00129 1 STATE OF FLORIDA 2 3 DIVISION OF ADMINISTRATIVE HEARINGS 4 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., 17 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., 4 5 Petitioners, 6 7 -vs- 8 9 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 10 an Agency of the State of Florida, 11 12 Respondent, 13 14 and 15 16 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, 17 The UNITED STATES OF AMERICA and the 18 FLORIDA DEPARTMENT OF ENVIRONMENTAL 19 REGULATION, 20 21 Intervenors, 22 ---------------------------------------------/ 23 24 25 00131 1 APPEARANCES: 2 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. 13 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. 10 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. 21 22 Also present: Mr. Curtis J. Richardson 23 24 25 00133 1 I N D E X 2 3 WITNESS PAGE 4 5 Dr. Robert Kadlec 6 7 Examination by Mr. Burgess 134 8 9 10 11 12 13 14 15 E X H I B I T S 16 17 NUMBER IDENTIFICATION PAGE 18 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 24 25 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? 19 A. I don't believe so. 20 Q. Have you ever used the word steady state? 21 A. I would probably have used terms such as 22 steady state or stationary state, yes. 23 Q. In your opinion, has Houghton Lake reached 24 a steady state? 25 A. In my definition of the word steady state, 00216 1 no. 2 Q. How do you define steady state? 3 A. Steady state in this context would mean 4 nothing changing with time, or if you expand and 5 loosen the definition a bit nothing changing from 6 year to year at the same point in the seasons. 7 Q. Is your definition of steady state the same 8 as your definition of stationary state? 9 A. Well, I think I and others are, perhaps, 10 careless with this terminology. I would prefer and 11 attempt at this point in time to distinguish between 12 two different definitions of steady state meaning 13 that whatever the parameter in question is, it does 14 not vary at all in time. It is the same day in, day 15 out, year in, year out. 16 In contrast, by stationary state I 17 mean a repetitive state where conditions perhaps on 18 March 1, 1993 are the same as they were -- roughly 19 the same as they were on March 1, 1992. This allows 20 for cyclic seasonal variations, diurnal cycles and 21 the like. 22 Q. In your opinion has Houghton Lake reached 23 the stationary state? 24 A. With respect to water concentration of 25 phosphorus, yes. 00217 1 Q. With respect to any other concentrations or 2 parameters that you're monitoring at Houghton Lake? 3 A. With respect to other parameters, no. 4 Q. What such other parameters? 5 A. Without attempting to be all inclusive, I 6 do not believe that the species composition community 7 structure has reached such a stationary state. 8 MR. BURGESS: Break for lunch? 9 (A break was taken.) 10 Q. Dr. Kadlec, before lunch you told us what 11 you considered the native background "P" 12 concentrations to be in the soil at Houghton Lake. 13 What do you consider the native background of "P" 14 concentrations to be in the soil in the Everglades? 15 A. Well, I would have to refer for specific 16 numbers to those reports that document those values. 17 As I sit here without those references, I believe 18 that the -- one way to characterize what I think is a 19 situation is that Dr. Reddy's investigation produced 20 a set of contours, as I recall. The last contour, I 21 believe, in his soil phosphorus was on the order of 22 500 milligrams per kilogram. 23 So I should think since that was in 24 the central portion of conservation area 2A that the 25 background levels of soil phosphorus in the natural 00218 1 Everglades would have been lower than 500 milligrams 2 per kilogram. How much lower, I don't know, I'd have 3 to refer to the documents. 4 Q. What documents would you need to refer to? 5 A. I believe that there are values perhaps in 6 that Reddy report -- 7 Q. Is that the same Reddy report that was 8 provided at the SAGE meeting in October, do you know? 9 A. I believe that the contours I'm referring 10 to were in that SAGE report, yes. 11 Q. And that's what you would need to refer to? 12 A. Well, I would refer to that. I know that 13 Dr. Jones has done some work on that subject; I 14 believe Dr. Richardson may have done some work on 15 that subject. 16 Q. Do you anticipate at the time of trial that 17 you might express an opinion with respect to what the 18 natural background soil conditions are in the 19 Everglades? 20 A. I don't anticipate so. 21 Q. How would you go about determining from the 22 contours how much less the natural background would 23 have been lower than that 500 milligram per kilogram 24 value? 25 A. I don't believe one could do that. I'd use 00219 1 that to place an upper bound on what I believe to be 2 those background concentrations. 3 Q. And how would one go about measuring the 4 natural background below that upper -- 5 A. Well, I believe what the researchers in the 6 field have done is go to those sections of today's 7 Everglades which they believe to be in as close to 8 the original background condition as they can get and 9 then have proceeded to take soil samples usually at 10 different depths, different locations, and to analyze 11 those for phosphorus. 12 Q. And is it the lowest value you get that is 13 the natural background? I'm asking you how you would 14 go about determining natural background. What do you 15 do after you collect the soil sample? 16 MR. GARVER: I'm not sure why this is 17 relevant. Dr. Kadlec said he won't be testifying 18 about this, and we haven't listed him as an expert in 19 doing soil sampling. 20 MR. BURGESS: Well, he's certainly 21 relying on soil data for his opinion so -- 22 A. Well, if I were to form an opinion on this 23 subject, what I would want to review is not only the 24 data of the type I just mentioned, which are modern 25 measurements of the vertical profile of phosphorus in 00220 1 what are deemed to be background locations, but also 2 to review the historical data which I have not done 3 at this point in order to ascertain what a pattern 4 might be that would indicate background conditions. 5 Q. Do you know whether Dr. Reddy is going to 6 testify as to what constitutes natural background 7 soil conditions in the Everglades? 8 A. I do not. 9 Q. Do you know whether Dr. Jones is? 10 A. I do not. 11 Q. Do you know whether Dr. Jones has any 12 opinions with reference to what the natural native 13 background "P" concentrations are in the soil and 14 Everglades? 15 A. I would expect he does. 16 Q. You were at Dr. Richardson's deposition, is 17 that correct? 18 A. Portions of it, yes. 19 Q. Were you there when he said in his opinion 20 he thought natural background soil concentrations in 21 the Everglades were between 400 and 500 micrograms 22 per gram? 23 A. I may well have been there at that time. 24 Q. Do you recall that testimony or not? 25 A. I don't recall that specific testimony, no. 00221 1 Q. Do you recall after Dr. Richardson's 2 deposition discussing those values with anyone? 3 A. I may have, I don't recall it. 4 Q. With reference to your earlier Houghton 5 Lake testimony, I believe you said that 6 concentrations of phosphorus went from 2 to 5 7 milligrams per liter over the last five years? 8 A. No. 9 Q. I'm sorry, 15 years, is that correct? 10 A. Yes, I believe I said that, yes. 11 Q. Has the general trend over that period of 12 time been for an increase in phosphorus or a decrease 13 in phosphorus concentration? 14 MR. GARVER: Object to the form. 15 MR. BURGESS: What's the basis of your 16 objection? 17 MR. GARVER: I don't know what you're 18 talking -- where you're talking about trends. 19 MR. BURGESS: This is with respect to 20 Houghton Lake, his entire data set for the past 15 21 years. 22 MR. GARVER: Trends in what part of 23 the data set? 24 MR. BURGESS: Phosphorus 25 concentrations. 00222 1 MR. GARVER: I don't think he's aware 2 you're asking about trends. 3 A. Well, my earlier answer to your question 4 pertained to the treated wastewater that was added to 5 that system, and I had said that in general terms the 6 concentration range for that added water over the 7 last 15 years had been 2 to 5 milligrams per liter. 8 Your present question asks if there has been, I 9 believe, a time trend in that information. There is 10 not a significant time trend. I would have to go 11 back and look at the data to see if there were any 12 short-term time trends within the 15-year period, but 13 the general answer to that question is no, there is 14 not a time trend in the phosphorus concentrations of 15 the incoming treated wastewater. 16 Q. Has there been a time trend with respect to 17 water coming -- water volume to Houghton Lake? 18 A. Yes, there is a trend toward increase in 19 water volume being added. 20 Q. Over what period of time? 21 A. Over the 15-year period we've been 22 discussing. 23 Q. Have you quantified that increase in trend? 24 A. I have. 25 Q. Do you know what it is? 00223 1 A. I would have to look at the most recent 2 report in order to answer that quantitatively. I do 3 know what it is, but I cannot remember what the 4 addition figures for a 15-year period. 5 Q. That would be the most recent edition of 6 the annual report? 7 A. Yes, because in those reports I keep an 8 accumulative record; in other words, most recent 9 report would contain the quantities added for the 10 previous years as well. 11 Q. Have you observed a general trend in 12 increasing or decreasing mass loadings to -- 13 A. Well, as with your question earlier this 14 morning, when a mass loading question is asked I 15 would need to know what area you have in mind because 16 a mass loading is computed from the amount of water, 17 the area and concentration of phosphorus in that 18 water. 19 Q. Downstream of the outflow pipes, perhaps 20 start with one half mile. 21 A. I can't answer that question because one 22 half mile downstream of the outflow pipe does not 23 define an area. 24 Q. What is it that you need -- 25 A. Well, again, in order to answer a question 00224 1 even approximately about mass loadings, I need to 2 know what period is in question, the amount of water, 3 which years, or which time period during the years -- 4 Q. So when you say, I'm sorry, period in 5 question, you mean what year? 6 A. Yes. Because, for instance, I can tell you 7 the mass loading from my reports but not from memory 8 for a fixed area, say, 100 hectares or 50 hectares 9 for a given month in which I would know from data the 10 concentration and the amount of water added, and I 11 could then compute the loading to that area in that 12 month under those specific conditions. 13 Q. Could you answer my question if we started 14 out with defining an area as 10 hectares south of the 15 outflow pipes? 16 A. I could do that. It is not an area that I 17 have used in calculations. 18 Q. What areas have you used? 19 A. I have used the areas determined from 20 aerial photographs as the visually impacted area; 21 that is one area that I have used to determine 22 loadings. 23 Q. How large is that area? 24 A. That, again, varies from year to year. 25 Q. What has been the range over the life of 00225 1 the system? 2 A. Well, since it began with no impact or a 3 lower limit of zero and the largest number would be 4 approximately 75 hectares, I don't recall it exactly. 5 Q. Would the phosphorus concentrations in the 6 soil at your lower limit of zero have been the 500 7 milligrams per kilogram that you testified to 8 earlier? 9 A. That was an approximate number, but, yes, 10 that's a correct impression. 11 I would like to, again, say that there 12 are vertical gradients in these systems and there are 13 location-to-location variability so that is an 14 approximate number. 15 Q. But still, even though the area in your 16 opinion was visually unimpacted in the beginning, 17 we're starting with the base of 500 milligrams per 18 kilogram in the soil? 19 A. I believe that's approximately correct, 20 yes. 21 Q. When you utilize aerial photography, as you 22 testified to earlier today, what are you looking for 23 to determine the change in the visually impacted area 24 or in the impacted area? 25 A. Generally, that involves two sorts of 00226 1 information or perhaps you could stretch it to three. 2 First, there are typically two types of photographs, 3 color and false colored infrared. Both of those 4 types of photography indicate reflectants in 5 different portions of the spectrum and the 6 distinction, although not precise, is made between 7 those colors or the associated reflectances in the 8 area of the discharge contrasted to areas well away 9 from the discharge. 10 Q. Have you evaluated satellite imagery of the 11 Houghton Lake project? 12 A. We had satellite imagery of the wetland 13 done on one occasion; this was, I believe, prior to 14 the inception of the project. At that point in time 15 the level of discrimination, the so-called pixel 16 size, was quite large. I don't remember the exact 17 number, but there were not many pixels in the 18 satellite imagery of that wetland. 19 And secondarily, the method identified 20 several interior pixels in the wetland as low density 21 urban development, and at that point we discontinued 22 consideration of that technique. At this point in 23 time it perhaps should be reconsidered because 24 imagery has gotten a lot better in the intervening 25 years. 00227 1 Q. Who did that imagery? 2 A. If my memory serves me right, it was done 3 by Bendix. 4 Q. Where are they located or that specific 5 office of Bendix located that took that satellite 6 imagery? 7 A. Their office was located here in Ann Arbor 8 at that time. I believe that they are no longer in 9 business to my knowledge here in Ann Arbor, and they 10 transferred their files and equipment and so forth, I 11 believe, elsewhere, and I don't know exactly where. 12 Q. Do you have the satellite imagery slides 13 that were taken 15 years ago