334
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, INC., )
4 Petitioners, )
vs. )DOAH Case No. 92-3038
5 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
6 of Florida; et al., )
Respondents. )
7 - - - - - - - - - - - - - - - - - x
FLORIDA SUGAR CANE LEAGUE, INC., )
8 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
9 Petitioners, )
vs. )DOAH Case No. 92-3039
10 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
11 of Florida; et al., )
Respondents. )
12 - - - - - - - - - - - - - - - - - x
FLORIDA FRUIT AND VEGETABLE )
13 ASSOCIATION; LEWIS POPE FARMS; )
W.E. SCHLECHTER & SONS, INC., )
14 and HUNDLEY FARMS, INC., )
Petitioners, )
15 vs. )DOAH Case No. 92-3040
SOUTH FLORIDA WATER MANAGEMENT )
16 DISTRICT, an agency of the State )
of Florida; et al., )
17 Respondents. )
- - - - - - - - - - - - - - - - - x
18 100 Southeast 2nd Street
Miami, Florida
19 February 8, 1994
9:00 a.m. - 5:30 p.m.
20
DEPOSITION OF RONALD D. JONES
21 VOLUME IV - P.M. SESSION
22 Taken before RICHARD BURSKY, Registered
23 Professional Reporter and Notary Public in and for
24 the State of Florida at Large, pursuant to Notice of
25 Taking Deposition filed in the above cause.
335
1 APPEARANCES
2 ON BEHALF OF THE PETITIONERS SUGAR CANE GROWERS
COOPERATIVE OF FLORIDA, ROTH FARMS, INC. AND
3 WEDGWORTH FARMS, INC.
4 HOPPING BOYD GREEN & SAMS
123 South Calhoun Street
5 Tallahassee, Florida 32314
BY: GARY P. SAMS, ESQ.
6 WILLIAM H. GREEN, ESQ.
7
ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE
8 LEAGUE, INC., UNITED STATES SUGAR CORP., and
NEW SOUTH HOPE, INC.
9
EARL BLANK KAVANAUGH & STOTTS, P.A.
10 One Biscayne Tower - Suite 3636
Two South Biscayne Boulevard
11 Miami, Florida 33131
BY: ROBERT H. BLANK, ESQ.
12 WILLIAM L. HYDE, ESQ.
13
ON BEHALF OF THE RESPONDENT SOUTH FLORIDA WATER
14 MANAGEMENT DISTRICT
15 STANLEY J. NIEGO, ESQ.
South Florida Water Management District
16 3301 Gun Club Road
West Palm Beach, Florida 33406
17
18 ON BEHALF OF THE RESPONDENT-INTERVENOR
UNITED STATES OF AMERICA
19
SUZAN HILL PONZOLI, ESQ.
20 Assistant United States Attorney
99 Northeast 4th Street
21 Third Floor
Miami, Florida 33132
22
PRESENT:
23 JOHN A. DAVIS
TRUMAN E. DUNCAN
24 B.J. PRESLEY
CURTIS J. RICHARDSON
25
336
1 AFTERNOON SESSION
2 1:10 p.m.
3 BY MR. HYDE:
4 Q. Dr. Jones, before we broke for lunch we
5 were discussing this phosphorus sampling effort that
6 you went along with the League into Everglades
7 National Park, and I just wanted to clarify a few
8 points.
9 First of all, you took your own samples,
10 correct, you personally took your own samples?
11 A. That's correct
12 Q. Did you choose the sites from which you
13 took those samples, understanding of course that the
14 helicopter landed in a particular area, did you then
15 choose the site that you wanted to sample there?
16 A. In the general area?
17 Q. Yes.
18 A. I wouldn't call that choosing a site. I
19 took my sample within the location of where the
20 helicopter landed. I refer to site as to the general
21 vicinity of where they landed the helicopter.
22 Q. I am curious as to why you said earlier
23 that you had really no opinion one way or the other
24 about whether those were appropriate sites. I guess
25 my confusion rests in the fact, do you intend that as
337
1 a criticism or not?
2 MS. PONZOLI: That is the question, is it
3 a criticism of the sites?
4 MR. HYDE: Yes.
5 A. Yes, it is.
6 Q. What was wrong with the sites that were
7 chosen?
8 A. It is my opinion that the sites were a
9 little bit too haphazardly distinguished as to where
10 they were going to be. In other words, there wasn't
11 a fixed, here is the lat-lon that we are going to sit
12 down on and that's where we are going to sample. It
13 was flying around looking for, oh, there are some
14 cattails over there or let's land over by this area.
15 There was an awful lot of discussion in the
16 helicopter as to where the samples were going to be
17 taken. And that's not very objective.
18 Q. So would you suggest that you predetermine
19 what the sites should be and then go to that fixed
20 point on the map and take your samples?
21 MS. PONZOLI: I object to the form of the
22 question.
23 A. I would say that there is a bit of
24 selectivity that you want to remove by saying, this
25 is the general location where we are going to go.
338
1 And, you know, whether that is a precise latitude and
2 longitude would be of course determined, for example,
3 if you weren't sampling tree island and there
4 happened to be tree island at that place you wouldn't
5 very well want to land a helicopter in the middle of
6 the bushes. But other than that, I don't think sites
7 should be selected by, you know, visual
8 characteristics.
9 Q. How did you select your sites in your
10 S-12C transects?
11 A. Distances along that transect.
12 Q. Aren't distances an equally arbitrary way
13 of selecting sites?
14 MS. PONZOLI: I object to the form.
15 A. I would disagree with that from the
16 standpoint that distance is nothing I could do to
17 control, you know, what distance or what approximate
18 distance we would use, whereas, looking for a
19 particular type of vegetation or a particular area, I
20 don't know what was going through the minds of the
21 people who were choosing those particular sites but,
22 I mean, if they were looking for specific ecological
23 attributes or attributes of the ecosystem, they could
24 very easily bias where those samples were collected
25 and you can't do that by just arbitrarily choosing
339
1 distance, if you will.
2 Q. If you rely solely on distance how do you
3 know that you are obtaining a representative set of
4 samples of the area?
5 A. I don't understand that question.
6 Q. If the distance from a given point is your
7 only criterion, how do you know that you are
8 obtaining a representative set of samples from the
9 ecosystem?
10 A. In a linear transect, the one variable
11 that you sort of maintain as, not necessarily a fixed
12 function but something that you would utilize would
13 be distance. It has nothing to do with whether it is
14 representative or not.
15 Q. Did you believe the sites chosen by the
16 League's representatives to be unrepresentative of
17 the area?
18 MS. PONZOLI: Objection; asked and
19 answered.
20 A. I didn't say that they were neither
21 representative nor unrepresentative. I just said it
22 was my opinion -- I would not have selected samples
23 -- I would not have selected sites using the same
24 mechanism.
25 Q. So there is nothing inherently wrong with
340
1 the sites chosen?
2 A. I don't know that.
3 Q. Are you continuing to examine this
4 question to determine whether they might have been
5 inadvertently or improperly chosen?
6 A. No.
7 MR. HYDE: Mark this as 57, please.
8 Jones Deposition Exhibit 57 was marked for
9 identification)
10 BY MR. HYDE:
11 Q. Dr. Jones, do you know whether the Park
12 samples that were taken by the League's
13 representatives were done on a transect or a grid
14 basis?
15 A. My recollection from looking at the
16 documents that were presented and going along was
17 that it was a transect basis, sort of a transect
18 basis with a number of, I believe -- I can't remember
19 whether they call it lateral transects or whatever
20 but there were a series of going east and west along
21 a central series of samples.
22 Q. Dr. Jones, you have before you what has
23 been labeled Jones Exhibit No. 57. I would like to
24 represent to you that this is a map which depicts the
25 League's sampling sites which were depicted on the
341
1 exhibit we were just referring to before the break,
2 which was Exhibit 16, I believe.
3 I would like you to put those two
4 documents before you, Exhibit 16 and Exhibit 57.
5 Specifically turn to the page that is entitled
6 Everglades Park Samples, Total Phosphorus Sediment
7 Samples.
8 I would further represent to you that
9 relating to Exhibit 16, that the sample No. 15
10 corresponds to what is designated as EP 15 on Exhibit
11 57.
12 A. I am sorry, say that again.
13 Q. Sample 15 on Exhibit 16 corresponds to
14 what is labeled EP 15 on Exhibit 57.
15 Of course this assumes you used the same
16 numbering system that the League's representatives
17 did?
18 A. It also assumes that these samples are
19 what you are telling me they are, because I wouldn't
20 make that distinction. You are describing this as
21 being these samples. That's not my description.
22 Q. Didn't you turn this document over to us?
23 A. I didn't turn this document over to you.
24 Q. Didn't you make these soil determinations?
25 A. Yes, I did.
342
1 Q. Don't these soil determinations correspond
2 to the sample numbers in the left-hand column?
3 A. Yes, they do.
4 Q. Do you know who prepared this page in
5 Exhibit 16?
6 A. Yes, I do.
7 Q. Who did?
8 A. It would have been Pete Lorenzo, my
9 chemist.
10 MS. PONZOLI: Mr. Hyde, was it Dr. Jones'
11 testimony that he was not sure if these were his
12 tests or not, that they may be his analysis of the
13 splits? My notes reflect that but I could be wrong.
14 MR. HYDE: I thought he had testified
15 earlier that this was his analysis of the splits.
16 A. No, I testified that this was my analysis.
17 I testified that if you are telling me that this is
18 the results of the split samples from the entry of
19 the Sugar Cane League, then that's what it is. I am
20 confused as to why there are only 21 samples and I
21 believe not all the numbers are there.
22 So this could be something completely
23 different.
24 Q. Let me ask you again, do you know whether
25 these represent your samples or the League's samples?
343
1 A. I do not. There is a document that was
2 produced yesterday that, from my results and it is in
3 this stack of material and if you presented me with
4 that -- this is obviously a fax to Mr. Fitzgerald.
5 Q. Dr. Jones, let's take some time out and
6 find that document, it is an important thing to do.
7 MS. PONZOLI: Let's go off the record.
8 MR. HYDE: Fine.
9 (Discussion off the record)
10 MR. HYDE: Back on the record.
11 Before we took our break we were trying to
12 determine whether the information contained in the
13 third page of Exhibit 16 was in fact reflective of
14 Dr. Jones' own sampling effort. Since we are still
15 unclear on that point, Dr. Jones has represented
16 through his attorney that he will examine his files
17 this evening and we will attempt to resolve this
18 issue first thing tomorrow morning.
19 MS. PONZOLI: Yes.
20 BY MR. HYDE:
21 Q. Let's return now to Exhibit No. 53.
22 Returning again briefly to page 6, paragraph 9, the
23 second to last sentence of paragraph 9 reads, "I
24 found elevated TP levels at least 6 kilometers into
25 the Park."
344
1 Dr. Jones, this statement was made back in
2 September 1990. Has anything happened that would
3 cause you to change that opinion at all?
4 A. It is possible that it extends further
5 than six kilometers now, but, no, I basically stand
6 by this, at least 6 kilometers.
7 Q. So you have done no further testing that
8 would demonstrate that it may have extended 7 or 8
9 kilometers further into the Park?
10 A. I have done further testing but I have not
11 done subsequent analysis of that testing, i.e., I
12 have not run statistics on it to determine that.
13 Q. Do you intend to do that prior to the
14 final hearing in this matter?
15 A. I may.
16 Q. When do you think you will get around to
17 doing that?
18 A. If this thing really goes in April,
19 chances are that I won't.
20 Q. So you don't think you will get to it
21 before April?
22 MS. PONZOLI: Asked and answered.
23 A. It is not the top priority on my list,
24 although now that you brought it to my attention, I
25 may.
345
1 Q. Let me just ask you, what do you consider
2 to be elevated TP levels in the soil in the Park?
3 A. Under this circumstance, I was referring
4 to a statistical analysis that we had done on
5 regression fit, straight line regression fit for this
6 particular data set that we were utilizing to prepare
7 this affidavit. So I am referring to the, if you
8 will, the statistically significant break point, if
9 you will, between these two fitted lines.
10 Q. Is that reflected in any chart or document
11 which you have produced for our benefit?
12 A. I don't believe so. It may be but it
13 would have been around the time of the production of
14 this document that I produced that and I am not
15 certain whether I actually produced a physical
16 document.
17 Q. How would that document be identified?
18 A. Well, on the computer screen it was a
19 curve with two straight lines and various parameters,
20 mathematical parameters assigned to that.
21 Q. Do you recall what that break point was of
22 that curve?
23 A. It was right around the six kilometer mark
24 on this curve.
25 Q. Do you recall what the concentration of TP
346
1 was in the soil where you found this break point?
2 A. I do not.
3 Q. What statistical methodology did you
4 employ to ascertain this break point?
5 A. The statistical methodology was a function
6 of a linear regression fit to the data and then
7 looking at that, I can't remember which test, it was
8 a T test that we used, I believe, or it could have
9 been a one way nova, to determine whether the points,
10 points on one side of the curve or one line were
11 statistically different than the other line.
12 Q. Did you perform this statistical analysis
13 or did someone else?
14 A. No, I did.
15 Q. How do you find a break point with a
16 linear regression?
17 A. Well, it depends on -- I am defining break
18 point in probably a different way than, say, for
19 instance, it is utilized in an engineering context,
20 whatever, or like break point through a filter or
21 number of things like that.
22 I am just referring to where two straight
23 lines intersected and formed a significant angle, if
24 you will. I know there are much better ways to do
25 this. Statistically I have not gone that far into
347
1 this particular analysis.
2 Q. Is there an electronic file that reflects
3 this statistical analysis?
4 A. No.
5 Q. You indicated you weren't certain as to
6 whether you had produced this statistical analysis.
7 Could you in fact do that for us so we don't have to
8 belabor this line of questioning anymore?
9 A. If I produced it.
10 Q. Yes.
11 A. I mean by produce, it I mean actually
12 making it, not whether I documented it. I would have
13 a great deal of difficulty trying to go into my files
14 and find such a document if it exists.
15 Q. Does a document exist?
16 A. I don't know. That's what I am saying. I
17 do not believe a document exists. I think that's
18 what I represented.
19 Q. I am not completely clear, but have you
20 told me what the TP concentration in the soil, what
21 is the TP concentration in the soil that represents
22 the break point?
23 A. You asked me that question.
24 Q. Could you just refresh my recollection
25 then what your answer was?
348
1 A. I believe I said I didn't know.
2 Q. Do you recall what the background TP is?
3 MS. PONZOLI: That has been asked and
4 answered.
5 A. Background where?
6 Q. Total phosphorus in the Everglades as it
7 would relate to this particular statement in your
8 declaration?
9 A. It averaged 186 parts per million.
10 Q. I would like you to turn to page 8 of
11 Exhibit 53, paragraph 14. That paragraph reads, "My
12 field observations and laboratory measurements of TP
13 levels in Everglades soils indicate that once the
14 peat becomes saturated, it can no longer hold
15 additional phosphorus, and thus phosphorus added to
16 the saturated peat is transported downstream and
17 taken up by unsaturated peat. Thus, as excess
18 phosphorus continues to be added to the marsh, the
19 zone in which the peat soil accumulates and becomes
20 saturated with excess phosphorus expands."
21 Do you continue to adhere to that view?
22 A. Yes, I do.
23 Q. Do you regard that as being an inexorable
24 process?
25 MS. PONZOLI: I object to form.
349
1 A. I am sorry?
2 Q. Once you have too much or an excess of
3 phosphorus coming into this system, that your zone of
4 saturation will inexorably expand?
5 MS. PONZOLI: Same objection.
6 A. I am sorry, I use big science words on
7 you. I just don't know what inexorably means.
8 Q. Inexorably?
9 A. I am sorry, I just don't --
10 Q. Let me see if I can rephrase it.
11 This statement appears to suggest to me,
12 at least, that there is an expanding nutrient front
13 as reflected in the peat and its saturation levels.
14 Is that a fair characterization of this
15 paragraph?
16 MS. PONZOLI: May I hear that question
17 again, please.
18 (The question referred to was
19 thereupon read by the reporter
20 as above recorded)
21 MS. PONZOLI: I am going to object to the
22 form. I think it is unclear. I think it is vague
23 and unclear as to where you are speaking in time.
24 Your temporal, spatial elements are all missing.
25 A. This statement in 14 is a process. It
350
1 doesn't reflect necessarily a nutrient expanding
2 front or anything else. It proposes a mechanism that
3 would occur under the conditions outlined in
4 paragraph 14.
5 BY MR. HYDE:
6 Q. Do you have an opinion as to whether there
7 is an advancing phosphorus front in the peat as
8 reflected in the peat soils?
9 A. Where at?
10 Q. Let's say Water Conservation Area 2A.
11 A. In my opinion there is an expanding front.
12 I don't know what the rate of that expansion is.
13 Q. What about in the Refuge?
14 A. The Refuge has got water flow patterns
15 that are significantly different from the remainder
16 of the systems that I have examined. So I don't
17 think that we can talk about a front along water
18 movements in the same way there as we could in the
19 Water Conservation Area 2A that you just mentioned.
20 But I do believe there is a front of some sort in
21 Loxahatchee.
22 Q. Is there an observable front in Water
23 Conservation Area 3A?
24 MS. PONZOLI: I object to form. What do
25 you mean by observable?
351
1 MR. HYDE: Detectable.
2 A. On my transect is the only area that I can
3 speak with authority on for measuring the total
4 phosphorus levels in the soil and using that as
5 evidence. And it would appear that there is a very
6 slight gradient of phosphorus, I would not define it
7 as an advancing front, if you will, in that case.
8 Q. Describe that gradient for me in terms of
9 north, south, east, west axes?
10 A. The phosphorus concentrations are highest
11 close to S-12C and as you move north against the flow
12 of water the total phosphorus concentrations in the
13 soil rapidly decrease to background levels.
14 Q. How do you account for the fact that those
15 soil concentration levels are higher closer to the
16 S-12C structures? And I presume this is to the north
17 of the structures?
18 A. Yes, to the north of the structures.
19 Q. How do you account for the fact that they
20 are higher when they are closer and hence more
21 southern than, say, a little farther to the north?
22 A. As water moves down from the EAA along the
23 Miami Canal down the L-67 and then across the Tamiami
24 Canal it often will flood out over the marsh in a
25 northerly direction when there is no flow coming off
352
1 of the marsh.
2 Q. Is there a nutrient front in the Park
3 south of the S-12 structures?
4 A. Yes.
5 Q. What is the geographic extent of that
6 front south of the S-12 structures?
7 A. You asked me that yesterday in a different
8 way and we were talking about scalloping and I told
9 you I was unable to define that from the standpoint
10 of, I didn't do a grid sampling, I did a transect
11 sampling and I can only speak from what we saw along
12 the S-12C transect under that circumstance.
13 Q. Your statement in paragraph 14 of Exhibit
14 53 appears to suggest that sorption is the main
15 mechanism of TP storage. Would you agree or disagree
16 with that characterization?
17 A. I don't believe I see the word sorption in
18 here at all.
19 Q. I know it is not in there but would you
20 agree with that characterization?
21 MS. PONZOLI: Would you read the question
22 back, please.
23 (The question referred to was
24 thereupon read by the reporter
25 as above recorded)
353
1 A. No, I don't believe, and I don't believe
2 this statement reflects that.
3 Q. Explain to me, if you will, the process by
4 which peat becomes saturated with total phosphorus.
5 A. Saturated in this circumstance, I don't
6 believe you want to use the term total phosphorus but
7 perhaps maybe saturated with phosphorus.
8 Q. Okay.
9 As amended how does peat become saturated
10 with phosphorus?
11 A. You have to take a number of things into
12 consideration. When you consider what saturation is,
13 i.e., the concentration of phosphorus in the water
14 column above it or running through it, the forms of
15 phosphorus that are in the water column, whether they
16 are in the forms of organic particulate
17 orthophosphate, whatever, all these things come into
18 play. But at any given concentration, any one of
19 these components individually or with some more
20 complicated kinetics, these components combined with
21 the soil or anything that would be sorbing or
22 uptaking phosphorus will eventually achieve a level
23 at which it can no longer take up additional material
24 and at that point it becomes saturated.
25 This is in the absence of processes that
354
1 result in long-term deposition. This is sort of an
2 instantaneous type of a determination. I don't know
3 instantaneous from the standpoint of a time frame
4 that maybe you would think of in seconds or hours or
5 whatever but meaning not geologic.
6 Q. What role if any does peat accretion play
7 as a mechanism of storing phosphorus in the soil?
8 A. Peat accretion would be the long-term
9 mechanism by which phosphorus is stored in soils or
10 sediment or any type of geologic depository.
11 Q. Dr. Jones, what is the basis of your
12 opinion, that is what facts support your opinion that
13 there is a nutrient front in Water Conservation Area
14 2A?
15 A. The shape of the curve for total
16 phosphorus in the soil, one thing. There are a
17 number of mathematical ways of looking at curves, and
18 given the fact that there is a gradient.
19 One of the things you have to do to define
20 that gradient mathematically would be to attribute a
21 front, if you will, to that. It doesn't necessarily
22 attribute the speed at which that front is moving but
23 by having a curve rather than a simple straight
24 dropoff from elevated to background concentrations
25 indicates that you have to put a mathematical
355
1 function in there which would define that as a, what
2 I am defining as a front.
3 Q. Who is responsible for determining the
4 shape of that curve you just referred to?
5 A. The data defined the shape of that curve.
6 Q. Who compiled that data?
7 A. I did.
8 Q. In Water Conservation Area 2A?
9 A. Water Conservation Area 2A, the Park, all
10 of these, along the transects.
11 Q. What data source or set are you referring
12 to when you talk about this curve for soil TP in
13 Water Conservation Area 2A?
14 A. The data sets I am referring to are the
15 data sets that I produced in my laboratory. I am not
16 saying that the District, South Florida Water
17 Management District doesn't have additional data and
18 that they haven't demonstrated a front and a number
19 of other types of things I am referring to solely.
20 As a matter of fact, I thought what was under
21 question was my data set.
22 Q. Which data set is that? We have been
23 provided with a great many different data sets from
24 your files.
25 A. The transect data.
356
1 Q. For 2A?
2 A. For 2A.
3 Q. Have you quantified saturation of soil for
4 phosphorus anywhere?
5 A. I am sorry?
6 Q. Have you quantified saturation of soil for
7 phosphorus in anyplace? In other words, do you have
8 any concrete evidence to back up the statements set
9 forth in paragraph 14 of your statement?
10 MS. PONZOLI: I object to form.
11 A. In the publications that we have we have
12 indicated certain of the quote-unquote short term as
13 indicated before saturation type of phenomena for
14 these soils.
15 Q. Is that based on any particular data?
16 A. Yes, yes.
17 Q. Which publication are you referring to
18 now?
19 A. Can we go to my CV?
20 Q. Certainly.
21 (Pause)
22 A. The first paper would be a paper authored
23 by Amador, Richany and Jones, 1992, Factors Affecting
24 Phosphate Uptake by Peat Soils of the Florida
25 Everglades, Soil Science, Volume 153, pages 463 to
357
1 470.
2 Another would be a paper authored by Jones
3 and Amador, 1992, Removal of Total Phosphorus and
4 Phosphate by Peat Soils of the Florida Everglades,
5 Canadian Journal of Fisheries and Aquatic Sciences,
6 Volume 49, pages 577 to 583.
7 And then there are several abstracts where
8 we presented the same information and additional
9 information.
10 Q. Where is the raw data which supports these
11 papers and the conclusions expressed in them?
12 A. They were in a number of those files
13 yesterday where we had the Bates numbers that were
14 going all over the place and I believe we referred to
15 them as composite exhibits or we will have to come
16 back to them later.
17 Q. In terms of your data collection efforts
18 in WCA-2A were you the person who was always
19 responsible for collecting the data or did other
20 people assist in that process?
21 A. For my transects?
22 Q. Yes.
23 A. I collected the data.
24 Q. Is that true of Water Conservation Area
25 2A, 3A, the Park and the Refuge?
358
1 A. That's correct.
2 Q. Were you likewise responsible solely for
3 the analysis of that data in your lab?
4 A. Running the instrument?
5 Q. Yes.
6 A. No.
7 Q. Who were the people who assisted you in
8 that regard?
9 A. It has been a long period of time so there
10 have been a number of people, but it would be
11 predominantly myself, my chemist, Pete Lorenzo, a
12 number of graduate students have helped along the
13 line and another technician, John Bumont Campbell
14 Bugden.
15 Q. Is that true for both soil samples and
16 water column samples?
17 A. Yes.
18 Q. Did you collect the water column samples
19 for the entry and access to the Refuge?
20 A. No.
21 Q. Do you know who was responsible for that
22 collection?
23 A. I believe Su Jewel collected some of them.
24 I am not sure if other members of Loxahatchee
25 collected those things. Those samples were just
359
1 given to me for analysis.
2 Q. You opined earlier that there was a type
3 of nutrient front in the Refuge, not quite the same
4 as what you found in 2A but nevertheless a front, is
5 that correct?
6 A. I indicated that since the flow isn't
7 from, you know, my opinion at least and my
8 understanding, that along our transect in the Refuge
9 that the flow wasn't in that case west to east as we
10 ran the transect whereas the flow in Everglades
11 National Park was north to south and our transect
12 went north to south, that therefore they are
13 different for that simple characteristic.
14 Q. How would you describe the front then in
15 the Refuge?
16 A. I would still describe it in the manner
17 that I did for the Park in that there still is a
18 curve that is generated of total phosphorus in the
19 soil and that you have to invoke certain types of
20 fitting functions, mathematical fitting functions to
21 describe that curve and those describe a front or a
22 changing gradient with distance.
23 Q. Does it have a directional component to
24 it, sort of like what you have in the Park which has
25 a basic north-south axis to it?
360
1 A. Only because of the axis of the transect.
2 Q. What is that directionality to that?
3 A. In that case it would have been east-west
4 on the long transect.
5 Q. As evidenced by that one particular
6 transect?
7 A. As evidenced by the long transect across
8 Loxahatchee.
9 Q. Does that one set of data points really
10 help you define what the nutrient front is in the
11 Refuge?
12 A. The purpose of that data set and all of
13 the data sets was not to define a front but rather to
14 look at the effects of phosphorus downstream. The
15 front is not my term.
16 Q. You made reference to a filtering
17 function. What are you referring to there?
18 A. I think you must be reading the note
19 wrong.
20 Q. You made reference to a type of filtering
21 mechanism in conducting your analysis in the Refuge,
22 didn't you?
23 A. No.
24 Q. Excuse me, you made reference to a fitting
25 function, correct?
361
1 A. Yes, I did. I am sorry.
2 Q. Would you describe that to me, what that
3 fitting function is?
4 MS. PONZOLI: Fitting function of what,
5 Mr. Hyde? I am sorry, I lost you.
6 MR. HYDE: Of his analysis for the Refuge.
7 A. I would, again, a long time ago, and has
8 never been generated or used for any other purpose
9 other than to draw a line connecting the data points,
10 I believe it was a least squares fit, probably a
11 second or a third order.
12 Q. Is that a model, for lack of a better
13 term?
14 A. It could be defined as a model. I would
15 not so loosely define it.
16 Q. Did you perform that analysis yourself?
17 A. I pushed the buttons on the computer.
18 Q. First of all, has that been reduced to
19 some document or chart?
20 A. No.
21 Q. Does it exist in any format to this day?
22 A. The data exists in graphical
23 representation. And if anybody wanted to fit that
24 curve, that's something that any scientist could do
25 for you.
362
1 Q. How does that fitting function allow you
2 to assess whether there is a front in the Refuge?
3 A. I believe I just said that really a front
4 is not the word -- I use the terminology gradient. A
5 front, it is hard to describe what that really is. I
6 prefer to use the term gradient. I do understand
7 what people are referring to as front but it is not a
8 term that I would prefer to use.
9 Q. Let's refer to it as a gradient then. How
10 does that fitting function help you or assist you in
11 your effort to describe that gradient?
12 A. It helps you visualize it.
13 Q. Is that the extent of its usefulness?
14 A. There are other people who could make
15 greater use and if I ever get around to publishing
16 the information from these particular transects it
17 will serve a purpose at that point. Right now I have
18 chosen to, in the figures that you have presented to
19 me as exhibits here, I have used a connect the dot
20 type of mechanism for drawing lines, if you will.
21 Q. Will this nutrient gradient continue to
22 expand under current conditions, that is, without any
23 change in current phosphorus loading conditions?
24 MS. PONZOLI: I object to form.
25 A. In my opinion, yes, it will.
363
1 Q. Do you regard that as a process that would
2 eventually take over the Refuge, that is, extend
3 across the entirety of the east-west transect?
4 MS. PONZOLI: Assuming what, assuming the
5 same inputs of phosphorus and the same --
6 MR. HYDE: Yes.
7 A. I believe there are probably geological
8 and hydrologic reasons that that can not occur in the
9 Refuge.
10 Q. What are those geological considerations?
11 A. Along this transect that we are speaking
12 of which I am assuming is my transect from A 6, north
13 of S-6 east across the Refuge, the center of the
14 Refuge is a perch, it is of higher elevation and
15 predominantly receives its water input from rainfall.
16 Q. Hydrologically what mitigates against that
17 occurring?
18 A. That condition makes it so that water
19 tends to flow downhill -- or uphill, if you listen to
20 Dexter -- water tends to flow downhill and that is
21 another function, if you will, that keeps the center
22 of the Refuge from receiving impacts under all except
23 extremely low water conditions.
24 Q. Is the nutrient gradient in the Refuge
25 affected by any other hydrologic conditions?
364
1 A. I don't know.
2 Q. Let me ask you further, does the manner in
3 which the Central and Southern Florida Flood Control
4 Project is operated affect that nutrient gradient?
5 MS. PONZOLI: I object to form.
6 A. I can't answer that question. I don't
7 know.
8 Q. Could the routing of the water generally
9 in the Refuge have some effect on that nutrient
10 gradient?
11 A. Send it to Georgia. I assume that it
12 could if you routed it somewhere else.
13 Q. There is a perimeter canal around the
14 Refuge, is there not?
15 A. Yes, there is.
16 Q. Don't the S-5A and S-6 structures
17 discharge into that perimeter canal?
18 A. My understanding is that they do.
19 Q. And the S-10 structures discharge out of
20 the Refuge and into the Water Conservation Area 2A,
21 correct?
22 A. That's correct.
23 Q. So couldn't the way in which those
24 structures were operated affect the flow of water
25 through the Refuge from S-5A and S-6 out of the S-10
365
1 structures?
2 MS. PONZOLI: I object to form. I think
3 you have a multiple question.
4 A. I would assume that it could, but studying
5 the mechanisms by which water goes into, from S-5A or
6 S-6 into the perimeter canal is a question better
7 posed to others.
8 Q. Dr. Jones, does your lab have a person who
9 would be in charge of maintaining your data and
10 files?
11 A. For this particular type of stuff?
12 Q. Yes.
13 A. No.
14 Q. Who is the person that is most
15 knowledgeable about those files, you?
16 A. These files, myself. Pete Lorenzo would
17 have some knowledge of them. But mostly the stuff
18 that has been used for litigation has been under my
19 control.
20 Q. I asked you a few moments ago whether the
21 nutrient gradient in Loxahatchee would inevitably
22 expand and you responded. Do you have any opinion as
23 to whether the nutrient front or gradient that exists
24 in Water Conservation Area 2A will inevitably expand
25 under current loading conditions?
366
1 A. I don't believe you -- I don't want to
2 misrepresent myself because I don't believe the
3 question was will it inevitably expand in
4 Loxahatchee, I believe it was --
5 Q. I don't think you said that.
6 A. I am saying, I don't believe that you
7 said, I believe the question was whether it would
8 expand across the entirety of the Refuge, not just
9 expand because I believe it will expand, I just don't
10 believe it will expand to cover the whole area of the
11 Refuge as I described.
12 Q. I understood your testimony to reflect
13 that. I am switching gears now to Water Conservation
14 Area 2A.
15 A. I understand but the question didn't
16 reflect that. I didn't agree with you in toto.
17 Q. Let me ask the question this way. Is the
18 nutrient front or gradient, whichever term you are
19 more comfortable with, in Water Conservation Area 2A
20 continuing to expand?
21 A. In my opinion, it is.
22 Q. What is the basis for that opinion?
23 A. My transect that I ran, additional data
24 produced along the South Florida Water Management
25 District's transects, their grid, survey, the results
367
1 of Dr. Ramesh Reddy's work in the area, some of the
2 information presented by Curtis Richardson's group.
3 That would be I guess the basis of it.
4 Q. Which transects of the Water Management
5 District are you referring to here?
6 A. I can't be specific on that. I am not
7 sure whether they called them transects or whether
8 they just called it station monitoring along the
9 places. I have seen so many different ones between
10 Ramesh Reddy and other people's renditions of the
11 data that exist I am not sure whether they called
12 them transects or not as you mention it now.
13 Q. Do you remember who was primarily
14 responsible for maintaining that information?
15 A. I know there was some earlier information,
16 and I would have thought that that would have been
17 under either Davis or Swift, probably Swift. And
18 then the other information that I am more familiar
19 with would be Marguerite Koch, I believe, presented
20 some data. I saw it in a meeting a couple of times.
21 Q. Will you be offering any opinions at a
22 final hearing of this matter on the efficacy of the
23 proposed stormwater treatment areas identified in the
24 Everglades SWIM Plan?
25 A. I believe it is in my designation.
368
1 Q. Will you be offering any opinions as to
2 whether those STAs will work to perform the function
3 of removing phosphorus from discharges from the EAA?
4 A. I may.
5 Q. You said you may. You are not certain
6 about that?
7 A. It is an issue that is not, not being in
8 one of these bullets, but I believe yesterday Ms.
9 Ponzoli represented those were areas that would be
10 included or they may very well be included on that
11 expert witness designation.
12 MR. HYDE: My recollection of our
13 discussion yesterday confined that or those
14 additional areas to mercury and chemical filtration.
15 MS. PONZOLI: I think his first
16 designation would include the other. I don't think
17 we intend to offer multiple witnesses to say the same
18 thing, but I think that it is fair to say Dr. Jones
19 might offer opinions on that.
20 BY MR. HYDE:
21 Q. Do you think the proposed STAs will
22 function much like WCA-2A functions in removing
23 phosphorus from discharges from the EAA?
24 A. I think they would function much better
25 than Water Conservation Area 2A being a managed
369
1 system for the removal of phosphorus rather than a
2 system that just happens to be doing that naturally.
3 Q. How would one keep the proposed STAs from
4 becoming, I guess in your words, saturated and thus
5 no longer an effective mechanism for removing
6 phosphorus?
7 A. I don't think that I said STAs will
8 necessarily become saturated and therefore
9 non-effective in removing phosphorus.
10 Q. I think I asked you how would one keep the
11 STAs from becoming saturated and thus no longer an
12 effective phosphorus removal tool.
13 A. You would have to not put more phosphorus
14 in than the accretion of material, buildup of
15 material could handle.
16 Q. When you say accretion, are you talking
17 about accretion of the peat?
18 A. Accretion of peat, accretion of whatever
19 material is going to be the long-term storage
20 mechanism for phosphorus in the STAs.
21 Q. Do you know what the hydraulic time
22 through the STAs will be?
23 A. I have seen it. I don't remember what it
24 is.
25 Q. Do you recall whether it was a very long
370
1 period of time or relatively short period of time?
2 A. It wasn't years.
3 Q. Was it days or weeks?
4 MS. PONZOLI: He said he didn't know, Mr.
5 Hyde. I think you have asked him and he answered.
6 Q. Do you have any concerns as to whether the
7 STAs will cease functioning at some point in time as
8 an effective phosphorus removal mechanism because of
9 saturation?
10 MS. PONZOLI: Are concerns a proper area
11 of inquiry in deposition?
12 MR. HYDE: Yes, I think so.
13 MS. PONZOLI: We opened up years of
14 discovery now.
15 A. The life expectancy of any kind of a
16 treatment facility just as in any kind of a
17 manufacturing plant or your house or anything else,
18 all of them have a certain amount of time for which
19 they can function. What that length of time is for
20 the STAs, I would think would be a fairly reasonable
21 period of time.
22 You can't assume that any type of a system
23 is never going to require any maintenance. And so
24 under that circumstances, they are not going to
25 function for forever.
371
1 Q. Do you have any idea as to what the
2 anticipated lifetime is of these proposed STAs?
3 A. No, but I am sure that is a design
4 consideration.
5 Q. What opinions will you be offering as to
6 these proposed STAs?
7 A. At this time I haven't been asked to
8 formulate opinions in that area. I guess I would
9 offer the opinions towards the effectiveness of
10 utilizing STAs versus other types of phosphorus
11 removal mechanisms.
12 Q. Your designation indicated that you would
13 be opining as to an assessment of the SWIM Plan and
14 proposed remedies. Do you anticipate offering an
15 opinion as to the efficacy of these STAs?
16 A. If asked.
17 Q. Has anyone indicated to you that you will
18 be asked those kinds of questions at a final hearing?
19 MS. PONZOLI: I don't think that is a main
20 designation for Dr. Jones but I think that the area
21 that we indicated yesterday, the concept of the
22 general effectiveness, but then as to the mercury
23 versus the chemical treatment are certain areas that
24 Dr. Jones, depending upon what the petitioners
25 present in their case. As you are aware, Mr. Hyde,
372
1 we have not really deposed any of your key witnesses
2 on their theories.
3 Q. What would your testimony be as to the
4 general effectiveness of the proposed STAs?
5 A. It would be just simply that they would
6 appear to be, from existing systems throughout the
7 world to be a reasonable and effective mechanism for
8 removing phosphorus from the EAA drainage.
9 Q. On what do you base that opinion?
10 A. Documentation, conversations with other
11 people, the material that was produced during my
12 tenure on SAGE, the design documents produced by the
13 various consulting companies.
14 MR. HYDE: Let's take a brief break.
15 (Thereupon, a brief recess was taken,
16 after which the following proceedings
17 were had)
18 BY MR. HYDE:
19 Q. Dr. Jones, in the United States
20 designation of you and your testimony there were
21 about nine different areas in which you are listed as
22 potentially offering expert testimony. I would like
23 to go through those now in summary fashion.
24 The first is as to the biological nature
25 of the Everglades ecosystem. What is your opinion or
373
1 opinions in that regard?
2 MS. PONZOLI: If he hasn't already offered
3 them.
4 Q. If you haven't already offered them, of
5 course.
6 A. I made a number of descriptive statements
7 throughout the deposition so far relating to that,
8 but in general I would assume that this would have to
9 do with -- I am not going to assume -- this has to do
10 with my ability to offer opinions on the biological
11 characteristics, the ecology or the ecosystem type of
12 description of the Everglades based on my
13 experimental research and my personal observations
14 and experience in the field.
15 Q. What specific observations or opinions
16 will you be offering that are different from the
17 opinions that you may have already been discussing?
18 A. They wouldn't be different from, they
19 would be in addition to the opinions I have been
20 expressing. Basically the status of the Everglades
21 as, really, I guess we have discussed this, as a
22 phosphorus limited system, its oligotrophic nature
23 and what that means and how the Everglades would
24 relate to other wetlands or similar ecosystems either
25 from my experience or from the literature that I am
374
1 familiar.
2 Q. In that last regard are you speaking of a
3 comparison with other wetland systems?
4 A. I would think that describing the
5 biological nature of the Everglades would be
6 difficult in the context without considering other
7 wetlands or other systems. And the Everglades
8 themselves are a very diverse system. So this is a
9 very broad area.
10 Q. I understand it is a rather broad area. I
11 am just trying to elucidate what specific opinions or
12 testimony you might be offering in this regard.
13 Do you intend to compare the Everglades,
14 compare and contrast the Everglades to other wetland
15 systems as a descriptive tool?
16 A. In making certain points, particularly
17 with other listings further down in this list there
18 definitely would be some comparison and contrast with
19 other systems.
20 Q. Give me an example of how you would
21 compare or contrast the Everglades to some other
22 system.
23 A. For instance, in their status of how
24 carbon or nutrients are cycled, if you go immediately
25 to the next one which is nutrient cycling and
375
1 microbial ecology of aquatic systems in the
2 Everglades, it is one of the conditions of the
3 biological nature of the Everglades ecosystem, and to
4 describe that adequately might involve the
5 description of other systems.
6 Q. What other systems would you invoke as a
7 descriptive mechanism?
8 A. Personal experience would have me use
9 systems either from the Pacific Northwest or from the
10 northern portions of Florida. Those are the areas I
11 am most familiar with. Also some wetlands in
12 Wisconsin and those particular, maybe Canada and
13 Alaska.
14 Q. How would those other wetland systems be
15 useful to you in drawing your own characterization of
16 the Everglades ecosystem?
17 A. Only that in the characterization of the
18 Everglades ecosystem is often mischaracterized by
19 people who are unfamiliar with it and to give a basis
20 of why the Everglades ecosystem is different you need
21 to come to some common ground with others who are
22 expressing opinions about how a wetland should
23 function or how a system should function.
24 Q. How is the Everglades different?
25 A. There are a number of different
376
1 characteristics. Primary amongst them, I would think
2 the pivotal role that phosphorus plays, not to say
3 that phosphorus isn't a limiting nutrient in other
4 wetlands, but from my experience and the experience I
5 have had speaking with others who have worked in a
6 large variety of wetlands, in many cases phosphorus
7 has a much more pivotal or key role in the Everglades
8 system than it does in other places in that it
9 controls certain processes that are thought not to be
10 necessarily phosphorus limited in many of these other
11 systems.
12 Q. Can you give me an example in that regard?
13 A. The fact that it appears the respiration
14 of the microbial communities is phosphorus limited,
15 that is not a common finding to the extent that it is
16 in the Florida Everglades.
17 Q. So it is usually different in other
18 systems, is that correct?
19 A. It is not necessarily different from the
20 basic underlying mechanisms, it is different in the
21 magnitude at which these mechanisms are taking place
22 and the exact interrelationship between sort of the
23 ecological processes that occur in all wetlands.
24 Q. How does it differ in terms of the
25 magnitude of its effects?
377
1 A. Looking at, for instance, the deposition
2 of peat in neutral areas, meaning in peat
3 accumulating in areas where there are non-acidic
4 conditions, one of the differences in the Everglades,
5 one of the things that our research would seem to
6 indicate, it is controlled by the availability of
7 phosphorus.
8 Q. Are there any other distinguishing
9 characteristics about the Everglades as compared to
10 these other wetland systems?
11 A. Yes.
12 Q. What are they?
13 A. It is one of the few wetlands that I have
14 experienced, and from my interaction with other
15 scientists in the area, where the relationship
16 between aerobic and anaerobic processes is quite
17 different in the Everglades.
18 Q. How is it different in the Everglades?
19 A. They don't appear to be highly reduced.
20 The Everglades soils are very, in the pristine areas
21 are very oxic compared to anoxic.
22 Q. What do you mean by oxic? How do you
23 define that term?
24 A. In the simplest definition we could use
25 would be presence and absence of oxygen. There are
378
1 more complex definitions which would have to do with
2 the chemical redox characteristics of the soils.
3 Q. Define what oxic means to me.
4 MS. PONZOLI: Define for you what oxic
5 means?
6 MR. HYDE: Yes.
7 A. I just did.
8 Q. Does it mean the complete absence --
9 A. I said there were two ways of looking at
10 it. The simplest way would be to say presence or
11 absence of oxygen, oxic, and anoxic, with oxygen and
12 without oxygen.
13 Q. So anoxic means the complete absence of
14 oxygen?
15 A. In its strictest definition it means the
16 complete absence of oxygen.
17 Q. I think we all know it is very rare that
18 you have complete absence of oxygen, wouldn't you
19 agree?
20 A. I would say that in flooded soils and in
21 most areas that would not be the truth. Many, many
22 environments are anoxic from the standpoint that
23 there is no O2 oxygen present.
24 Q. What redox value do you consider to
25 indicate an anoxic condition?
379
1 A. Redox and anoxia can not be compared.
2 Those are incompatible terms.
3 The ecologists and a number of scientists
4 have tried to do that but that's because they do not
5 have a good understanding of what redox really means.
6 It is a chemical term. It is basically found in the
7 study of what would be called P chemistry or physical
8 chemistry or electrochemistry.
9 Q. Do these other wetland systems not have
10 oxic soils?
11 A. I am not saying all wetland systems do not
12 contain oxic soils. There generally is a gradation
13 where there is oxic soils near the surface grading
14 towards anoxic deeper in the sediment profile.
15 Q. Is that true of the Everglades as well?
16 A. It depends on where you are in the
17 Everglades.
18 Q. What is the oxygen used for in these
19 Everglades soils?
20 A. What is the oxygen used for?
21 Q. Yes.
22 A. By who?
23 Q. Let me put it this way. What species make
24 use of the oxygen that is found in these Everglades
25 type soils?
380
1 A. All the organisms that would be present
2 there that would be oxygen utilizing organisms,
3 aerobic organisms.
4 Q. Are the Everglades type soils more oxic
5 than these other wetlands soils?
6 A. I wouldn't want to make a broad
7 characterization saying all wetland or whatever. But
8 in my experience the Everglades soil in the pristine
9 areas of the Everglades are -- contain more oxygen,
10 are more oxic than any other wetland that I've ever
11 been in with the exception of some of the acid bogs
12 in Wisconsin and in Alaska that I have been in.
13 Q. Are there other phosphorus limited
14 wetlands in the world?
15 A. I am sure there are.
16 Q. Do you have any experience with these
17 other phosphorus limited systems?
18 A. I have worked in a number of systems that
19 are both phosphorus, I shouldn't say both phosphorus
20 and nitrogen limited, I worked in a number of systems
21 that are phosphorus limited and a number of systems
22 that are nitrogen limited. My past experience has
23 been systems that were predominantly nitrogen limited
24 on the first order, the first cut.
25 Q. Does phosphorus limited necessarily equate
381
1 with being oligotrophic?
2 A. Oh, no.
3 Q. How would you differentiate between the
4 two terms?
5 A. Oligotrophic means that it is low. The
6 way to look at trophic level is as I described
7 yesterday. I believe we went into this a bit.
8 And that was to look at it the way, the
9 rate at which carbon is cycled in the system and its
10 trophic dynamics from that constant point and
11 something has to control that in that oligotrophia is
12 controlled by phosphorus.
13 Q. You identified the fact that Everglades
14 soils are very oxic as being a distinguishing
15 characteristic of that ecosystem. Are there any
16 other distinguishing characteristics that the
17 Everglades has as an ecosystem?
18 A. It is a large deposit of neutral peat
19 rather than acid peat which is not necessarily unique
20 but it is different from the norm, if you will.
21 Q. What is the norm?
22 A. The norm would be acid peats.
23 Q. What is significant about that fact?
24 A. The types of processes that occur, the
25 sort of ecological theories or axioms, dogma that is
382
1 associated with these types of systems would be
2 different in acidic environments than it would be in
3 neutral or near neutral environments.
4 Q. Are there any other distinguishing
5 characteristics?
6 A. Of the Everglades ecosystem?
7 Q. Yes.
8 A. It is a subtropical wetland.
9 Q. Any others?
10 A. It is not, from the standpoint, it is not
11 receiving -- it is not a settling basin. A lot of
12 wetlands form in sort of depressions in, I won't use
13 as an example a wetland but I would say a depression
14 somewhere in the middle with surrounding higher
15 ground so material is coming from higher ground into
16 there, whereas the Everglades are predominantly a
17 rainfall driven type of a system. So that gives it
18 some different characteristics.
19 Q. What are those different characteristics?
20 A. It tends to be, since it doesn't have a
21 geologic source of nutrients from weathering of
22 upland areas, it would be different from that
23 standpoint.
24 Q. In any other respects?
25 A. Just the way water flows, the hydrology of
383
1 the system, how that is controlled.
2 Q. Could you be a bit more specific?
3 A. The Everglades are much more dependent
4 upon rainfall than a number of other wetland systems,
5 incident rainfall falling upon them and the movement
6 of that water through the system rather than rain
7 falling on a watershed and then draining into the
8 particular area. I am not saying that the Everglades
9 don't have any of that, I am just saying that they
10 are much more rainfall dominated than a number of
11 other wetlands are.
12 Q. What other distinguishing characteristics
13 of the Everglades ecosystem come to mind?
14 A. The fact that it is on a limestone
15 platform.
16 Q. What consequences or impacts if any does
17 that have?
18 A. For one thing, it makes it very -- that is
19 what the underlying rock, if you will, the underlying
20 platform has determined that the Everglades have a
21 very, very shallow declination, have a very shallow
22 slope to them.
23 It also affects -- one of the things it
24 helps them to be, as I said, neutral peat soils
25 rather than acid peat soils, it controls the pH or
384
1 helps control the pH.
2 Q. Are there any other distinguishing
3 characteristics?
4 A. Fire, the role of fire would be important.
5 Q. Any others?
6 A. Just the fact that there is a seasonality,
7 we have a wet season and dry season in the system.
8 Q. Any other distinguishing characteristics?
9 A. I am starting to run out of remembering
10 whether I said something prior or not. Again, I tend
11 to just class a lot of things into this, the role of
12 aerobic processes versus the role of anaerobic
13 processes and I believe that was one of the earlier
14 things I mentioned, I think.
15 Q. Yes, it is.
16 A. Then right now I am at a loss for
17 additional things.
18 Q. Do you intend to offer any other testimony
19 about the biological nature of the Everglades
20 ecosystem other than these distinguishing
21 characteristics we have just gone through?
22 A. I think there are functional
23 characteristics that are involved with these
24 distinguishing characteristics or some of these
25 characteristics.
385
1 Q. What are these functional characteristics?
2 A. Again, as we go back and say the role of
3 aerobic versus anaerobic processes and the fact that
4 the Everglades are different from that standpoint.
5 Q. Let's move now to the second general
6 category, nutrient cycling and microbial ecology of
7 aquatic systems in the Everglades.
8 What opinions do you intend to offer in
9 that regard beyond those we have already been
10 discussing in the last two days?
11 A. There are additional areas of nutrient
12 cycling. We have dealt predominantly with
13 phosphorus. Questions may arise, for instance, to
14 the role of nitrogen or certain other microbial
15 processes or the role of microorganisms in the
16 ecology of aquatic systems and in particular the
17 Everglades. And I would be prepared to offer
18 opinions on those.
19 Q. What opinions if any do you have on the
20 role that nitrogen plays in the Everglades ecosystem?
21 A. My opinion would be that it plays a
22 secondary role. It is not a non-player. I mean,
23 nitrogen is important in the Everglades system,
24 especially in the areas where there is excess
25 phosphorus. It may very well be that under those
386
1 circumstances nitrogen is a limiting factor
2 controlling growth in the polluted areas of the
3 Everglades.
4 Q. Explain to me how that works.
5 A. Very often -- I am sorry, I will start
6 over.
7 Every system has to be limited by
8 something, even your sewage treatment facilities are
9 limited by availability of carbon, availability of
10 phosphorus, availability of something controlling
11 various different steps in the pathway.
12 So if you have a system that is limited by
13 phosphorus, and you add enough phosphorus in, enough
14 excess phosphorus into that system to relieve the
15 limitation of phosphorus, then another
16 characteristic, another component comes into play.
17 And in this case it may very well be nitrogen.
18 Q. What role if any do these microorganisms
19 have in this Everglades ecosystem?
20 MS. PONZOLI: Other than the ones we have
21 already expressed?
22 MR. HYDE: Yes.
23 A. Their role as, in the food web.
24 Q. Can you be more specific as to their role
25 in the food web?
387
1 A. I talked a lot yesterday about how
2 microorganisms interact in the carbon cycle, movement
3 of carbon through the system. But microorganisms can
4 also act as, they can be eaten, they can be a food
5 supply in themselves. So that is another role that
6 microorganisms play.
7 Q. Why would you be offering any testimony as
8 to the role that microorganisms play in the context
9 of this proceeding?
10 A. As to the effect that phosphorus has on
11 the different groups of organisms that are present or
12 how phosphorus affects the function of these
13 microorganisms is very important because it is the
14 base of this system.
15 Q. How does phosphorus affect the function of
16 these microorganisms?
17 A. If they are phosphorus limited as certain
18 groups of them appear to be, then as phosphorus
19 alleviates that limitation they will function
20 differently. They may achieve a higher biomass and
21 therefore behave differently in the food web.
22 Q. In other words, there is more of them?
23 A. More of them or a greater mass of them,
24 not necessarily numbers, they could be just larger.
25 Q. Bigger critters?
388
1 A. Bigger critters.
2 Q. When you are referring to the term
3 microorganisms, what do you mean by that?
4 A. It is a broad term and under this context
5 it is meant to be. I predominantly work with
6 bacteria but microorganisms are everything from the,
7 basically anything that you can, that you would have
8 to visualize utilizing a microscope is the definition
9 so it could be protozoa, algae, fungi, bacteria,
10 those types of things.
11 Q. Would that include periphyton in its
12 various forms?
13 A. Periphyton would be considered to be
14 microorganisms.
15 Q. Would benthic macroinvertebrates be
16 considered in that category?
17 A. Macroinvertebrates would not be generally
18 considered as microorganisms although there are
19 some -- no, you said macro so no.
20 Q. Are there some type of invertebrates that
21 are?
22 A. Most certainly.
23 Q. What are they?
24 A. There is a large number of phyla that are
25 included in that, you have such things as rotifers
389
1 and nematodes, a whole series of microscopic
2 protista.
3 Q. So these would be very, very small
4 invertebrates?
5 A. Yes, yes.
6 Q. Do you intend to offer any other opinions
7 or statements as to nutrient statements or microbial
8 ecology of the Everglades?
9 A. It is such a broad area, it is very hard
10 for me to say exactly to the point what I would be
11 asked to -- if I was asked to testify on this, these
12 are the general areas. But, as I just pointed out,
13 the number of organisms, the types of organisms that
14 are included makes it very difficult for me to say
15 that I would say this statement or no, I wouldn't say
16 that statement. I would be definitely offering
17 opinions in the area of microbial ecology.
18 Q. I understand your dilemma but I have a
19 dilemma too and I can't read your or your counsel's
20 mind so I am trying to figure out what it is you will
21 conceivably be testifying about in this regard.
22 MS. PONZOLI: I think you are getting a
23 pretty fair idea of anything that would be elicited
24 from Dr. Jones, unless there is something in response
25 to more data that is produced or more depositions
390
1 that are taken, and that's something that we all have
2 to live with.
3 Q. The third category concerns phosphorus
4 loading in Everglades soils.
5 What opinions do you have in that regard?
6 That is subject, of course, to the qualification that
7 you don't need to reiterate things that you have
8 already stated.
9 A. I think we have pretty well covered the
10 impacts of nutrients. We have talked about the
11 various areas. Other than just specifics of those, I
12 think we have covered the broad categories.
13 Q. Dr. Jones, is there a phosphorus threshold
14 level for the Everglades?
15 A. It is a good question. I would like to do
16 additional research to determine whether there is.
17 I am not a believer in a single threshold,
18 if you will, from the standpoint that there are many
19 organisms and therefore there will be many
20 thresholds.
21 I do believe that there is a level of
22 phosphorus which will, can be demonstrated to cause
23 adverse effects or to change the Everglades system.
24 I prefer not to use the word threshold although I
25 have on occasion because that seems to be the word
391
1 that is in vogue with a number of other people.
2 Q. Do you have any opinions as to what that
3 threshold might be?
4 MS. PONZOLI: This has been asked and
5 answered.
6 A. It was yesterday and I did express that
7 opinion, that it was probably somewhere between five
8 and ten parts per billion, I believe, or in that
9 range.
10 Q. Is that in terms of the concentration of
11 phosphorus, total phosphorus in the water column?
12 A. That's correct.
13 Q. Do you have any opinions as to what that
14 threshold would be for the soil?
15 A. Whatever the concentration in the soil
16 would be that would deliver a concentration of five
17 to ten parts per billion in the water column upon
18 equilibrium.
19 Q. I realize we may have gone into this
20 before with you, I would like to just be clear as to
21 what your basis is for saying that the phosphorus
22 levels, threshold levels are in the area of five to
23 ten parts per billion in the water column.
24 A. You have used the word threshold again and
25 that's with my disclaimer that I would prefer not to
392
1 use it.
2 Q. I understand, but I am just using the
3 convenient word that everyone seems to employ. You
4 use whatever term you think is appropriate.
5 A. I did explain this in some detail
6 yesterday and that's based on just general ecological
7 definitions of what defines an oligotrophic versus a
8 eutrophic and the various categories in between from
9 the standpoint of the total phosphorus, also from the
10 data that has been collected by ourselves and other
11 researchers in this system in pristine areas of the
12 Everglades.
13 Q. Aren't you really just looking to what the
14 phosphorus levels are in the pristine areas and
15 establishing that as the appropriate level and then
16 saying everything beyond that is above the threshold?
17 MS. PONZOLI: I object to form.
18 A. Again, the threshold is not a term, I am
19 sorry --
20 Q. I understand.
21 A. But the basis of this is very well founded
22 in the literature from the standpoint that anyplace
23 where you add a limiting nutrient, if as I believe
24 and I believe a number of people have -- in fact, I
25 don't believe there is any doubt that phosphorus is
393
1 the limiting nutrient in the Everglades system, and
2 so therefore if you have a limiting nutrient and you
3 add any additional amount it will cause ecological
4 changes because it is the limiting component.
5 Q. So if it goes to twelve it would create a
6 problem whereas at ten it wouldn't?
7 A. I am not saying at ten or twelve or at
8 five that it would create a problem. You asked me my
9 opinion of where I thought the background level, as I
10 refer to it, or the level that the system is used to
11 receiving in its overland flow of the concentrations
12 that were there and it was, and I said it is probably
13 in the range of five to ten. I wouldn't go so far as
14 to say ten is such a strict upper limit that it
15 couldn't be ten and a half or twelve or something
16 like that.
17 Q. How do you know it is not 25 or 50?
18 A. Well, by definition, then, the Everglades
19 would be a eutrophic environment.
20 Q. And that's just by reference to a standard
21 definition of what eutrophia means?
22 A. It is also by experience of seeing
23 environments where the phosphorus concentration is
24 that high and they are not in the same trophic status
25 or the same level as the Everglades are.
394
1 Q. How would you go about confirming or
2 ascertaining that this is indeed an appropriate
3 level, whatever we want to call it?
4 A. I think that there are two approaches.
5 One approach would be to use common sense which we
6 tend to ignore down here and go into the environment
7 and see what conditions are existing there and just
8 using the same type of ecological theories and
9 research that we have all used in the past in sort of
10 a less contentious issue. That would be one
11 approach. That doesn't seem to have a whole lot of
12 favor.
13 The other approach would be an
14 experimental approach. An appropriately designed
15 concentration dosing study, in my opinion, is
16 probably the best way of making this determination.
17 Q. You are aware, are you not, that several
18 dosing studies have been or are being performed in
19 the Everglades ecosystem?
20 A. I am aware of one study that was done in
21 the Park.
22 Q. Do you have an opinion as to whether that
23 was an adequate study?
24 MS. PONZOLI: I object to form. What do
25 you mean by adequate?
395
1 MR. HYDE: It is a common word. Standard
2 dictionary definition.
3 MS. PONZOLI: I didn't tell him he
4 couldn't answer. I just objected to it.
5 A. That study was adequate in that it
6 demonstrated the effects of phosphorus additions and
7 nitrogen from that standpoint on a pristine area of
8 the Shark River Slough.
9 BY MR. HYDE:
10 Q. What criticisms if any would you level at
11 the study?
12 A. Basically that the data that could have
13 been collected at that site was not collected in a
14 manner that allowed it for the most part to be
15 utilized in the peer review and scientific
16 literature. It was data that was perfectly
17 acceptable from the standpoint of visualization and
18 25 years ago, you know, not 25 exactly but whatever,
19 just as an example in times past when science was
20 less into the instrumentation, the microcomputers,
21 the statistics and all of the types of things we have
22 now, that type of observational data would have
23 sufficed to make some very, very nice -- it would
24 have made a nice publication.
25 Q. What was deficient about the Park dosing
396
1 study in terms of its acceptability to, say, a peer
2 reviewed publication?
3 A. They didn't collect the date in a manner
4 that could be rigorously analyzed using statistical,
5 the statistical techniques available to us today.
6 Q. Do you know or do you recall whether there
7 was a control in that experiment?
8 A. The control, at one time there were two
9 control channels and a single dosed channel, and then
10 later on in the experiment they used an external area
11 as a control area.
12 So initially there were in fact two
13 controls and one treatment and then at a later date
14 there were three treatment areas and an external area
15 used as a control.
16 Q. Did the researchers for that study employ
17 replication?
18 A. You mean did they duplicate the study in
19 other places?
20 Q. No, in there data sampling.
21 A. I don't know what they did in their data
22 sampling.
23 Q. What was their experiment design to the
24 best of your knowledge?
25 A. I am sorry, that didn't make sense.
397
1 Q. Did you understand the design of the
2 experiment?
3 A. Yes.
4 Q. Explain that to me.
5 A. The design was to dose phosphorus into
6 channels in Everglades National Park to determine,
7 actually phosphorus and nitrate, to determine the
8 effects of the phosphorus and nitrate additions on
9 native Everglades community.
10 Q. Do you recall what the dosing
11 concentrations were of that study?
12 A. I believe the concentrations were always
13 less than 35 parts per billion, but I am not sure
14 what the range was during the experiment. I would
15 have to go back and look at the report.
16 Q. Do you recall whether the dosing in that
17 Park study resulted in any transition from one
18 species to another?
19 A. It did.
20 Q. What was that transition?
21 A. There were several.
22 Q. Identify them for me.
23 A. I can not give you a complete list of
24 them. There will be more than I remember.
25 I know that there was a transition in that
398
1 sawgrass and Eleocharis became less dominant and --
2 Q. Both sawgrass and Eleocharis became less
3 dominant?
4 A. Yes. And we are going across all three of
5 the treated channels now, and that a number of
6 Sagittaria, the Pontederids became dominant, Panicum
7 was another species that came in and several years
8 after the end of dosing cattails moved into the
9 channels that had received phosphorus.
10 Q. Where did the cattails emerge? Where were
11 they located in the channels, if you recall?
12 A. I believe some are around maybe 65 meters
13 or so in the nitrogen and phosphorus and the
14 phosphorus only channels.
15 Q. 65 meters from what?
16 A. From the start of the channels.
17 Q. Do you know what the phosphorus
18 concentrations were by the time the water got down to
19 those areas where the cattails emerged?
20 A. No.
21 Q. Would you expect the phosphorus
22 concentrations to have been the highest at the point
23 of the source of addition and relatively lower by the
24 time they got down those 65 some-odd meters?
25 A. I would have expected some sort of a
399
1 gradient to be established in the channels.
2 Q. Do you know whether a gradient was
3 established in the channels?
4 A. I would have to look at the reports.
5 Q. Are there any other criticisms that you as
6 a scientist in 1994 would level at this Park dosing
7 study in terms of its being able to generate
8 information that is useful to the present
9 controversy?
10 MS. PONZOLI: I object to form. I think
11 you are framing your question in the most negative
12 way you can.
13 Q. You can go ahead and answer.
14 A. It just had a lot of possibilities that
15 were not capitalized on. But it demonstrated
16 something that none of the transect data, none of the
17 District reports, nothing else has and that is what
18 happens when you go into a pristine area and add
19 phosphorus alone to this system, that change, under
20 at least a semi-controlled situation.
21 So I would not level criticisms but rather
22 use the dosing study in the Park for what it can be
23 used for.
24 MS. PONZOLI: May we take a break whenever
25 you reach a breaking point.
400
1 MR. HYDE: This is a good point.
2 (Thereupon, a brief recess was taken,
3 after which the following proceedings
4 were had)
5 BY MR. HYDE:
6 Q. Dr. Jones, are you aware of a nutrient
7 dosing study that is being conducted by the Duke
8 Wetland Center in Water Conservation Area 2A?
9 A. Yes, I am. I just wouldn't refer to it as
10 a dosing study?
11 Q. How would you refer to it?
12 A. As a loading study.
13 Q. Does that somehow make it different from a
14 dosing study?
15 A. If the purpose of dosing is to determine a
16 concentration that causes changes, yes.
17 Q. So in your opinion the Duke Wetland Center
18 study is not tailored to determine that threshold?
19 A. If it is still being conducted in the
20 manner it was when I had reviewed it before, then it
21 is not.
22 Q. Why?
23 A. Because they are pumping water at a
24 continuous rate.
25 Q. Why is that a problem?
401
1 A. Well, load is essentially volume times
2 concentration will give you the load in there. And
3 to appropriately do a concentration study you have to
4 take into account the natural flow of the system and
5 that that will change during the year.
6 Q. And to your knowledge that hasn't been
7 taken into account?
8 A. To my knowledge based on what I -- what we
9 learned from the documents that were produced by the
10 Duke Wetland Center and from the deposition of Dr.
11 Richardson and a number of his associates, that was
12 not the mechanism that was being employed upon the
13 initiation of their study.
14 Q. Do you know for what purpose the Duke
15 Wetland Center study was intended?
16 A. No.
17 Q. Is there anything else about that study
18 that you are critical of? Let's put it that way?
19 MS. PONZOLI: I object to the overbroad
20 nature of that question, Mr. Hyde.
21 A. The size.
22 Q. What is wrong with the size?
23 A. Too small.
24 Q. Isn't that size perhaps a limitation or
25 influenced by the amount of money available for the
402
1 project?
2 A. That's a possibility.
3 Q. Can you be a little more specific when you
4 say the size, that it is too small? What is too
5 small about it?
6 A. The channels, my understanding, I believe
7 are ten meters in length. Experience from the Park's
8 study and a number of other -- well, basically the
9 Park study, we will stick with that, it would
10 indicate that even under that circumstance, even a
11 hundred meters was almost too small.
12 Q. How long were the pathways or channels at
13 the Park study?
14 A. 100 meters.
15 Q. Do you know at what distance downstream in
16 the Park channels there was little or no response to
17 the phosphorus being added?
18 A. For at least an additional hundred meters
19 past the end of the channels there was still damage.
20 Q. When you say damage, what do you mean?
21 A. Vegetative changes, the same types of
22 changes that were observed in the channels.
23 Q. Is this like transition in communities of
24 macrophytes or are we talking more on a microbial
25 level?
403
1 A. No, changes in macrophytes. It is very
2 visible from the air.
3 Q. Let me ask you a general question here.
4 How is the Everglades being affected now by incoming
5 water, in terms of concentration only or in terms of
6 concentration times volume?
7 A. It is affected by both.
8 Q. I think under your own statement isn't
9 concentration times volume equal to load?
10 A. That's correct.
11 Q. Then isn't the Duke Wetland Center study
12 appropriately designed to make that kind of a
13 determination?
14 A. For load?
15 Q. Yes.
16 A. Yes, for load.
17 Q. But you just don't think it is appropriate
18 for concentration?
19 A. That's correct.
20 Q. I am not real clear, how would one design
21 the system to make sure it was addressing only
22 concentration and not being confounded by load?
23 A. You are always going to have a load even
24 with a concentration. But the critical factor here
25 is to make sure that you are not putting a load in
404
1 the system, number one, at a concentration that the
2 system wouldn't experience or a test concentration
3 that would be too high. The other thing would be to
4 make sure that you are only applying that
5 concentration in a natural manner rather than in some
6 sort of a forced manner.
7 You don't want to have phosphorus being
8 delivered to the system in the middle of the dry
9 season simply because you have the ability to pump
10 it.
11 Q. How else would you ensure that it was
12 delivered in a more or less natural manner?
13 A. I would do that by having the delivery
14 mechanism, the water being controlled by the water
15 and that water's flow being controlled by natural
16 mechanisms.
17 Q. What natural mechanisms would you identify
18 here?
19 A. The flow of water from north to south in
20 Shark River Slough or something like that.
21 Q. In terms of the Duke Wetland Center study
22 which is in WCA-2A would you just allow or let the
23 water move through in the natural flow that it does
24 through that conservation area?
25 A. Yes.
405
1 Q. Does it always flow in a north to south
2 direction?
3 A. In Water Conservation Area 2A?
4 Q. Yes.
5 A. I would say that the general mechanism
6 would be, under the circumstances that are
7 established now, would be for the water to flow from
8 a northeast to southwest on a slight angle like that.
9 But I am not really familiar with the flow patterns
10 of water in Water Conservation Area 2A.
11 Q. If you were allowing just for natural flow
12 how would you maintain or ensure the integrity of
13 that natural flow in the channels?
14 MS. PONZOLI: Excuse me, how do you mean
15 integrity?
16 Q. How would you ensure that it is only the
17 natural flow that would be going through the
18 channels?
19 A. What other type of flow? I can't think of
20 any other type of flow that would go through the
21 channels other than natural flow.
22 Q. How would you keep out other types of
23 disturbing effects, the alligator moving through or
24 birds wading through it or something along those
25 lines?
406
1 A. I would tend probably to put something
2 like a fence up to keep them out.
3 Q. Do you know what the schedule of flow is
4 for the Duke Wetland Center study?
5 A. I did at one time. Again, if it was under
6 the same design, if they are still operating it under
7 the same mechanisms that they were when they
8 initiated the study.
9 Q. I take it then you don't recall what that
10 schedule is now?
11 A. You mean schedule, by what rate it was
12 being pumped or how many gallons per minute or
13 whatever?
14 Q. Yes.
15 A. No, I don't recall what that is. I would
16 have to look it up.
17 MS. PONZOLI: It has been well over a year
18 since that deposition was taken and those documents
19 were produced, Mr. Hyde.
20 Q. Do you know what the experimental unit of
21 the Duke Wetland Center study is?
22 A. I don't even know what that question is.
23 Q. I will come back to that in just a moment.
24 Do you know whether the center's study has
25 employed replications and if so, how many?
407
1 A. I believe they have two replicate units.
2 I am not sure of replication among treatments.
3 Q. Do you know what the Duke Wetland Center
4 is in actuality measuring?
5 A. I had some indications again over a year
6 ago as to what parameters they were measuring,
7 periphyton and macrophyte changes, that type of
8 thing, water chemistry.
9 Other than that, I don't know the
10 specifics without going back and reviewing the
11 documents.
12 Q. Other than making the channels longer and
13 the flows more natural what other changes would you
14 suggest for the Duke Wetland Center study?
15 MS. PONZOLI: Mr. Hyde, I am going to
16 object to this whole line of questioning.
17 I don't think there was an indication that
18 at the present time Dr. Jones indicated that he was
19 offering an opinion on the inadequacy of the Duke
20 wetland study but certainly Dr. Richardson's
21 deposition and the production of any documents on
22 that study would have to occur in this discovery
23 round before we would offer some rebuttal to that
24 study.
25 He can continue answering your questions
408
1 but I don't think they are appropriate at this time.
2 MR. HYDE: I think they are so --
3 MS. PONZOLI: I just want my objections on
4 the record. I don't mind if you want to spend your
5 time in this deposition this way.
6 BY MR. HYDE:
7 Q. Dr. Jones, recalling my question, what
8 other, say, improvements would you make to that
9 study?
10 A. I can think of some additional problems.
11 I don't think I would do anything to improve it. I
12 would abandon it.
13 Q. Do you think it is a useless study?
14 A. I think that it has little more to offer
15 because of design flaws than the -- I will just leave
16 it at that. I don't think it has much to offer.
17 Q. And the design flaws are the things that
18 we just noted in terms of the channel length and the
19 natural flow?
20 A. Those would be two of them. And there are
21 others.
22 Q. What are the others?
23 A. They are box ended, the water is allowed
24 to enter from the, if you will, quote-unquote,
25 downstream end because they are closed off at the
409
1 upstream end.
2 Q. Why do you suppose it is that way?
3 A. Why do I suppose they are that way?
4 Q. Yes.
5 MS. PONZOLI: I am going to object to your
6 asking his suppositions about why your expert
7 designed his experiment the way he designed it, Mr.
8 Hyde. I don't think he has to give you suppositions.
9 Q. If they weren't open at the downstream end
10 how would the water flow out?
11 A. I didn't say they weren't supposed to be
12 open at the downstream end. I believe I said they
13 were closed at the upstream end.
14 Q. How are you going to add the phosphorus if
15 you don't close off the upstream end? Never mind, I
16 will just withdraw the question.
17 Dr. Jones, you have identified several
18 problems that you find with this particular Duke
19 Wetland Center study. And you have hinted that there
20 are other problems so I would like you to be specific
21 and advise me what those other problems are.
22 MS. PONZOLI: May I inquire, Mr. Hyde,
23 what the particular relevance of this is? Do you
24 intend to offer this particular study as proof of
25 what a threshold or a natural background level would
410
1 be at trial? I mean, what is the relevance of this
2 line of questioning?
3 MR. HYDE: We are going to offer testimony
4 about this study, it is quite clear, Suzan, and as a
5 consequence I would like to know what criticisms Dr.
6 Jones has regarding it. That's all.
7 MS. PONZOLI: You never made it clear you
8 were or if you have in your most recent filing I
9 apologize because I haven't had time to review that.
10 Is that in that filing, that you intend to offer
11 proof from this experiment at trial?
12 MR. HYDE: I am not sure what you are
13 referring to.
14 MS. PONZOLI: You filed your experts and
15 the various areas they would be offering testimony
16 on, this is the first I ever heard that you intended
17 to use this particular experiment as proof at trial.
18 And you are certainly welcome to continue
19 wasting your time asking him questions but if you are
20 going to offer this as proof at trial then until we
21 have done Dr. Richardson and other people's
22 depositions and really discovered what that is about
23 today, you are not going to have Dr. Jones' opinions
24 for trial until that deposition has been completed.
25 MR. HYDE: Suzan, all I can say at this
411
1 point, we are going to put on the case we want to put
2 on.
3 MS. PONZOLI: We have a right to discover
4 that and if you are going to --
5 MR. HYDE: You can do that, Suzan, but do
6 your discovery during your deposition.
7 MS. PONZOLI: But you are trying to use
8 your discovery of Dr. Jones' information about an
9 experiment that you have never revealed you intend to
10 use at trial and his information is well over a year
11 old. You have a limited amount of time to depose Dr.
12 Jones and it seems to me we are wasting a great deal
13 of that time going up rabbit trails that are going to
14 go nowhere.
15 I am simply putting my objection on the
16 record and I am not going to have you use this
17 inquiry at this time to use at trial as his
18 definitive opinion on that experiment.
19 MR. HYDE: I am not going to belabor this
20 issue very much further except to say that what I
21 want to conduct discovery into is my privilege, not
22 yours, and I do resent you constantly --
23 MS. PONZOLI: There is a limit to the time
24 and what you are doing --
25 MR. HYDE: Please allow me to finish my
412
1 statement. I didn't interrupt you, Suzan. You can
2 at least not interrupt me.
3 I don't regard it a waste of time. I
4 happen to think it is a very fruitful inquiry and
5 certainly well within my right to do.
6 And as far as knowing what any of the
7 witnesses are going to say at trial, that is why we
8 are having these depositions. I don't know what Dr.
9 Jones is going to say at trial before I conduct this
10 deposition. That's what this whole exercise is
11 about.
12 And I don't think it is the least bit
13 unusual you or irregular, in fact, I think it is
14 entirely highly relevant to inquire what his
15 criticisms might be about this study. I think that's
16 all we are doing here.
17 This is discovery, this is not the trial.
18 I am entitled to ask the questions in regard to any
19 matter that I think is relevant and the hearing
20 officer would feel is relevant and I have absolute
21 confidence the hearing officer would believe this is
22 a relevant line of inquiry.
23 MS. PONZOLI: I don't think he is going to
24 give you two times and I am telling you you are
25 wasting your one time today.
413
1 MR. HYDE: You have expressed that opinion
2 repeatedly. Can you now at least leave it to the
3 record and allow me to make the best use of the time
4 I can?
5 MS. PONZOLI: I certainly will object to
6 continuing this deposition for extended lengths of
7 time when you are wasting time on unuseful areas such
8 as this.
9 MR. HYDE: If you want to argue it before
10 the hearing officer, we can do that, Suzan.
11 MS. PONZOLI: We will when you try to go
12 beyond your time.
13 MR. HYDE: I am absolutely confident he
14 will rule in my favor.
15 MS. PONZOLI: He already said you have to
16 choose how you spend your time and I am telling you
17 you are not getting the opinions he is going to offer
18 on that experiment today.
19 MR. HYDE: How many minutes have you
20 wasted now on making this foolish point?
21 MS. PONZOLI: I don't think it is foolish.
22 THE COURT: I will continue asking the
23 questions. You made your objection for the record.
24 Do you have to keep making it?
25 MS. PONZOLI: My objection is on the
414
1 record. No, I don't.
2 BY MR. HYDE:
3 Q. Dr. Jones, what other critique or
4 criticism would you make regarding the Duke Wetland
5 Center study?
6 A. At this time without going into the
7 documents that I have I am not able to make any
8 further comments other than those which I have
9 already made.
10 Q. You hinted earlier that there were other
11 criticisms. Have you forgotten them?
12 A. No. I believe I told you -- we have had
13 at least two additional criticisms since that hint.
14 I think that comprises other.
15 Q. You have made your own proposal for a
16 dosing study, have you not?
17 A. I have not made a proposal. I have a
18 scoping document that has been used in various
19 fashions to do a dosing study in the Everglades
20 National Park and then Loxahatchee.
21 Q. Why did you make this proposal or whatever
22 you call it, a scoping document?
23 A. Because I feel that an appropriately
24 designed concentration driven study is one of the
25 best ways at determining at what levels phosphorus
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1 will cause changes in the Everglades ecosystem.
2 Q. So the purpose of the study would be to
3 generate some potentially useful information so that
4 we could understand better this ecosystem, correct?
5 A. Also to define and help numerically
6 interpret the Class III narrative standards, nutrient
7 standards.
8 Q. So wouldn't it be helpful to know what is
9 wrong with the Duke Wetland Center study in order to
10 I guess better design a new dosing study for the Park
11 or the Water Conservation Areas?
12 A. It certainly could be helpful.
13 Q. Isn't this all in fact aimed at generating
14 more useful information for the Park and Refuge and
15 the Water Conservation Areas?
16 A. What?
17 MS. PONZOLI: Objection to form. All of
18 what?
19 Q. Aren't all of these studies, the wetland
20 center study, the Park dosing study and your proposed
21 study aimed at generating better information to
22 assist us in our knowledge of the Everglades
23 ecosystem?
24 MS. PONZOLI: I object to form. I don't
25 think he is competent to testify as to what was in
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1 the heart of Dr. Richardson when he designed the
2 study, what he was aiming at.
3 MR. HYDE: I did not ask what was in the
4 heart of Dr. Richardson. I am asking what these
5 studies are aimed at.
6 MS. PONZOLI: How does he know what Dr. <