00129

1 STATE OF FLORIDA

3 DIVISION OF ADMINISTRATIVE HEARINGS

5 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA,

6 a Florida Agricultural Cooperative Marketing

7 Association, ROTH FARMS, INC., and WEDGWORTH

8 FARMS, INC.,

9 Vol. 2

10 and Case Nos:

11 92-3038

12 92-3039

13 92-3040

14 FLORIDA SUGAR CANE LEAGUE, INC.; UNITED

15 STATES SUGAR CORPORATION; and NEW HOPE SOUTH,

16 INC.,

18 and (Continued.)

19 ---------------------------------------/

20 DEPONENT: DR. ROBERT KADLEC

21 REPORTER: Amy C. Ardin, CSR/3593

22 DATE: Tuesday, March 23, 1993

23 TIME: 9:00 a.m.

24 LOCATION: 3200 Boardwalk

25 Ann Arbor, Michigan

00130

1 FLORIDA FRUIT AND VEGETABLE ASSOCIATION,

2 LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, INC.,

3 and HUNDLEY FARMS, INC.,

5 Petitioners,

7 -vs-

9 SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

10 an Agency of the State of Florida,

12 Respondent,

14 and

16 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

17 The UNITED STATES OF AMERICA and the

18 FLORIDA DEPARTMENT OF ENVIRONMENTAL

19 REGULATION,

21 Intervenors,

22 ---------------------------------------------/

00131

1 APPEARANCES:

3 MR. GARY V. PERKO

4 Hopping, Boyd, Green & Sams

5 123 South Calhoun Street

6 Post Office Box 6526

7 Tallahassee, Florida 32314

8 (904) 222-7500

9 Appearing on behalf of

10 the Petitioners Sugar Cane

11 Growers Cooperative of Florida;

12 and Roth Farms, Inc.

14 MR. RICK J. BURGESS

15 Peeples, Earl & Blank

16 One Biscayne Tower, Suite 3636

17 Two South Biscayne Boulevard

18 Miami, Florida 33131

19 (305) 358-3000

20 Appearing on behalf of

21 the Petitioners Florida Sugar

22 Cane League, Inc.; New Hope

23 South, Inc.; and United States

24 Sugar Corporation.

25 (Appearances continued.)

00132

1 MR. DANIEL J. McGRATH

2 Popham, Haik, Schnobrich & Kaufman, Ltd.

3 4000 International Place

4 10 S.E. Second Street

5 Miami, Florida 33131

6 (305) 530-0050

7 Appearing on behalf of

8 the Respondent South Florida

9 Water Management District.

11 MR. GEOFFREY GARVER

12 US Department of Justice

13 Environmental & National Resources Division

14 General Litigation Section

15 PO Box 663

16 Washington, D.C. 20044

17 (202) 272-4692

18 Appearing on behalf of

19 the Intervenors United States

20 of America.

22 Also present: Mr. Curtis J. Richardson

00133

1 I N D E X

3 WITNESS PAGE

5 Dr. Robert Kadlec

7 Examination by Mr. Burgess 134

15 E X H I B I T S

17 NUMBER IDENTIFICATION PAGE

19 Ex. No. 3 Resume 135

20 Ex. No. 4 Everglades Swim Plan 285

21 Appendix F

22 Ex. No. 5 Appendix C Stormwater 308

23 Treatment Areas

00134

1 Ann Arbor, Michigan

2 Tuesday, March 23, 1993

3 9:00 a.m.

4 * * *

5 (The Witness, having been previously

6 sworn, testified as follows:)

7 E X A M I N A T I O N

8 BY MR. BURGESS:

9 Q. Good morning, Dr. Kadlec.

10 A. Good morning.

11 MR. GARVER: Mr. Burgess, do you want

12 to get on the record what we handed you this morning?

13 MR. BURGESS: That's fine, if you'd

14 like.

15 MR. GARVER: Little bit of

16 clarification.

17 A. I have brought with me an updated version of

18 a resume'. Yesterday I'd indicated that I had a

19 March version of vitae; in fact, that was a slight

20 misstatement because I had updated my resume' but not

21 my vitae during March. So I have produced both

22 documents. The February '93 vitae is the most

23 recent, and we're just handing you a March '93

24 resume', which is the most recent.

25 Q. How do they differ?

00135

1 A. I had updated a few minor items of the text

2 such as the number of years of experience; also,

3 changed the fonts, I think, and the headings. It did

4 not change substantively.

5 Q. What do you use the vitae for versus the

6 resume'?

7 A. A resume' is the preferred vehicle in the

8 consulting sector. People do not, in a consulting

9 sector, generally are not interested in names of

10 graduate students and so forth.

11 (Deposition Exhibit No. 3

12 marked for identification.)

13 Q. Dr. Kadlec, we've marked your wetland

14 resume' as Exhibit Number 3, and I'd ask you to turn

15 to page five and read into the record what it says

16 under Everglades, Florida.

17 A. On page five, Everglades, Florida, "The

18 design of reconstructed wetlands for removing

19 nutrients from agricultural run-off is in progress.

20 The conceptual design proposes 33,000 acres to treat

21 750 MGD".

22 Q. Did you participate in the design of those

23 wetlands?

24 A. I am presently participating in the design,

25 yes.

00136

1 Q. Are you presently participating in the

2 conceptual design -- or I'm sorry, did you

3 participate in the conceptual design?

4 A. Yes.

5 Q. And if you turn to page six under Florida

6 Everglades, what does the key indicate that your

7 involvement has been with the design of the wetlands

8 project in Florida, the Everglades wetland project?

9 A. Yes. I've used the code letters "F"

10 meaning feasibility study for wetland treatment

11 system, the code letter "D" standing for participated

12 in design, and the code letter "R" which stands for

13 research project.

14 Q. Have you conducted all three of those

15 activities with respect to the Everglades on behalf

16 of the Department of Justice?

17 A. Yes.

18 Q. Can you outline for us in general terms

19 what you did for the feasibility study or studies?

20 A. Do you mean in conjunction with the

21 Everglades?

22 Q. Yes.

23 A. In general terms the feasibility study

24 involved looking at the water quality parameters

25 associated with the Everglades situation, comparing

00137

1 those to parameters for existing wetland treatment

2 systems and forming opinions as to the feasibility of

3 that technology in the Everglades context.

4 Q. When did you do that?

5 A. That work commenced for the Department of

6 Justice at the time of my first involvement, which I

7 believe we established yesterday was in January of

8 1991 and continues to the present.

9 Q. Would you consider the time you spent in

10 the four or five technical meetings during the period

11 of stay, which you testified to yesterday, as part of

12 the feasibility study?

13 MR. GARVER: You can answer.

14 Q. In fact, you have to answer unless he

15 instructs you otherwise, so just say that you

16 understand.

17 A. Some of the discussions and efforts

18 connected with the settlement negotiations I would

19 classify as a feasibility study.

20 Q. And would they be all of those four to five

21 meetings we spoke about yesterday?

22 A. Those meetings that I participated in

23 covered several subjects, among them was the

24 feasibility of wetlands technology in the Everglades

25 context.

00138

1 Q. Who else participated in these feasibility

2 studies or in your feasibility study that you

3 reference in your Exhibit 3?

4 A. That is a large number of different,

5 separate efforts. I can say that those people that I

6 worked with on what I would term feasibility studies

7 included individuals such as William Walker and Dan

8 Scheidt and others.

9 Q. Is there a written document detailing this

10 feasibility study?

11 A. That is not a separate entity. When I put

12 the classification feasibility in the resume' it

13 means that there was work done in that general

14 heading, it does not mean that it is a separate

15 distinct component of work. Documents were prepared

16 from time to time that I would say had elements of

17 feasibility discussions in them.

18 Q. Documents such as?

19 A. Such as the Kadlec and Newman report of

20 summer of 1992.

21 Q. How about various drafts of Appendix C to

22 the settlement agreement?

23 A. I did not participate in drafting any

24 materials such as Appendix C in the settlement

25 agreement.

00139

1 Q. Any other documents that contain the

2 feasibility study or portions of the feasibility

3 study you refer to in Exhibit 3?

4 A. Well, none come to mind at the moment.

5 Q. Did you participate in drafting any

6 portions of Appendix F to the SWIM Plan?

7 A. I did not.

8 Q. Again, with reference to paragraph three,

9 could you tell us what your participation in the

10 design of the Everglades wetland included?

11 A. I'm sorry, paragraph three on which page?

12 Q. I'm sorry, Exhibit 3. We are going through

13 the key where you have stated that your activities

14 for the Florida Everglades include feasibility study,

15 participation in design and research.

16 A. Yes.

17 The participation in design would have

18 primarily included a sequence of meetings held for

19 purposes of reviewing design progress by Burns and

20 McDonnell as a consultant to the district.

21 Q. So by participating in design, you mean

22 that you reviewed the progress of someone else's

23 design?

24 A. Correct.

25 Q. You didn't design yourself?

00140

1 A. That's correct.

2 Q. How many such meetings were in this series

3 of meetings?

4 A. Oh, I would have to refer to my files, but

5 the number was approximately eight or ten, I believe.

6 Q. And were they all meetings of what has been

7 referred to as the STA Design Committee?

8 A. Yes.

9 MR. GARVER: Do you mean the STA

10 Design Working Group?

11 MR. BURGESS: Yes, I've heard it STA

12 Design Committee.

13 A. I believe I understand the group you

14 mean -- I think it is more often referred to as STA

15 Design Working Group.

16 Q. How many people are in or on that group?

17 A. A typical meeting would have included

18 anywhere from 20 to 40 individuals.

19 Q. Were those 20 to 40 members of that working

20 group?

21 A. Well, there was a -- at one time I believe

22 there was a designation of certain individuals who

23 were to comprise the working group, but at each

24 meeting there were several other people that would

25 attend for various reasons and they're all -- all the

00141

1 people who attended were copied with all documents so

2 that the membership of that group was defined more by

3 who attended a particular meeting than by any formal

4 appointment.

5 Q. Were you a member of the working group?

6 A. Yes.

7 Q. And who asked you to serve in that

8 capacity?

9 A. I don't recall exactly, but I believe it

10 would have been the Department of Justice.

11 Q. Did you provide any original data for

12 consideration by Burns and McDonnell?

13 MR. GARVER: Object to the form.

14 A. Well, I'd ask you to explain what you mean

15 by original.

16 Q. Well, describe your relationship with me --

17 who was the principal representative of Burns and

18 McDonnell, this working group?

19 A. Galan Miller.

20 Q. Did you provide any documents or data to

21 Galan Miller for consideration during your

22 participation or tenure on this STA Design Working

23 Group?

24 A. I did.

25 Q. You did.

00142

1 What did you give him?

2 A. Well, I'm sure I cannot recall all the

3 documents; they were not numerous. I do recall

4 providing an early document that pertained to the

5 calculation of phosphorus uptake; I recall the most

6 recent document provided in that context, since this

7 is an ongoing activity, was, again, provided on the

8 same subject only expanding a bit. I can't recall

9 that there were any documents in the interim, so it

10 was very early on a document on phosphorus uptake and

11 more recently -- I think it was in December of '92 a

12 document on the same subject.

13 Q. What do you mean by this is an ongoing

14 activity?

15 A. Well, the design process moved through a

16 phase -- it's a phased approach. The first phase

17 terminated, I believe, in March, 1992, with a report

18 from Burns and McDonnell. They are now in a

19 subsequent Phase II. There was a sequence of

20 meetings associated with Phase I and the intent to

21 resume that sequence of meetings in Phase II at a

22 time to be determined by the district.

23 Q. Has the working group disbanded?

24 A. It has not to my knowledge disbanded.

25 Q. When was your last meeting?

00143

1 A. I would have to check my files, but it

2 would have been late spring or early summer, 1992.

3 Q. Do you know when you might meet again?

4 A. I do not.

5 Q. How would I identify amongst the documents

6 that you have provided the two documents that you

7 referred to that you gave to Galan Miller?

8 A. Well, they, as I recall, were in memo

9 format. The first was in memo format; I believe the

10 second was titled, but without retrieving it from my

11 file I can't give you the exact titles.

12 Q. Well, did you bring those files with you?

13 A. No.

14 Q. Would you want me to bring down all of the

15 totality of the documents you provided in response to

16 your production request and let you go through them,

17 or is there some other way to identify it?

18 A. Well, I know where it is in my personal

19 filing cabinet. I don't have that --

20 MR. GARVER: We have already produced

21 the documents, Mr. Burgess.

22 MR. BURGESS: I know that, I'm trying

23 to find out what document it is that he produced.

24 I'm asking him for a title or to otherwise identify

25 it. I can bring down six boxes of documents if you

00144

1 want me to.

2 MR. GARVER: I would ask you not to

3 raise your voice at me in this deposition. Your

4 intimidating bullying tactics are not going to help

5 this move along.

6 MR. BURGESS: There are no

7 intimidating or bullying tactics. Your interruptions

8 are uncalled for. The witness should be able to

9 identify a document that he said was provided in

10 December of 1992, otherwise by saying I can't give

11 you the exact title. I've asked him how I can

12 identify it among the six boxes of documents that

13 I've been provided for at the 11th hour in this

14 deposition, Mr. Garver. I've asked him that question

15 twice now, and I haven't gotten a direct answer. I'm

16 entitled to a direct answer. Do we want to excuse

17 him so he can go to his office to find it amongst his

18 documents?

19 MR. GARVER: I guarantee we won't do

20 that, and I would ask you not to scream at me

21 anymore.

22 MR. BURGESS: I'm not screaming at

23 you. We have had a very difficult time getting

24 direct answers to direct questions, and it's very,

25 very frustrating.

00145

1 Q. I ask you, again, sir, amongst the many

2 documents that you provided in response to the

3 production request in this case, how may I identify

4 the documents that you tendered to Galan Miller?

5 A. Well, I believe that the date on the most

6 recent document was December 20th, 1992.

7 Q. And what was contained in that document?

8 A. Contained in that document was an

9 exposition of the application of mass balancing

10 techniques to phosphorus uptake calculations in

11 wetlands.

12 Q. Do you intend to rely on that document for

13 any portion of the testimony you're going to provide

14 at the hearing in this matter?

15 A. Yes.

16 Q. What are you going to rely on it for?

17 A. I'm going to rely on it to illustrate the

18 mass balance techniques for calculations of

19 phosphorus uptake in wetlands.

20 Q. Did you author the document?

21 A. Yes.

22 Q. Did you have any assistance in your

23 authoring of the document?

24 A. The document was based on my work and also

25 in part of that of a co-worker, William Walker.

00146

1 Q. Did Dr. Walker author any portion of the

2 document?

3 A. He did not.

4 Q. How did he assist?

5 A. Dr. Walker had been applying the same

6 principles in the analysis of the information from

7 water conservation area 2A.

8 Q. What principles are those?

9 A. Principles of mass balances.

10 Q. How did the document differ, if at all --

11 how did that document differ, if at all, from the

12 earlier document that you gave to Galan Miller?

13 A. The two documents did differ. The second

14 document included some effects that were considered

15 to be of small magnitude in the conceptual design but

16 should be considered in the Phase II of design.

17 Q. Such as?

18 A. Such as the effect on the water mass

19 balance of rainfall and evapotranspiration.

20 Q. Why were they not important in the first

21 phase but important for the second phase?

22 A. At the first phase these effects which are

23 on the order of small percentages were and are not

24 generally utilized to that degree of detail in a

25 conceptual design.

00147

1 Q. Are they now being considered during the

2 second phase of Galan Miller's work?

3 A. Yes.

4 Q. And what, if you know, are the percentages

5 that you're speaking of?

6 A. I would have to refer to data in order to

7 answer that question precisely.

8 Q. What data do you need to see?

9 A. I would have to refer to the rainfall and

10 evapotranspiration records such as are available for

11 water conservation area 2A.

12 Q. Have those percentages ever been quantified

13 by you?

14 A. Yes.

15 Q. And where would that quantification be?

16 A. It would be in the notes of my ongoing

17 work.

18 Q. Where are those notes?

19 A. Those notes are in my files.

20 Q. Have we been provided with those notes?

21 A. Yes.

22 Q. And how would we find them amongst the

23 documents we have received?

24 A. Well, I cannot tell you how you would find

25 them in your filing system.

00148

1 Q. It's not my filing system.

2 How do we identify them from the

3 documents that you gave us?

4 A. Well, I'm at a loss as to know how to

5 answer that question because my documents that I

6 produced in general, when they're handwritten notes,

7 I generally put a date on those notes the vast

8 majority of the time, and I generally number the

9 pages. But I cannot, as I sit here, tell you the

10 date or page number in my notes which contains that

11 information.

12 Q. Did you provide your notes in a separate

13 file folder or notebook or otherwise marked document

14 with a title that you can refer me to that I can go

15 to to try and locate those notes?

16 A. I produced the information relative to the

17 subject at hand, which is rainfall

18 evapotranspiration, the Galan Miller memo, in a

19 separate unit, including the report of December 1992,

20 and the supporting notes were in one unit.

21 Q. That helps.

22 The calculations then for these

23 percentages would be contained in the handwritten

24 notes that accompanied your December 20, '92

25 submission to Galan Miller, is that correct?

00149

1 A. There would be, I believe, some indication

2 of them there. I may have also relied on the

3 parallel work of Dr. Walker who was using similar

4 information in his analysis of the conservation area

5 2A data.

6 Q. Can you further identify the document that

7 you gave to Galan Miller early on in the process with

8 respect to calculation of "P" uptake rate by any

9 title?

10 A. I don't recall a title, it would be in the

11 unit associated in my files with a folder referred to

12 as "STA Design Meeting One".

13 Q. Describe for us, if you can, what research

14 project you participated in which supports your

15 Everglades wetland designation on page six of Exhibit

16 3.

17 A. Well, the primary reason for listing an "R"

18 in that context was the effort that I put into

19 assessing data from water conservation area 2A,

20 southeastern United States, data sets and national

21 data sets all relative to nutrient uptake in

22 wetlands.

23 Q. And are those research efforts documented

24 in any exhibits or in any documents that you provided

25 in response to our notice to produce documents?

00150

1 A. Yes.

2 Q. And what documents contain that research?

3 A. The primary document that reports on that

4 research is the Kadlec-Newman document of Summer

5 1992.

6 Q. Any others?

7 A. I have other documents in -- they're in

8 some state of preparation or in limbo addressing some

9 other subjects as well.

10 Q. What such other documents and what such

11 other subjects?

12 A. One of the documents that's in draft form

13 only and is not completed concerns the averaging of

14 pulse flow events in wetlands.

15 Q. Is that being done for the Department of

16 Justice?

17 A. Yes, in a general way. I felt this was

18 necessary for my own purposes to thoroughly

19 understand the phenomena that are particular to the

20 Everglades situation and other run-off situations.

21 Q. What data are you reviewing?

22 A. There is no data, this is strictly an

23 exercise in determining what effects averaging has on

24 transient mass balances.

25 Q. When do you expect to complete that in

00151

1 final form?

2 A. Well, given the different demands on my

3 time and the relative importance of finishing that

4 document, I would say that it will be some months

5 before that document is completed.

6 Q. Do you anticipate that you will rely on

7 anything in the document with respect to furnishing

8 your final opinions in this matter?

9 A. I may.

10 Q. Did you provide the copy of the draft paper

11 amongst your documents that you provided to us in

12 response to our request?

13 A. I provided them to the Justice Department

14 for that purpose.

15 Q. You don't know whether the Justice

16 Department provided them to us?

17 A. No, sir, I do not.

18 Q. Have you seen any sort of a privileged list

19 with respect to any of your documents, drafts or

20 otherwise?

21 A. I have not.

22 Q. Has anyone talked to you about preparation

23 of a privileged list or --

24 A. Yes.

25 Q. What was said?

00152

1 MR. GARVER: I'll instruct the witness

2 not to answer.

3 MR. BURGESS: Okay. What's the basis

4 for the instruction?

5 MR. GARVER: I think that asks for an

6 attorney-client --

7 MR. BURGESS: He's your client, too?

8 He's not only a consultant and an expert, he's your

9 client? Do you represent Dr. Kadlec here today?

10 MR. GARVER: I stand with my

11 instruction.

12 MR. BURGESS: Okay. You're

13 instructing him not to answer my question based upon

14 an attorney-client communication; is that your

15 objection? I want to clear it for the record.

16 MR. GARVER: Yes.

17 MR. BURGESS: Okay.

18 Q. Do you know if I'm ever going to get a

19 privileged list, Dr. Kadlec?

20 A. I would assume so. I have no knowledge.

21 Q. Do you know when one was due?

22 A. I do not.

23 Q. Did you discuss with counsel any documents

24 that would be contained on that privileged list?

25 MR. GARVER: You may answer yes or no.

00153

1 A. Repeat the question, please.

2 Q. Yes.

3 Did you discuss with counsel for the

4 Department of Justice documents that might be subject

5 to inclusion on that privileged list?

6 A. Yes.

7 Q. How many such documents?

8 A. I don't know the exact number.

9 Q. I'm not asking exact number. How about a

10 range?

11 MR. GARVER: You were asking for an

12 exact number, counsel.

13 A. Well, I'm afraid I find it difficult even

14 to put a range on this because I identified with

15 counsel certain documents that might be in that

16 category, but I did not make the decision.

17 Q. How many documents did you identify with

18 counsel that might be in that category?

19 MR. GARVER: Counsel, you're going to

20 get the privileged list as the parties have agreed to

21 produce privileged lists.

22 MR. BURGESS: Which was one week

23 before this deposition was supposed to commence,

24 which was eight days ago.

25 Q. Dr. Kadlec, how many documents did you

00154

1 discuss or identify with your counsel that might be

2 included on a privileged list?

3 A. Well, this is going to be an estimate, a

4 very crude estimate, but I would assume that it might

5 be as many as 50.

6 Q. Were there draft reports included among

7 those documents?

8 MR. GARVER: You may answer yes or no.

9 A. Not to the best of my knowledge.

10 Q. Was there work in progress included among

11 those documents?

12 MR. GARVER: You may answer yes or no.

13 A. Not to the best of my knowledge.

14 Q. Was there correspondence with counsel

15 included among those documents?

16 A. Yes.

17 Q. What else was included among the documents?

18 MR. GARVER: Mr. Burgess, that list is

19 in preparation and will be provided to you as soon as

20 it's completed. We also -- if we haven't agreed

21 explicitly, I'll represent here we will have a

22 follow-up deposition. You will be provided the

23 privileged list well in advance of that follow-up

24 deposition.

25 You've gone quite a length with this

00155

1 witness, he has stated that he doesn't know what the

2 final decisions that were made with respect to

3 privileged lists were.

4 MR. BURGESS: Okay.

5 Q. Do you have any preliminary opinions or

6 conclusions as to what effects averaging has on

7 transient mass balances in wetlands?

8 A. Yes.

9 Q. What are they?

10 A. Well, my preliminary opinions are that

11 under some circumstances the effects of averaging can

12 be quite important.

13 Q. Do you have a working hypothesis for your

14 work effort?

15 MR. GARVER: Object to form.

16 Q. If you know what I mean by working

17 hypothesis, you can answer the question.

18 MR. GARVER: I don't know what you

19 mean by working hypothesis, counsel.

20 MR. BURGESS: I'm asking him whether

21 he has a hypothesis. He's a scientist, he's a

22 chemical engineer. Sometimes those people have

23 hypothesis.

24 Q. Do you have a hypothesis with respect to

25 the work you're doing on averaging pulse flow events

00156

1 in wetlands?

2 A. Well, as I understand your question, the

3 answer would be yes, I have a hypothesis.

4 Q. What is it, sir?

5 A. And that is, that one must be careful about

6 comparing steady flow situations to pulse flow

7 situations and that they may be compared if one does

8 a proper job of averaging.

9 MR. BURGESS: Counsel, do you know

10 whether or not this draft document has been provided

11 to us or is it on your privileged list?

12 MR. GARVER: Objection to form, the

13 witness has already testified he doesn't know what's

14 on the --

15 MR. BURGESS: I'm asking you, do you

16 know? Geff, do you know whether or not we have this

17 document?

18 MR. GARVER: I don't know offhand.

19 MR. BURGESS: And obviously, if I have

20 it I'll go get it, and I'll ask him questions about

21 it. If I don't have it, I may have to continue on

22 the line now. That's why I'm asking, do you know if

23 it's on the privileged list or not?

24 MR. GARVER: This is the draft

25 document -- how are you describing this draft

00157

1 document?

2 MR. BURGESS: As he's described it, a

3 draft form only document with respect to the

4 averaging of pulse flow events in the wetlands.

5 MR. GARVER: I can check on that, I

6 don't -- I'd very much doubt that's on the privileged

7 list.

8 Q. Was there a date on the draft, Dr. Kadlec?

9 A. There would have been a date, but I don't

10 recall that date.

11 Q. Would it have been calendar year '93?

12 A. It would not have been in '93, it would

13 have been in '92.

14 Q. Dr. Kadlec, let me ask you, in your opinion

15 what the most important variable is controlling

16 Everglades ecology?

17 MR. GARVER: Object to form.

18 MR. BURGESS: What's your objection?

19 MR. GARVER: I don't know what you

20 mean by controlling Everglades ecology.

21 MR. BURGESS: Well, I assume that the

22 witness does.

23 MR. GARVER: I'm not sure he knows

24 what you mean.

25 MR. BURGESS: Obviously if he does

00158

1 know what Everglades ecology means he can answer the

2 question.

3 MR. GARVER: I'm not telling him not

4 to answer the question, I'm just objecting to the

5 form.

6 A. I do need clarification because the word

7 "ecology" is a broad term that encompasses an entire

8 science of the behavior of the environment in this

9 case and to ask for a single variable as most

10 important, that's quite a broad question in my mind.

11 I'm not sure I know what you mean by that.

12 Q. Does ecology include community succession?

13 A. The replacement of one community by another

14 would generally be a topic under the heading of

15 ecology, yes.

16 Q. How about plant and animal growth?

17 A. Plant and animal growth would be

18 borderlined between the discipline of ecology,

19 discipline of botany, plant physiology and several

20 others but could very well be considered ecology.

21 Q. Are there factors or variables in the

22 Everglades that effect things such as community

23 succession and plant and animal growth?

24 A. I'm sure there are.

25 Q. Can you tell me some of them?

00159

1 A. The growth and establish and maintenance of

2 different communities in the Everglades would be

3 dependent on factors such as climate, hydrology,

4 nutrient availability. I would say those are key

5 factors.

6 Q. Climate, hydrology and nutrient

7 availability.

8 How about drought, would you include

9 that as an aspect of hydrology?

10 A. That is an aspect of hydrology.

11 Q. How about fire?

12 A. Obviously fire has an effect in a short

13 term on things such as plant growth and species --

14 Q. How about the introduction of exotic

15 species?

16 A. Yes.

17 Q. Can you tell us what, in your opinion,

18 amongst the three factors that you provided us,

19 climate, hydrology and nutrient availability, is the

20 most significant in your opinion with respect to the

21 Everglades?

22 MR. GARVER: Object to form.

23 A. Do you want to restate the question,

24 please?

25 Q. Well, for the third time, because the first

00160

1 question I asked you with respect to what in your

2 opinion is the most important factor of controlling

3 Everglades ecology, now through the process we have

4 identified three separate factors which in your

5 opinion are important. I'm asking you whether you

6 have an opinion with respect to what is, in your

7 opinion, the most significant among those three

8 controlling the ecology of the Everglades?

9 A. No, I don't think that can be answered

10 universally. I think that under some sets of climate

11 conditions there may be one answer. Under other

12 climatological conditions there may be a different

13 answer. So I would find it very difficult to form a

14 blanket opinion as to a relative importance of the

15 factors which we have just finished discussing as

16 being important to the ecology of the Everglades.

17 Q. You were retained by the Department of

18 Justice in January 1991, is that correct?

19 A. I believe so, yes.

20 Q. Since the date of your retention and for

21 the period of time that you have been studying the

22 Everglades, for that period of time, can you tell us

23 what in your opinion is the most significant factor?

24 MR. GARVER: Object to the form.

25 A. Well, in the context that I have been

00161

1 working, which has to do with water conservation area

2 2A primarily as a referent in the process of design

3 and interpretation of information, I would believe

4 that the nutrient availability was the primary

5 factor.

6 Q. How about with respect to the entire

7 Everglades ecosystem, is it climate, hydrology or

8 nutrient availability, which is more significant in

9 your opinion?

10 A. Well, I have not formed an opinion on the

11 entire Everglades at this point in time.

12 Q. Do you have one? Do you have an opinion

13 even though you don't have a final opinion?

14 MR. GARVER: I believe he said he

15 hasn't formed an opinion.

16 Q. Oh, I'm sorry. You have no opinion?

17 A. I have no opinion at this time on areas

18 other than the one I indicated.

19 Q. Water conservation area 2A?

20 A. Correct.

21 Q. Do you anticipate before the hearing in

22 this matter that you will have formed an opinion with

23 respect to, say, with respect to areas other than 2A

24 but areas in the Everglades?

25 A. Well, I may expand that to include

00162

1 Loxahatchee, water conservation area 1. I do not

2 expect to offer opinions concerning Everglades

3 National Park.

4 Q. What work are you reviewing or doing that

5 might lead you to expand your opinion to include

6 Loxahatchee?

7 A. Well, there is, I believe, ongoing work in

8 Loxahatchee trying to understand various phenomena

9 involving soils, vegetation and water, and I could

10 not preclude that that new information would somehow

11 influence my opinions.

12 Q. Who is doing that work?

13 A. Well, I believe some of that work is being

14 done, and I'm vague on this because I'm not party to

15 recent events, but I believe that some work is being

16 done by Duke University, and I believe that there is

17 ongoing work, Fish and Wild Life Service.

18 Q. What is the Fish and Wild Life Service

19 doing in Loxahatchee?

20 A. Well, I believe that they're maintaining

21 records of such things as stage in perhaps water

22 quality and interior stations and probably also in

23 perimeter canal stations.

24 Q. Have you seen any of that data?

25 A. I have not. I mean -- by that, I mean, the

00163

1 very recent data.

2 Q. And by very recent you mean within the last

3 month or --

4 A. Well, the last information that I read on

5 this subject would have been a summary of information

6 provided through the University of Florida at

7 Gainesville; Dr. Kitchen's group.

8 Q. When did you receive that summary?

9 A. Oh, that would have been sometime early in

10 1991.

11 Q. Was it a written or oral summary?

12 A. It's a written report.

13 Q. Do you know its title?

14 A. I do not, but I think of it in terms of its

15 cover which has the outline of Loxahatchee on it.

16 Q. Is Dr. James or John Richardson a co-author

17 of that report?

18 A. I believe he would have been, yes.

19 Q. You are, of course, familiar with the fact

20 that the historic Everglades received water through

21 heat flow, are you not?

22 A. Yes.

23 Q. As a hydrologist, do you have an opinion as

24 to what effect 1500 miles of canals have had on the

25 historic water levels and flow in the Everglades?

00164

1 MR. GARVER: Object to the form.

2 A. Well, I have a general opinion that that

3 degree of human intervention cannot help but have had

4 effects at least in the vicinity of those structures.

5 Q. And what type of effects are you talking

6 about?

7 A. Well, the digging of the canal and the

8 piling of the spill bank into the levy blocks certain

9 directions of flow, changes the topography of the

10 immediate vicinity; therefore, would alter the

11 ecosystem in that vicinity.

12 Q. Specifically with respect to 2A and that

13 activity that you just described having taken place

14 at or near the 10 structures, do you have any

15 opinions with respect to effects that have occurred

16 in that area?

17 A. Well, it's my understanding based on

18 conversations with others and my own observation that

19 the condition of the wetlands near the S 10

20 structures bears little resemblance to the condition

21 of wetlands prior to the establishment of those

22 structures.

23 Q. Do you have any opinions regarding whether

24 those effects are --

25 Let me ask you this. What effects --

00165

1 you said in general, you have a general opinion that

2 at least in the vicinity of the structures there have

3 been effects and you then identified those effects as

4 spill banks which block flow, is that correct?

5 A. Yes.

6 Q. Any other effects?

7 A. Well, there are also canals involved so

8 what was a variable but relatively shallow water

9 wetland situation has been changed in that vicinity

10 to an upland levy and aquatic canal.

11 Q. And have those specific activities resulted

12 in your opinion in any downstream effects within the

13 water body?

14 MR. GARVER: Object to the form.

15 A. Well, if I understand the question -- maybe

16 I should ask you to clarify the question. What do

17 you mean by effects on the water body? Do you mean

18 hydrologic effects, chemical effects? I don't

19 understand.

20 Q. Let's start with hydrological effects.

21 A. Well, I anticipate that in a region

22 downstream of the S 10 structures, is that the area

23 you wish me to --

24 Q. Right.

25 A. -- speculate on?

00166

1 Q. I don't want you to speculate, I'm asking

2 you whether you have any opinions as a hydrologist

3 with respect to the effects that have resulted from

4 the canals and spill banks that have resulted from

5 the construction.

6 A. Well, I think there's a very narrow band of

7 hydrologic impact downstream of the S 10s which is

8 caused by the existence of a deep water area

9 immediately to the south of the S 10 levy. I don't

10 know the number of that levy, but it's the levy that

11 contains the S 10s. And it's my opinion at this time

12 that the focusing of the water through the S 10s is

13 followed upon its emergence from the S 10s into the

14 canal by fairly rapid redistribution because of the

15 low hydraulic resistance of that canal. So in my

16 opinion, the region of hydrologic impact due to the

17 levy and the structures is a fairly narrow band along

18 the levy containing the S 10s.

19 Q. You testified, I think, earlier today

20 regarding nutrient impacts in water conservation area

21 2A south of the 10 structures that you observed such

22 impacts, is that correct?

23 A. Well, I have reviewed data that indicates

24 that over the past 14 years of data acquisition and

25 presumably back some period of time before then that

00167

1 the waters entering conservation area 2A differed

2 significantly in the amount of phosphorus from those

3 waters that historically are believed to have been

4 there.

5 Secondly, I, through discussions with

6 others and my own observations, can see differences

7 in the vegetation in that area as contrasted to areas

8 elsewhere, particularly southern areas of the water

9 conservation areas in the park.

10 Q. Do you anticipate that you'll be offering

11 opinion testimony regarding those vegetation -- the

12 cause of those vegetation differences between what

13 you observed in 2A and what you've seen in the

14 southern area?

15 A. I may.

16 Q. Have you attempted to quantify whether and

17 to what extent those vegetative changes have been

18 caused or are the result of nutrient availability

19 versus hydrological impacts?

20 A. I've forgotten the first part of your

21 question, could you rephrase that, please? Restate

22 it.

23 Q. If you've just forgotten it I'm going to

24 let her read it back.

25 (Record was repeated by the reporter.)

00168

1 A. I'd ask you to clarify. Do you mean in

2 water conservation 2A?

3 Q. Yes.

4 A. I don't believe I will attempt to quantify

5 those effects in water conservation area 2A.

6 Q. So that I understand your answer, it's your

7 testimony that you wouldn't be intending to apportion

8 a cause and effect with respect to vegetative change

9 between or among hydrologic impacts and nutrient

10 availability?

11 A. I don't anticipate that at this time.

12 Q. Do you know who might do that on behalf of

13 the Department of Justice?

14 A. I do not.

15 Q. Are you aware of ongoing work by Bob

16 Johnson or others to determine whether vegetative

17 changes are caused by nutrients?

18 A. I'm not aware of ongoing work by Bob

19 Johnson or others on -- excuse me. I'm not aware of

20 ongoing work by Bob Johnson. I believe there is

21 ongoing work by Duke University on the subject.

22 Q. It's your testimony that you're not aware

23 of anyone that is doing that type of work on behalf

24 of the Department of Justice?

25 A. I'm not aware of anyone doing work on

00169

1 behalf of the Department of Justice.

2 Q. The construction of the project, at least

3 with respect to the area of the 10 structures in 2A

4 that you testified blocked the sheet flow and changed

5 the topography -- is that correct?

6 A. Yes.

7 Q. How did it change the sheet flow?

8 A. Well, it's my impression from a variety of

9 sources that prior to the construction of the canals

10 and structures and levies that there was sheet flow

11 proceeding southerly upon the construction of the

12 levy which contains the S 10s. And the construction

13 of those structures, I believe, that present

14 appearances indicate that the water coming south

15 toward the S 10s collects in the perimeter canal on

16 the north and then moves either easterly or westerly

17 depending on where it arrives at the levy to one of

18 the S 10 structures, through the S 10 structure and

19 then spreads easterly and westerly, depending on

20 which structure you're talking about, and proceeds

21 again in sheet flow to the south.

22 Q. Is it fair to say that the water which the

23 historic Everglades sheet flowed over the area now

24 occupied by the dike containing the S 10 structures

25 is now, in fact, funneled through three or four

00170

1 gates?

2 A. Yes, that's correct.

3 Q. And have you attempted to determine what,

4 if any, effects on downstream community or

5 communities have resulted from the change from sheet

6 flow to this funnel effect through these four gates?

7 A. I have not made any investigation of

8 effects of those flow patterns on vegetation south of

9 the S 10s.

10 Q. How about on soil phosphorus content?

11 A. I have made no investigations on soil

12 phosphorus content.

13 Q. Has anyone on behalf of the Department of

14 Justice to your knowledge made those investigations

15 on either vegetative changes or on soil phosphorus?

16 MR. GARVER: You're talking about

17 south of the S 10s?

18 A. South of the S 10s? No, not to my

19 knowledge.

20 Q. Incidentally, would the volume of water now

21 passing through those S 10 gates be larger than the

22 volume of water which previously sheet flowed across

23 the area?

24 A. I can't answer that question in a blanket

25 way nor would I be able to without referring to the

00171

1 records on the water level munipulations that are

2 routinely made in the water conservation areas.

3 Q. Would you have any expectations one way or

4 the other as to whether or not the volumes would be

5 greater?

6 A. I can't say.

7 Q. What is it that you would need to refer to?

8 A. Well, in order to answer that question I

9 would need to refer to someone's assessment of the

10 sheet flow circumstance prior to the construction of

11 the canals, levies and structures and also to the

12 rather complex and large set of records of flows

13 through the associated canals and structures in

14 recent history.

15 Q. Would the volume of the water in those

16 areas be concentrated in a smaller area going through

17 the gates than sheet flowing across the area?

18 A. As I said earlier, I believe that that is

19 true in the vicinity of the levy itself.

20 Q. And as a result of data that you have

21 reviewed, are there, in fact, nutrients in this water

22 that are passing through those S 10 gates?

23 A. Yes.

24 Q. And the nutrients include phosphorus?

25 A. Yes.

00172

1 Q. Would the combination of those volumes and

2 the concentrations of phosphorus equal a higher mass

3 loading of nutrients per unit area coming through

4 those structures than historically sheet flowed over

5 that area?

6 MR. GARVER: Object to the form.

7 A. That question requires the definition of an

8 area in order to be answered because the loading

9 variable implies mass per unit area, so I need to

10 know what area you wish to refer to.

11 Q. And by area -- what is it that you need?

12 A. I need to know what area you're talking

13 about both in acres and location, and let me explain

14 what I mean by that. The water coming through the

15 structure, if you say what's the loading of

16 phosphorus per one square meter that is in the flow

17 channel, it's obviously very, very large and if you

18 want to know what the loading is on the downstream

19 perimeter canal that's quite a different area. Then

20 if you move into the wetland that's yet another

21 location, so I -- the question needs a definition of

22 the area.

23 Q. Do you have any expectation as to whether

24 or not you would anticipate higher mass loading of

25 nutrients per unit area immediately downstream of the

00173

1 structures themselves?

2 A. I still would need you to be more specific.

3 If you could give me a distance --

4 Q. Okay. How about the first half mile?

5 A. I would expect there to be a relatively

6 minor change in the mass loading over the first half

7 mile.

8 Q. How about the first 100 yards?

9 A. I would expect that there would be a

10 significant change over the first 100 yards.

11 Q. How about over the first one mile?

12 A. I would expect an insignificant difference

13 over the first one mile.

14 Q. And what are the bases for those three

15 opinions?

16 A. The bases for those opinions is that I

17 believe that the redistribution of the water from the

18 downstream canal out into the wetland is essentially

19 complete within a distance which is measurable in

20 some tens of meters.

21 Q. And have you reviewed any data which

22 supports that opinion?

23 A. That opinion would be based on information

24 from systems that I know of other than water

25 conservation area 2A as well as some information from

00174

1 conservation area 2A.

2 Q. And what data is it from 2A?

3 A. The data from 2A is -- you said several

4 types that leads me to that and that is comprised of

5 the information on pore water phosphorus, top layer

6 soil phosphorus and reports of the vegetative

7 community.

8 Q. Is that all district data?

9 A. Well, some of that is district data. The

10 majority of it, I believe, is district data performed

11 under contract, I believe, by Dr. Reddy.

12 Q. So this is data that we might find in

13 Dr. Reddy's report?

14 A. Yes.

15 Q. Do you have any opinions with respect to

16 water traveling through the 10 structures as to

17 whether that water flows immediately south or flows

18 first in another direction and then south?

19 A. I would have to ask you where you mean

20 south of the 10 structures because obviously at the

21 structure itself it's proceeding south, and if I go

22 into the perimeter canal just south of the S 10 levy

23 it will be proceeding away from the adjacent

24 structure before it turns south.

25 Q. Just in general, do you have any

00175

1 opinions -- strike that.

2 Do you anticipate providing testimony

3 at the time of trial with respect to flow patterns in

4 2A?

5 A. I may.

6 Q. Do you have any preliminary opinions with

7 respect to how water travels from the 10 structures

8 through 2A?

9 A. Yes, I believe that it follows a

10 predominantly southerly course.

11 Q. Have you attempted to quantify by

12 percentage what you mean by predominantly southerly

13 course?

14 A. I'm not sure I know what you mean by

15 percentage.

16 Q. When you say predominantly, do you mean 51

17 percent of the time it travels south or 90 percent of

18 the time?

19 A. That's a difficult question to answer

20 because if you draw a line across conservation area

21 2A from east to west, the water -- virtually all the

22 water crosses that line going south. So as a

23 percentage, if you refer to that entire line, it's

24 all going south. The question on a local scale of

25 which direction it's going at any particular

00176

1 locality, I would not expect to be able to quantify

2 that.

3 Q. Have you performed any flow studies in 2A?

4 A. No.

5 Q. Do you know anybody that has?

6 A. No.

7 Q. What factors effect the direction of the

8 flow of water in water conservation area 2A?

9 A. The factors which effect the direction of

10 flow would be the gradient of the water sheet as well

11 as the pattern of resistance to flow formed by

12 vegetation.

13 Q. How about the stage of the water at any

14 given time?

15 A. The stage of the water would effect the

16 magnitude of the flow rate but not the direction to

17 any significant extent.

18 Q. How about whether or not the gates are open

19 and for what period of time?

20 A. I'm going to ask you to clarify the

21 question. The flow at a particular location, I

22 believe, is driven by the gradient; in other words,

23 which way is downhill, and also by obstacles of

24 resistance to flow. If you want to include

25 structures in a discussion, then we have to specify

00177

1 where we are because I was thinking of interior

2 wetland points. So I'd ask you to clarify the last

3 question.

4 Q. Are you aware of any gradient studies that

5 have been done in 2A?

6 A. Yes, I'm aware of one study. A survey was

7 done, I believe, by the district in connection with a

8 proposed new canal and that survey produced gradient

9 line soil elevations across 2A.

10 Q. And did the district do that?

11 A. I believe so.

12 Q. Do you know how long ago that was done?

13 A. No, sir, I do not.

14 Q. Do you know of any other studies ongoing or

15 proposed with respect to analysis of gradients in 2A?

16 A. I don't know of any current studies.

17 Q. Has the district, over the period of time

18 that you have been reviewing Everglades issues,

19 raised and lowered the water levels within water

20 conservation area 2A?

21 A. Excuse me, within what period?

22 Q. Since you have been involved on behalf of

23 the Department of Justice of Everglades issues.

24 Let's start in January of 1991. Has the water levels

25 changed in water conservation area 2A over that

00178

1 period of time?

2 A. Well, they surely have for a variety of

3 factors.

4 Q. And, in fact, they've changed by several

5 feet either direction, is that correct?

6 A. I would have to refer to stage records in

7 order to verify the magnitude of changes.

8 Q. What's your understanding or opinion as to

9 the magnitude of changes?

10 A. My understanding of the magnitude of

11 changes is that stage in 2A can vary from below

12 ground or dry in periods of extreme drought through a

13 mean and recent years of about two feet up to a

14 maximum which would be, I think, between three and

15 four feet.

16 Q. Do such changes in water levels in 2A have

17 an effect on phosphorus storage rates in 2A?

18 MR. GARVER: Object to the form.

19 A. I believe they would have a secondary

20 effect on phosphorus storage rates in 2A.

21 Q. What do you mean by secondary?

22 A. Well, in my opinion, processes that remove

23 phosphorus from the water involve contact with soils

24 and biota with inundation at any depth. The soils

25 and the biota associated with the soils are involved,

00179

1 but as depth increases other biota such as periphyte

2 can become involved in greater numbers because of the

3 increased submergence of stems.

4 Q. So would the change in regulation in your

5 opinion have an effect on the organisms in 2A?

6 A. Yes.

7 Q. Are you aware as to whether or not water

8 levels have fluctuated within water conservation area

9 2A during the period 1970 to 1980?

10 A. I would -- I don't know precise answer to

11 that question because the period of record that has

12 been analyzed in a number of cases, I believe,

13 extends only into the late -- let's see, it's from

14 the late '70s. So the period of the '70s is one that

15 I have not looked at in detail.

16 (A break was taken.)

17 Q. Dr. Kadlec, I want to make sure, number

18 one, I understood what you testified to a moment ago

19 and also I want to make sure that I have asked you

20 what the basis for your testimony was.

21 Remember when we were talking about

22 flows changing from sheet flow north of 2A and then

23 flowing through the 10 structures to the south into

24 the interior of 2A? Do you recall that testimony?

25 A. I recall our discussion, yes.

00180

1 Q. My notes reflect that in your opinion the

2 nutrients contained in those waters passing through

3 the S 10 gates are disbursed within the first several

4 meters south of the 10 structures. Was that your

5 testimony or are my notes incorrect?

6 A. That is incorrect.

7 Q. What happens to the nutrients in the waters

8 that pass through the S 10 structure?

9 MR. GARVER: Object to the form.

10 A. The nutrients in waters entering 2A from

11 the S 10 structures interact with the physical and

12 biological constituents of water conservation area

13 2A. The amount of nutrients in water diminishes as

14 you digress southerly, and as the waters exit some

15 remaining fraction exits with the water.

16 Q. And why in your opinion would you expect to

17 have minimal effect or impact one half mile distance

18 south of the 10 structures in 2A?

19 A. Our discussion, as I recall it, related to

20 hydrology and in that context the reason for

21 expecting a minimal effect of the structures on flow

22 distribution one mile south of the structures is

23 because the controlling resistance to flow, which is

24 what distributes the water, is dominated by

25 vegetation at that distance.

00181

1 Q. Do you have any opinions on the effects

2 that shunting this water through the S 10 structures

3 might have on the soil phosphorus levels downstream

4 of the S 10 gates?

5 A. I'll ask you to clarify what you mean, I'm

6 having trouble with that one.

7 Q. Would you expect that the phosphorus

8 accretion rates in the soils directly south of each

9 of the S 10 gates to be higher, lower or no different

10 than such soil phosphorus levels had the water been

11 introduced via sheet flow?

12 MR. GARVER: Object to the form.

13 A. Well, depending on precise location, I

14 would answer this way. I expect there is a band

15 south of the S 10 structures in which the

16 distribution of immobilized or deposited phosphorus

17 differs from that which would have prevailed during

18 sheet flow.

19 Q. Would you expect that band to contain

20 higher or lower phosphorus amounts?

21 A. I think it would depend on where you are in

22 the band.

23 Q. How wide is the band?

24 A. I can't put a precise number on that width.

25 I would have the opinion that it is probably less

00182

1 than, say, a quarter of a mile.

2 Q. Wide?

3 A. Correct.

4 Q. And is that a band that would exist one

5 quarter mile in width below each of the four S 10

6 gates?

7 A. Well, I said it was less than a quarter of

8 a mile. I put a very generous outer limit on it, and

9 by band I meant a zone parallel to the levy.

10 I would like to refer to the levy by

11 the correct number, if I may. If anyone can tell me

12 that number, I would appreciate it.

13 MR. RICHARDSON: 39.

14 (Discussion off the record.)

15 Q. When you say run parallel, for what

16 distance would this less than one quarter mile run

17 parallel?

18 A. Well, that would encompass the area south

19 of the S 10 structures.

20 Q. Do you have any opinions as to whether if

21 you were to raise the water level in 2A, say, three

22 to four feet above the mean or norm whether that

23 could have the effect of drowning out native

24 vegetation?

25 A. Repeat the question.

00183

1 MR. BURGESS: Would you read it back?

2 (Record was repeated by the reporter.)

3 MR. GARVER: Objection to the form.

4 MR. BURGESS: What's the basis?

5 MR. GARVER: I don't know whether you

6 mean -- what you mean by the word "norm", and I think

7 I would also add it calls for speculation and would

8 ask the witness not to --

9 MR. BURGESS: I'm asking him whether

10 he has an opinion.

11 Q. I'd never ask you to speculate, Dr. Kadlec,

12 I'm only asking whether you have opinions preliminary

13 or final. And by norm I meant it to mean the mean

14 that you discussed right before our break. I think

15 you said two feet, 2A.

16 A. Yes.

17 Q. Yes, it can have the effect of drowing out

18 native vegetation?

19 A. I believe the question was, do I have

20 opinions.

21 Q. Okay.

22 A. The answer is yes.

23 Q. What are those opinions?

24 A. In general terms, increases in water depths

25 for prolonged periods of three to four feet would, in

00184

1 my opinion, change vegetation community structure.

2 Q. And how would that change operate?

3 A. In general terms, an increase in depth of

4 three to four feet of wetland system would tend to

5 promote a more aquatic community type.

6 Q. And would such a change, therefore, allow

7 other non-native species to invade that area that had

8 received the higher water levels?

9 MR. GARVER: Object to the form.

10 A. I would not have an opinion on whether

11 those increase in water levels would increase or

12 lessen the chances of invasion by exotic species.

13 Q. How about just alternate species to the

14 native species?

15 A. I would ask you to explain what you mean by

16 native.

17 Q. Well, let me ask you this. Could raising

18 water levels, as we are discussing, to three to four

19 feet above the norm have the effect of drowning out

20 sawgrass and allowing cattail to invade the area in

21 your opinion?

22 A. I would ask whether you mean a continued

23 increase in water level of that magnitude; in other

24 words, a constant or temporary?

25 Q. You said for prolonged periods that that

00185

1 could have an effect. I guess I'd ask you to define

2 prolonged period.

3 A. Depending on the species, there is a

4 tolerance to periods of severe inundation that can be

5 tolerated. By prolonged, I meant to imply that if

6 you exceeded those tolerance periods you would cause

7 trouble for that species.

8 You've asked me about two specific

9 species. I do not have specific information on the

10 depth and duration of flooding tolerance level for

11 sawgrass; however, I would comment that my opinion

12 is, it's unlikely that cattail would colonize into an

13 area that would be three to four feet deeper than the

14 two foot average normal depth in 2A.

15 Q. Would it colonize after drawdown?

16 MR. GARVER: Object to the form.

17 A. I would ask you to explain the scenario a

18 bit more.

19 Q. Well, I think we've established that

20 raising those water levels three to four feet above

21 the mean could have the effect of drowning out native

22 vegetation, and now I'm asking you whether subsequent

23 to the drawdown you could have cattail invade the

24 area?

25 MR. GARVER: Object to the form.

00186

1 A. I would ask for clarification as to whether

2 the preceding period of inundation had been

3 sufficiently long to severely injury the original

4 communities.

5 Q. Let me ask you this, Dr. Kadlec. What

6 opinions do you anticipate you'll offer at the time

7 of trial with respect to vegetative changes or

8 succession in the water conservation area 2A?

9 MR. GARVER: Same objection I had

10 yesterday in that that calls for a -- that's a vague

11 question calling for what could possibly be an answer

12 lasting a few days.

13 MR. BURGESS: Well, I have days,

14 Mr. Garver, and I'm entitled to this witness's

15 opinions whether they be preliminary or final. And I

16 am asking him, so we are clear on the record and it's

17 clear for the hearing officer, whether or not he has

18 any preliminary or final opinions that he may testify

19 to at the time of trial concerning the cause of

20 vegetative changes in water conservation area 2A. If

21 he has them, I would like him to tell me what they

22 are.

23 MR. GARVER: If you're asking for

24 every opinion there's several opinions that's in that

25 very, very broad subject matter, I think it's an

00187

1 improper way to go about getting this witness's

2 opinions. I'm not saying you can't get his opinions,

3 that's just too broad a question, and I have -- I

4 object to it.

5 MR. BURGESS: It's not broad at all.

6 It's not broad at all.

7 MR. GARVER: Well, I disagree.

8 MR. BURGESS: Obviously.

9 Q. Dr. Kadlec, what opinions do you have, what

10 final opinions do you have that you might offer at

11 the time of trial with respect to the cause of

12 vegetative changes in water conservation area 2A?

13 MR. GARVER: And I have the same

14 objection.

15 MR. BURGESS: Well, if it's going to

16 take him days to say it now, it's going to take him

17 days to say it at the trial. I just want to hear now

18 what he's going to say at the trial, Mr. Garver, and

19 I don't know any other way to ask it then to ask what

20 final opinions he has that he might give at the time

21 of trial with respect to vegetative succession in 2A.

22 That's the pending question.

23 MR. GARVER: Why don't you just come

24 up with one question and we can --

25 MR. BURGESS: That is one question.

00188

1 MR. GARVER: Excuse me, let me finish.

2 We could just let the tapes roll for

3 two days. Why don't you just come up with one broad

4 base question, because that's just about what you're

5 asking for, Mr. Burgess, right now. You have to be a

6 little more specific, as far as I'm concerned.

7 MR. BURGESS: It's very specific.

8 MR. GARVER: I'm not done. And unless

9 you are specific, I'm going to make this objection.

10 MR. BURGESS: You can make all the

11 objections you want to form and you can parade

12 anything you want in front of the witness and you can

13 try and warn this witness and caution him with

14 respect to his answers by these various objections

15 that you're putting on the record, but I have the

16 right to know what final opinions this witness has

17 with respect to the cause of vegetative changes in

18 water conservation area 2A. I've asked him six times

19 now for that, and I would like an answer to my

20 question.

21 MR. GARVER: I don't deny your right.

22 MR. BURGESS: Your objection stands.

23 You don't need to put these tirades on the record.

24 If you're going to instruct him not to answer, I will

25 leave this area and go to another subject. If you

00189

1 just want to warn him not to talk for two days by

2 your objection, go right ahead and do it. But the

3 pending question, again, is what final opinions he

4 has as to the cause of vegetative changes in water

5 conservation area 2A.

6 MR. GARVER: My objection stands.

7 A. Well, in general terms, it's my opinion at

8 this time that vegetative changes in water

9 conservation area 2A have been caused by nutrient

10 additions perhaps exacerbated by conditions of

11 hydrology.

12 Q. What nutrient additions?

13 A. Phosphorus.

14 Q. What vegetative changes?

15 A. The nature of the changes that have

16 occurred in conservation area 2A have been documented

17 by others, but in general terms they consist of a

18 spectrum of changes. The most noticeable is a

19 monoculture of cattail in some areas; in other areas

20 it's more subtle such as increased growth and species

21 composition changes that are less visible.

22 Q. You said they have been documented by

23 others. Do you anticipate testifying about them

24 yourself?

25 A. No.

00190

1 Q. What aspects of hydrology have exacerbated

2 these vegetative changes in your opinion?

3 A. It's my opinion at this time that

4 phosphorus additions can cause community changes in

5 wetlands and that if they are accompanied by

6 hydrologic changes that that can in some cases

7 accelerate those community changes, accelerate and/or

8 enhance.

9 Q. Can hydrology changes alone also cause

10 change in vegetative community succession?

11 A. If those events or conditions are altered

12 to a sufficient degree such as the "exceedance" of

13 tolerance ranges, surely.

14 Q. Do you have any opinions as to whether or

15 not such alterations have occurred south of the 10

16 structures in 2A?

17 MR. GARVER: Object to the form.

18 MR. BURGESS: What's the basis for

19 your objection?

20 MR. GARVER: I think you need to put a

21 time frame on that question. I think it's too vague.

22 MR. BURGESS: It's too vague whether

23 he has an opinion as to whether or not hydrology

24 changes have caused community succession south of 2A?

25 Q. Do you understand the question? Is that

00191

1 vague?

2 A. I would prefer if you did put a time

3 referent on it, that would be helpful.

4 Q. How about within the last -- what period of

5 time have you studied community vegetative succession

6 in 2A?

7 MR. GARVER: Object to the form.

8 MR. BURGESS: What's the basis of your

9 objection?

10 MR. GARVER: I don't know if you're

11 asking him how long he studied it or over what time

12 period in area 2A he studied.

13 Q. Do you understand the question?

14 A. I share the confusion. Do you mean over

15 what time period of change in 2A have I looked at

16 results of the events or data pertaining to it?

17 Q. Okay. Start there.

18 A. It's my impression from discussions with

19 others that the changes in 2A have occupied a period

20 of two decades or more.

21 Q. And that's based upon?

22 A. As I said, discussions with others and

23 reports that show the progression of those community

24 changes.

25 Q. Do you have any opinion as to whether -- as

00192

1 to the cause of those community changes over that

2 period of time?

3 A. It's my opinion at this point that those

4 community changes were caused predominantly by

5 phosphorus additions.

6 Q. And what is that opinion based on?

7 A. That opinion is based on events in 2A, as I

8 understand them, as well as events in other wetland

9 systems.

10 Q. Do you anticipate that you're going to

11 offer that opinion at the time of trial?

12 A. Yes.

13 Q. I think you've already identified for us

14 the data that supports that opinion in 2A. Would

15 that be the Richardson report, James Richardson

16 report? I think you referred to it as the Wiley

17 Kitchen's work together with some district pore water

18 data.

19 A. No. First, I believe it's John Richardson,

20 not James Richardson, although Jim Richardson is also

21 a wetland scientist, and I was referring to 2A; the

22 Kitchen's, et al, report refers to Loxahatchee.

23 Q. Let's start with, since you've told me that

24 you anticipate offering the opinion that you just

25 gave at the time of trial, what document supports

00193

1 that opinion?

2 MR. GARVER: Object to the form.

3 MR. BURGESS: What's your objection?

4 MR. GARVER: You're talking about -- I

5 don't know if you're talking about documents he has,

6 documents in general --

7 MR. BURGESS: All right. What

8 documents he's relying on for his opinion,

9 Mr. Garver.

10 MR. GARVER: Okay. That's a better

11 question.

12 MR. BURGESS: That's usually what

13 expert witnesses provide you with.

14 A. Well, there's several documents, they

15 pertain to a variety of systems. They would include,

16 in addition to the documents from South Florida Water

17 Management District and others pertaining to 2A, they

18 would include, for instance, the progression of

19 events at the Houghton Lake, Michigan system, which

20 consists of several documents.

21 Q. If you want to list them and then we'll go

22 back, that's fine, however you'd like to do it.

23 Let's start with what district

24 documents. You said a variety of documents in 2A for

25 the district.

00194

1 A. Well, I can't from memory identify all of

2 those documents. Surely amongst those would be

3 documents authored by Steve Davis.

4 Q. What documents from Houghton Lake support

5 your opinion?

6 A. Well, the data and reports from that system

7 comprise a very large body of information. There are

8 approximately three to four feet of shelf occupied by

9 those documents.

10 Q. And you're going to rely on all of them?

11 A. I will rely on parts of most of them.

12 Q. What parts?

13 A. I believe your current line of questioning

14 concerns the community changes.

15 Q. Well, let's be clear. You said you

16 anticipate giving an opinion at the time of trial

17 with respect to community changes that have occurred

18 over the past ten or more years in water conservation

19 area 2A, is that correct?

20 A. That's correct.

21 Q. And I'm asking you for the basis for your

22 opinion, and you said variety of documents from the

23 district and progression of events at Houghton Lake.

24 I'm trying to have you identify on this record for us

25 and for Mr. Menton, Hearing Officer Menton, what

00195

1 documents it is that you're relying on to support the

2 opinion that you anticipate giving on community or

3 vegetative succession in 2A.

4 A. Yes, sir. And I have indicated that there

5 are several such documents relative to Houghton Lake.

6 They date back to the early '70s when the first

7 community structure information was gathered and

8 continue to the present time with studies of those

9 communities and their changes.

10 Q. Do they have titles or names, these

11 documents that occupy three to four feet of shelf

12 space?

13 A. They do.

14 Q. What are the names of the ones you're going

15 to rely on, sir?

16 A. I will rely -- I would have to look at the

17 complete project bibliography which, as I recall,

18 expands 11 pages to name them all, but I can in an

19 effort to help your -- to categorize them, there

20 would be a set of 15 annual reports to the State of

21 Michigan; there would be -- those reports would be

22 under my authorship or co-authorship; there would be

23 another set of 15 reports by other individuals who

24 have done companion studies at that site; there would

25 be four or more doctoral dissertations.

00196

1 Q. Authored by various people?

2 A. Authored by various people.

3 There would be a set of reports

4 pre-dating those 15 annual reports, perhaps 8 or 10

5 in number; there would be a raw data file or raw data

6 book of one sort or another commencing, I believe, in

7 1969 and continuing through the present; there would

8 be several sets of aerial photographs and ground

9 level photographs covering the time frame, same time

10 frame I just mentioned, 1969 through the present; and

11 associated with the research would also be many forms

12 of electronic computer data files modeling studies

13 that would not have been bound into either the

14 reports or the dissertations.

15 Q. Do you know whether some or all of the

16 items that you just listed have been provided to us

17 in response to our --

18 A. Some have.

19 Q. Have the 15 annual reports to the State of

20 Michigan been provided?

21 A. I provided them to the Justice Department

22 for that purpose.

23 Q. Have the 15 reports by other individuals

24 who have done companion studies at the site been

25 provided?

00197

1 A. No, they have not.

2 Q. Have the four or more doctoral

3 dissertations been provided?

4 A. No.

5 Q. Have the set of reports pre-dating the 15

6 annual reports, 8 or 10 in number, been provided?

7 A. No.

8 Q. Has the raw data book commencing in 1969

9 been provided?

10 A. That is a plural, that is more than one

11 book and has not been provided.

12 Q. Have several sets of aerial and ground

13 level photos covering the time frame from '69 to

14 present been provided?

15 A. No.

16 Q. And has the electric -- or have the

17 electric data computer files been provided?

18 A. Some.

19 Q. How many are there?

20 A. I cannot give you a precise number. I'll

21 attempt to provide some general idea. There is an

22 upright filing cabinet, two shelves of which I think

23 are occupied by computer printout. There are about

24 four or five 12-inch diameter magnetic tapes in that

25 cabinet; there would be significant diskettes for

00198

1 desk top computers, I can't give you an exact number,

2 but it would probably be in the order of, say, 30.

3 Q. What are on the diskettes, what type of

4 information or data?

5 A. That would be the workup of the data for a

6 given project for a given year in the process of

7 preparing the report.

8 Q. And those 30 all have Houghton Lake data on

9 them?

10 A. Yes.

11 Q. And what type of data is collected or

12 maintained regarding Houghton Lake in general?

13 A. In general, all components of the ecosystem

14 are studied at some level in each year and that would

15 include soils, hydrology, water chemistry, vegetation

16 and other biota.

17 Q. Do you anticipate that the data and reports

18 that you just testified to regarding Houghton Lake

19 will support other opinions in addition to your

20 opinions concerning vegetative succession that you

21 might render at the final hearing in this matter?

22 A. Yes.

23 Q. What other areas of opinions would be

24 supported by Houghton Lake data?

25 A. Areas including hydrology and nutrient mass

00199

1 balancing.

2 Q. Any others?

3 A. Those would be the predominant ones.

4 Q. What preliminary or final opinions have you

5 formulated with respect to hydrology, let's start

6 there, that you might render at the time of final

7 hearing?

8 MR. GARVER: Same objection as I

9 stated earlier.

10 A. Well, the hydrology studies at Houghton

11 Lake have been quite extensive and have led to many,

12 many different results that all bear on the issue of

13 water movement through wetlands and consequently

14 would reflect in my testimony.

15 Q. I'm sorry, what preliminary final opinions

16 have you reached with respect to the hydrology of the

17 Everglades that you anticipate will be supported by

18 the hydrological studies at Houghton Lake?

19 MR. GARVER: Same objection.

20 A. Well, the studies at Houghton Lake on

21 hydrology are supportive of and in agreement with

22 studies that have been made of hydrology in

23 Everglades situations.

24 Q. What do you mean by Everglades situations?

25 A. Well, there have been, I believe, one or

00200

1 more district studies, I think probably as many as

2 three that I'm aware of, studies of overland flow in

3 wetlands in the Everglades. Those studies lead to

4 much the same type of conclusions on the mechanisms

5 as Houghton Lake studies.

6 Q. Who, to your recollection, have authored

7 these three studies?

8 A. I can remember in this case perhaps three

9 publications, I don't believe they cover all of the

10 work, but they are -- one by George Shih, S-h-i-h, a

11 second one published, I believe, by George Shih and

12 an individual whose last name is Rahi, R-a-h-i, and

13 there was a publication, I believe, by Monroe and

14 Trimble which is also supportive. And I believe

15 there may be others as well that I can't recall at

16 the moment.

17 Q. What opinions do you anticipate you'll

18 offer at the time of trial concerning the overland

19 flow in the Everglades?

20 MR. GARVER: Same objection.

21 A. Well, in general terms, hydrology forms the

22 basis for water mass balance which in turn forms the

23 basis for phosphorus mass balances and that's the

24 context in which I would expect hydrology to enter my

25 testimony.

00201

1 Q. Are your opinions and conclusions

2 concerning hydrology in the Everglades contained in

3 documents that you have authored and provided in

4 response to our notice for production?

5 A. I'm sorry, please repeat the question.

6 MR. BURGESS: Would you read it back?

7 (Record was repeated by the reporter.)

8 A. In major part, yes.

9 Q. And what documents would those include and

10 also what's the minor part?

11 MR. GARVER: Objection, compound

12 question.

13 Q. You can take it as two questions,

14 Dr. Kadlec.

15 MR. BURGESS: We're going to be here

16 an awful long time on these depositions, Mr. Garver.

17 A. I would like to answer your first question

18 by referring to numbers, if I may, from --

19 Q. Exhibit 1?

20 A. 1 or 3.

21 Q. Let's do 1, I have a copy of that one.

22 A. All right. I need to see a copy of that.

23 Hydrology papers that I would consider

24 as part of the basis for my opinion in the subject

25 area of hydrology would be, moving in downward order

00202

1 on numbers, number 59, number 56, number 51, number

2 46, number 45, number 42, number 35, number 32,

3 number 30, number 28, number 25, number 12, number 3.

4 Q. While you have that exhibit in front of

5 you, let me go back to the testimony a little while

6 ago that included the fact that you may offer opinion

7 testimony at the time of trial relative to vegetative

8 succession or change in water conservation area 2A.

9 Can you identify for us from your list

10 of publications what papers you would rely upon to

11 express those opinions? What papers, if any?

12 A. Yes. I'll read through the list and see

13 which ones.

14 Number 48, number 44, number 20,

15 number 17, and I believe that would be all.

16 Q. And while you have the exhibit in front of

17 you, let me ask you to go through the same exercise

18 with respect to opinion testimony you might offer on

19 nutrient mass balancing.

20 MR. GARVER: And again, we are

21 referring to the list of publications starting on

22 page six of Exhibit Number 1, as I understand it.

23 A. Number 63, number 62, number 59 -- I'm

24 sorry, strike number 62, please. 56, 51, 50, 44, 37,

25 26, 23, 20, 17, 16, 4. I believe that's the end.

00203

1 MR. BURGESS: I'd just like to

2 identify for the record that, and I'll go back and

3 check to make sure, but our first review of the

4 documents that have been provided by Dr. Kadlec

5 indicate that we have not received numbers 53, 52,

6 48, 47, 29, 23, 21, 19 nor 1. Some of those were

7 identified by the witness as documents he's likely to

8 rely upon, and we would request copies of them.

9 MR. GARVER: We'll certainly do that;

10 check into it.

11 Q. Can you tell us what a typical phosphorus

12 concentration -- perhaps annual average concentration

13 is in the soil at Houghton Lake?

14 A. That would depend on what location and what

15 point in time. I'd ask you to specify when and

16 where. System is in a state of change.

17 Q. Is it in a consistent state of change or

18 now it's in a state of change?

19 A. I don't understand the question.

20 Q. Well, is it a -- when you say the system is

21 in a state of change, is that because it's a wetland

22 and there's a dynamic -- in dynamic operation at all

23 times? What do you mean by "the system is in a state

24 of change"?

25 A. Well, I meant both, but in trying to answer

00204

1 your question, I think the key factor is since a

2 nutrient addition was begun some 15 years ago on a

3 major scale, I would need to know at what point in

4 time, what location you would like such an average

5 number because there are differences.

6 Q. For the last period of time that you

7 collected data, for the most recent -- or analyzed

8 data.

9 A. Again, I would have to look at our most

10 recent data to provide the number, but it would be a

11 number on the order of one-tenth of one percent to

12 two-tenths of one percent in the area where the

13 nutrient additions have been applied.

14 Q. How does that measurement that you just

15 gave me compare to, let's say, milligrams per

16 kilogram?

17 A. Well, a conversion would be that one

18 milligram per kilogram is a part per million, in a

19 percentagewise a part per hundred. So one-tenth of a

20 percent would be one part per thousand or

21 approximately a thousand milligrams per kilogram, if

22 I've done my mental arithmetic correctly.

23 Q. What units do you usually use to measure

24 phosphorus soil concentrations at the Houghton Lake

25 project?

00205

1 A. Percentage.

2 Q. Now you said that was at the area of -- was

3 it in-flow into the system?

4 A. Correct.

5 Q. How large is Houghton Lake wetland?

6 A. The wetland does not have well-defined

7 boundaries but an approximate number would be 1700

8 acres.

9 Q. What are the ranges of the phosphorus

10 concentrations in the soil at Houghton Lake?

11 A. Without referring to the data, I can't give

12 you upper and lower limits; but I can indicate that

13 the number I just gave is at the upper -- toward the

14 upper end of the range, and at the lower end of the

15 range we would be talking about perhaps .05 percent

16 phosphorus.

17 Q. Which is what in milligrams per --

18 A. Which I believe would be 500 milligrams per

19 kilogram.

20 Q. Do any of the myriad of documents you've

21 spoken about here on the record concerning Houghton

22 Lake contain a discussion or estimation as to what

23 the native background soil phosphorus concentration

24 levels are at the Houghton Lake wetland?

25 A. Yes.

00206

1 Q. And what are those concentrations?

2 A. They're the ones I just mentioned. Those

3 would be concentrations in the vicinity of .05

4 percent or 500 milligrams per kilogram.

5 Q. Do you anticipate that at the time of the

6 hearing you will point to specific data points and

7 periods of record from the Houghton Lake project to

8 support any of the opinions you may give in this

9 matter?

10 A. I'd ask you to explain what you mean by

11 data point in this context.

12 Q. Well, can we change it just to data?

13 A. Yes.

14 Q. Let's change it to data.

15 A. The answer to the question is yes.

16 Q. Can you tell me what the data is and for

17 what period of record?

18 A. I'll primarily rely on the period

19 encompassing the past 15 or 16 years, the difference

20 simply being as to what information, if any, becomes

21 available to me from this current operating period

22 that we are in or about to begin, rather.

23 Q. So in essence, you're going to rely on the

24 data from the entire study?

25 A. No, I would rely on, to a certain extent,

00207

1 on background information and to a major extent on

2 the information from that 15- to 16-year period I

3 just mentioned.

4 Q. And what information from that -- what

5 major information from that 15- to 16-year period?

6 A. It would be the information on hydrology,

7 water mass balances, phosphorus concentration,

8 phosphorus balances.

9 Q. I'm sorry, hydrology, water mass balances,

10 phosphorus concentrations and --

11 A. Phosphorus mass balances. Probably also

12 rely on some of the vegetation information.

13 Q. Is that information, that major information

14 that you've just defined for the 15- to 16-year

15 period that you said you will probably rely on, is

16 that available in disk form?

17 A. That information is on disks, but it is not

18 in a single block of information.

19 Q. How would I identify that information on

20 your disks?

21 A. I don't know because I have a personal

22 system that is perhaps not the most orderly -- I

23 would think that with some -- given the disks with a

24 reasonable presumption, you could identify the files

25 since they do have connotative titles such as

00208

1 "Vegetation 1989" and so forth. It would be by file

2 names and document names on the disks.

3 Q. Is there an index on any of the disks to

4 the entire 30 disks?

5 A. Well, in electronic form. Each disk has a

6 directory.

7 Q. Is there then a hard copy of the directory

8 for all the disks that exists?

9 A. There is no hard copy.

10 Q. Is there a hard copy of the index that

11 is -- or the directory that is contained on each

12 disk?

13 A. There is neither an index nor directory of

14 the disks nor is there -- in terms of hard copy, nor

15 is there a printout of the directory of the disks,

16 each disk.

17 Q. The major information data that you're

18 going to rely on with respect to the subjects you've

19 defined for us, is that data contained on the disks?

20 A. In part, and the in part refers to the fact

21 that this project pre-dates desk top computers and

22 consequently not all the early data may have been

23 transcribed to disk. It certainly has not been.

24 Q. Do you anticipate for your review of this

25 major information for this period of time that you're

00209

1 going to create a single block of information for

2 each of the categories that you've listed?

3 A. I do not anticipate doing that in each of

4 the categories I've mentioned.

5 Q. In any of the categories?

6 A. In part. I have begun and am in progress

7 of analyzing phosphorus information. In part also

8 because I do report the overall system hydrology, not

9 the daily details and not the spatial details, but

10 rather the system hydrology each year contained in

11 reports. So some of this information has been

12 assembled and is current in electronic form, some has

13 not.

14 Q. If I wanted to review this major

15 information for this period of time, what would you

16 provide me?

17 A. Could you be more specific on what you mean

18 by major information?

19 Q. You've defined, I think, major information

20 for the 15- to 16-year period to be hydrology, water

21 mass balances, "P" concentrations and "P" mass

22 balances and perhaps some vegetative information.

23 You said that you're going to rely or you're likely

24 to rely on that information to support opinions

25 you're going to render at the time of hearing. And

00210

1 if I wanted to review that data that you're going to

2 rely on, what would I ask you for because you've

3 testified with respect to Houghton Lake that I don't

4 have or that you have not provided everything that

5 you have? I'm trying to narrow the documents that I

6 need to review.

7 A. It's my opinion that what you would want to

8 look at are the 15 annual reports which I have

9 provided.

10 Q. How about if I wanted to review the

11 information on a disk?

12 A. In that case a large number of backup disks

13 would be provided and the information on those disks

14 would be such things as an electronic copy of the

15 report in hard copy and the data workup files but

16 only in those years which post-date the desk top

17 computer era.

18 Q. Which is what, roughly?

19 A. I've gone -- that varies in my case from

20 year to year. I believe I began using my current

21 computing system, which is Mackintosh, I'd have to

22 look on the disk, but I believe 1986 or thereabouts.

23 Prior to that, I believe one or more years may have

24 been done in part on an IBM compatible PC.

25 Q. And then for the time period -- or ten

00211

1 years or so previous to that where it may even be on

2 IBM PC the only matter in which the data exists is in

3 hard copy form?

4 A. Yes.

5 Q. It's not on magnetic tape?

6 A. No.

7 Q. To express your opinions at the time of

8 trial with respect to the major information groups

9 you've testified to, are you going to rely on data

10 contained in any other document other than the annual

11 reports or the disks to the extent that it consists

12 of disks?

13 A. Yes, insofar as the fundamental information

14 on aerial photographs cannot be put on disk and has

15 not in general been reproduced in the color and color

16 IR in those reports.

17 Q. How many such aerial photographs?

18 A. The total set would probably be two boxes

19 of the 10-inch-by-14-inch-by-18-inch variety,

20 document boxes on that order.

21 Q. Are they black and white or color?

22 A. Both, and in addition some are color

23 infrared.

24 Q. Do you anticipate that you will be

25 introducing some of these photographs during the

00212

1 course of your testimony?

2 A. I don't know at this time.

3 Q. Do you anticipate that you're going to rely

4 on any of those photographs to support your

5 testimony?

6 A. Indirectly.

7 Q. Well, what do you mean indirectly?

8 A. During most years what we have done is to

9 interpret the aerial photography and aerial infrared

10 photography when it exists in order to place bounds

11 on the visually impacted area in that Houghton Lake

12 system. Those areas then appear in the annual

13 reports, the copies of photos do not. So when I say

14 indirect, it's the photo interpretation to area,

15 acreages, that I will be using.

16 Q. And do you anticipate using the photographs

17 demonstratively during your testimony?

18 A. I have no idea at this time.

19 Q. You said there are two boxes. How many

20 photographs would you anticipate?

21 A. It varies from year to year. Depending on

22 budgetary constraints, in only some years did we do

23 detailed commercial missions. In other years we did

24 oblique aerial photography. A commercial mission,

25 the first which represents the background situation

00213

1 comprised of in excess of a hundred photographs,

2 nine-by-nine prints. More recent missions are

3 focused on the area of impact, visual impact, and

4 those might comprise something on the order of 30

5 nine-by-nine photographs perhaps doubled if we had

6 infrared coverage done.

7 Q. Who has done the photo interpretation?

8 A. It's been primarily myself with assistance

9 in some years from Professor Fred Bevis.

10 Q. Have the phosphorus loadings to Houghton

11 Lake remained the same for the past ten years?

12 A. They have not.

13 Q. How have they varied?

14 A. The loadings have varied for two reasons so

15 there's no simple characterization. Reason number

16 one is that the flows to the wetland have changed

17 over the 15-year period; and secondly, the

18 concentration and the water being discharged also

19 changes.

20 Q. What ranges have you seen over the last ten

21 years?

22 A. Again, I would be -- would have to look at

23 a document to give you an absolute upper and lower

24 bound, but it's my recollection that the phosphorus

25 concentration entering the wetland, season average

00214

1 would fluctuate between approximately two and five

2 milligrams per liter.

3 Q. And that's over the past ten years?

4 A. That's over the past 15 years.

5 Q. And have you observed a moving front of

6 phosphorus at Houghton Lake over this period of time?

7 MR. GARVER: Object to the form.

8 MR. BURGESS: What's your objection?

9 MR. GARVER: I don't know what you

10 mean by "moving phosphorus".

11 MR. BURGESS: Well, if the witness

12 knows, he can answer.

13 A. Well, my understanding of a moving front is

14 the progression of higher and higher concentrations

15 of phosphorus to further and further distances from

16 the point of discharge. And the answer to your

17 question is, during part of the period such phenomena

18 has been observed; through part of the period it has

19 not.

20 Q. Can you tell us during what periods or the

21 period of record this has been observed and what

22 periods it has not?

23 A. I'll give you an approximate idea of what I

24 meant by that which is, during the early years of the

25 project, meaning roughly the first ten years, there

00215

1 was a moving front in the context which I've just

2 described. In more recent years the existence of

3 such a moving front is unlikely, although there is

4 scattering of data that appears as though there is

5 not a moving front at this point of time and has not

6 been for a period of some years.

7 Q. In your opinion, has the area reached

8 equilibrium?

9 MR. GARVER: Object to the form.

10 MR. BURGESS: What's your objection?

11 MR. GARVER: I think your use of the

12 word equilibrium is vague; it can mean different

13 things.

14 A. I would have to ask for a definition of the

15 word equilibrium before attempting to answer that

16 question.

17 Q. Have you ever used the word equalibrium to

18 describe the state of a wetland?<