they are?
14 A. In simple terms, that's true.
15 Q. And remove them from the area?
16 A. Yes.
17 Q. Were you thinking about anything else in terms of
18 the concept of harvesting?
19 A. Demucking sediments.
20 Q. How would one demuck the sediments?
21 A. Demucking could be done hydraulically, or it can be
22 dewatered and physically moved about with track vehicles.
23 Q. Does the Everglades SWIM Plan discuss the
24 possibility of such harvesting of phosphorus that's uptaken
25 in the storm water treatment areas?
163
1 A. I don't recall.
2 Q. Do you recall whether any studies were done which
3 would support the proposition that such harvesting is a
4 viable management alternative?
5 A. For the proposed STAs, or --?
6 Q. For the proposed STAs.
7 A. -- or the tributaries in general?
8 Q. For the proposed STAs.
9 A. I don't recall.
10 Q. Are there studies that would otherwise support that
11 proposition for storm water treatment areas in general?
12 A. I believe the literature can speak to harvesting
13 benefits.
14 Q. Do you recall any specific studies that might
15 support that proposition?
16 A. None specifically.
17 Q. Okay. Would Donald Hammer's work address that
18 possibility at all?
19 A. Possibly.
20 Q. Do you know whether any studies have been done to
21 support the proposition that such harvesting can be conducted
22 in mucky areas such as the south Florida Everglades?
23 A. Well, I understand the proposed STAs are not,
24 quote, in the Everglades, they would be the in EAA area, the
25 Everglades Agricultural Area.
164
1 Q. Well, with that clarification, do you recall
2 whether there are any studies that would support the
3 proposition that such macrophyte harvesting could be
4 accomplished in a cost-efficient manner in mucky soils such
5 as those found in the EAA?
6 A. Not to my knowledge.
7 Q. Since we're discussing the concept of harvesting,
8 what, if anything, do you believe should be done to deal with
9 the current cattail monoculture in northern WCA-2A?
10 A. I haven't given it any thought.
11 Q. Would you suggest that that area be harvested as
12 well?
13 A. I couldn't comment.
14 Q. Do you have any opinions as to what should be done
15 to, or whether one should even attempt to remove the cattail
16 monoculture in northern WCA-2A?
17 A. I don't have an opinion.
18 Q. Would that be the same for the Water Conservation
19 Area 1?
20 A. Yes.
21 Q. Are you familiar with the concept of a mixing zone
22 in water quality regulatory treatments?
23 A. Only in general terms.
24 Q. Okay. Are you familiar with the BER's mixing zone
25 rule?
165
1 A. No.
2 Q. Do you intend to offer any testimony as to mixing
3 zones?
4 A. No.
5 Q. Are you familiar with the concept of site-specific
6 alternative criteria?
7 A. Only in general.
8 Q. Do you know what they are?
9 A. What the --
10 Q. Do you know what a site-specific alternative
11 criteria or criterion is?
12 Q. Yes. That's a process in which a regulated party
13 can request with appropriate demonstration an alternative to
14 established standards.
15 Q. Okay. Why would one want to establish a site-
16 specific alternative criteria for a particular water body?
17 MR. GUZY: Objection as to form.
18 A. I can give you several reasons.
19 Q. Okay. Let me ask the question differently.
20 Why would a regulatory agency such as DER or EPA
21 consider the establishment of a site-specific alternative
22 criterion for a given water body?
23 MR. GUZY: Objection as to form.
24 A. I have no idea what the state's foundation for that
25 decision is.
166
1 Q. Okay. Do you know whether mixing zones were ever
2 considered for, for example, northern WCA-2A?
3 A. I'm unaware.
4 Q. Okay. You're unaware of EPA ever having considered
5 that as a possible concept; is that correct?
6 A. That's correct.
7 Q. Okay. Would that be the same for the establishment
8 of a site-specific alternative criterion for northern WCA-2A,
9 for example?
10 A. That's correct.
11 Q. Did you ever consider the possibility of
12 establishing either a mixing zone or a site-specific
13 alternative criterion to in effect reduce the amount of area
14 needed for the storm water treatment areas?
15 A. I don't follow your question.
16 Q. I think you've already answered it anyway. I'll
17 just move on to the next one.
18 Are there any other bases for your opinion that the
19 storm water treatment areas will serve as a viable management
20 tool to remove nutrients in waters flowing into the
21 Everglades Protection Area?
22 A. No.
23 Q. Okay. Do you believe the proposed STAs to be a
24 cost-effective means or methodology to accomplish this
25 phosphorus removal?
167
1 MR. GUZY: Objection as to form. You should ask
2 him if he's formulated any opinion about it.
3 Q. Well, have you formulated an opinion as to whether
4 the proposed STAs are a cost-effective tool to remove
5 phosphorus from the discharges to the Everglades Protection
6 Area?
7 A. Not at this time.
8 Q. Do you intend to develop such an opinion?
9 A. I don't know.
10 Q. Have you considered other strategies that might
11 accomplish the same goal as the proposed storm water
12 treatment areas?
13 A. I personally, my own endeavor, no.
14 Q. Okay. Are you aware of any such efforts to do so?
15 A. Yes.
16 Q. Do you know some of the strategies being
17 considered?
18 A. I can identify some. There are several.
19 Q. What would those be, according to your
20 recollection?
21 A. Algal mat scrubbers, diversion, rock pits,
22 limestone exchange, chemical treatment.
23 Q. Anything else?
24 A. Deep well injection. There are even some that are
25 proprietary that I don't know of that are being considered by
168
1 another group.
2 Q. Okay. What is diversion?
3 A. It's taking the discharge from the EAA area and
4 directing it through a different plumbing system to the urban
5 coastal areas.
6 Q. Did you regard that as a viable alternative
7 possibility?
8 A. I personally didn't.
9 Q. Why not?
10 A. It's not treating the problem, it's just
11 transferring it to another geographical area.
12 Q. Okay. What about algal scrubbers?
13 A. Interesting. I don't know what the scaling
14 applications would entail. The demonstration and experience
15 is based around a relatively small process, sized process.
16 My reservation is that it could be scaled to the
17 level to surplace storm water treatment areas. Of course,
18 which would not be my analysis, but the cost-effectiveness
19 would have to be considered.
20 Q. Are you aware of any storm water treatment areas,
21 existing storm water treatment areas that are on the scale of
22 the proposed storm water treatment areas for the Everglades
23 SWIM Plan?
24 A. No.
25 Q. Why weren't you concerned about the scale of the
169
1 proposed STAs, then?
2 MR. GUZY: Objection as to form.
3 A. The algal scrubbers was a mechanized procedure
4 requiring waste handling, as well as hydraulics, a great deal
5 of machinery actively engaged throughout he treatment
6 process; whereas constructive wetlands are more simplistic in
7 its operation.
8 Q. You're talking about a passive system? Would that
9 be an appropriate way of describing it?
10 A. I think that would be appropriate.
11 Q. Do you have some prejudice against, or in favor of
12 -- let's put it that way -- in favor a passive system as
13 opposed to a more mechanized system?
14 MR. GUZY: Objection as to form.
15 A. Yes.
16 Q. Why is that?
17 A. It's a term that we call O&M, operation and
18 maintenance. That's a cost factor, keeping the process
19 operating at a level to meet the goals, design objective.
20 Q. And you believe that the STAs would have low O&M?
21 A. Lower.
22 Q. Lower. Okay.
23 Do you know how much the proposed STAs are going to
24 cost as estimated in the Everglades SWIM Plan?
25 A. A figure I'm familiar with is around $400 million.
170
1 Q. If the setting rate is not as predicted, that would
2 conceivably require a much larger STA to accomplish the same
3 degree of phosphorus removal, would it not?
4 A. Or smaller.
5 Q. Or smaller.
6 A. Yes.
7 Q. You're aware of the pilot project known as the
8 Everglades Nutrient Removal Project?
9 A. Yes.
10 Q. Have you -- Well, tell me what your knowledge about
11 that project is.
12 A. In general it's land that was obtained by the South
13 Florida Water Management District. Acreage-wise it's several
14 thousand acres, and in this area the South Florida Water
15 Management District are planning an array of experiments to
16 evaluate certain facets that could be associated with a storm
17 water treatment area in terms of optimizing your
18 understanding of the process, possibly the management of the
19 process.
20 Q. Why wouldn't it be a good idea to implement that
21 pilot project and study its removal efficiencies prior to
22 building the much larger storm water treatment areas proposed
23 in the Everglades SWIM Plan?
24 MR. GUZY: Objection as to form.
25 A. I believe, one, we have more than adequate
171
1 information coming from the existing filtering system, that
2 being the cattail area in Water Conservation 2A;
3 Two, the timeliness of the required implementation
4 schedule for the STAs would be a consideration.
5 Three, the transferability of an STA area,
6 experimental area that's on the order of three or four years
7 in age versus one that's decades in developing, that being
8 the system in the Water Conservation 2A. The experimentation
9 part, however, would facilitate management understanding for
10 an STA.
11 Q. You mentioned earlier the possibility of an
12 alternative known as rock pits. Could you describe to me
13 what that alternative might be?
14 A. In simple terms, a barrow pit typical of the rock
15 extraction business in south Florida develops aggregate for
16 construction material as well as component in concrete
17 mixing, these pits are very geometrically sized and generally
18 deep, they expose an area of water with large surface areas,
19 and they in turn properly sized would allow for settling of
20 particulate-bound phosphorus and its sequestering in the deep
21 zone of these pits.
22 In addition, it would allow for biological
23 assimilation of the nutrients in the water, i.e. via plankton
24 and zooplankton. It would be in the context of a biological
25 treatment process.
172
1 Q. Did you rule out or otherwise deem inappropriate
2 this rock pit alternative?
3 A. No.
4 Q. You think it is a viable alternative, then?
5 A. I think it merits serious consideration.
6 Q. Do you know whether anyone is engaged in any
7 studies to consider that possible alternative?
8 A. I believe the industry -- and I'm not sure whether
9 it was U.S. Sugar or the co-op or the coalition -- sponsored
10 some preliminary evaluation assessments, and they were
11 reported.
12 Q. Did those preliminary assessments look promising in
13 your mind?
14 A. From a treatment strategy I felt they did. I think
15 there's some siting considerations that have to be further
16 evaluated.
17 Q. What do you mean by siting considerations?
18 A. The fact is you have to dig a hole in the ground,
19 and, one, the disposal of material extracted in the creation
20 of the barrow pit or the rock pit, land to build the rock pit
21 on, and its proximity to a basin within the EAA area.
22 Q. Will the rock pits -- will the sediments in the
23 rock pits interact at all with the nutrients that might be
24 coming in the water other than by just sedimentation of
25 particulate phosphorus?
173
1 A. I believe if the pits are of adequate depth there
2 will be minimal vertical mixing.
3 Q. Why would that be a good thing in terms of nutrient
4 levels?
5 A. Because the sedimented material would stay
6 basically isolated in the bottom.
7 Q. Are there any characteristics of the soils of a
8 rock pit that might serve as a further filtration mechanism
9 for nutrients filtering into those rock pits?
10 A. They would afford substrate for absorption
11 processes. The longevity of that process I could only -- I
12 couldn't even guess.
13 Q. Would the nutrients coming into those rock pits
14 react in any chemical way with the soils that are within the
15 proposed rock pits?
16 A. Only the soluble portion of the say phosphorus.
17 Q. How would the soluble portion of the phosphorus
18 interact?
19 A. Through asorption process.
20 Q. What would it -- Are you saying absorb with a "B"
21 or adsorb with a "D"?
22 A. S-o-r-p-t-i-o-n.
23 Q. Okay. With what would it asorb?
24 A. It would have a chemical, or an affinity let's say
25 for calcium, a component of lime.
174
1 Q. Is it your understanding that those soils are
2 limestone-type soils, then?
3 A. Generally speaking.
4 Q. So those limestone soils would in effect bind the
5 phosphorus, the soluble phosphorus in the waters?
6 A. It would play a role in that.
7 Q. Okay. Is there any other chemical or biological
8 reaction other than the ones you've generally discussed here
9 that might function to remove phosphorus in these proposed
10 rock pits?
11 A. That would pretty well cover it.
12 Q. Okay. You mentioned earlier a limestone exchange
13 alternative. What's that?
14 A. It more or less encompasses the discussion we just
15 had about the lime serving as a reaction site for the soluble
16 phosphorus to either chemically bond or asorb to.
17 Q. How would limestone exchange differ from the rock
18 pit proposal, if at all?
19 A. The proposal that I'm referring to is one basically
20 of, say for example in the interior of the EAA you construct
21 berms or ditches with limestone fill, and the surface water
22 interacts as its discharge is moved from site to site.
23 Q. Okay. Another alternative you mentioned was
24 chemical treatment. Could you describe your understanding of
25 that process?
175
1 A. The proposal that I'm aware of is your classic iron
2 chloride treatment used in treating water supply for
3 clarifying and removal of materials.
4 Q. Do you regard this as a viable alternative?
5 A. I don't view it as a viable alternative to the
6 storm water treatment areas.
7 Q. Why not?
8 A. Because it's a chemical process.
9 Q. What's wrong with a chemical process?
10 A. Well, this particular process selects for
11 particular nutrients and I suspect trace metals such as
12 phosphorus very effectively will remove the particulate-bound
13 phosphorus. It's so effective that I anticipate it to truly
14 alter the chemical integrity of the inflow water radically.
15 Q. How would it alter the -- First of all, would you
16 tell me what you mean by chemical integrity of the water?
17 A. Well, surface waters, whether they be in Florida or
18 anywhere else, has a chemical constituent assemblage, and
19 there are ratios of cations and ions, salts, nitrogen,
20 phosphorus.
21 You chemically treat that, certain constituents of
22 that assemblage or very vulnerable to coagulation
23 precipitation. In this particular case the coagulation and
24 removal of phosphor would be very effective, it's a proven
25 technology.
176
1 It's not every effective in removing nitrogen, so
2 you would develop an effluent that in itself could be just as
3 consequential on the ecology of the Everglades as the raw
4 water coming from the EA area. There may be a missing trace
5 element, the nitrogen-to-phosphorus ratio would be radically
6 changed which may favor species in the Everglades that
7 presently are not a dominant component, but with the copious
8 nitrogen relative to phosphorus, they may in fact become very
9 vigorous.
10 Q. I think your testimony was that these alterations
11 of chemical integrity might occur. Do you know whether they
12 would in fact occur?
13 A. I believe they would in fact occur.
14 Q. What's the basis for that opinion? Are there
15 studies that would support that proposition?
16 A. Yes, there would be engineering studies, design
17 studies. As I said, it's a technology widely used in
18 drinking water treatment, and to some extent waste water
19 treatment.
20 Q. So what you're really worried about regarding this
21 chemical treatment process is the secondary effects?
22 A. Yes. Well, secondary in terms of water quality.
23 In this process there has to be a sludge harvesting
24 component, because you are adjusting the pH to very high
25 alkaline conditions in order to facilitate the coagulation
177
1 precipitation, then there's a neutralization acid.
2 The material coagulated and precipitated will
3 accumulate and has to be removed, and there becomes the
4 disposal issue of where and how to dispose of this material.
5 Q. You're speaking of the sludge?
6 A. Yes.
7 Q. What's the problem with disposing of the sludge?
8 A. I would think it is a solid waste, and I think
9 solid waste disposal in Florida probably has regulatory
10 considerations.
11 Q. Is it a special or hazardous waste?
12 A. I couldn't say.
13 Q. Could it be utilized for something else such as
14 fertilizer for fields or anything like that?
15 A. I think potentially it could.
16 Q. Do you have any other concerns about the chemical
17 treatment process other than the ones you've articulated
18 here?
19 A. I say as a concern simply because I'm not aware of
20 the design considerations right now how to deal with the
21 volume at high flows.
22 Q. Could you provide me with a little more detail
23 about what your concern is in that regard?
24 A. The idea would be to size a chemical treatment
25 facility to handle all flow as an STA would handle it, rather
178
1 than bypass it untreated to the EPA area.
2 Q. Wasn't there a similar concern for the STAs, that
3 is how big should they be?
4 A. They are sized to accommodate high flow.
5 Q. Okay.
6 A. I'm simply saying the proposal that I'm aware of I
7 don't recall whether that consideration got explored.
8 Q. Okay. The final alternative that you mentioned was
9 deep well injection. Do you regard that as a viable
10 alternative?
11 A. No.
12 Q. Why not?
13 A. It's simply transferring the problem somewhere
14 else.
15 Q. Anything else about that other than the simple
16 transference that troubles you about it?
17 A. That's the principal concern.
18 Q. Okay. Are there any other secondary impacts such
19 as harm to the underground aquifers to which the injection
20 occurs?
21 A. Well, that's inclusive of -- When I say you
22 transfer the problem to another area, a whole new set of
23 constraints would have to be considered.
24 Q. Okay.
25 A. You still haven't treated the water.
179
1 Q. Okay. Do you know whether deep hole injection
2 would cause any harm to the area to which it is transferred?
3 A. I'm not aware of the confines in which it would be
4 injected, or the strategy in how they're going to inject it.
5 Q. Okay. It's your concern, then, that that just
6 simply hasn't been studied as opposed to it's not a good
7 idea?
8 A. To my knowledge it hasn't been fully explored and
9 presented.
10 Q. Okay. I believe you told me yesterday that you may
11 well be offering some opinions as to the proposed short and
12 long-term phosphorus limitations for the Everglades National
13 Park. Would that be correct?
14 A. Yes.
15 Q. What will your opinions in that regard be?
16 A. That the interim -- since we do not know what the
17 final concentration needs to be to secure a protection of the
18 park, the interim value I believe is an acceptable number
19 numerically-speaking to a magnitude that would allow the full
20 development of the treatment technology and strategy in
21 moving to a final long-term concentration that would
22 ultimately bring us to a level dictated by the outstanding
23 Florida water rule.
24 Q. What are the short-term limits proposed for the
25 park, if you recall?
180
1 A. I'd have to look for them.
2 Q. Do you know whether those limitations are currently
3 being met by discharges to the park through the S-12
4 structures?
5 A. I don't know, currently-speaking.
6 Q. Okay. Do you know whether they were met in the
7 past?
8 A. Based on the information I've seen from the
9 monitoring of the S-12s, no.
10 Q. Okay. You're sure about that?
11 A. That's my best recollection.
12 Q. Do you know how those limits for the Everglades
13 National Park were calculated?
14 A. I'm not familiar with the detailed calculations.
15 Q. Are you accepting those calculations as true for
16 purposes of your opinion?
17 A. Yes.
18 Q. You also testified yesterday that you would be
19 expressing some opinions as to the propriety of the short and
20 I guess long-term limits for the Loxahatchee National
21 Wildlife Refuge. Would that be correct?
22 A. Yes.
23 Q. Okay. What will your opinions in that regard be?
24 A. I feel the ultimate control concentration as
25 described through the outstanding Florida water rule would be
181
1 met, and there's a second caveat that goes with it that
2 during the course of establishing the treatment technology
3 that research will be done to define a criteria under the
4 Class 3 water quality standards.
5 Q. Do you know how the short-term limits were
6 established for the refuge?
7 A. In general.
8 Q. What's your general understanding?
9 A. They're based on marsh monitoring observations,
10 fourteen stations.
11 Q. Okay. Do you know how compliance with those limits
12 will be accomplished or measured?
13 A. There's an equation developed and posted in the
14 SWIM Plan that integrates the effective stage. The short-
15 term, the geometric mean of the fourteen marsh stations will
16 be compared to this equation that is driven by the stage
17 level, and that will be the number to determine whether the
18 geometric mean of the fourteen stations are in compliance or
19 not.
20 Q. Does this compliance determination look to just a
21 few of those fourteen stations?
22 A. I believe the mathematics are such that it captures
23 the phosphorus dynamics at three selected stations that are
24 included in that fourteen stations.
25 Q. Do you know why those three stations were selected
182
1 as the measuring tool?
2 A. Simply that they represented the cleanest water of
3 the fourteen stations.
4 Q. Is there any relationship between the proposed 50
5 part per billion discharge limitation for the STAs and the
6 short-term limits for the refuge?
7 A. Mathematical relationship?
8 Q. Yes.
9 A. Not that I'm aware of.
10 Q. Is there any relationship whatsoever?
11 A. I don't understand what you mean by relationship.
12 Q. I think I'll just leave it at that.
13 MR. GUZY: Are you withdrawing the question?
14 MR. HYDE: Yes.
15 BY MR. HYDE:
16 Q. If there's no mathematical relationship between the
17 50 parts per billion discharge limitation for the SDAs and
18 the short-term limits for the refuge, then what's the purpose
19 of requiring a 50 part-per-billion discharge limitation for
20 the SDAs? Why not sixty, or forty, or a hundred?
21 A. As I understand as proposed in the SWIM Plan, the
22 existing draft SWIM Plan, the strategy is to effect an 85
23 percent reduction in phosphorus load currently emanating
24 through the S5A structure.
25 How to accomplish that involves a strategy that
183
1 touches on three objectives.
2 One is to reduce that load by 25 percent through
3 BMPs within the EAA area.
4 A second component is to reduce the load via a
5 storm water treatment area by 70 percent.
6 The 50 parts per billion is a function of the
7 effectiveness of the STA. For example, a known
8 concentration, or an average concentration flowing through
9 the control structures -- and I believe the number is
10 somewhere around a 168 or so -- that if the STAs can remove
11 70 percent that would translate into a 50 part per billion
12 concentration.
13 Q. Did I just hear you to say that the concentrations
14 entering the Loxahatchee Refuge were not in the order of 168
15 parts per billion?
16 A. No, I'm saying -- I said that I think the average
17 concentration across all discharge structures is -- all STAs
18 are expected to yield a concentration of 50 parts per
19 billion.
20 Q. Okay. What do you understand the current
21 phosphorus concentration to be for discharges to the refuge?
22 A. I don't recall.
23 Q. Okay. Do you know whether the best management
24 practices program has been implemented by farmers within the
25 EAA?
184
1 A. I understand certain aspects of BMPs are being
2 implemented.
3 Q. Do you know whether they are now achieving at least
4 a 25 percent reduction in phosphorus concentrations?
5 A. No, I don't.
6 Q. Would it surprise you if that BMP program were
7 actually accomplishing much more than 25 percent?
8 A. I would be very pleased.
9 Q. If the BMP programs are in fact accomplishing a
10 much greater than 25 percent reduction in phosphorus loading,
11 would that have any impact upon the sizing requirements of
12 the proposed STAs?
13 A. That would be a decision by South Florida Water
14 Management District.
15 MR. GUZY: Just a second.
16 (Pause.)
17 THE WITNESS: Yes. I need to answer the third
18 component.
19 BY MR. HYDE:
20 Q. Would a third component answer be?
21 A. It provides for some assimilative capacity within
22 the receiving system from water treatment areas.
23 Q. Would you explain that answer to me? I'm not sure
24 I understand how it relates to your previous testimony.
25 A. With 50 parts per billion limits at the discharge
185
1 structure, some assimilative capacity will have to take place
2 in order to reduce that down to the control limits on the
3 interim.
4 Q. I'm not sure that I still understand what you're
5 testifying to.
6 A. Without the -- just for example, if the control
7 limit, interim control limit in the refuge is 20 parts per
8 billion at a certain stage, the input from the structure is
9 50 parts per billion, something happened to the differential.
10 Q. You mean there would be like a mixing or a dilution
11 of the waters coming in?
12 A. There would be some assimilation of the phosphorus
13 in the wildlife refuge.
14 Q. Okay. How does that relate to your earlier
15 testimony about a reduction through BMPs, or does it?
16 MR. GUZY: If I can help clarify, through your
17 interjection of questions Mr. Hicks has been diverted from
18 his earlier testimony which was that there were three
19 components of the reasoning, of the strategy relationship
20 between 50 parts per billion and 85 percent reduction in load
21 from the S5As. Is that accurate?
22 THE WITNESS: Yes, the reduction strategy for
23 diminishing the phosphorus load to the environmental
24 protection areas involves three components of consideration.
25 One is BPMs, two is storm water treatment, and
186
1 three some assimilative capacity in the existing system.
2 MR. HYDE: Okay.
3 MR. GUZY: You seemed to be moving off that line of
4 questioning before he had had an opportunity to complete his
5 answer, so I wanted to be sure he had that opportunity.
6 MR. HYDE: I wasn't even going to question him on
7 it because it's an obvious point, to my mind at least.
8 BY MR. HYDE:
9 Q. Do you know whether the short-term limits for the
10 refuge are currently being met?
11 A. I do not.
12 Q. Would it surprise you if they were?
13 A. I don't have an opinion at this point.
14 Q. Well, if they're currently being met, might that
15 not call into question the need for the storm water treatment
16 areas?
17 A. Currently met -- I mean last week? A year? Two
18 years?
19 Q. I think the most recent measuring of it reflected
20 that.
21 A. I'm not aware of those data.
22 MR. HYDE: Do you want to take a break for about
23 five minutes? Would that be okay?
24 THE WITNESS: Great idea.
25 (A brief recess.)
187
1 BY MR. HYDE:
2 Q. I would like to question you now about the alleged
3 violations of the narrative nutrient standard expressed in
4 the Department of Environmental Regulations rule. That's
5 17-302.560(27), and it reads: Nutrients - In no case shall
6 nutrient concentrations of a body of water be altered so as
7 to cause an imbalance in natural populations of aquatic flora
8 and fauna.
9 Let me ask you a few questions just about the rule
10 itself.
11 What is your understanding of the phrase "body of
12 water" within that definition?
13 A. I think it's a defined area.
14 Q. Okay. Does that mean you determine a violation of
15 the standard in relationship to some geographic area?
16 A. Yes.
17 Q. Okay. Would you necessarily conclude, then, that
18 say a one-quare-meter patch of nutrient-induced cattails
19 would constitute a violation of the rule in a large water
20 body?
21 MR. GUZY: Objection as to form.
22 A. When I think of what I consider a geographical
23 area, the reason is you have to have some point of reference.
24 That's kind of classic with most narratives.
25 You have to have some idea what the native flora
188
1 and fauna is within this area associated with the impacted
2 area, and then you examine the change in those populations.
3 When I say its populations I think of species. So
4 taking a square meter by itself doesn't give me a basis for
5 evaluating it.
6 Q. Okay. So is there a geographical component, then,
7 to determining whether there is an imbalance of natural flora
8 and fauna in a water body?
9 A. Yes.
10 Q. Okay. What is your understanding of the term
11 "imbalance" in that standard?
12 A. Not normal.
13 Q. Does that mean any change whatsoever in the natural
14 populations of aquatic flora and fauna is an imbalance?
15 A. I think that's in the degree of change.
16 Q. Would you agree that it would have to be a
17 significant change?
18 MR. GUZY: Objection as to form.
19 A. It depends on the geographical area you want to
20 apply that imbalance to as being significant.
21 Q. Well, at what point does a change become an
22 imbalance? if you can address it from that perspective.
23 The reason I ask the question is that natural
24 populations of aquatic flora and fauna can naturally shift
25 often times quite radically over time, so how do you
189
1 determine in those instances whether a nutrient-induced shift
2 is or constitutes or causes an imbalance in those same
3 species that would naturally fluctuate over time?
4 A. That's my point, that you have to have a base, a
5 relevance test. You would compare synoptically what is
6 defined as the native, natural, typical, representative flora
7 or fauna in this geographical area, and at the same time you
8 consider the populations in the area that you are going to
9 subscribe as inbounds. There has to be a comparison.
10 Q. What do you mean by that term "synoptically"?
11 A. The same time frame.
12 Q. Is there a temporal component to determining
13 whether there is an imbalance in natural populations of
14 aquatic flora and fauna?
15 Perhaps that's a little vague of a question. Let
16 me see if I can restate it this way:
17 Does the change have to be of sufficient duration,
18 and not be merely ephemeral or passing in order to constitute
19 a violation of the standard?
20 A. I think there's a judgment area involved.
21 Q. So you wouldn't necessarily conclude that a mere
22 transitory change would necessarily constitute an imbalance,
23 or reflect an imbalance of natural populations of aquatic
24 flora or fauna?
25 MR. GUZY: Objection as to form.
190
1 A. Would you repeat that?
2 Q. Yes. Would you consider a mere transitory or
3 temporary change to constitute an imbalance in natural
4 populations of flora or fauna?
5 MR. GUZY: Same objection.
6 A. Yes, I probably would. As I said, I'd have to make
7 a judgment on the degree of that imbalance.
8 Q. Can you give me an example of how even a temporary
9 change would constitute an imbalance?
10 A. First of all, the temporary change, you'd have to
11 define it in some time scale. Conceivably, other than being
12 in a climaxed community it's temporary, but it may take years
13 and decades for it to pass through the transition.
14 The point here is to make that judgment you have to
15 have relevance, and that requires some understanding of base
16 line conditions.
17 For example, in the Everglades the area that's now
18 cattails if we presume was a viable sawgrass community there
19 is a native representation of that sawgrass community
20 presently found in the Everglades, and that would in my
21 opinion dictate the normal expected assemblage of flora and
22 fauna.
23 The cattail area would have to be judged as being
24 imbalanced relative to changes taking place in the natural
25 system as well as where the impacted area is.
191
1 Q. What if you limited the notion of temporary or
2 transitory change to say just a several-month period where
3 you observed some changes in populations of aquatic flora and
4 fauna as opposed to maybe a fifty or sixty-year period?
5 A. In the context of a few months the record would
6 have to show that it is temporary and it returns.
7 Q. Okay. If it did in fact return to normal or
8 natural population structure, would that to your mind still
9 constitute a violation of the narrative nutrient standard?
10 A. It would probably be a judgment factor to consider.
11 Q. Have you concluded that there are imbalances in
12 natural populations of aquatic flora and fauna in the
13 Everglades Protection Area?
14 A. Yes.
15 Q. In what areas is that specifically occurring?
16 A. The information presented in the SWIM Plan would
17 lead me to focus on the area associated with the S-10
18 structures downstream in Water Conservation Area 2A.
19 Q. Are there any other areas in the Everglades
20 Protection Area that you believe there may be an imbalance in
21 natural populations of aquatic flora and fauna?
22 A. Yes, I think there's analog components in the Water
23 Conservation Area 1.
24 Q. Okay. Is there any other area to your knowledge?
25 A. None that stands out.
192
1 Q. What are the factors which have led you to
2 conclude that there is such an imbalance in Water
3 Conservation Area 2A?
4 A. First, it is my belief at least from information
5 from the SWIM Plan that the area some time ago was a native
6 sawgrass community typical of the Everglades.
7 With the establishment of a nutrient source to
8 alter the controlling components of that sawgrass community,
9 which in this case is the ability for sawgrass to establish
10 itself, and the invasion of plant species atypical to the
11 sawgrass community which are more competitive, able to grow
12 more vigorously because of the enrichment, has displaced that
13 native population.
14 Q. Would that statement be equally applicable to Water
15 Conservation Area 1?
16 A. Yes.
17 Q. Do you know what percentage of the Everglades
18 Protection Area is encompassed by these cattail-dominated
19 areas in Water Conservation Area 2A and 1?
20 A. I don't have a firm number.
21 Q. Would it surprise you if it was less than 1
22 percent?
23 MR. GUZY: Objection as to form.
24 A. It wouldn't surprise me as a relatively small
25 fraction of the total area.
193
1 Q. Okay. How would a change in 1 percent of the whole
2 area of the water body known as the Everglades Protection
3 Area constitute an imbalance in the natural populations of
4 aquatic flora and fauna of that water body?
5 MR. GUZY: Objection as to form.
6 A. I think it's a matter of judgment whether 1 percent
7 is significant.
8 Q. Would you ordinarily consider a nutrient-induced
9 change in 1 percent of a body of water to be significant?
10 A. In this particular case, yes.
11 Q. Why?
12 A. Because of the uniqueness of this habitat.
13 Q. Does that mean simply that because it's the, quote,
14 Everglades, that that uniqueness factor comes into play?
15 A. Yes.
16 Q. Are there any other reasons?
17 A. It would be my opinion that we are seeing the
18 beginning of an expansion.
19 Q. Okay. If those areas, however, have reached
20 equilibrium, does that lessen your concern as to whether
21 there is an actual imbalance in natural populations of
22 aquatic flora and fauna?
23 MR. GUZY: Objection as to form.
24 A. I don't understand what you mean by equilibrium.
25 Q. That these nutrient-impacted areas are not
194
1 expanding.
2 Let me restate the question.
3 If it were demonstrated that these nutrient-
4 impacted areas were not expanding, that the cattail
5 monocultures are not, in the colorful terms of the United
6 States, marching southward to the park, would that lessen
7 your concern as to whether there was an imbalance of natural
8 populations of aquatic flora or fauna in the Everglades
9 Protection Area?
10 A. No, because the cattails only represent part of the
11 area, the expansion, that there is enrichment of sediments
12 and changes in periphytic communities.
13 Q. Well, let's make my question related to nutrient-
14 impacted areas not expanding, and not tie it strictly to the
15 cattails. If that were proven to be the case, would that
16 still, would that 1 percent of the Everglades Protection Area
17 still amount to an imbalance in the natural populations of
18 aquatic flora and fauna of the Everglades Protection Area?
19 A. Again, the 1 percent number you're speaking of, is
20 that strictly cattails, or is that the entire nutrient-
21 affected area?
22 Q. The entire nutrient-affected area.
23 MR. GUZY: Objection as to form.
24 A. I don't know the expanse of the entire nutrient-
25 affected area.
195
1 Q. Actually I'm being quite liberal in saying that.
2 It's less than a half a percent that is cattail-dominated,
3 and 1 percent is being liberal in identifying the, quote,
4 nutrient-impacted areas of the Everglades Protection Area.
5 MR. GUZY: Well, this is your position, your
6 testimony.
7 MR. HYDE: That's what the facts demonstrate.
8 I think even if you looked at the District's documents they
9 would establish that. It's just a simple geographic
10 calculation of acreage in relationship to the whole of the
11 EPA, Everglades Protection Area.
12 BY MR. HYDE:
13 Q. Assuming that to be the case, would that still in
14 your mind constitute an imbalance of natural populations of
15 aquatic flora or fauna?
16 A. Yes.
17 Q. And is it due solely to the uniqueness of the
18 Everglades, then?
19 A. Principally.
20 Q. Is there any other factor?
21 A. Secondly, I'm not of the opinion that it's in your
22 terms an equilibrium.
23 Q. Okay. Well, I asked you to assume that to be true
24 for purposes of my question. So is there any other factor
25 beyond the uniqueness of the Everglades?
196
1 A. Uniqueness in the context of the total flora and
2 fauna, that's correct.
3 Q. Okay. What other factors in your mind constitute
4 or reflect an imbalance is natural populations of aquatic
5 flora or fauna in the Everglades Protection Area besides
6 cattails?
7 A. I think a significant indicator of the imbalance
8 relates to the dissolved oxygen dynamics that have been
9 reported in the SWIM Plan.
10 Q. Okay. Now, dissolved oxygen is not aquatic flora
11 or fauna, is it?
12 A. It's a product of the aquatic flora and fauna.
13 Q. Aren't you really saying that's a measurement of
14 some change in the aquatic flora and fauna?
15 MR. GUZY: Objection as to form.
16 A. I thought I understood your question as what other
17 indicators of an imbalance.
18 Q. Well, what changes in aquatic flora and fauna are
19 causing this change in dissolved oxygen dynamics?
20 A. The adverse effect on the periphytic community.
21 Q. Okay. Anything else?
22 A. That's the principal force.
23 Q. Okay. How is the periphyton community being
24 altered or caused to go in imbalance by phosphorus-induced
25 changes?
197
1 A. The periphytic community is, using words within the
2 SWIM Plan, one of the most conspicuous components of the
3 Everglades.
4 Aside from being conspicuous, it's a component that
5 is a principal player in establishing the dissolved oxygen
6 resources of the area through photosynthesis, as well as
7 providing habitat for aquatic animals.
8 The cattails, the sawgrasses per se, macrophytes of
9 the Everglades, are not a source of oxygen to the water
10 column.
11 Information in the SWIM Plan says phytoplankton,
12 which is a single-bodied plant, single-cell type plant,
13 unattached, virtually plays no role in the Everglades, so in
14 toto the oxygen production through autotrophic process is
15 keyed specifically to the periphyton community.
16 In addition to supporting the needs of the
17 periphyton aquatic plant component, it also supports the need
18 of other air-breathing animals.
19 So if you cut the source of oxygen, one, you alter
20 the animal regime that would be associated with that native
21 periphytic community.
22 Q. What animal regime are you talking about being
23 altered?
24 A. Your various forms of invertebrate, small fishes,
25 even the bacterial community.
198
1 Q. Do dissolved oxygen conditions commonly violate the
2 state water quality standard for dissolved oxygen even in
3 unimpacted or background areas of the Everglades Protection
4 Area? By unimpacted or background, I mean areas that are not
5 affected by phosphorus enrichment.
6 MR. GUZY: Objection as to form. You lost me at
7 least on that.
8 Q. Did you understand the question?
9 A. I believe so.
10 Q. Okay.
11 A. Let me restate it to make sure I do understand it.
12 You're asking me do dissolved oxygen concentrations
13 in what we call nonimpacted areas relative to phosphorus, do
14 they at some point in time reach a concentration less than
15 the stated standard in the Class 3 water quality standard of
16 the state?
17 Q. That's correct.
18 A. Yes.
19 Q. What then is the yardstick that should be utilized
20 to determine whether nutrient-induced dissolved oxygen
21 concentration lowering constitutes a violation?
22 A. I'm not arguing -- I would not argue that the
23 violation of the dissolved oxygen standard is the point to be
24 made.
25 My position would be that in these unimpacted
199
1 areas, although true that dissolved oxygen, the excursion of
2 it over a 24-hour period will fall below the standard, it
3 follows a diel variation, fairly wide ranging. Saturation,
4 that is the amount of oxygen that can be contained in the
5 water, can often approach twice the normal equilibrium
6 concentrations.
7 The impacted area as demonstrated in the SWIM Plan
8 precludes those wide ranging dissolved oxygen concentrations
9 which are typical of native sawgrass communities in I suspect
10 sloughs, the natural system, when in fact they are depressed
11 numerically and held relatively constant throughout the diel
12 period.
13 The point is that this wide ranging DO that's
14 characteristic of a native habitat also supports a community
15 of air-breathing animals, oxygen-breathing animals that have
16 evolved to that type of cycle.
17 Q. Are there unimpacted areas in the Everglades
18 Protection Area which do not reflect that diel fluctuation
19 of dissolved oxygen concentrations during the course of the
20 day?
21 A. Unimpacted in the context of nutrients originating
22 from the EAA area?
23 Q. That's correct.
24 A. I believe there is.
25 Q. Okay. Doesn't that response undermine your
200
1 previous answer somewhat?
2 MR. GUZY: Objection as to form.
3 A. No, because these areas are unique to a particular
4 aquatic community that has evolved in the Everglades.
5 Q. Which particular aquatic community are you speaking
6 of?
7 A. I'm thinking of an alligator hole.
8 Q. Okay. Are there other areas such as sawgrass areas
9 in unimpacted areas where the dissolved oxygen concentrations
10 stay depressed throughout the diel cycle in violation of the,
11 or below the minimum standard set by DER's rule?
12 A. Are you implying that the absolute concentration
13 throughout the day remains below 5, or are you saying the
14 absence of a diel excursion?
15 Q. Actually both, that to the extent there is a diel
16 fluctuation it remains below 5 milligrams per liter.
17 A. I'm not aware of those type of excursions in native
18 sawgrass communities.
19 Q. Okay. Would it surprise you if that in fact
20 occurred?
21 MR. GUZY: Objection as to form.
22 A. My response to it would be only after I saw where
23 this happened, and the conditions associated with it.
24 Q. Are low dissolved oxygen conditions common to
25 wetlands generally?
201
1 A. Absolute values?
2 Q. Yes.
3 A. They do occur quite frequently.
4 Q. Okay. Is the fluctuation, or diel fluctuation,
5 whatever you want to call it, depressed in wetlands generally
6 for dissolved oxygen?
7 MR. GUZY: Objection as to form.
8 A. It's site specific.
9 Q. Okay. I believe you stated earlier that this
10 depression in dissolved oxygen concentration affected
11 invertebrate communities. What is your basis for believing
12 that invertebrate communities have been affected by
13 phosphorus-induced low dissolved oxygen conditions in the
14 Everglades Protection Area?
15 A. My response has two parts. First, given the O2
16 requirements of some oxygen-breathing animals, various
17 species have different requirements.
18 There is a threshold level that would impair the
19 reproduction of the animal, the survival of the young, or it
20 could be directly lethal to them, so in principle I would
21 propose that an animal community which is made up of various
22 populations of macroinvertebrates that have evolved to a
23 diel, or an oxygen regime that's characterized in these
24 native habitats, when that is altered to the level that's
25 reported in the SWIM Plan animals would be eliminated from
202
1 that assemblage according to their sensitivity to the oxygen
2 stress. That's a classic stress response.
3 Q. I believe that answer --
4 MR. GUZY: Have you finished your answer?
5 THE WITNESS: No.
6 MR. HYDE: I'm sorry. Excuse me.
7 THE WITNESS: To validate that concept, I believe
8 information presented in the SWIM Plan that would help
9 corroborate the fact that they report a measured decrease in
10 diversity of the macroinvertebrates inhabiting areas that are
11 enriched with phosphorus, and associated with this altered
12 dissolved oxygen regime.
13 Q. Do you know what study purports to establish that
14 diminishment in macroinvertebrate populations?
15 A. I believe it's referenced in there.
16 Q. Is it a study by someone called Edward Terczak?
17 A. I don't recall.
18 Q. Okay. I want you to assume for purposes of my next
19 question that it is the Terczak study, which is what the SWIM
20 Plan in fact reflects.
21 Did you know that that study was done back in 1979
22 and 1980?
23 MR. GUZY: Objection as to form. You're asking him
24 to assume a study that he says that he's not familiar with
25 which one.
203
1 MR. HYDE: Well, he says there was a study, he just
2 wasn't familiar with the name of the author of the study.
3 That's what I interpreted his answer to be.
4 MR. GUZY: Well, maybe you can ask him if he's
5 familiar with other components of the study.
6 MR. HYDE: Well, that's what I'm trying to do.
7 Q. Do you know when the study was performed?
8 A. No.
9 Q. Would it surprise you to learn that it was actually
10 done back in 1979 and 1980?
11 MR. GUZY: Objection as to form.
12 A. It wouldn't surprise me.
13 Q. It wouldn't surprise you? Do you think it's good
14 science to rely on a document or a study that's thirteen or
15 fourteen years old to establish a violation of current or
16 contemporary water quality standards?
17 A. I'd view it as the best available information.
18 Q. What if more contemporary information that was
19 conducted in accordance with DER's biological integrity rule
20 showed that there was in fact no such diminishment in
21 macroinvertebrate communities?
22 A. I would certainly evaluate that.
23 Q. Okay. Would you as a general rule like to look
24 more to contemporary studies as opposed to twelve to fifteen-
25 year-old studies?
204
1 A. I could only say that after I evaluated the
2 contemporary information.
3 Q. Have you reviewed any information that's been
4 published by the Duke Wetlands Center in this regard?
5 A. No.
6 Q. If this more contemporary information, data,
7 whatever you want to call it, established that their in fact
8 was not this diminishment, alleged diminishment of macro-
9 invertebrate communities in the Everglades Protection Area,
10 would that be a factor that you would delete from your
11 imbalance determination?
12 A. Only after I carefully considered the data.
13 Q. Mr. Hicks, the Duke Wetlands Center study of
14 macroinvertebrates by Dr. Russ Rader has been in existence
15 for quite some time. Does it disturb you that this study has
16 not been brought to your attention?
17 MR. GUZY: Objection as to form.
18 A. In existence in what form?
19 Q. In published form.
20 A. In refereed form?
21 Q. Well, it's now refereed, but it has been in
22 existence in published form by reports of the Duke Wetlands
23 Center for some time now.
24 A. It's not been brought to my attention.
25 Q. Okay. Are you concerned that you might be just
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1 being fed data representing one side of the case?
2 A. No.
3 MR. GUZY: Objection as to form.
4 Q. If that data that I just referenced establishes
5 what I say it does, will that undermine your opinion as to
6 there being an imbalance in macroinvertebrate populations of
7 the Everglades Protection Area?
8 MR. GUZY: Objection as to form.
9 A. I wouldn't speculate until I personally examined
10 it.
11 Q. Well, assuming that your review does in fact
12 conclude that that data is correct and was correctly
13 collected, would that undermine your overall opinion?
14 MR. GUZY: I don't follow what data you're talking
15 about, what results. You've stated very general results.
16 MR. HYDE: I'm talking about macroinvertebrate data
17 collected by the Duke Wetlands Center, and other more
18 contemporary data that's been collected in accordance with
19 the Hester Dendy methodology described in the Department of
20 Environmental Regulation rules.
21 Q. If that data, if you come to believe that that data
22 is correct and that there is in fact no such diminishment in
23 macroinvertebrate populations, will that undermine your
24 opinion that there is an imbalance of natural populations of
25 aquatic flora or fauna?
206
1 MR. GUZY: Objection as to form.
2 A. Based on what you've said, the only thing I can
3 conclude from it that the data will simply generate a species
4 diversity indices.
5 What I'm saying is the indices may not change, but
6 the quality, the type of animals found can be quite different
7 from the normal assemblage of animals.
8 Q. So you're utilizing a test other than that would
9 be, or is expressed in the department's specific water
10 quality standard for measuring biological integrity impacts
11 to macroinvertebrate populations? Is that correct?
12 A. I thought the discussion began around what factors
13 would be involved in the imbalance. What I'm saying is that
14 the imbalance involves flora and fauna.
15 Q. Well, do you consider macroinvertebrates to be
16 flora and fauna, flora or fauna?
17 A. It's fauna.
18 Q. Okay. And if you accept the facts that I have set
19 forth here today as being true, would that not undermine at
20 least in part your conclusion that there is an imbalance
21 here?
22 MR. GUZY: I'm going to object. You haven't set
23 forth any facts, you've set forth a general statement that
24 there's some less diminishment without specifying where,
25 when, how, to what degree any crucial facts for any expert to
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1 be able to form an opinion on.
2 MR. HYDE: Let me articulate some of the facts,
3 then. This is from the Duke Wetlands Center study.
4 MR. GUZY: Are you articulating these in the
5 context of a hypothetical question?
6 MR. HYDE: Yes.
7 MR. GUZY: Okay. Then why don't you phrase it that
8 way.
9 MR. HYDE: That's what I'm trying to do. I'm just
10 giving you a little background. It's from the Duke Wetlands
11 Center study by Dr. Russ Rader and Dr. Curtis Richardson.
12 Q. The macroinvertebrate sampling was conducted in
13 nutrient-enriched areas of northern WCA-2A, as well as
14 unenriched areas of middle to southern WCA-2A, and I want you
15 to assume further that Dr. Rader's data reflects that
16 macroinvertebrate communities were not diminished in enriched
17 areas as opposed, or as compared to unenriched areas, and
18 that, if anything, species diversity and richness was
19 increased in nutrient-enriched areas.
20 Assuming that those facts are true, does that
21 undermine your opinion as to whether there is an imbalance in
22 natural populations of aquatic flora or fauna?
23 MR. GUZY: I'm going to object. I think you have
24 to as a foundation ask him first if that's an adequate level
25 of factual information for him to reach any opinion based
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1 upon.
2 MR. HYDE: Well, I think that's more in the nature
3 of coaching your witness than presenting adequate facts upon
4 which to make a determination, but --
5 MR. GUZY: It's a foundational objection.
6 Q. Well, I'll ask you, assuming those facts to be
7 true, would that be something that you feel would undermine
8 your opinion?
9 MR. GUZY: Same objection.
10 A. I would consider the facts as I interpret them from
11 the published information. You've generalize the terms to
12 where I can't make a judgment.
13 Q. I believe you stated a few minutes ago that there
14 were also, or could also be impacts on small fishes as a
15 result of nutrient-induced dissolved oxygen changes; is that
16 correct?
17 A. Yes, sir.
18 Q. Have you seen any empirical data which supports
19 that proposition?
20 A. I haven't uncovered any up to this point.
21 Q. Are you aware of a recent study of the United
22 States Fish & Wildlife Service Extension at the University of
23 Florida which concludes that in fact fisheries populations
24 are not adversely impacted in nutrient-enriched areas?
25 A. No, I'm not.
209
1 Q. Okay. If the extension service's study does in
2 fact reflect what I just said it does, would that undermine
3 your opinion as to there being an imbalance in natural
4 populations of aquatic flora and fauna?
5 MR. GUZY: Same objections.
6 A. Again, I don't know the circumstance of the
7 information or representativeness of it relevant to the
8 Everglades.
9 Q. Do you think it would be appropriate for you, given
10 the articulated area of your expertise and the testimony that
11 you'll be offering in this proceeding to examine this sort of
12 information that I've been referring to by the Duke Wetlands
13 Center and by the U.S. Fish & Wildlife Services' extension
14 service?
15 A. Yes.
16 Q. We have talked about the following factors as
17 having impacts upon, or being reflective of an imbalance:
18 That would be the sawgrass-to-cattail transition; the
19 periphyton, particularly as it relates to changes in
20 dissolved oxygen concentrations; and then invertebrates,
21 small fishes and bacteria.
22 Are there any other factors that you would utilize
23 or say are indicative of an imbalance in the Everglades
24 Protection Area?
25 A. I believe that covers it.
210
1 Q. Okay. How are bacteria being affected? Let me
2 just strike that.
3 How are changes in bacteria reflective of an
4 imbalance in natural populations of aquatic flora or fauna?
5 A. Well, bacteria can be classified as basically three
6 groups. There's the anaerobic, aerobic and facultative
7 bacteria.
8 These bacteria are -- to generalize it are not the
9 flywheel of Mother Nature, they remineralize decomposed,
10 remineralize material, organic material that's introduced in
11 the system, whether it be plant material or animal material.
12 If you have a system that is classic aerobic you
13 have established one type of bacterial community efficient at
14 processing this organic matter.
15 You change the environmental setting to an
16 anaerobic system, a different population of bacteria come
17 into play. Their efficiencies may not be the same as the
18 aerobic community's. The product of their metabolism under
19 anaerobic conditions would be quite different from that of
20 aerobic conditions.
21 Q. Have you concluded your answer?
22 A. Yes.
23 Q. Okay. What, if any, empirical data have you
24 examined which establishes that there is a shift in bacterial
25 populations for communities in the Everglades Protection
211
1 Area?
2 A. Some of the posted metabolic data in the SWIM Plan.
3 Q. Can you be more specific? Do you recall a
4 particular study or reference?
5 A. I don't recall a reference, but, as I said, it's
6 identified in the SWIM Plan where the P-to-R ratios have
7 dropped drastically to very low numbers, less than a tenth.
8 Q. What are PR ratios?
9 A. That is a measure of the ratio of total organic
10 matter produced through photosynthesis to total organic
11 matter assumed in respiration.
12 Q. Okay. Have you seen any empirical data which would
13 establish that these purported changes in bacterial
14 populations are having any adverse impact on higher trophic
15 species?
16 A. They are the -- the bacteria are the principal
17 players in driving the metabolic process to a heterotrophic
18 system.
19 Q. Well, I don't think that answers my question. I
20 asked you if you had seen any empirical data which
21 established that bacterial community changes in the
22 Everglades Protection Area were having an adverse impact on
23 higher trophic species.
24 A. Empirical data meaning bacteriological assessments?
25 Q. Yes.
212
1 A. No.
2 Q. Are you aware of any ongoing efforts that would
3 attempt to establish such a link?
4 A. No.
5 Q. Similarly, are you aware of any empirical data
6 which would establish that changes in the periphyton
7 community due to nutrient impacts are having any adverse
8 impact on higher trophic species?
9 A. I'm not aware of the empirical.
10 Q. Okay. What other factors besides phosphorus or
11 nutrients can affect dissolved oxygen concentrations in a
12 body of water?
13 A. The type of autotrophic community, sunlight, and
14 correlated to that would be turbidity.
15 Q. Depth of water?
16 MR. GUZY: Objection. Asked and answered.
17 A. Yes.
18 Q. What about vegetative shading?
19 A. I would classify that under the light regime.
20 Q. How does one sort out these various factors in
21 determining what is causing a diminishment in dissolved
22 oxygen concentrations in a body of water?
23 A. I think it would be very difficult to partition out
24 precisely what stressor is responsible. Generally in an
25 environment like this multiple stressors can act
213
1 synergistically, antagonistically.
2 Q. Well, for purposes of the Everglades SWIM Plan
3 wouldn't you agree that it is important to determine just to
4 what degree phosphorus enrichment is causing a diminishment
5 of dissolved oxygen levels as opposed to these other factors
6 which may also be contributing to it?
7 MR. GUZY: Objection as to form.
8 A. In my opinion the factors that we were discussing
9 are probably secondary to the phosphorus enrichment.
10 Q. Has any attempt been made to apportion the relative
11 contributions of those various factors to diminished
12 dissolved oxygen values in the Everglades Protection Area?
13 A. I'm not aware.
14 Q. Okay. Yesterday I asked you a few questions
15 regarding the exchange of nutrients between sediments and
16 water. Have your answers in that regard already
17 comprehensively addressed what you would be saying as a
18 witness in a final proceeding in this regard?
19 I ask that because I don't want to go over the area
20 again if you think you've already covered it.
21 A. I don't recall what our discussion was yesterday.
22 Q. Okay. Well, let me ask you a few questions. Will
23 you be expressing any opinions as to possible exchange of
24 nutrients between sediments and water in the Everglades
25 Protection Area?
214
1 A. Possibly.
2 Q. What would those opinions be?
3 A. Principally in the area that the phosphorus content
4 of the sediments in the Everglades is a biologically -- can
5 be biologically mediated, that the addition of nutrients can
6 affect the uptake of phosphorus in the soil.
7 Q. What did you mean by the phrase "biologically
8 mediated"?
9 A. That it's bacterial-affected.
10 Q. Okay. Aren't you in effect saying that if
11 phosphorus is added to the waters of the EPA then you'll have
12 more phosphorus in the sediments?
13 A. My point was that as phosphorus is added to
14 sediments through microbial action will take up the
15 phosphorus, thus enriching the sediments to an equilibrium.
16 One that equilibrium is attained, the phosphorus will move
17 downstream to the next area that the equilibrium hasn't been
18 satisfied; that other nutrients such as the addition of
19 nitrogen to the system could further facilitate the uptake of
20 phosphorus and the storage of it within the sediments.
21 Q. Okay. Is that answer reflective of your earlier
22 testimony that the phosphorus gradient --
23 A. Yes.
24 Q. -- in WCA-2A will continue to move south?
25 A. Yes.
215
1 Q. Do you intend to offer any testimony regarding or
2 concerning the issue of sediment oxygen demand?
3 A. I don't anticipate there being any.
4 Q. During the course of our testimony you have
5 basically I think been telling me that you have relied
6 primarily, if not exclusively, on the Everglades SWIM Plan
7 and the documents that are referenced in it. Would that be
8 correct?
9 A. Relative to what?
10 Q. To your anticipated testimony at a final hearing in
11 this matter.
12 A. If my testimony includes consideration of the
13 proposed treatment strategies I would probably rely on the
14 experience of SAGE also.
15 Q. Okay. What is SAGE?
16 A. SAGE is a group of scientists assembled by the
17 South Florida Water Management District as provided for in
18 the settlement to assist the district decision-makers in
19 evaluating principally the application of storm water
20 treatment areas.
21 Q. How has your involvement in the SAGE committee
22 affected your understanding of the alternative strategies
23 that have been proposed for the Everglades SWIM Plan?
24 MR. GUZY: Objection as to form.
25 A. Basically that has been a forum for the industry to
216
1 bring forth proposals that could be considered relative to
2 alternates to storm water treatment areas, possibly
3 combinations.
4 Q. Have any of those alternatives been accepted by the
5 committee?
6 A. I don't believe there's a decision yet.
7 Q. Earlier this morning you provided me with some
8 testimony as to your view of the relative merits or demerits
9 of the alternative strategies that have been proposed. Were
10 those views based upon the knowledge that you've garnered in
11 your participation with the SAGE committee?
12 A. Yes.
13 Q. Okay. What else as the SAGE committee been
14 considering besides alternative strategies?
15 A. That's been our charged mission. However, there's
16 many topics that surface in these discussions, really
17 anywhere from water quality in general to water quantity
18 issues.
19 Q. Will you be offering any testimony in this
20 proceeding as to these other issues that have been raised in
21 the SAGE process different from what you have discussed in
22 the last two days here?
23 A. I don't anticipate any.
24 Q. How long have you been a member of the SAGE
25 committee?
217
1 A. Since its origin.
2 Q. Do you attend every meeting?
3 A. No.
4 Q. If you don't attend, do you send someone as your
5 designated representative?
6 A. Yes.
7 Q. Who is that person?
8 A. Russell Wright.
9 Q. Is he located with the Atlanta offices of EPA?
10 A. No.
11 Q. Athens?
12 A. Yes.
13 Q. Are you a member of what's called the technical
14 oversight committee?
15 A. No.
16 Q. Have you ever been involved in its deliberations?
17 A. I attended one meeting.
18 Q. Which meeting was that, if you recall?
19 A. Approximately three months ago.
20 Q. Why did you attend that particular one?
21 A. There was a request from the TOC group, formal
22 request to the regional administrator, seeking EPA's
23 participation in the research agenda for establishing the
24 water quality criteria for phosphorus.
25 MR. HYDE: Let me take about a five-minute break, I
218
1 think I'm just about finished. Let me review some of my
2 materials, and then I think at most I would have maybe five
3 or ten minutes of questioning beyond that.
4 MR. GUZY: Good.
5 (A brief recess.)
6 MR. HYDE: Let's go back on the record.
7 MR. GUZY: I wanted to make clear that we're
8 providing to you today in response to the deposition subpoena
9 a recently-produced document that actually has just come to
10 our memory or attention, and it's a letter dated January
11 21st, 1993, from Mr. Vearil to Mr. Tidwell, and an attachment
12 of a draft memorandum of agreement.
13 I wanted to do that while you would have an
14 opportunity to review it and ask whatever questions you want
15 about it.
16 MR. HYDE: Okay. Let's go ahead and mark this for
17 attachment to the deposition. What would that be?
18 THE REPORTER: Exhibit 10.
19 (Exhibit Number 10 was
20 marked for identification.)
21 BY MR. HYDE:
22 Q. Mr. Hicks, would you identify what's been labeled
23 as Exhibit 10?
24 A. The exhibit involves a letter to Mr. Greer Tidwell,
25 Regional Administrator, ex-Regional Administrator, from the
219
1 U.S. Corps of Engineers, Mr. James Vearil.
2 Q. Were you copied on this document?
3 A. I have seen this document, yes.
4 Q. What's the purpose underlying this document?
5 A. My understanding is the TOC will be planning and
6 executing a research agenda that will provide for the
7 establishment of nutrient concentrations, i.e. phosphors,
8 that will assure the protection of the Everglades National
9 Park, the Loxahatchee National Wildlife Refuge.
10 Q. Do you intend to offer any testimony regarding this
11 letter dated January 21, 1993, or the attached draft
12 memorandum of agreement in a final proceeding in this matter?
13 A. I don't anticipate any testimony.
14 Q. Do you know who prepared the attached draft
15 memorandum of agreement?
16 A. No, I don't.
17 Q. Do you intend to offer any testimony as to the
18 Everglades Nutrient threshold Research Plan?
19 A. As a matter of fact, it's simply identified as a
20 requirement in the settlement that the final concentrations
21 for the protection of the two water bodies we spoke of will
22 come from that research.
23 Q. Okay. Beyond that limited testimony, do you intend
24 to discuss it any further?
25 A. No.
220
1 Q. I don't think I need to inquire further into this
2 document, but thank you for providing it to me.
3 Let me ask you a couple of conclusory questions,
4 Mr. Hicks.
5 I have been asking you a series of questions over
6 the last two days regarding your anticipated testimony at a
7 final hearing in this matter.
8 Have we fairly comprehensively covered the
9 testimony which you anticipate you will be giving at a final
10 hearing in this regard?
11 A. I believe so, with some exceptions that my
12 attorney --
13 Q. Okay. Well, what are those exceptions?
14 MR. GUZY: There are some follow-up questions of
15 clarification.
16 MR. HYDE: Oh, that you will be asking?
17 MR. GUZY: Yes.
18 MR. HYDE: Okay. That's fine.
19 MR. GUZY: That's I believe what Mr. Hicks is
20 referring to.
21 THE WITNESS: That's what I intended.
22 BY MR. HYDE:
23 Q. But do you intend to offer any additional testimony
24 beyond the points that we've been discussing today and
25 yesterday?
221
1 A. I don't anticipate that.
2 Q. Okay. If any such additional testimony or opinions
3 are formulated by you, will you be sure to notify a