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 415 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 416 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. 7 Richardson was aiming at when he designed his study? 8 MR. HYDE: Would you quit coaching your 9 witness and allow him to answer the question. 10 MS. PONZOLI: I am not coaching the 11 witness. You are wasting our time. I resent very 12 much we have four days for Dr. Jones, you aren't even 13 close to finishing and Mr. Sams hasn't even started. 14 BY MR. HYDE: 15 Q. Dr. Jones, are you conducting any ongoing 16 studies concerning phosphorus loading in Everglades 17 soils? 18 A. Yes. 19 Q. What are they? 20 A. We are doing additional work using the 21 columns, soil columns, using marl soils and we are 22 doing work with the effects of phosphorus on mercury. 23 Q. Where are these studies being conducted in 24 the Everglades Protection Area? 25 A. They are being conducted in the 417 1 laboratory. 2 Q. Are they based on soil taken from a 3 particular geographic area within the EPA? 4 A. Yes. 5 Q. Where is that? 6 A. Everglades National Park. 7 Q. Where in Everglades National Park? 8 A. Approximately 16 kilometers south of 9 S-12C. 10 Q. Is that in the same area as the samples 11 that were referred to in your Exhibit 53 as having an 12 average parts per billion of 186? 13 A. I believe so, yes. 14 Q. Is it in the exact same area or in a 15 ballpark area? 16 A. We try and avoid going to the precise -- 17 we don't have a stake out there that we go to all the 18 time we are there. We are trying to get as broad of 19 an area as we can. So we utilize, generally under 20 this circumstance we utilize Loran to locate the area 21 and then we use GPS to define exactly where we are in 22 that area. But we want to avoid continually getting 23 soil from the same exact spot in the system. 24 Q. Would it be fair to say that it is being 25 sampled in close proximity to the other site? 418 1 A. Yes, yes, it would be. 2 Q. Where is this mercury related testing 3 being conducted? 4 A. At the same site, back in the laboratory 5 also. 6 Q. So it is the same information being 7 employed for two different tests? 8 A. No. There are multiple experiments taking 9 place. 10 Q. Are there experiments beyond those two 11 that you just enumerated? 12 A. At this moment, yes, I have a graduate 13 student working on nitrogen cycling but it is not 14 related to phosphorus and I believe the question was 15 phosphorus. 16 Q. What is the name of this graduate student 17 doing the nitrogen cycling work? 18 A. Mera Nair. 19 Q. How do you spell the last? 20 A. N A I R. 21 Q. What is the purpose of her ongoing work? 22 A. She is just interested in the rates of 23 ammonia turnover in the system. 24 Q. When do you anticipate this work will be 25 concluded? 419 1 A. Within the next probably two years. 2 Q. Is there any other phosphorus related 3 research being conducted by you now concerning the 4 Park? 5 A. Only in Florida Bay. 6 Q. Are you conducting any additional 7 phosphorus related research regarding the Loxahatchee 8 Refuge on an ongoing basis? 9 A. We are analyzing samples that are 10 collected by Refuge staff. 11 Q. For what purpose? 12 A. I believe it is either in conjunction with 13 continued entry by the Sugar Cane League into 14 Loxahatchee, monitoring of the rainfall stations and 15 also the routine or the fixed stations for water 16 quality in the Refuge, 16 stations of which some 17 subset is being used. 18 Q. You are referring to the 16 stations that 19 are referenced in the Everglades SWIM Plan? 20 A. Yes. 21 Q. And the rainfall collectors are being 22 operated or monitored by whom? 23 A. They are being operated and the samples 24 are being collected by the District -- not by the 25 District, I am sorry, by the Loxahatchee staff. 420 1 Q. And the third category that you mentioned, 2 concerning the League's entry and access, are you 3 testing replicate samples? 4 A. I am testing whatever is sent to the 5 laboratory. I am analyzing those samples. 6 Q. How do you receive those samples? 7 A. They are generally brought to the 358 8 laboratory by Su Jewel. 9 Q. What analysis are you running on these 10 presumably replicate samples from the League? 11 A. Total phosphorus. 12 Q. Just total phosphorus, anything else? 13 A. I believe just total phosphorus we are 14 doing. 15 Q. Backing up a moment to your phosphorus and 16 mercury studies that you were conducting based on 17 samples from the Everglades National Park, did those 18 studies have any operative thesis? 19 A. Yes. 20 Q. What is the thesis for the phosphorus 21 related study? 22 A. By thesis, I would use the word hypothesis 23 and I am assuming we can interchange those two at 24 this point? 25 Q. Fine, yes. 421 1 A. That the rate of mercury cycling in the 2 system is controlled by the availability or the 3 presence of phosphorus and that increasing the 4 concentration of phosphorus will increase the manner 5 in which mercury is cycled, i.e., converted from its 6 inorganic form into its methyl form and therefore 7 bioaccumulated in the system. 8 Q. So both of these experiments are really 9 mercury related experiments? I am sorry, I thought I 10 understood you to say earlier that you were 11 conducting a phosphorus experiment and a mercury 12 experiment. 13 A. That's correct. 14 Q. Are they one and the same? 15 A. No, they are not one and the same. 16 Q. But this phosphorus related experiment has 17 as its purpose determining a relationship to mercury 18 generation? 19 A. One of them does, one of the phosphorus 20 experiments has to do with mercury. 21 Q. Let me back up for a moment because I got 22 confused there. What is the hypothesis underlying 23 that experiment? 24 A. I just explained it. 25 Q. Could you explain it to me again because I 422 1 got a little bit confused there. 2 A. It will come out in the record. You know, 3 I am sorry, it is exactly the same. 4 MS. PONZOLI: You just want to know what 5 the two experiments are? 6 MR. HYDE: I want to know what the two 7 experiments are. 8 MS. PONZOLI: Just tell him what the two 9 experiments are. 10 A. One experiment is we are simply looking at 11 the uptake and incorporation of phosphorus, 12 continuing to look at the uptake and incorporation of 13 phosphorus and total phosphorus by the Everglades 14 soils. The other experiment is to examine the 15 effects of phosphorus on mercury cycling. 16 BY MR. HYDE: 17 Q. What is the hypothesis of the first one 18 concerning the uptake and incorporation of phosphorus 19 by Everglades soils? 20 A. Under that particular experiment the 21 hypothesis is, this is more of a scoping or a 22 defining type of a project. In other words, we are 23 making certain measurements that we need to know 24 before we can proceed on. So I would not give it a 25 hypothesis from the standpoint that we don't have an 423 1 experimental working hypothesis for that particular 2 project. It is not that type of an experiment. 3 Q. Is it aimed at designing or more 4 appropriately designing some later experiment? 5 A. It is aimed at helping us to now start to 6 examine the marl soils in the system and so I guess 7 the hypothesis could be, if we wanted to say one, is 8 that marl soils will behave differently than peat 9 soils. That is a little bit too mundane for the 10 level of the, the type of work we are doing in the 11 laboratory. I might expect something like that from 12 my master's degree student but not from myself or a 13 doctoral candidate or a post-doc. 14 Q. What is the working hypothesis if any of 15 the second study that you are conducting or on the 16 basis of samples taken from the same areas? 17 A. That is essentially what I explained but I 18 will put it in simple words and that is that 19 increased phosphorus will change the rate at which 20 mercury is transformed from its inorganic forms to 21 its methyl or organic forms. 22 Q. Is that study now under way? 23 A. That study is now under way. 24 Q. When do you anticipate it will be 25 completed? 424 1 A. We will have information continually 2 coming out of this line of studies probably over the 3 next five years. 4 Q. At this point is it fair to say it is 5 nowhere near being completed? 6 A. I believe at a hearing Mr. Menton 7 indicated that this may very well be some sort of job 8 security. We will have findings, we will have 9 certain areas that are completed along the way. We 10 are in the process of writing up some of the 11 methodologies that we have developed for this. There 12 are certain tasks, certain things that are necessary 13 that have been completed but this is an ongoing study 14 and it is in its formative stages. 15 Q. Is this study being done in conjunction 16 with any other entities? 17 A. The National Park Service funded this 18 portion of the study. The Environmental Protection 19 Agency is now interested in continuing this. 20 At the moment the funding I have for this 21 particular aspect is from the National Park Service. 22 Q. Do you have any ongoing studies in Water 23 Conservation Area 2A? 24 A. No. 25 Q. Backing up a moment to the two Park 425 1 studies, did you produce the methodologies that you 2 are employing for those two studies in your document 3 production? 4 A. There is definitely an SOP, standard 5 operating procedure for mercury analysis in the 6 laboratory. 7 The draft of the analytical chemistry 8 publication that we are working on, the first time I 9 finished up with that was Friday and gave it back to 10 the student who is writing that and so I don't 11 believe that there is a copy of that in the -- that 12 was produced. There may be but I doubt it. It is in 13 a very preliminary form. 14 You do have the abstracts that were sent 15 in for the meeting which outlined the general 16 mechanism -- not mechanisms, the general methods in 17 that. 18 Q. Do you have any ongoing studies in Water 19 Conservation Area 3A? 20 A. Yes. 21 Q. What are they? 22 A. We are looking at the distribution of 23 mercury and along with that the distribution of 24 phosphorus along a grid network and we are also 25 analyzing a number of cores for mercury and 426 1 phosphorus in Water Conservation Area 3A south, I 2 will say. 3 Q. Do you mean in the southern part of Water 4 Conservation area 3A? 5 A. Essentially from approximately 2.6 6 kilometers north of the Dade-Broward line to the 7 Tamiami Trail. 8 Q. Is this mercury distribution study related 9 either directly or indirectly to your ongoing study 10 of mercury in the Park? 11 A. It is not from the standpoint that it is a 12 geology graduate student CONDUCTING research in the 13 laboratory. I believe we spoke about her yesterday. 14 And there is some interest, I mean, the Park is 15 interested in the results, EPA are interested in the 16 results. But this is work that we are bootlegging is 17 the term that we would use, I guess, to describe, we 18 are doing it on the side. 19 Q. When do you anticipate that study will be 20 complete? 21 A. We have collected and analyzed almost all 22 of the data. We have to go to four additional 23 stations to collect four more cores, and then all of 24 the samples will have been collected. 25 The results were in my production. 427 1 Q. You also indicated that you are doing some 2 phosphorus distribution studies in Water Conservation 3 Area 3A. What are they? 4 A. They are in conjunction with this mercury. 5 We are analyzing these samples also for total 6 phosphorus. 7 Q. What is the purpose behind this phosphorus 8 distribution study? 9 A. This was just one of the parameters that 10 needed to be measured along with Ms. Arfsdrom's 11 mercury. She is a geologist. They get real nervous 12 when she is not measuring ten or twelve different 13 geological characteristics, if you will, of these 14 course. The phosphorus was one of the things that 15 she was required to measure as part of her master's 16 degree thesis. 17 Q. Then you said you were doing some core 18 mercury and phosphorus studies? 19 A. This is again part of her master's degree 20 thesis. 21 Q. Will these studies be completed at all 22 prior to a hearing in this matter? 23 A. She would like them to be. I think that 24 that is a rather grandiose expectation on her part. 25 MR. SAMS: Let me ask, Suzan, if it would 428 1 be possible for you to bring or have Dr. Jones bring 2 the draft of the analytical chemistry or a copy of 3 that with him to his deposition tomorrow. We will be 4 turning to the subject of mercury and I think it was 5 something that would have been included within the 6 scope of our request. 7 I understand the circumstances that he 8 described and why it wasn't within the documents that 9 have been provided to us prior to the deposition, but 10 if it could be furnished tomorrow at the time of our 11 questioning, we would appreciate it. 12 MS. PONZOLI: And you will extend me the 13 same courtesy for documents that emerge? 14 Is this her document? 15 THE WITNESS: No, it is not her, it is 16 another graduate student, but it may very well be in 17 Venezuela until the middle of next week, the 18 document. 19 MS. PONZOLI: Let me tell you as a 20 principle if you will extend me the same courtesy I 21 will extend you the same courtesy. 22 I think there is a reality here that to 23 the extent petitioners are going to raise mercury as 24 an issue, and the evidence they are going to give on 25 mercury, quite honestly, Dr. Jones' opinions will be 429 1 formed when that information is presented to us. 2 MR. SAMS: We understand. 3 MS. PONZOLI: We are facing another 4 mercury deposition if that is going to be an issue 5 here. So the matter of the document can be resolved 6 downstream if it has to be. 7 MR. SAMS: What are you telling me? 8 MS. PONZOLI: My first point is I will 9 agree to produce the document if you agree you will 10 produce documents that emerge in the course of 11 depositions, the same courtesy back to me. 12 MR. SAMS: I have no problem with