DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
SUGAR CANE GROWERS COOPERATIVE OF CASE NOS. 92-3038
FLORIDA, a Florida agricultural 92-3039
cooperative marketing association; ROTH 92-3040
FARMS, INC.; and WEDGWORTH FARMS. INC., 92-6796
92-6797
and 92-6799
92-6800
FLORIDA SUGAR CANE LEAGUE, INC.; and
UNITED STATES SUGAR CORPORATION;
and NEW HOPE SOUTH, INC.,
and
FLORIDA FRUIT AND VEGETABLE ASSOCIATION,
LEWIS POPE FARMS, W. E. SCHLECHTER &
SONS, INC., and HUNDLEY FARMS, INC.,
Petitioners
vs.
SOUTH FLORIDA WATER MANAGMENT DISTRICT,
an Agency of the State of Florida,
Respondent,
and
THE UNITED STATES OF AMERICA,
MICCOSUKEE TRIBE OF INDIANS, THE
FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, THE FLORIDA WILDLIFE
FEDERATION, THE FLORIDA AUDUDON SOCIETY
and THE SIERRA CLUB,
Respondent-Intervenors.
_________________________________________/
DEPOSITION OF: MICHAEL JOHN MACEINA, Ph.D.
TAKEN: March 18, 1994
VOLUME 3
Accurate Stenotype Reporters, Inc.
DEPOSITION OF: MICHAEL JOHN MACEINA, Ph.D.
TAKEN AT THE INSTANCE OF: Respondent, South Florida
Water Management District
DATE: Friday, March 18, 1994
TIME: Commenced at 9:00 a.m.
Concluded at 10:40 a.m.
LOCATION: 315 South Calhoun Street
Tallahassee, Florida
REPORTED BY: ANITA M. PEKEROL, CCR, RPR,
CP, CM. Notary Public in
and for the State of
Florida at Large.
APPEARANCES:
REPRESENTING THE PETITIONERS:
GARY V. PERKO, ESQUIRE
Hopping, Boyd, Green & Sams
123 South Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32314
REPRESENTING RESPONDENT SOUTH FLORIDA
WATER MANAGEMENT DISTRICT:
JOSE A. LOREDO, ESQUIRE
Popham, Haik, Schnobrich & Kaufman, Ltd.
4000 International Place
100 Southeast Second Street
Post Office Box 019101
Miami, Florida 33131
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I_N_D_E_X _ _ _ _ _
WITNESS PAGE _______ ____
MICHAEL_JOHN_MACEINA,_Ph.D. _______ ____ ________ _____
Direct Examination (Cont'd.) by Mr. Loredo 217
CERTIFICATE_OF_REPORTER 262 ___________ __ ________
E_X_H_I_B_I_T_S _ _ _ _ _ _ _ _
DEPOSITION_EXHIBITS: __________ ________
NUMBER DESCRIPTION PAGE ______ ___________ ____
7 Report 224
8 Nutrient and Hydrologic interactions
between cattail and sawgrass - literature
review notes taken by M. Maceina 236
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1 (VOLUME 3)
2
3 P_R_O_C_E_E_D_I_N_G_S _ _ _ _ _ _ _ _ _ _ _
4 - - -
5 The following deposition of MICHAEL JOHN MACEINA,
6 Ph.D., was taken on oral examination, pursuant to
7 notice, for purposes of discovery, for use as evidence,
8 and for such other uses and purposes as may be permitted
9 by the applicable and governing rules. Reading and
10 signing is not waived.
11 - - -
12 Thereupon,
13 MICHAEL JOHN MACEINA, Ph.D.
14 was recalled as a witness, having been previously duly
15 sworn, was examined and testified further as follows:
16 DIRECT EXAMINATION (Continued)
17 BY MR. LOREDO:
18 Q Doctor, we're back on the record. Why
19 don't we pick up where we left off, talking about Figure
20 4 of Exhibit 6. If you can, just take a look at it for
21 me, and tell me what these graphs tell us and what they
22 do for your opinion.
23 A Okay. Figure 4-A, the graph on the left,
24 is a plot of mean monthly variance, against month, for
25 water level fluctuations or changes in water level at
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1 the 2-17 gauge and the S-10 gauges. And what this graph
2 indicates is that the changes or the dispersion of water
3 level fluctuations are much higher at the S-10's than
4 they are at the 2-17 gauge.
5 Q What do the stars mean?
6 A The stars mean statistical significant
7 differences, of which six of 12 months were different.
8 Q Compared to 2-17 or to the S-10's itself?
9 I'm not sure what differences we're talking about.
10 A Okay. If you take, let's say, month four,
11 April, there is a star there. That says that the
12 variance or the fluctuation water level, the actual
13 dispersion of the data, is significantly higher in April
14 at the S-10's than at the 2-17 gauge. The same with
15 May. The same with June.
16 Q What does this result do for your opinion?
17 A It shows, again, that the water level
18 disturbance is a lot greater at the S-10 than at the
19 2-17.
20 Q How does it support your opinion, or does
21 it?
22 A With respect to what?
23 Q Your opinion was, let me backtrack here a
24 little bit, that there is no statistical difference
25 between the mean values of the surface water total
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1 phosphorus between the baseline period and the period in
2 '91, '92, accounting for distance.
3 A This figure has really nothing to do with
4 this. This is just a figure that is about hydroperiod
5 and hydroperiod differences between the S-10 and the
6 2-17 gauge.
7 Q What does the next graph, B, tell us?
8 A B shows that the fluctuation or the average
9 monthly change in stage is much, much greater at the
10 S-10's than at the 2-17 gauge. And it is somewhat
11 analogous to the bimodal hydroperiod.
12 In February, you see that there was an
13 increase in the stage, a rapid decline through May, and
14 then a rapid increase in the summer and then another
15 rapid decline starting about August. At the 2-17 gauge,
16 you don't see that rapid of a fluctuation over the
17 12-month period of time.
18 Q Why do you do these graphs?
19 A I did these graphs to show that, again, the
20 water level disturbance is a lot greater at the S-10
21 than at the 2-17 gauge.
22 Q It makes sense, though. That's where the
23 structures are, is at the S-10, versus, I guess, the
24 2-17. The 2-17 would be the inner marsh or somewhere in
25 the middle?
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1 A That's correct.
2 Q Figure 5, can you explain that for us?
3 A Okay. The top Figure 5 is a graph of the
4 frequency exceeded of water depths at the S-10C. The
5 bottom graph is frequency exceeded of water depths at
6 the 2-17 gauge.
7 The top gauge, basically, says that if you
8 look at your water depth, which is on the Y axis, there
9 is, essentially, a hundred percent hydroperiod at the
10 S-10C gauge. That is, it is completely inundated all of
11 the time. The water levels never drop below zero.
12 The dash line is 1.9 feet, and which,
13 according to one study done by Grace in 1988, appears to
14 be the critical level that cattail is able to assimilate
15 and grow much quicker with the addition of nutrients,
16 phosphorus, nitrogen and potassium.
17 That inundation or that historic period of
18 record is 45 percent. Basically, you take a hundred
19 percent and subtract 55 percent. So, 45 percent of the
20 time during the past 11 years the water depth has been
21 greater than 1.9 feet at the S-10C.
22 Q And you believe that explains the reason
23 for the cattails?
24 A That's a large and very important
25 contributing factor to the presence of cattails, is the
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1 high frequency of water depths greater than 1.9 feet.
2 Q And the graph below it?
3 A Shows 2-17 gauge water depth. Twenty
4 percent of the time, there is no water. It completely
5 dries out. That corresponds very well to what we know
6 about the hydroperiod necessarily for sawgrass.
7 Basically, sawgrass should dry out about 15 to about 30
8 percent of the time. That's what other studies have
9 shown. Here, it is 20 percent, which falls within that
10 range.
11 More importantly, water depth only exceeds
12 1.9 feet about three percent of the time, so you don't
13 get that extremely high water depth that could be
14 detrimental to sawgrass.
15 Q And if we go out to 2-17, we don't see a
16 predominance of cattails?
17 A You see a few cattails, but it is mostly
18 dominated by sloughs, sawgrass or some tree islands at
19 the higher elevations.
20 Q And based on these graphs, your opinion is
21 that the water depth is a major contributing factor to
22 the predominance of cattails?
23 A The high water depth --
24 MR. PERKO: I object to the form.
25 THE WITNESS: The high water depth is a
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1 major contributing factor to cattails below the
2 S-10's.
3 BY MR. LOREDO:
4 Q Look on the next graph, the bottom says
5 appendix. Actually, the next two pages say appendix.
6 What are these graphs telling us?
7 A These are graphs similar to the November
8 29, 1993, memo. This shows from 1981, January 1981,
9 through April of '92, the actual mean stage at the
10 S-10's.
11 Q Is it comparable for the ones in your
12 November report; i.e., the same bimodal periods?
13 A Yes. Bimodal hydroperiod and much larger
14 water level fluctuations.
15 Q And the last appendix is the same type of
16 graph, but now we're looking at the 2-17 gauge?
17 A That's correct.
18 Q Again, we see a high fluctuation or large
19 fluctuations, I should say?
20 A Well, we see fluctuating water levels, but
21 it is not as erratic as you see at the S-10's. If you
22 take a look at the graph of the S-10's, you see an
23 erratic pattern of high water level, low water, high
24 water, low water. This shows a more of a natural
25 hydroperiod where you have a high, typically, during the
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1 summer and a low during the winter.
2 You, also, see periodically that this
3 region, based on the ground level line that I drew, at
4 11.1, which is the elevation at the 2-17 gauge, this
5 area, also, periodically dries out.
6 Q Did you look at soil phosphorus?
7 A I did not.
8 Q Did you think about looking at soil
9 phosphorus?
10 A In Nancy Urban's 1993 paper, I saw the map
11 that she presented in that figure. That figure had some
12 soil phosphorus data.
13 Q Did you have an opinion as to that, an
14 understanding of her work?
15 A I understood it. And, basically, the paper
16 says that they are higher soil phosphorus concentrations
17 south of the S-10's, and as you move further south in
18 the interior marshes those soil concentrations decline.
19 Based on the data that I have seen, I agree with that
20 statement.
21 Q Do you know if the soil phosphorus is less
22 in the time period that you have examined, the '91, '92,
23 compared to the baseline period, '78, '79?
24 A As far as I know no data was collected
25 during the baseline period.
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1 (Brief pause.)
2 BY MR. LOREDO:
3 Q I would like to show you a memo you
4 prepared or dated February 15, 1994. Would that be your
5 next report that you provided in this case after the
6 Exhibit 7 memorandum dated February 11, 1994?
7 MR. LOREDO: Why don't we mark this as
8 Exhibit 7?
9 (Deposition Exhibit 7 marked for
10 identification.)
11 BY MR. LOREDO:
12 Q Doctor, can you summarize what the report
13 that we have marked as Exhibit 7 represents?
14 A In this memo, I looked at the relationship
15 between the variation in surface water total phosphorus
16 concentrations, and hydrologic and loading factors
17 coming into Water Conservation Area 2A below the S-10's.
18 And similar to my March 30, 1990, memo, I did not find
19 any statistical relationship between phosphorus loading
20 through the S-10's and surface water total phosphorus
21 concentrations.
22 Similar to my previous work, I found that
23 stage appeared to be a strong correlate or determinant
24 of surface water total phosphorus concentrations
25 throughout the marsh and Water Conservation Area 2A.
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1 At the 2-17 gauge, rainfall was a positive
2 correlative, surface water total phosphorus
3 concentrations.
4 Q Is stage a negative correlative?
5 A Stage is a negative correlative of surface
6 water total phosphorus concentrations.
7 Q What type of statistical methods did you
8 use?
9 A I used correlation analysis, and I used
10 multiple regression analysis, and I used step-wise
11 aggression analysis, also, to help me as a tool to sort
12 out some of the statistical models that I was trying to
13 generate.
14 Q Now, you did this relationship looking at
15 different gradients? Or, you know, the zero to two
16 kilometers?
17 A I looked at the various distance zones
18 similar to the analysis that I did before in the
19 February 4th memo.
20 Q Did you look at it all together, forgetting
21 about the zones and just looking at the area as one
22 unified area?
23 A You could. What would come out of that is
24 as you move further south of the distance zones, you
25 would find that is a strong determinant of surface water
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1 TP. And that is already known. As you move further
2 south of the S-10's, the total concentrations,
3 generally, decrease. So, knowing that is an important
4 determinant, I did not use that in the analysis. I
5 wanted to partition the variation out of those different
6 distance zones and find out what was regulating surface
7 water TP's in those zones.
8 Q And you couldn't find any correlation with
9 the phosphorus loading?
10 A In the big picture, there was a couple of
11 cases when I built regression models and included things
12 like stage or rainfall. In a few cases, there was a
13 small proportion of variance, for example, at the two to
14 three-kilometer zone, that was explained by load. But
15 the dominant factor appeared to be stage and rainfall.
16 And if you take a look at the third paragraph, you will
17 see that analysis right there.
18 Q Here, your statement that the model
19 explained 45 percent of the variation, that is the model
20 that you ended up working with?
21 A That's the model that I came up with.
22 Q And with that model, you are saying that
23 the most important factor was the stage?
24 A That's correct.
25 Q And if I keep reading it, you said rainfall
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1 contributing 27 percent, 12 percent and six percent.
2 Are you referring to that the stage contributed 27, the
3 load 12 percent and the rainfall six percent?
4 A That's correct.
5 Q So, rainfall had the least significance,
6 load had 12 percent, and stage had 27 percent
7 contributing?
8 A That's correct, in this particular model,
9 for that particular distance zone, which is a two to
10 three-kilometer distance zone.
11 Q Is the 55 percent unexplained?
12 A That's correct.
13 Q As you went further away, moving down to
14 the next level of zones, the three to four-kilometer
15 zone, your model explained 21 percent of the variation
16 in total surface phosphorus?
17 A That's correct.
18 Q Do you break out stage level rain total
19 phosphorus loading, like you did with the zero to
20 two-kilometer zone? I should say the two to
21 three-kilometer zone?
22 A That's in the second paragraph of page 1 of
23 that memo.
24 Q Can you point where you are pointing me to?
25 A The second paragraph explains the analysis
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1 that I did for the variation in surface water total
2 phosphorus at the zero to two-kilometer zone south of
3 the S-10's.
4 Q I was looking for the three to four.
5 A I'm sorry, I thought you said where is the
6 zero to two.
7 The three to four starts at the second to
8 the last line there in the beginning of the last
9 paragraph, and carries over to page 2.
10 Q What my question was, I keyed on your two
11 to three-kilometer zone area, and your model explained
12 45 percent, and you had broken out the contributing
13 factors of the variables, such as stage, load and
14 rainfall of the 45 percent example; 25, 12 and six
15 percent.
16 What I'm looking for now is, in the three
17 to four-kilometer zone, did you break out the 21 percent
18 of the explained variation in surface total phosphorus?
19 A Okay. Say, the stage, at the 2-17 gauge,
20 lag one month surface water concentrations, surface
21 water TP concentrations. This variable and stage lag
22 one month will explain 21 percent. I didn't break it
23 out, because they're serially correlated, basically, and
24 it seemed to me not appropriate to break out the
25 variable and the lag of a variable in the model. So, it
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1 explains 21 percent.
2 Q Did you try longer lags?
3 A I only went up to three months. As I went
4 further along, with longer lags, the correlations became
5 even weaker, and weaker and weaker.
6 Q So, you didn't try anything over a
7 three-month lag?
8 A No. It appeared, based on the analysis,
9 that most everything was happening either that
10 particular month or up to three months. And anything
11 beyond that just doesn't come out to be statistically
12 significant.
13 Q Looking at page 3, the first full
14 paragraph, the last sentence, "The various inflation
15 term," and then you have "(used to detect
16 multicollinearity) approached the critical value to
17 declare that stage and total phosphorus load were
18 serially correlated."
19 What does that statement mean?
20 A Those terms or those statistical procedures
21 are diagnostic tools to try and detect if variables that
22 you are using to try and predict the variable
23 interest -- in this case, our variable of interest is
24 surface water TP -- if those two variables are related.
25 In this case, stage and TP load, there is a relationship
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1 there, because when you have a lot of tributary inflow,
2 stage goes up. When you have a lot of tributary inflow,
3 the total phosphorus loads go up. So, there is a
4 relationship between stage and total phosphorus load.
5 And what I was trying to do was see how strong that
6 relationship was.
7 Q And how strong was it?
8 A It was modest. But I deemed that it wasn't
9 strong enough to delete from the model, and I wanted to
10 go ahead and present the information. But I, also,
11 wanted to present that that is something that an
12 investigator should be aware of.
13 Q When you say delete, what were you going to
14 look to delete? One of the variables?
15 A One of the variables. Normally, what I do
16 is, I delete the weaker variable. In this case, the
17 weaker variable would have been total phosphorus load.
18 Because that only explained 12 percent of the
19 variability, while stage explained 27 percent. But I
20 said, well, let's lay the cards on the table, what the
21 analysis says. And, again, it is a diagnostic tool.
22 There is nothing hard and fast about it. I'll leave
23 load in.
24 Q Looking at the full paragraph 3, starting
25 with, "Thus, variation in surface water total phosphorus
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1 was not related to total phosphorus loading, but to
2 fluctuations in the water levels in areas zero to nine
3 kilometers south of L-39."
4 Continuing on with that paragraph, if you
5 can take a minute and read it, can you kind of summarize
6 and tell me what you are trying to tell me there?
7 A I am trying to explain the mechanism of why
8 we're seeing this relationship between water level or
9 stage and surface water TP concentrations. And what is
10 known about marshes, also, lakes and reservoirs, is that
11 as you dry soils and reflood them, after the drying
12 procedure remineralizes and when you put water back on
13 top of that, that phosphorus goes back up into the water
14 column.
15 The other thing that looks like it may be
16 happening is that when you drop water levels very, very
17 low, that the plants start dying. They become
18 desiccated. And when plants die, they release
19 phosphorus back into the water, which can, also, explain
20 why we see higher levels of total phosphorus when the
21 stages are low in Water Conservation Area 2A.
22 Q Does settling rate play into any of this?
23 A I can't speculate on that.
24 Q Can I take it, then, that you did not look
25 at settling rate?
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1 A I did not look at settling rate.
2 Q How does burning affect cattails?
3 A If the burn is hot enough and of a long
4 enough duration, it will kill cattails.
5 Q And then we'll get higher phosphorus?
6 A I don't understand the question.
7 Q Will phosphorus increase after a burn?
8 A Where would it increase?
9 Q Well, I guess you can't have a burn and
10 water levels?
11 A Yes, that's hard to do. You would have to
12 have a type of fire that is a wildfire, essentially,
13 with tremendously high winds and probably low water
14 conditions.
15 Q So, you can't see the two happening
16 together?
17 A No.
18 Q Page 4, your last sentence, "In some
19 instances, there was not a consistent change in cattail
20 density with respect to surface total phosphorus and
21 water levels."
22 What are you telling us there?
23 A That there were changes in cattail
24 densities that didn't seem to be related to water level
25 changes, or to surface water total phosphorus
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1 concentrations, and that there was some factor out there
2 that was not measured that we don't know that could
3 possibly be causing cattails to change.
4 Q Other than surface total phosphorus or
5 water levels?
6 A That's right.
7 Q Is that the other 55 percent of the
8 unexplained variable when we're talking about the two to
9 three-kilometer zone?
10 A An entirely different analysis. This is an
11 analysis on cattail densities from a paper. The other
12 one is just looking at variables that are related to
13 total phosphorus in a particular distance zone south of
14 the S-10's.
15 Q Can you identify this page for me? It was
16 attached to what I thought we had marked as Exhibit 7.
17 MR. LOREDO: Counsel, I'm not sure if you
18 even have this page on there. It was attached to
19 my exhibit.
20 BY MR. LOREDO:
21 Q If you could, just tell me what that is.
22 It has a Bates stamp number on it of PR0014525. And,
23 actually, Exhibit 7 started with Bates stamp Number
24 PR0014524, so I thought there was some relationship, if
25 you could just kind of explain it.
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1 A Sure. You have calendar year here on the
2 left, going from 1981 to 1992. This is the frequency of
3 drying at the 2-17 gauge. In one of my memos, I guess
4 the February 11th memo, I did a stage frequency duration
5 curve. That included all years from 1981 through 1992.
6 Here, I have broken that data down. For
7 example, in 1981, 30 percent of the time water levels
8 were below ground elevation at the 2-17 gauge.
9 In 1982, it was dry 20 percent of the time.
10 In 1983, 1984, it was wet the entire year.
11 So, I have taken one of the figures from
12 Figure 11, and instead of pooling all of the data for
13 the 12-year period of time here, I have broken it down
14 into individual years. I didn't make any graphs of
15 these, but I just wanted to see the changes in drying
16 and the frequency of flooding for the time period of the
17 2-17 gauge.
18 I tried to do the same thing at the S-10C,
19 but I didn't have daily data. I only had monthly data.
20 And based on monthly data, they only give you 12
21 observations during any particular year, versus 365 a
22 year. So, I didn't think it was appropriate, so I
23 didn't do anything with the S-10C gauge data for
24 frequency duration purposes.
25 Q And you totaled this frequency?
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1 A A mean of 20 percent, which is similar to
2 the 20 percent in that figure in the February 11th memo.
3 Q Doctor, I'm just going to go through some
4 of the reports. I want to see how you relied on them.
5 The report titled cattail moisture requirements and
6 their significance to marsh management, by John W.
7 Bedish, B-E-D-I-S-H, do you recall reviewing that
8 report?
9 A Yes, I looked at this report.
10 Q And how are you relying on that with
11 respect to the testimony that you are going to give at
12 the hearing?
13 THE WITNESS: Can I recall on my literature
14 review that he has been provided, where I
15 summarize it? Do you have a copy of that, Gary?
16 MR. LOREDO: Actually, I plan to make that
17 an exhibit. We'll mark this as Exhibit 8, which
18 is entitled nutrient and hydrologic interaction
19 between cattails and sawgrass. And it says
20 underneath literature review notes taken by M.
21 Maceina.
22 BY MR. LOREDO:
23 Q Are these notes that you have taken through
24 your review of the reports and other articles that we
25 have in front of us?
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1 A Yes, they are.
2 Q It is probably better that we take your
3 literature notes. What do you think? You are shaking
4 your head. You seem hesitant.
5 A I'm not hesitant. That would be fine.
6 Q Is the report by John W. Bedish, reviewed
7 by you and set forth in your notes in this document
8 which is titled literature review notes taken by
9 yourself?
10 MR. LOREDO: Let's mark this as Exhibit 8.
11 (Deposition Exhibit 8 marked for
12 identification.)
13 THE WITNESS: Yes, I did. I did review the
14 paper, and it was part of my notes.
15 When Bedish looked at this, he was looking
16 at moisture requirements in the soil, and looking
17 at growth rates and germination rates of
18 cattails. And he, basically, found that the
19 wetter the soil conditions, the greater the
20 germination rates of cattail.
21 BY MR. LOREDO:
22 Q What page are you looking at in Exhibit 8?
23 A The bottom of page 2. He, also, found that
24 cattail growth was greater in flooded soils than
25 non-flooded soils.
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1 Q The next article, by Waters and Shay, have
2 you reviewed that?
3 A Yes, I reviewed that document.
4 Q And how were you relying on it, and how are
5 you using that with respect to your opinion in this
6 case?
7 A They did some experimental work, where they
8 were looking at cattail shoot heights and growth rates,
9 production, and they found that cattail production was
10 greater in deeper waters. They found that they had
11 cattails growing anywhere from 25 to 65 centimeters of
12 water, and that these depths did not seem to inhibit
13 cattail growth and production.
14 Q That is consistent with your findings?
15 That you believe stage is a very important factor to
16 cattails?
17 A I believe water depth is a very important
18 factor that regulates cattails in Water Conservation
19 Area 2A.
20 Q I think I have a confusion with water depth
21 and stage. What is the difference?
22 A Well, you can have a stage elevation of a
23 hundred feet mean sea level, but the hydrosoil over
24 which that water lies could be at zero. So, that would
25 be a hundred foot depth. You could have a stage of a
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1 hundred feet sea level, but the hydrosoil could be at 99
2 feet, which would infer a water depth of one foot.
3 Q So, water depth really takes into account,
4 I guess, soil or whatever the bottom of the marsh could
5 be?
6 A We can define the water depth as from the
7 top of the hydrosoil to the top of the surface water.
8 Q Whereas, stage is defined, I guess, as the
9 mean sea level?
10 A An elevation above mean sea level is the
11 way it is, normally, connotated.
12 Q The next report that you had used on top is
13 titled ecological relationships among purple
14 loosestrife, cattail and wildlife at the Montezuma
15 National Wildlife Refuge.
16 A Again, there was a vegetation replacement
17 there, higher water depths. The cattails came in and
18 replaced this purple loosestrife plant.
19 Q Any relationship to this purple loosestrife
20 plant to sawgrass?
21 A Not that I know of, no.
22 Q And are you looking in your literature
23 notes?
24 A Yes.
25 Q On what page?
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1 A Page 1, the first paragraph.
2 Q The next report is titled experimental
3 studies on the resiliency of the floating Typha mats in
4 a freshwater marsh. And it is by Krusi, K-R-U-S-H-I,
5 and Wein, W-E-I-N.
6 Can you tell me how you used this in your
7 analysis?
8 A Yes, I can.
9 Q How?
10 A I read the paper, and it looks like what
11 these authors found is that the shoot densities of
12 cattail were significantly higher in undrained basins,
13 compared to drained areas. Shoot height was, also,
14 greater in undrained areas, and draining caused
15 decreased vigor in cattail.
16 It, also, indicated that the biomass of the
17 cattail was much greater near the edge of drainage
18 canals or deeper water bodies, and the cattail exhibited
19 a high soil moisture requirement.
20 Q Did you see a lot of cattails around the
21 WCA-2A area close to the canals?
22 MR. PERKO: I object to the form.
23 THE WITNESS: Which canals?
24 BY MR. LOREDO:
25 Q Canals that surround the WCA-2A.
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1 A The trip I made in February of 1990, in all
2 of the areas that at least I went to, where we went
3 toured and came out, there always appeared to be
4 cattails next to canals, even in the southern region of
5 Conservation Area 2A, which, typically, has low
6 phosphorus concentrations. The stand of cattail
7 extended about a half a mile northward from the canal
8 and south of the WCA-2A.
9 Q And is that explained because of high
10 stages?
11 A The water depths are deeper at the southern
12 end of Water Conservation Area 2A.
13 Q Along the edges of WCA-2A?
14 A The only ground elevation data that I have
15 seen specific to that is on the southern end of Water
16 Conservation Area 2A and the northern end. And the
17 water depths do seem to be higher, or the ground
18 elevations lower, along the edge of those canals there.
19 And the speculation is that it is due to subsidence,
20 soil subsidence next to the canals.
21 Q When you say subsidence, you mean,
22 reduction in the soil?
23 A Disappearance of soil.
24 Q The next report that I believe you used is
25 titled studies of cattail in relationship to management
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1 of marsh wildlife. This is by Milton W. Weller,
2 W-E-L-L-E-R.
3 A Dr. Weller said that cattail growth was
4 higher in water depths of up to 1.7 feet. Basically,
5 that cattails grew faster at higher water depths up to
6 1.7 feet, which, I guess, is the maximum depth that he
7 did in his study.
8 Q I think, did you say 1.9 feet yourself, or
9 was that someone else that you relied on?
10 A That was Grace, who, in 1988, found that
11 1.9 feet was a critical depth for cattail. And with the
12 addition of nutrients, increased cattail growth.
13 Q And you agree with the 1.9 or the 1.7?
14 A In experimental studies like that, you get
15 some variation, and I think the biological significance
16 of that is not there. The 1.7 or the 1.9 feet is really
17 not different. It is, essentially, the same.
18 Q I am reading on page 7. This seems to talk
19 about the vegetation map that was produced by Rutchey.
20 You talk about, "Confirm that the cattail dominance is
21 less below the S-10D structure than below the other S-10
22 structures."
23 That is your opinion, right? Is that your
24 opinion, or is it Ken Rutchey's opinion?
25 A It is my opinion.
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1 Q And if we keep reading on, "From the South
2 Florida Water Management District maps of WCA-2A, the 12
3 feet mean sea level contour approaches a region south of
4 the S-10D as ground elevation decline along a northwest
5 to southeast gradient."
6 How did you determine the elevation?
7 A I had a map that I was provided.
8 Q By the district?
9 A There were two maps that I looked at. I
10 looked at the map in Dewey Worth's technical
11 publication, it is in the 1988 one, on Water
12 Conservation Area 2. I can't remember the exact serial
13 number. That was in 1988. And, also, I was provided a
14 map showing ground elevations in more detailed contours.
15 Dewey Worth's publication had the contours in one foot
16 intervals. This map that I was given had it in .2 feet
17 contours.
18 Q Who gave you that map?
19 A Environmental Science and Permitting,
20 Gainesville, Florida.
21 Q Who at ESP?
22 A John Davis.
23 Q How did you come to get in contact with
24 John Davis at ESP?
25 A I met him in Tallahassee, at a meeting in
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1 the middle of January.
2 Q Who was at the meeting in January?
3 A Gary Perko was there, Curt Pollman was
4 there, Bill Green was there, John Davis was there.
5 There were three or four other individuals that were
6 there, but I can't recall their names.
7 Q Were they consultants?
8 A Two or three of them were consultants. One
9 was a lawyer representing the Sugar Cane League.
10 Q Do you know, was Dennis Lehtinen there?
11 A I can't recall that name.
12 Q Steve Mallard?
13 A I can't recall that name.
14 Q And did you express your opinions at this
15 meeting?
16 A Yes, I did.
17 Q And are they the same opinions that you
18 have testified to here in deposition?
19 A Yes, they are.
20 Q No changes?
21 A No changes.
22 Q Did you give any opinions to any of the
23 other consultants there, or advice?
24 A I discussed it with one of the consultants,
25 who was doing some color infrared photography in Water
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1 Conservation Area 2A. We discussed some of the
2 techniques that he was using to map vegetation, and
3 provided some of my interactions that I had working with
4 the University of Florida people when I was doing the
5 contract administration as an employee of the district.
6 Q Do you recall anything else?
7 A I am sorry, also, the Landsant photography
8 that they were doing, too. They were, also, doing
9 Landsant and was providing some interaction on those
10 techniques to map vegetation.
11 Q What type of interaction are we talking
12 about?
13 A Just some of the limitations of using
14 Landsant to determine aquatic vegetation.
15 Q Do you prefer the color infrared?
16 A Color infrared has certain uses for certain
17 types of vegetation. The Landsant can give you other
18 types of information. Sometimes together, when they're
19 merged, they can give you a better understanding or
20 better analysis of vegetation communities.
21 Q Do you know if those two methods were
22 employed, the color infrared and the Landsant?
23 A The only data that I saw was from Landsant.
24 Q And who provided the data?
25 A I wish I could name the consultant that was
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1 there, but I just can't remember, because I have met so
2 many people in this, that really, if I could remember, I
3 would tell you.
4 Q I believe you.
5 A I just can't recall. I was not asked to
6 consult on vegetation mapping, but I was there to
7 provide some of the analysis that you have been
8 provided.
9 Q Do you remember the data that it was
10 provided?
11 A I think the meeting was January 15, 1994.
12 Q I know, but do you remember some of the
13 data that you looked at?
14 A The data that I presented to that group at
15 that meeting, primarily, focused on my February 4th
16 memo, which looked at the changes in surface water TP
17 concentrations along the distance gradient south of the
18 S-10's.
19 Q Were you asked to update that memo?
20 A No. At that time, I hadn't put that memo
21 together, but I was working on the analysis. I had
22 completed some of the analysis for some of the distance
23 zones. I ran many, many different statistical tests,
24 and I presented some of the results that I had at that
25 time that I had completed. And when I got back, I
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1 continued to analyze that aspect of the project in
2 greater detail.
3 Q Did you have a subsequent meeting in
4 Tallahassee?
5 A That was the last meeting that I had in
6 Tallahassee, was January 15th. I recall that was the
7 date.
8 Q Did you have more than two meetings in
9 Tallahassee?
10 A Altogether, I have been to Tallahassee
11 three times for meetings. One in October, one in
12 November and one in January.
13 Q I think I missed one of those meetings. I
14 remember talking about -- I guess it was the initial
15 meeting.
16 A I am sorry, the meeting was in December.
17 There were three meetings. It was not in November.
18 There was a meeting in December, about a week before
19 Christmas.
20 Q I remember the December meeting, then.
21 A There was no meeting in November that I
22 attended here in Tallahassee.
23 Q The initial meeting, who was that with, the
24 October meeting?
25 A That was with Bill Green, Gary Perko, Curt
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1 Pollman, John Good and myself.
2 Q The December meeting?
3 A Gary Perko, Bill Green, Curt Pollman, John
4 Good, Ron Munson and I can't recall anybody else.
5 Q Were there other people there?
6 A I can't recall.
7 Q Was it the meeting in October or the
8 meeting in December that you discussed your March 30,
9 1990, memo?
10 A I discussed my March 30, 1990, memo in the
11 October meeting.
12 Q It is the December meeting that I'm
13 missing.
14 In the December meeting, what was the
15 status of your analysis in December?
16 A Status of what analysis?
17 Q Of what you were doing for this case.
18 A For this case, making progress, getting
19 data together. By late November, I had compiled all of
20 the surface water total phosphorus concentrations. I
21 was still obtaining rainfall data, I was still trying to
22 generate updated loading information and I was, also,
23 updating stage data at that time.
24 Q Do you have one report done already by
25 then?
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1 A I had done one report by then.
2 Q That was the November 29, 1993?
3 A Yes.
4 Q Were any comments made at the meeting which
5 caused you to rely on and to update your memo?
6 A At that time, the suggestion was to go
7 ahead and try and duplicate the analysis in Figure 29,
8 page 167, of the SWIM Plan. To try to keep it
9 consistent with what was done in the past.
10 Q Did you have any telephone communications
11 with John Davis?
12 A Yes. I talked to John some. It seems like
13 it was after our January 15th meeting, towards the end
14 of January, we conversed on the phone a couple of times.
15 Q What was the topic?
16 A The topic was John's concern that there was
17 some total phosphorus concentration, surface water
18 concentrations, from the 2-17 gauge that I had in my
19 database that was from the summer of 1986, specifically,
20 June, July and August. They were very, very high
21 surface water total phosphorus concentrations, and he
22 didn't have those concentrations. We exchanged data.
23 The data mimicked each other, except for those seven
24 missing values which I had and he did not have.
25 Q And you had them either from KBN --
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1 A No. I was given them while I was an
2 employee of the South Florida Water Management District,
3 through Ken Rutchey, and the original analysis that I
4 conducted in 1989, early 1990, as an employee of the
5 Water Management District.
6 Q This is where you had the five projects and
7 you compiled them, put them together?
8 A That's the database of the five projects.
9 Q Did he give you any additional data?
10 A We exchanged the 2-17 data from 1988 on.
11 No, I'm sorry, from 1981 on. I provided him with my
12 database and he provided me with his database on the
13 2-17 gauge for surface water total phosphorus
14 concentrations.
15 Q Did you use this database provided by John
16 Davis?
17 A No, I did not.
18 Q Did you it compare with your database?
19 A Yes.
20 Q And what did you find?
21 A It was similar, except for the seven
22 extremely high surface water total phosphorus
23 concentrations that were measured in the summer of 1986.
24 The databases were the same, except for that.
25 Q When you say the same, they're close,
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1 exact?
2 A No, identical. Identical dates, identical
3 concentrations.
4 Q And station locations?
5 A 2-17 gauge.
6 Q Was rainfall data there?
7 A No.
8 Q Stage data?
9 A No.
10 Q Did he provide you with any phosphorus
11 loading data?
12 A No.
13 Q So, just surface water total phosphorus at
14 the 2-17?
15 A That's the only data that he provided me.
16 MR. PERKO: Can we take a quick break?
17 MR. LOREDO: Sure.
18 (Brief recess.)
19 MR. LOREDO: Back on the record.
20 BY MR. LOREDO:
21 Q On page 7 of Exhibit 8, I was reading
22 along. To continue where we were, after the sentence
23 regarding the maps, you said, "Thus, ground elevations
24 are very likely higher south of the S-10D and water
25 depths are shallower."
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1 I think you have already testified to that,
2 right? And this was some of the attempts at correlating
3 the cattails with water depths and relating the
4 different S-10 structures. Maybe you can clarify me
5 here if you understand what I'm talking about.
6 MR. PERKO: Do you understand the question,
7 Doctor?
8 THE WITNESS: State the question, again. I
9 don't want to mislead.
10 BY MR. LOREDO:
11 Q Can you tell me what the significance of
12 the sentence is of, "Thus, ground elevations are very
13 likely higher south of the S-10 and water depths are
14 shallower"?
15 A If you take a look at the satellite imagery
16 that has been done, and look at the predominance of
17 dense cattails, sparser cattails, sawgrass, sawgrass
18 mixed with brush, there is not as much cattails below
19 the S-10D as there are below the S-10C and A.
20 And one of the reasons for that is that
21 ground elevations are higher, water depths are lower.
22 Lower water depths appear, at least, to disfavor
23 cattails. And that might be a reason why we don't see
24 as many cattails below the S-10D as we observe below the
25 S-10C and the S-10A.
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1 Q Then your next sentence, "This inhibited
2 cattail growth even though nutrients were abundant."
3 A It's an opinion.
4 Q When you say nutrients, phosphorus is part
5 of those nutrients?
6 A That's correct.
7 Q And why did you say nutrients were
8 abundant?
9 A Because at the S-10D, the mean flow
10 weighted concentration of phosphorus coming through that
11 structure since 1981 is 167 micrograms per liter. As
12 you go downstream and go to the S-10C, that drops to a
13 117 micrograms per liter, and at the A structure it
14 drops to 76. So, phosphorus concentrations coming into
15 the S-10D are a lot higher than they are at the A and C,
16 but yet you don't have as much cattails below the S-10D
17 as you do the S-10C and A.
18 Q That is because of the higher elevations?
19 A I believe it is because of the higher
20 elevations and dryer conditions that you see less
21 cattails below the S-10D than the A and C, even though
22 total phosphorus concentrations are higher.
23 Q Just to clarify, the notes in Exhibit 8 are
24 your notes and your opinions?
25 A That's correct.
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1 Q And your review of other literature and how
2 you summarize them?
3 A That's correct.
4 Q Going to page 10, I am looking at the
5 second to the last sentence, starting with, "Based on
6 the stronger relationship between mean depth and soil
7 phosphorus among vegetation classes compared to
8 hydroperiod mean depth, I would suspect that mean depth
9 would have been a more important variable in the
10 analysis than hydroperiod."
11 Can you tell me what this statement means?
12 A This is based on John Richardson's report
13 on Water Conservation Area 1A, looking at factors
14 related to vegetation in Water Area Conservation 1A.
15 And he did some analysis to try and separate out
16 hydroperiod nutrient water depth and what affects
17 vegetation communities.
18 What I inferred, in looking at his data, is
19 that he did a canonical discriminant analysis. What
20 he's trying to do is find out factors that are important
21 to the distribution of these plants. And on one axis,
22 he put soil phosphorus and sodium, which were highly
23 correlated. And that's how you do that analysis. You
24 put things that are highly correlated. He, also, put
25 hydroperiod and growing season hydroperiod on the other
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1 axis. And based on the observations that I saw, I
2 thought mean depth should have been on that other axis,
3 because it had a lot more variation. It was, also,
4 correlated to hydroperiod.
5 He mentioned that sodium and potassium were
6 the strongest principal components for factor one, which
7 I agreed with. He never mentioned if the hydroperiod
8 and growing season hydroperiod were the second most. He
9 just said he used them. And I thought, at least the
10 approach I would have taken -- you don't know what he
11 did overall in his analysis, he probably didn't present
12 all of his analysis -- but I would have looked at the
13 mean depth hydroperiod on the second axis to see how
14 important mean depth was in the analysis.
15 Q Doctor, what is your understanding of the
16 ultimate objective of the Everglades SWIM Plan?
17 A The ultimate objective of the Everglades
18 SWIM Plan is to maintain a viable and healthy Everglades
19 ecosystem.
20 Q And do you not believe that controlling
21 phosphorus would help that ultimate objective?
22 A I believe controlling phosphorus levels
23 would assist in very small areas. But if you don't
24 control the hydroperiod or the mean water depth, that
25 control of phosphorus will not achieve the ultimate goal
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1 of what the SWIM Plan is trying to achieve. And that is
2 restoration and maintenance of a healthy Everglades
3 ecosystem.
4 Q So, you think controlling the water
5 management control is a bigger factor than the
6 phosphorus control?
7 A Based on my analysis and the literature
8 that I have read, in my best scientific opinion, I feel
9 that there is a very strong nutrient water depth
10 hydroperiod interaction, and without controlling that
11 water depth in the hydroperiod, the SWIM Plan will not
12 achieve its goal. And until water management is
13 addressed and alternate water management practices are
14 implemented, that the overall plan won't work.
15 Q Looking at the summary now, starting with
16 the word, "In addition," -- I guess that is the third
17 sentence -- "In addition, the impact of salinity on
18 vegetation communities along canals in the Everglades
19 has not been addressed."
20 Is that still true?
21 A To my best knowledge, yes.
22 Q Actually, I wanted to look at the other
23 sentence. "The compounding effects of nutrients, water
24 depth, hydroperiod, and salinity makes it difficult to
25 'tease' which variables may be important to the
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1 establishment and survival of cattails and sawgrass
2 communities."
3 What do you mean by that statement?
4 A Based on my analysis, phosphorus loading,
5 stage, hydroperiod, are all interrelated variables. And
6 working in natural ecosystems, if you can't control one
7 variable, it is hard to assess the importance of the
8 effect of the other variable.
9 Q That is what you mean when you say it is
10 difficult to tease?
11 A Yes.
12 Q The next sentence, I believe, is your
13 opinion, and what you testified to before, but I will
14 read it again. "Based on my analysis of the data and
15 the review literature, I believe a strong water depth/
16 Hydroperiod-by nutrient interaction and hydrology alone
17 are important factors regulating cattail distribution in
18 the WCA-2A."
19 Is that your opinion?
20 A That's my opinion.
21 Q When you say alone, you don't believe other
22 factors are contributive to regulating cattail
23 distribution in the WCA-2A?
24 A I think in itself, the hydrology, if you
25 didn't have any nutrients, would be an important factor.
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1 My analysis shows that the area south of the S-10's
2 never dries out. If it never dries out, you can never
3 establish communities like sawgrass in those areas.
4 Q Have you written any other reports after
5 February 15, 1994?
6 A I have not.
7 Q So, the February 15, 1994, Exhibit 7, is
8 your last and final report for this project? I hate to
9 use the word "final." I understand that statisticians
10 like yourself are always updating. But with respect to
11 the hearing that is upcoming, do you plan to prepare any
12 other memorandums with respect to this case?
13 A I will not, unless otherwise asked to.
14 Q I am sure counsel will provide us a copy if
15 you somehow do.
16 MR. PERKO: I will do that.
17 BY MR. LOREDO:
18 Q You are continuing to do analysis. And I
19 guess that just goes with your work, and it is
20 never-ending. The reason I preface it that way is, I
21 notice that in some of the things that are provided to
22 us, I guess this is your computer work --
23 A That is.
24 Q -- and it is dated 3-14-94, so you are
25 continuing to update your computer work?
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1 A That was a check on some data in
2 relationship to analysis that I had completed, I guess,
3 by February 15th, looking at the relationship of stage
4 at the S-10D, the S-10A, and the S-10C.
5 Q And what did you find?
6 A I found that when the stage is high at the
7 S-10D, it is, also, high at the S-10A and the S-10C. In
8 other words, if you get a big pulse of water in the
9 system, will it artificially elevate stage in only one
10 particular area? And if you recall, in my analysis I
11 pulled all of the S-10's together. That is an
12 assumption I made. And, again, I am interested in being
13 correct, and I wanted to make sure that I could make
14 that assumption. These analysis show that that
15 assumption is correct.
16 Q What is your understanding of plug flow?
17 A I don't know anything about plug flow.
18 Q Did you consider molecular diffusion in
19 your analysis?
20 A I did not.
21 Q Transport of phosphorus with soil profile
22 due to plant growth?
23 A I did not.
24 Q Do you agree that drought and reflooding
25 has an effect of recycling the phosphorus for peat back
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1 into the WCA-2A?
2 A I missed a word in there. Could you repeat
3 the question?
4 Q Do you agree that drought and reflooding
5 has the effect of recycling the phosphorus back into the
6 WCA-2A?
7 A Where, specifically, in the WCA-2A?
8 Q In general.
9 A Phosphorus is neither destroyed or created.
10 Drying and reflooding will assist in recycling the
11 phosphorus in the system.
12 Q How about in the peat?
13 A Yes, in the peat. It will enhance
14 recycling of phosphorus in the peat.
15 Q Do you have any understanding of the mass
16 balance concept?
17 A Yes, I do.
18 Q Can you tell me what your understanding is?
19 A In relationship to phosphorus?
20 Q Yes.
21 A That phosphorus is neither created or
22 destroyed. That if you put phosphorus into a system,
23 there are certain sinks that the phosphorus has to go
24 to. It either has to be incorporated in some kind of
25 plant or animal life. It can either come out through
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1 the system or it goes into the soils. And that the mass
2 balance, all of those inputs and outputs, have to equal
3 each other.
4 Q Have all of your opinions and conclusions
5 reached in this case been explored in this deposition?
6 A Yes, they have.
7 MR. LOREDO: Do you have any questions?
8 MR. PERKO: No, I don't. We will read.
9 MR. LOREDO: Thank you, Doctor.
10 (Deposition concluded at 10:40 a.m.)
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1 CERTIFICATE_OF_REPORTER ___________ __ ________
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
6 I, ANITA M. PEKEROL, do hereby certify that the
7 foregoing proceedings were taken before me at the time
8 and place therein designated; that my shorthand notes
9 were thereafter translated under my supervision; and the
10 foregoing pages numbered 1 through 261 are a true and
11 correct record of the aforesaid proceedings.
12
13 I FURTHER CERTIFY that I am not a relative,
14 employee, attorney or counsel of any of the parties, nor
15 relative or employee of such attorney or counsel, or
16 financially interested in the foregoing action.
17
18 DATED THIS 30th day of March, A.D., 1994.
19
20
21
22
23 __________________________________
ANITA M. PEKEROL, CCR, RPR, CP, CM
24 100 Salem Court
Tallahassee, Florida 32301
25 904-878-2221 or 1-800-934-9090
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1 CERTIFICATE_OF_ADMINISTERING_OATH ___________ __ _____________ ____
2 STATE OF FLORIDA:
COUNTY OF LEON:
3
I, ANITA M. PEKEROL, Registered Professional
4 Reporter and Notary Public in and for the State of
Florida at Large:
5
DO HEREBY CERTIFY that on the date and place
6 indicated on the title page of this transcript, an oath
was duly administered by me to the designated witness(s)
7 before testimony was taken.
8 DATED THIS 30th day of March, 1994.
9
10 __________________________________
ANITA M. PEKEROL, CCR, RPR, CP, CM
11 100 Salem Court
Tallahassee, Florida 32301
12 904-878-2221 or 1-800-934-9090
13 My Commission Expires: February 20, 1995.
14
15
16 SWORN TO AND SUBSCRIBED TO before me, this ______
17 day of ________________, 1994, in the CITY OF
18 TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA, by the
19 above person who is personally known by me.
20
21
22
23
24 ___________________________
NOTARY PUBLIC STATE OF
25 FLORIDA
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