0001
1 STATE OF FLORIDA
2 DIVISION OF ADMINISTRATIVE HEARINGS
3 ----------------------------------------------------------
4 SUGAR CANE GROWERS COOPERATIVE OF )
5 FLORIDA, et al., )
6 and ) Nos. 92-3038
7 FLORIDA SUGAR CANE LEAGUE, INC; et al., ) 92-3039
8 and ) 92-3040
9 FLORIDA FRUIT AND VEGETABLE ASSOCIATION,)
10 LEWIS POPE FARMS, et al., )
11 Petitioners, )
12 vs. )
13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT,)
14 Respondent, )
15 and )
16 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, )
17 the UNITED STATES OF AMERICA, et al., )
18 Intervenors. )
19 ----------------------------------------------------------
20 Deposition Upon Oral Examination Of
21 STEVEN P. MILLARD
22 Volume 1, Pages 1 - 102
23 Taken at 800 Fifth Avenue, Suite 3600, Seattle, WA
24 DATE: March 9, 1993
25 REPORTED BY: Joanne Leatiota, RPR CSR LEATIJL477Q5
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1 APPEARANCES:
2 For the United THOMAS A.W. FITZGERALD, ESQ.
3 States: Assistant United States Attorney
4 155 South Miami Avenue
5 Miami, Florida 33130
6 For the Florida ROBERT H. BLANK, ESQ.
7 Sugar Cane League: Peeples, Earl & Blank
8 One Biscayne Tower, Suite 3636
9 Two South Biscayne Boulevard
10 Miami, Florida 33131
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1 DEPOSITION OF STEVEN P. MILLARD, Vol.1; taken 3-9-93
2 E X H I B I T S
3 NO. DESCRIPTION PAGE
4 1 Notice of Taking Deposition- Duces Tecum 8
5 2 Resume 22
6 3 Designation of S. Millard as expert witness 35
7 4 Surface Water Improvement and Management Plan 57
8 for The Everglades
9 5 Computer source code 70
10 6 Evergrades SWIM Plan, Appendix E 75
11 7 Table of CA1 values 82
12 8 An Analysis of Derived Phophorus Limits for 88
13 Loxahatchee National Wildlife Refuse
14
15 E X A M I N A T I O N
16 BY PAGES
17 MR. FITZGERALD 3 - 100
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1 Seattle, Washington; Tuesday, March 9, 1993
2 2:00 P.M.
3 --------------------------
4 STEVEN P. MILLARD, witness herein, having been
5 duly sworn by the Notary,
6 testified as follows:
7 E X A M I N A T I O N
8 BY MR. FITZGERALD:
9 Q. Doctor, I am Assistant U.S. Attorney Tom
10 Fitzgerald representing the United States in this
11 matter which is respondent intervenor in the case at
12 hand.
13 Can you for the record state your name, spell
14 your last name and give us your home address.
15 A. My name is Steven Paul Millard,
16 M-i-l-l-a-r-d, and my address is 7723 - 44th Avenue
17 Northeast, Seattle, Washington 98115.
18 Q. Doctor, have you ever been deposed before?
19 A. No, I have not.
20 Q. Have you ever testified as an expert witness
21 in any litigation, administrative, civil or criminal?
22 A. No, I have not.
23 Q. Have you ever testified?
24 A. No, I have not.
25 Q. As they say, there is a first time for
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STEVEN P. MILLARD, V.1, 3-9-93
1 everything. Let me just run through a few sort of
2 common ground rules just for your benefit. If at any
3 time during the deposition you want to take a break or
4 you need to stretch your legs or whatever, just tell me
5 and we'll accommodate that. If I ask a question that
6 doesn't make any sense, which is a very high
7 probability, ask me to clarify it, or if you need to
8 assume something to answer a question, please tell me
9 what your assumptions are. Otherwise the general rule
10 is try not to speculate unless you tell me you have to
11 speculate to answer and then we'll try to sort the
12 question out in a way that makes more sense if we can.
13 A. Okay.
14 Q. Based on that, we'll move on ahead.
15 MR. FITZGERALD: Counsel, do you want to
16 reserve all objections other than to the usual, to
17 expedite matters, objections to form I'd like to hear
18 them so I can try and resolve them.
19 MR. BLANK: That will be fine.
20 MR. FITZGERALD: That's been pretty much the
21 practice since we began this.
22 Q. Doctor, have you done any statistical
23 analysis of oligotrophic wetlands prior to becoming
24 involved in this case?
25 A. No.
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1 Q. Have you done any work in aquatic
2 environments with the exception of Love Canal which may
3 or may not be classified as aquatic environment?
4 A. Yes, I did work on data that came from a
5 monitoring program in Lake Michigan and that work --
6 that work on that data was incorporated into my
7 dissertation and also a publication that's listed on my
8 C.V.
9 Q. What was the nature of the work you did on
10 the Lake Michigan monitoring plan?
11 A. The data came from a monitoring program that
12 was carried out to determine whether effluent from
13 power stations were affecting nearby flora and fauna,
14 and as well as I can recall, I looked at that data
15 to -- I was working on a particular problem where I was
16 investigating how temporal and/or spatial correlation
17 could affect the results of commonly used statistical
18 tests that are used to determine whether an impact was
19 in fact being realized or not.
20 Q. Who was directing that study?
21 A. That was part of a study that was funded by
22 EPRI, Electrical Power Research Institute, and I was on
23 that study as a research assistant. The PI in that
24 study, the principal investigator, was a gentleman
25 named Brian Marr who is or was part of the civil
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STEVEN P. MILLARD, V.1, 3-9-93
1 engineering department at the University of
2 Washington. I believe he is still there. He was the
3 principal investigator on the project. Another
4 professor on the project named Dennis Lettenmaier is
5 actually who I worked closely with. So I worked a
6 little bit with Brian Marr, but mostly I worked with
7 Dennis Lettenmaier on that project.
8 Q. The project itself, what parameters were
9 being examined in the monitoring plan to determine if
10 the power station effluent was affecting the local
11 flora and fauna?
12 A. As I recall, the only variable that I looked
13 at was counts of zoa plankton.
14 Q. Was the program also scoped to test for the
15 chemical constituents of the effluent?
16 A. The actual monitoring program that produced
17 the zoa plankton data may well have also looked at
18 chemical concentrations. I don't recall whether it did
19 or not. As best as I can remember, I only looked at
20 the zoa plankton data in my personal analysis.
21 Q. Did you design the monitoring plan?
22 A. No, the monitoring plan had already been
23 carried out, I believe, a couple years or several years
24 before and so I was just using that data to -- I was
25 analyzing it after the monitoring plan had already been
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STEVEN P. MILLARD, V.1, 3-9-93
1 carried out.
2 MR. FITZGERALD: Can we have that marked
3 Exhibit-1 for the deposition.
4 (Exhibit-1 marked.)
5 Q. I am going to show you what's been marked
6 Exhibit-1 for the deposition. That's a copy of a
7 notice of taking deposition duces tecum, and I ask if
8 you would take a moment and look at it and tell me if
9 you have seen that one before. Not that particular one
10 but similar.
11 A. Yes. My counsel Mr. Blank faxed me a copy of
12 this last week, sometime last week.
13 Q. Have you had an opportunity to review the
14 notice and the included listings of documents to be
15 provided with counsel prior to today?
16 A. I have.
17 Q. Have you had full opportunity to discuss what
18 was required by that notice?
19 A. Yes, I discussed it briefly with my counsel.
20 Q. In locating documents that would be
21 responsive to the request for production of documents
22 which begins at page 5 and the particular documents to
23 be produced beginning on page 6 through 8, how did you
24 go about ascertaining what documents were responsive
25 and actually producing those documents?
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1 A. I actually left that up to my counsel.
2 Q. Did you conduct any search of your personal
3 files and records to --
4 A. Well, my counsel requested me for certain
5 reports and data on floppy disk which I then supplied
6 to my counsel.
7 Q. What data on floppy disks did you supply to
8 your counsel?
9 A. He specifically requested the data that I
10 used to produce the report entitled -- this is a long
11 one -- "An Analysis of Derived Phosphorus Limits for
12 Loxahatchee National Wildlife Refuge."
13 Q. When was that produced? When did you provide
14 it to counsel?
15 A. The report or the floppy disks?
16 Q. The floppy disks.
17 A. The floppy disks I provided to counsel I sent
18 via Federal Express last week either I believe it was
19 Wednesday, on Wednesday which would have been what --
20 today is the 6th -- sorry, today is the 9th, so that
21 would have been --
22 Q. The 3rd?
23 A. The 3rd if that was last Wednesday.
24 Q. How many floppy disks were there?
25 A. One. One floppy disk.
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1 Q. Were there any files on that other than data
2 files?
3 A. No, no.
4 Q. In addition to the one data disk and of
5 course the report you have just referenced itself and
6 the bootstrap code document --
7 A. Right. I also sent him -- I believe in a
8 separate shipment earlier I sent him the code, the hard
9 copy of the code.
10 Q. And then your report. Did you have any other
11 documents other than those three? And document as
12 defined includes storage in whatever form, any magnetic
13 media, computer media, et cetera would be included in
14 the term "document." Did you have any other records or
15 documents that were responsive to the 12 categories of?
16 A. I don't believe so.
17 Q. Why don't we go through and we can be certain
18 of that. Your curriculum vitae you did provide and
19 that will be the next exhibit, so paragraph 1 is taken
20 care of I believe. The second paragraph calls for a
21 list of your technical, professional, or scientific
22 publications, reports, et cetera in which you are
23 identified as author or coauthor but it is limited or
24 related to Everglades research activities, water
25 quality trends, et cetera. Do you have any such
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1 documents?
2 A. This is the only one.
3 Q. Just the single report. Paragraph 3 is a
4 copy of each technical, professional, or scientific
5 publication, report, article, et cetera in which you
6 are identified as an author or coauthor related to
7 analysis of Everglades related issues. Do you have
8 such documents other than the report you have just
9 mentioned?
10 A. No.
11 MR. BLANK: Again just for the record, the
12 report he is mentioning is the one that he's previously
13 identified and was tendered to counsel.
14 A. Right, right.
15 Q. This report draft dated January 8, 1993,
16 correct?
17 A. Yes.
18 Q. Other than that draft report, is there a
19 final report on the same subject? Have you finalized
20 that as yet?
21 A. No.
22 Q. Did you submit that report for referee or
23 review by any other consultant expert or colleague, for
24 example, to provide you comments on it?
25 A. Yes. I submitted the report to Dennis
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1 Lettenmaier, and he reviewed the report and made a few
2 changes to wording in the report.
3 Q. Do you have the prior version or the unedited
4 copy and the reviewer comments made by Dr.
5 Lettenmaier?
6 A. I don't. He didn't make specific comments on
7 the report. I gave him an electronic copy of my
8 version and then he incorporated that into his word
9 processing software, changed a few sentences and then
10 this is the result of that.
11 Q. Do you still have a copy of the unedited
12 version on your own word processing system?
13 A. I would have -- yes, I would have an
14 electronic copy of that I believe.
15 MR. FITZGERALD: Counsel, the unedited
16 version of the witness would be responsive to paragraph
17 3 and I would request that it be produced.
18 Q. I don't know if you will get by the office
19 between now and tomorrow if you have it at home, but if
20 not you can produce it through counsel, I'd appreciate
21 it.
22 A. Yes.
23 Q. How about all documents, paragraph 4, all
24 documents relating to analyses, statistical or
25 otherwise done in relation to the Florida Everglades?
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1 Again I assume there is nothing but the January draft
2 report.
3 A. That's correct.
4 Q. All data whether used or not, collected as
5 part of any analysis of issues affecting the Everglades
6 Protection Area and/or Everglades Agricultural Area,
7 including published data, mean data and raw data. Do
8 you have any such material that you are aware of?
9 A. None other than the data that I supplied to
10 counsel on the floppy disk that I assume was also
11 supplied to you.
12 MR. FITZGERALD: Counsel, the floppy disk
13 data in the electronic storage form was not provided.
14 I would ask that a copy of that be provided.
15 MR. BLANK: That's fine. We just gave you a
16 printout of the disk material itself.
17 MR. FITZGERALD: I am sure the doctor will
18 tell you that that is of marginal utility in a case
19 like this. The practice has been to provide disks on
20 all that, because first, it takes a lot less room, and
21 secondly, nobody can manipulate all the data. I know
22 Dr. Davis does not want to see everything from Dr.
23 Walker's work on hard copy.
24 Q. Does that data disk include your actual
25 bootstrap runs with your out file of a thousand runs?
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1 A. No, it does not.
2 Q. Where is that?
3 A. That is on my computer at home and it's in --
4 it's stored in a format that the software that I use
5 understands, so it's in a certain binary form.
6 Q. That's the software program that the firm you
7 consult with --
8 A. That I work for, yes. S-PLUS is the name of
9 the software package.
10 Q. We are down to paragraph 6, all abstracts and
11 materials used in scientific or public presentations
12 including drafts, submitted materials, slides, overhead
13 transparencies or presentation materials. Have you
14 prepared any such materials to your knowledge?
15 A. No.
16 Q. That would relate to this matter, to the
17 Everglades matter.
18 A. Right.
19 Q. Obviously you have told us you probably have
20 that sort of thing in other areas. Have you ever done
21 any public presentations on bootstrap?
22 A. I may have talked about it briefly when I
23 teach a course instructing people how to use S-PLUS, a
24 question may have come up during the course on how you
25 would do bootstrapping using S-PLUS. But no formally
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1 prepared course on bootstrapping, no.
2 Q. Have you made any presentations on your work
3 to other consultants or experts in this case?
4 A. On the work that's in this report?
5 Q. Yes.
6 A. The only other consultant that's looked at
7 this report that I am aware of is Dr. Lettenmaier.
8 Q. Has Dr. Lettenmaier been coordinating your
9 work on behalf of the sugar cane legal counsel for this
10 case?
11 A. He was the person who contacted me
12 originally, so -- and yes, you could say that he's been
13 coordinating my work.
14 Q. Other than meetings with counsel to prepare
15 for your deposition, have you met with anyone else
16 other than Dr. Lettenmaier in connection with your work
17 on this case?
18 A. No.
19 Q. In preparing for this deposition, were you
20 provided the depositions of any other prior witnesses
21 or any other materials other than the data files from
22 Environmental Services?
23 A. Yes, I was.
24 Q. What other materials were you provided?
25 A. I was provided the deposition of Dr. McClave
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1 that I believe was taken last November or December, and
2 I was provided -- so I was provided the deposition and
3 all the exhibits in that deposition. And I have also
4 been provided with a copy of the Florida -- the SWIM
5 Plan, but the only appendix that I have been provided
6 with is Appendix E.
7 Q. The SWIM Plan which is a matter of record in
8 this proceeding, its appendices to the League's second
9 amended complaint is comprised of three separate
10 volumes. Do you recall which volumes you were provided
11 or is it your testimony you were only provided the
12 Appendix E excerpt?
13 A. No, I was provided -- I don't -- I am not
14 sure of the title of that document in relation to the
15 three volumes.
16 Q. The planning document?
17 A. Yes, the planning document is what I was
18 provided with as well as Appendix E.
19 Q. What did you review in the planning document
20 to prepare for your deposition?
21 A. I looked through pages -- pages 102 through
22 something like 105 or 106 which specifically talk about
23 phosphorus limits for the Loxahatchee National Wildlife
24 Refuge, and I briefly glanced at some maps in the
25 planning document and read the introduction.
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1 Q. Other than that portion of the SWIM Plan
2 planning document and Appendix E which is in volume 3
3 of the SWIM Plan, did you see any other portions of the
4 SWIM Plan or review it?
5 A. No.
6 Q. I assumed in an earlier question that you had
7 gotten that and reviewed it in preparation for your
8 deposition, but it suddenly occurred to me that may not
9 be a valid assumption. When in fact did you receive
10 those materials related to the SWIM Plan?
11 A. Last week. I reviewed it in preparation for
12 the deposition.
13 Q. So you did not review and have available to
14 you any of that material prior to your conduct of your
15 bootstrap analysis reflected in your January 8th
16 report?
17 A. That's correct. The only document that I
18 have reviewed is what I mention in the report, the
19 report by Dr. Walker that's dated May of 1991.
20 Q. Were there any additional materials provided
21 to you, then, other than the SWIM Plan materials and
22 Dr. McClave's deposition and exhibits to help prepare
23 for the deposition?
24 A. Not that I can recall now. I believe that
25 covers it.
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1 Q. Have you ever made any presentations on
2 Everglades related issues of any sort whatsoever?
3 A. No.
4 Q. Do you have any notes, notebooks, hard copies
5 of materials on computer disks which include
6 unpublished analyses related to Everglades research?
7 A. Yes, I do because I am involved in ongoing
8 analyses.
9 Q. What materials are you currently in
10 possession of which you utilize of your ongoing work?
11 A. I have obtained from Dr. Lettenmaier data on
12 phosphorus concentration and flow for the structure
13 stations S-5A and S-6.
14 Q. What form is that data in?
15 A. I received it from Dr. Lettenmaier on a
16 floppy disk, so it's -- I have a copy on a floppy disk
17 and then also on my computer.
18 Q. Do the data files contained on the floppy
19 disk from Dr. Lettenmaier identify the source of that
20 data?
21 A. No, they do not.
22 Q. Do you know the source of the data?
23 A. I believe Dr. Lettenmaier received it from
24 Environmental Services -- I believe the name of the
25 firm is Environmental Sciences & Permitting, ES&P.
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1 Q. Do you have any other data in hand that you
2 are or will be using for ongoing work?
3 A. Actually probably the data that I receive
4 from Dr. Lettenmaier may not only include data for S-5A
5 and S-6 but it may include data from the other
6 structures. I can't remember their other names, I
7 believe there is an S-13 and an S-16 and a few others,
8 but then that would be the bulk -- that would be all of
9 the material that I have to this point.
10 Q. The S-5A and the S-6 discharge surface waters
11 into Loxahatchee National Wildlife Refuge, and
12 hereafter I will refer to the refuge if I can kind of
13 lay that as a ground rule. The other structures you
14 may be referring to do not. Are you analyzing surface
15 flows or inflows to any other portion of the Everglades
16 Protection Area?
17 A. I am not using the data from those stations.
18 Dennis just happened to give me the data for those
19 stations all in one packet.
20 Q. Do you know what period of record the data
21 encompasses for 5A and 6?
22 A. I don't recall the exact dates. What I was
23 interested in when I -- as I am doing this continuing
24 work is actually data that overlaps the sampling dates
25 for the data that's available for the refuge now. So
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1 in other words, I don't recall the starting and ending
2 dates for the S-5A and S-6 data, but I have been in the
3 process of condensing that data so that it only covers,
4 as I recall, the years 1978 through 1983, whatever
5 years.
6 Q. So more or less to match the five-year period
7 that is rationalized to baseline period of the one year
8 by Dr. Walker?
9 A. That's correct.
10 Q. So you are going to conduct further analysis,
11 considering additional data sources for the analysis
12 done by Dr. Walker in that regard?
13 A. That's correct.
14 Q. Have you ever made any proposals for research
15 or analysis on Everglades related issues?
16 A. No.
17 Q. Do you have any documents that you relied
18 upon in preparing, formulating, developing, authoring,
19 co-authoring, reviewing and/or organizing your
20 anticipated expert testimony relating to the subject
21 matter of this action, yours or anyone else's, that is
22 not amongst the material that you have provided?
23 A. No.
24 Q. Paragraph 11 recites a portion of your
25 designation as an expert witness and asks for any
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1 materials or documents that you would have that you
2 employ related to phosphorus trend models, statistics,
3 STA modeling, phosphorus concentration limits, water
4 quantity and quality trends, QA/QC database. Do you
5 have any materials related to any of those areas which
6 you have not provided?
7 A. No.
8 Q. Finally, have you done any notes, commentary,
9 critique or have any documents of that sort that would
10 relate to your review of the portions of the SWIM Plan
11 or prior drafts of the SWIM Plan you have mentioned?
12 A. Nothing other than what's in the report.
13 Q. But you have testified, did you not, that you
14 did not have the SWIM Plan at all when you prepared
15 your report?
16 A. Sorry. That's correct, I am sorry. Point 12
17 only refers to the SWIM Plan, right.
18 Q. So you have no notes or prior drafts -- well,
19 you do have the prior draft and I asked you for that.
20 Your draft report recites to a document by Dr. William
21 Walker which you have analyzed in your report, and you
22 have identified that as a May '91 document. When did
23 you receive that?
24 A. I was initially approached by Dr. Lettenmaier
25 to work on this project. He called me up at the end of
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1 September and so I would have met with him sometime in
2 early October, at which point he gave that document to
3 me, Dr. Walker's report to me.
4 Q. Where did you meet with Dr. Lettenmaier?
5 A. At his office at the University of
6 Washington.
7 Q. Do you know if the document you were
8 reviewing by Dr. Walker is the finalized report
9 prepared by Dr. Walker on that subject?
10 A. I do not.
11 MR. FITZGERALD: Mark this as Exhibit-2.
12 This is a copy of your resume.
13 (Exhibit-2 marked.)
14 Q. If I can invite your attention to Exhibit-2,
15 I guess my first question is, is this up-to-date as
16 best you know? I know people -- I tend to let things
17 like this slide until I have to change it so it's
18 always good to ask.
19 A. Everything is up-to-date except for my
20 current title at Statistical Sciences. I have relieved
21 myself of the burden of administration, so my title is
22 now senior training instructor and the job of
23 administration has been passed off to someone else.
24 Q. What is Statistical Sciences, Inc.?
25 A. Statistical Sciences, Incorporated is a
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1 company that distributes and markets a couple different
2 software packages. The main package that we sell is
3 called S-PLUS. We also sell a product called Data
4 Junction. S-PLUS is a statistical graphical software
5 package for analyzing data. Data Junction is a
6 software package for allowing you to convert data from
7 one format to another, from spreadsheets to database to
8 statistical package; it handles a number of different
9 formats.
10 Q. Who actually developed the two software
11 packages?
12 A. S-PLUS is built on top of a software package
13 called S which was developed and is maintained at Bell
14 Labs, and we -- Statistical Sciences is licensed by
15 Bell Labs to take their software and build on top of it
16 and market and distribute it. So S-PLUS is a superset
17 of a package called S.
18 Q. How long have you been with Statistical
19 Sciences?
20 A. Since 1990. Originally I came on in the
21 spring of 1990 as a consultant to them and I was
22 formally hired in the fall of 1990.
23 Q. What is the current nature of your duties
24 with them?
25 A. I provide training courses in the software, I
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1 teach people how to use the software, I develop
2 material for new training courses, maintain the
3 material for the current training courses, sometimes I
4 am called in to write documentation that's shipped with
5 the product.
6 Q. How did you happen to become acquainted with
7 SSI and go to work for them?
8 A. The gentleman who founded the company,
9 Professor Doug Martin, was one of my professors when I
10 was in graduate school. He's a professor at the
11 University of Washington in the department of
12 statistics.
13 Q. Prior to being employed by SSI you were an
14 assistant professor at St. Martin's College?
15 A. That's correct.
16 Q. What type of courses were you teaching there?
17 A. I was in the math department so I taught a
18 range of courses in math: Calculus, statistics,
19 introductory probability, introductory statistics,
20 differential equations.
21 Q. All my favorites. All my favorites. And I
22 am sure they still are with the undergrads. Did you do
23 any consulting work as well as teaching during the
24 period of '89 and '90 when you were an assistant
25 professor?
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1 A. Yes. I did consulting -- I started a
2 consulting project for a professor at the University of
3 Washington who's in the obstetrics and gynecology
4 department, and I can't recall the year that that
5 project first started up. I believe it was 1987, and I
6 did consulting for him from '87 through '88 and I
7 believe through '89 as well.
8 Q. Hence your articles in the "Obstetrics and
9 Gynecology" publication?
10 A. Correct.
11 Q. Prior to taking the position at St. Martin's
12 College you were with CH2M Hill as a statistician?
13 A. That's correct.
14 Q. Which of their offices were you employed in?
15 A. They have an office in Bellevue, Washington.
16 Q. During that period did you conduct or work on
17 any projects with their employees in their Florida
18 office?
19 A. There was one project that I was involved in
20 that was based in one of their Florida offices -- I
21 don't know if they have more than one, I don't recall
22 which office it was at this time -- that had to do
23 with -- sorry, the fundamentals of it escape me at the
24 moment. It had to do with trying to determine where
25 children who were attending school where exactly they
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1 lived, the housing tracts that they lived in, and I
2 think originally they were going to send out a survey
3 and we suggested that instead they look at databases
4 that were available both on where the children lived
5 and then a database from, say, the assessor's office
6 and try and match those two databases.
7 Q. Do you recall who from the Florida office you
8 worked with if not the location of the office?
9 A. The name of the person that I worked with
10 most closely, I believe her name was Becky Pickren, and
11 I don't know how you spell the last name. I would
12 guess P-i-c-k-r-e-n, perhaps P-i-c-k-r-i-n.
13 Q. How long were you with CH2M Hill?
14 A. I started there in the fall -- let's see if I
15 can remember -- the fall of 1987 and stayed through the
16 fall of 1988.
17 Q. Prior to that you were with the
18 biostatistical consulting unit, department of
19 biostatistics at the University of Washington for about
20 two years?
21 A. Actually just one year.
22 Q. I see the dates. The reason I am asking is
23 you can't really tell what that means.
24 A. Right, right.
25 Q. That's the period during which you were
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1 working on the issues that related to your publications
2 in maternal hemodynamics?
3 A. Yes. The public -- the research that I did
4 that resulted in the publications in the "Obstetrics
5 and Gynecology" journals, that happened starting at the
6 end of '87.
7 Q. When were you a consultant for NeoRx
8 Corporation?
9 A. NeoRx. I believe I started working for them
10 in the fall of '87 and worked with them for a period of
11 approximately four months, maybe six months.
12 Q. For a period of time, 1985 to '86, your
13 resume indicates that you were a statistician with the
14 U.S. Geological Survey in the water resources division
15 in Sacramento. What were you doing for USGS?
16 A. As I recall, most of my work was with a soil
17 scientist there named Steve Deverel, and I worked with
18 him analyzing data on selenium concentrations in
19 run-off water from agricultural land. As I recall, the
20 Kesterson National Wildlife Refuge was where the flora
21 and fauna were being impacted because agricultural
22 run-off water contained very large amounts of an
23 element called selenium, and when that agricultural
24 water reached the refuge, it started wreaking havoc
25 with the wildlife. I believe the waterfowl, their eggs
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1 that they laid, the shells were not hard. I can't
2 remember the exact details of how it impacted the
3 wildlife, but that was an issue, and so the U.S.
4 Geological Survey, this Sacramento office, was somehow
5 involved in a study of that.
6 Q. What did you actually do in the study?
7 A. I recall analyzing one main data set for
8 Steve Deverel, and it had to do with concentrations of
9 certain nutrients in two different geographic regions.
10 Q. Do you recall what nutrients were the subject
11 of that analysis?
12 A. At the current moment I don't.
13 Q. Nitrogen, phosphorus?
14 A. I really don't recall the specifics at this
15 point.
16 Q. Did any publications result from that work?
17 A. Yes. There was -- there were two
18 publications, and in fact I believe both of them are
19 listed on my C.V.
20 Q. This is S.J. Deverel and Millard,
21 "Distribution and Mobility of Selenium and Other Trace
22 Elements in Shallow Ground Water of the Western San
23 Joaquin Valley, California"?
24 A. That's correct. That's one of the
25 publications, and the other publication that resulted
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1 from that work is the one that's listed right up above
2 that.
3 Q. "Nonparametric Statistical Methods"?
4 A. That's correct.
5 Q. When you were working for your doctorate,
6 what was your chosen area for your thesis?
7 A. It grew out of the work that I was doing on
8 the EPRI project as a research assistant, and there
9 were two main areas of focus in my dissertation. One
10 was the problem of designing monitoring studies where
11 you are trading off how much money you can spend on the
12 sampling program versus how effective your monitoring
13 program will be in detecting change of a certain size.
14 Q. You were under the direction of Dr.
15 Lettenmaier for that?
16 A. That's correct. I was under the direction of
17 Dr. Lettenmaier and actually my senior advisor for my
18 dissertation was Dr. Peter Guttorp who is in the
19 department of statistics at the University of
20 Washington.
21 Q. Who was on your panel?
22 A. Dr. Guttorp was my senior advisor, Dr.
23 Lettenmaier was on my committee, Dr. Gerald Van Bell
24 who is a professor in biostatistics at the University
25 of Washington -- excuse me, he was a professor of
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1 biostatistics at the time. I believe he is now head of
2 the environmental health department. Dr. Loveday
3 Conquest was on my committee, she is in the center for
4 quantitative science at the University of Washington.
5 There is actually a fifth person on the committee under
6 the program that I was studying in. You have to have a
7 representative from somebody in biological sciences, so
8 I believe the person who was on my committee in that
9 regard was a Dr. -- I can't recall his name at the
10 time. He was actually only involved in an earlier part
11 of my examination that involved knowledge of biological
12 field and I am not even sure if he was at my final
13 exam.
14 Q. What biological field had you selected as
15 your specialty?
16 A. It involved -- let me think for a minute. I
17 believe it involved estimating abundance and
18 distribution of certain aquatic organisms. I'd have to
19 go back and dig out my notes.
20 Q. This is not something you have applied every
21 day ever since, I gather.
22 A. No.
23 Q. Have you done any prior consulting work for
24 agricultural industries?
25 A. No.
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1 Q. Have you done any prior work for the sugar
2 industry?
3 A. No.
4 Q. Or any element thereof?
5 A. No.
6 Q. Do you have a written contract for your work
7 on this case?
8 A. No. It's verbal. I have a verbal contract
9 with the firm that my counsel works for.
10 Q. Did Dr. Lettenmaier arrange that for you?
11 A. Dr. Lettenmaier was my original contact into
12 this project. The verbal contract has been discussed
13 between counsel and myself.
14 Q. Is it a fixed fee or is it time and
15 materials? What's the nature of your contractual
16 relationship?
17 A. It's time and materials at this point.
18 Q. How much time have you expended producing
19 your report and analyzing materials for the case?
20 A. I believe I spent approximately 40 hours
21 preparing this report. I'd have to go back and look at
22 my bill.
23 Q. You said at this time it's time and
24 materials. Do you anticipate or are you in the process
25 of negotiating a different arrangement?
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1 A. No.
2 Q. Do you anticipate that arrangement will
3 prevail absent sudden change?
4 A. I have no idea.
5 Q. At what rate do you bill out your time?
6 A. $70 an hour.
7 Q. I am not going to insult them by asking if
8 they're current on their payments. That's your
9 problem.
10 (Discussion off the record.)
11 Q. How is the scope of the work you were going
12 to perform under your verbal arrangement determined?
13 A. How is it currently determined?
14 Q. How was it determined at the outset?
15 A. Through Dr. Lettenmaier.
16 Q. What did he tell you is the nature of the
17 task to be performed by you?
18 A. Initially he gave me a copy of Dr. Walker's
19 report, the one dated May '91, and asked me to review
20 the report and then come up with some sort of way of
21 analyzing how good the estimates are in that report.
22 Q. The estimates of limits and target
23 concentrations?
24 A. Yes, yes.
25 Q. How did you proceed with that task?
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1 A. I was interested in assessing the adequacy of
2 the model from the start and also whether there were
3 other kinds of data available, but Dr. Lettenmaier at
4 that point said well, for the time being let's assume
5 that this is the model that we're going to use and this
6 is the data that we have, and based on these givens is
7 there some way that we can assess the variability in
8 those limits that were determined in that report, and
9 so he actually was the one who initially suggested
10 doing a bootstrap study, and so I followed up on that
11 suggestion and implemented the approach that's reported
12 in my report.
13 Q. When Dr. Lettenmaier first suggested the
14 bootstrap method to analyze the variability of the
15 limits, did you agree that that was the most
16 appropriate mechanism?
17 A. At that point I had not reviewed the report
18 in detail, so I couldn't say. But once I reviewed the
19 report, then I agreed with Dr. Lettenmaier that that
20 would be a simple way and an expedient way to get at
21 the variability in the limits.
22 Q. What other mechanisms might you have chosen?
23 A. Well, as indicated in my report, if you're
24 willing to make certain assumptions about the
25 distribution of the data or some transformation of the
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STEVEN P. MILLARD, V.1, 3-9-93
1 data, then you could analytically derive the
2 distribution of the limits. You could mathematically
3 derive that.
4 Q. You have to assume a Gaussian distribution to
5 do that?
6 A. That's correct, that's correct.
7 Q. Was there any reason why you felt it was
8 inappropriate to assume a Gaussian distribution of the
9 data sets?
10 A. I didn't necessarily feel it was
11 inappropriate, but I knew that we could get an answer
12 that was reliable without having to make the assumption
13 of Gaussian distribution.
14 Q. Bootstrap does not depend on such an
15 assumption?
16 A. That's correct.
17 Q. After the initial definition and scoping by
18 Dr. Lettenmaier, did your understanding of the task
19 alter as you got into the process such that you changed
20 the scope or altered your approach in any way?
21 A. No.
22 Q. Are you familiar with the designation of
23 witness filed in this case identifying you as an expert
24 witness for the Sugar Cane League and its allied
25 parties?
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1 A. Yes, I am.
2 MR. FITZGERALD: Can we mark that Exhibit-3.
3 (Exhibit-3 marked.)
4 Q. Have you seen what's marked as Exhibit-3
5 prior to me handing you the document today?
6 A. Yes, I have.
7 Q. When did you last see it? When did you first
8 see it?
9 A. This morning.
10 Q. All the above. So you did have an
11 opportunity to review this document as well in
12 preparation for your deposition?
13 A. Yes.
14 Q. Had you ever consulted with anybody regarding
15 the nature of your designation prior to October of
16 1992?
17 A. I don't understand the question.
18 Q. Well, I'd represent to you for the purposes
19 of this proceeding that this document naming you was
20 filed in October of 1992 in the administrative action
21 in Florida. From your prior testimony I understood
22 that you were approached in late September of '92 by
23 Dr. Lettenmaier and met with him here in Washington in
24 early to mid October, and this was filed no later than
25 October 26th. I don't know the precise date, but that
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1 was the deadline. I know it was timely.
2 A. Yes.
3 Q. Have you discussed with Dr. Lettenmaier the
4 subject matter of your expected testimony, the
5 substance of your testimony and the grounds for your
6 opinion at that time?
7 A. Only in very general terms.
8 Q. So not in the detail that appears here?
9 A. Probably not in quite this detail, no.
10 Q. Since your initial meeting with Dr.
11 Lettenmaier in October of '92, have you had occasion to
12 meet with him and discuss the nature of the testimony
13 you might render in this proceeding, the areas on which
14 you might venture opinions?
15 A. Whenever I have met with him we have talked
16 only about the project at hand, the analysis that we're
17 carrying out, and haven't really talked about -- we
18 haven't speculated as to if this were to go to court
19 what might we be talking about.
20 Q. Have you discussed that area with anyone
21 other than Dr. Lettenmaier? Other than counsel this
22 morning presumably.
23 A. No.
24 Q. In the subject matter of expected testimony
25 area, it identifies one potential area of your
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1 testimony as phosphorus trend models. With the
2 exception of the bootstrap operation you carried out
3 and your review of Dr. Walker's model contained in his
4 May '91 document, do you have any other experience with
5 phosphorus trend models?
6 A. Not with phosphorus trend models. I do with
7 trend models.
8 Q. Trend models being a fairly common
9 statistical tool?
10 A. Right.
11 Q. An environmental tool?
12 A. Right.
13 Q. Statistics. I think we'll skip that one.
14 STA modeling. Do you know what an STA is?
15 A. I believe that stands for storm treatment
16 area or something like that.
17 Q. Close enough. Storm water treatment area.
18 Are you familiar with any modeling done on the storm
19 water treatment areas pursuant to the SWIM Plan that's
20 at issue in these proceedings?
21 A. Only in a very general sense.
22 Q. Have you conducted any review of models
23 related to STAs?
24 A. No, not at this time.
25 Q. Do you represent that you are going to
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1 analyze STA modeling efforts?
2 MR. BLANK: Objection. Calls for
3 speculation.
4 You can answer if you know.
5 A. I really don't know.
6 Q. No one has discussed with you -- and I'll ask
7 the question a little more artfully. Has anyone
8 discussed with you their desire or intent that you in
9 the future as part of your work in fact review STA
10 modeling in connection with the SWIM Plan either by
11 petitioners or respondent, respondent intervenors in
12 the case?
13 A. I can't remember. I discussed the SWIM Plan
14 this morning with counsel and I can't remember if that
15 was one of the topics that he suggested may come up in
16 the future.
17 Q. Other than the phosphorus concentration
18 limits and targets that you have reviewed in connection
19 with the refuge and the work that you have identified
20 in your draft document and Dr. Walker's paper, have you
21 done any other analysis of phosphorus concentration
22 limits in connection with this case?
23 A. No.
24 Q. Has it been indicated to you that anyone
25 desires you to do further work in that area?
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1 A. Yes.
2 Q. In what area phosphorus concentration limits
3 -- or what geographical area would that be?
4 A. The refuge.
5 Q. Is that in connection with the additional
6 data you have received on S-5A and 6?
7 A. Yes.
8 Q. Beyond the refuge and those two structural
9 contributions to the surface water discharged into the
10 refuge, are you aware of any other areas within the
11 Everglades protection area where you may be requested
12 or have been requested to conduct phosphorus
13 concentration limit analysis?
14 A. I would speculate that I may --
15 MR. BLANK: Please don't.
16 A. All right. So in lieu of speculating I'd
17 have to say no.
18 Q. So as I understand that answer after the
19 hiatus, it is not your understanding at this time that
20 you will be doing it, but you may should somebody ask
21 you?
22 A. That's correct.
23 Q. What analysis, if any, have you conducted
24 into water quantity issues in this analysis?
25 A. Water quantity meaning data involving flow?
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1 Q. Flows and hydro period in the Everglades
2 Protection Area or the Everglades Agricultural Area or
3 flow data related to the operation of the central and
4 south Florida flood control project.
5 A. I assisted Dr. Lettenmaier on a project where
6 he was developing rating curve -- what's called in the
7 hydrological literature rating curves, and I don't
8 remember what area it's for. The way I was assisting
9 him was with my expertise of S-PLUS. He needed
10 something done in S-PLUS, and so he explained to me
11 what he needed done in S-PLUS. I didn't really need to
12 know the subject matter in order to do the
13 manipulations that he requested, but the variables did
14 involve flow and concentrations.
15 Q. These are rating curves for structures in the
16 Everglades region?
17 A. I don't recall what the stations were, if
18 they were structures or where they were.
19 Q. Other than providing the technical assistance
20 with the S-PLUS programming, have you yourself
21 conducted any water quantity analysis?
22 A. I have not, no.
23 Q. Other than the incidental stage levels that
24 you would have had to consider?
25 A. No, not at this point.
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1 MR. BLANK: Just for clarification purposes,
2 when you refer to incidental stage levels you are
3 referring to the stage levels on the refuge?
4 Q. Stage level statistic data related to the
5 refuge that was referenced in Dr. Walker's paper and
6 referenced in your paper.
7 Is your current understanding of the scope of
8 work which you will be called upon to perform hereafter
9 through the conclusion of the case whenever, if ever,
10 will involve water quantity analysis?
11 A. I am sorry, could you restate the question.
12 Just say it again. You don't have to restate it.
13 Q. Is it your understanding that hereafter you
14 are going to conduct water quantity analysis in this
15 case?
16 A. Yes, I will be involved in looking at flow
17 data, specifically at the structures S-5A and S-6.
18 Q. How about elsewhere in the Everglades region?
19 A. I don't know at this point.
20 Q. Other than the report you have produced
21 related to the targets and limits for the refuge, have
22 you done any other quality trend analysis in connection
23 with this case?
24 A. No.
25 Q. Are you preparing to do any?
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1 A. Yes. That would be involved in the analysis
2 that I plan on doing where I am incorporating the data
3 from the S-5A and S-6 structures.
4 Q. When you incorporate that data, do you plan
5 to rerun your bootstrap program using additional data
6 points from the inflow structures?
7 A. It's possible.
8 Q. How will you calibrate that with the stage
9 data that is the variable for the refuge?
10 A. At this point I don't know. I haven't
11 thought about it enough.
12 Q. Have you done any QA/QC database analysis in
13 connection with this case?
14 A. Nothing other than what I noted in my report
15 on the discrepancy on the data I had obtained versus
16 the data that was printed in the Walker report.
17 Q. Other than Dr. Lettenmaier, have you worked
18 with or consulted with any other experts in relation to
19 any of those six areas of expected testimony?
20 A. No.
21 MR. BLANK: Just for clarification purposes,
22 I believe you did have some contact with someone at
23 ESP.
24 A. Sorry. I needed to obtain the date -- when I
25 was reviewing Dr. Walker's report and I was
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1 preparing -- doing the work to prepare this report, I
2 needed to obtain data on the stage values at the three
3 stations that were used in the Walker report. Dr.
4 Lettenmaier -- I am not sure if he had that data or
5 not, so he suggested that I contact Bruce Myhre at ES&P
6 and so Dr. Myhre sent me three files that contained the
7 stage data on the three stations.
8 Q. Was the source of that data identified in the
9 data files?
10 A. I don't believe so.
11 Q. Did the data files encompass more than the
12 five-year period addressed in Dr. Walker's report?
13 A. Yes, they did.
14 Q. In the six areas we have just gone through
15 seriatim related to the subject matter of your expected
16 testimony, have you formed any final opinions?
17 A. No.
18 Q. The designation cites as a substance of
19 expected testimony analysis of district phosphorus
20 trend models. Assuming for the sake of this deposition
21 that that is the substance of expected testimony, what
22 analysis of South Florida Water Management District or
23 Army Corps of Engineers, Jacksonville District, because
24 I can't tell which one it means, what phosphorus trend
25 models have you conducted to date?
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1 A. The only one that I have conducted to date
2 where I have created a report is this review of the
3 Walker report.
4 Q. You understand Dr. Walker is not an employee
5 of either of those two districts.
6 A. (Witness nods.)
7 Q. You say you have produced only this report.
8 Have you conducted analysis of Corps of Engineers or
9 water management district phosphorus trend models?
10 A. No, not at this point.
11 Q. What testimony, if any, would you expect to
12 give in the issue of phosphorus concentration limits?
13 MR. BLANK: Again, Doctor, please don't
14 speculate.
15 A. I don't know.
16 Q. Rather than go through the six categories
17 there, would it be fair to say that essentially your
18 answers on those would be as with your answers on the
19 subject matter of expected testimony, that either of
20 those areas have not yet been identified to you as
21 within the scope of work someone wishes you to perform
22 or the precise nature has not been identified to you as
23 yet?
24 A. Correct.
25 Q. The only one I'd like to specifically touch
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1 on is the review of other consultants' and experts'
2 analyses. Other than Dr. Walker's May '91 paper, have
3 you conducted a review of any other consultants' or
4 experts' analysis in connection with this case?
5 A. No.
6 Q. Has anyone asked you to conduct analysis of
7 other experts' or consultants' work?
8 A. Not at this time.
9 Q. In what ways do you foresee or plan to refine
10 your draft document hereafter in order to finalize it?
11 A. There are a number of proposed tasks on page
12 5 and 6 of my report, and I assume that I will be
13 talking with Dr. Lettenmaier and counsel as to which,
14 if any, of those tasks they may want me to perform or
15 other tasks.
16 Q. I take it, then -- or am I correct in taking
17 it, then, that thus far you are not authorized or
18 directed to proceed with any of those follow-on efforts
19 identified in your draft report?
20 A. Not the ones that have been identified in my
21 draft report, no.
22 Q. Who solicited you to conduct the additional
23 analysis in the refuge with the S-5A and S-6 data?
24 A. Dr. Lettenmaier.
25 Q. What was his expressed purpose for having you
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1 look at that particular data?
2 A. He said the request came from counsel, from
3 Mr. Blank.
4 Q. Do you know what you are looking for or how
5 that data will fit with the draft as you have conducted
6 it thus far?
7 A. Yes. As I understand it, the question is if
8 limits are imposed in the refuse on how much phosphorus
9 is allowed in the refuge, the question is whether there
10 is in fact any relationship between the amount of
11 phosphorus at the inflow structures S-5A and S-6 and
12 the actual phosphorus that's observed in the refuge.
13 So the point of my analysis that I have been requested
14 to work on is to look at what, if any, relationship
15 there is between phosphorus concentrations at the
16 inflow structures S-5A and S-6 and phosphorus
17 concentration in the marsh.
18 Q. In conducting your work thus far, have you
19 had access or been provided any of the earlier drafts
20 of the SWIM Plan, the several iterations it went
21 through prior to --
22 A. No, no.
23 Q. In the same vein, were you provided any of
24 the earlier iterations of Dr. Walker's work related to
25 targeted interim concentration limits of total
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1 phosphorus in the refuge?
2 A. No.
3 Q. The final category in your designation of
4 witness relates to the grounds and date for opinion.
5 The initial category there or I suppose it's intended
6 to be a grounds, it says, "See SWIM process
7 procedures." Do you have any idea what that means? Or
8 put another way, can you explain to me what it means?
9 A. I don't know what that means.
10 Q. Would the same answer apply to the related
11 data and documents rubrics, with the exception of Dr.
12 Walker's document that you had prior to the production
13 of your January draft?
14 A. Well, the second part of the related data and
15 documents, I assume what that means is whatever
16 opinions I come up with would be based on the data that
17 the water district is using to come up with limits.
18 Q. Do you know what DER is?
19 A. I assume that stands for Department of
20 Environmental Resources, something like that, a state
21 agency.
22 Q. What DER policies and procedures have you had
23 access to and reviewed in connection with your work on
24 the case thus far?
25 A. The only ones I would have in my possession
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1 is whatever is printed in the SWIM -- the document --
2 MR. BLANK: The planning document?
3 A. The planning document, which as I say, I have
4 only looked at briefly.
5 Q. You understand that the Everglades SWIM Plan
6 planning document dated March 13 of 1992 is adopted by
7 the board of the South Florida Water Management
8 District which is not a subsidiary or related directly
9 to DER?
10 A. In that case, then I have not seen any DER
11 policies and procedures.
12 Q. With regard to the date of your final
13 opinion, this notice, which is, as I said, filed back
14 in October of this past year, thought you might have
15 your final opinions by February 15th of 1993.
16 Obviously that's not the case, correct?
17 A. That's correct.
18 Q. It further says that it's dependent upon
19 completion of work in progress and analysis of data to
20 result from timely entry and access to the park and
21 refuge. If additional sampling is done in the refuge,
22 would you employ data derived from further sampling
23 program in the refuge to update your bootstrap program,
24 your bootstrap run?
25 A. If requested by counsel, I could look at that
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1 data and think about how I might incorporate it in
2 whatever modeling procedure's come up with. Whether I
3 would use that to update my bootstrap procedure is -- I
4 don't know at this point.
5 Q. Assume the same sampling stations employed in
6 Dr. Walker's analysis and your analysis of Dr. Walker's
7 analysis continue to be sampled. Does it have any
8 value to you in your analysis to have that data on --
9 where the sampling is done on a monthly basis
10 hereafter?
11 A. Yes, that would help in the analysis -- well,
12 I have to -- I have to answer that with a caveat. It
13 would help with analysis assuming that nothing has
14 changed drastically in the sampling procedure and how
15 the samples are analyzed between the dates when the
16 original data was taken between '78 and '83 and the way
17 the data is being collected now and analyzed. If
18 substantially different laboratory techniques are being
19 used, then that could call into question the validity
20 of combining those two data sets.
21 Q. Isn't that equally true with respect to the
22 five years' worth of data and any data you might crank
23 into the equation from S-5A and 6?
24 A. That's certainly true. If there has been a
25 drastic change in laboratory analysis over that
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1 five-year period, then that would affect any results
2 that you get from analyzing that data. The reason that
3 I bring the point up is just because from my
4 perspective there is a large gap in time between when
5 the last observation was taken in the refuge that's in
6 Walker's report and the current time, and so as a
7 statistician, that always rings a bell, an alarm.
8 Q. If and when that data became available to
9 you, if the data falls within the historic range that
10 your table and Dr. Walker's table identified for the
11 base period of five years and the 14 stations that --
12 or 16 stations that appear there, so if the data falls
13 within that range, does that tell you anything about
14 the accuracy of the predictive value of the model
15 constructed by Dr. Walker? Can you validate the model
16 from that?
17 MR. BLANK: Object to the form of the
18 question. It's very vague and ambiguous to me. I am
19 not sure what you are asking.
20 Doctor, if you can answer it, go ahead.
21 Q. It isn't to me, but it is to the witness.
22 I can ask it another way if you prefer.
23 A. Actually could you ask it again. I was going
24 to proffer an answer, but that was going to be full of
25 caveats so why don't you --
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1 Q. If data from a current sampling program had
2 given geometric mean stages arithmetically derived as
3 they are in your report and Dr. Walker's report falls
4 within the predictive range of Dr. Walker's model,
5 would that not tend to validate the predictive capacity
6 of the model with respect to interim targets and
7 limits?
8 MR. BLANK: Just for the record let me repeat
9 the same objection, but go ahead if you have an
10 answer.
11 A. My answer to that is that I can't say for
12 sure because you're making the assumption that the
13 model that was used by Dr. Walker is a good one in
14 predicting -- in modeling the system, and it may be
15 that if in fact -- if you use a different model to
16 model the system, then the new data that you are
17 collecting may actually show that you are not falling
18 into -- you are not -- really have something else going
19 on.
20 Q. Go ahead. I didn't mean to cut you off.
21 A. I was going to say the reason that I say that
22 is you prefaced your question by saying for a given
23 stage, you said for a given geometric mean stage,,
24 actually I think they just used the straight average
25 for the stage.
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1 Q. That's why I changed that.
2 A. You said for a given stage if the new data
3 that's being collected seems to fall into the range
4 that was observed under the -- with the originally
5 collected data in the '78 to '83 period, your question
6 is wouldn't that validate the model that Walker
7 developed, and I am saying not necessarily because it
8 may be that stage is not the best variable to use to
9 try and model the system.
10 Q. What in the data sets available to you
11 suggests itself as a better variable?
12 A. I have not looked at the data closely enough
13 to see if there are other variables that might be
14 better. I haven't gone that far in my analysis.
15 Q. So at least at this point you cannot identify
16 any variable that would be superior to stage data?
17 A. No.
18 Q. In reviewing the data that was available and
19 in reviewing the SWIM Plan, you are aware, are you not,
20 that a relationship has been identified between stage
21 data and concentration levels in surface water in
22 Loxahatchee refuge?
23 A. That was pointed out in Dr. Walker's report.
24 Q. It is also in the portion of the SWIM Plan
25 that you read, was it not?
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1 A. Yes, I believe there was a sentence that made
2 a statement to that effect.
3 Q. Do you have any basis right now for
4 suggesting that that's incorrect?
5 A. No, I can't say that's incorrect.
6 Q. I understand that there is a null hypothesis
7 there.
8 What ongoing work in the refuge is the
9 resolution of your draft into a final document
10 dependent upon? If it's not additional testing and
11 sampling, because you have just suggested that in fact
12 may not tell you anything.
13 MR. BLANK: Objection. That's not what the
14 witness testified to.
15 Q. Am I incorrect in understanding that
16 additional test data from the refuge, current test
17 data, may in fact have no value whatsoever in
18 validating or invalidating the model that Dr. Walker
19 has propounded?
20 A. I believe what I said, the point I was trying
21 to make if I didn't make the point was that whatever
22 model you are looking at, if you want to use the data
23 that was originally collected in the '78 to '83 time
24 period and take that data and combine it with the data
25 that's currently being collected, you need to be
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1 careful about any differences in collecting procedure,
2 analyzing procedure between those two time periods.
3 Q. That's not a novel concept, though, is it?
4 That's something that you would anticipate any
5 reasonably competent sampler, statistician,
6 environmental engineer would have in mind. That's
7 always a danger in looking at a long period of record
8 for data.
9 A. That's correct, that's correct.
10 Q. And you understand that the predictive
11 capacity of the model incorporated in Appendix E to the
12 SWIM Plan utilizes that five-year period to set certain
13 limits, set limits and set targets for Loxahatchee.
14 A. Yes.
15 MR. BLANK: Let me just interject something
16 for clarification. Are we talking about Appendix E or
17 the Walker report now?
18 MR. FITZGERALD: I said Appendix E now.
19 Q. Do you understand Appendix E has a model as
20 well?
21 A. Yes.
22 Q. You understand that it's not the same model
23 as Dr. Walker's May 1991 paper?
24 A. Yes.
25 Q. Is it fair to say that it's similar in
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1 concept but executed slightly differently in detail?
2 A. In layperson language, yes, you could say
3 that.
4 Q. That's for the benefit of the hearing officer
5 actually. We'll talk about the difference.
6 So what are you waiting for from Loxahatchee?
7 A. In order to --
8 Q. Finalize this draft. That's really how we
9 got around. That's where we were going with all that.
10 A. Okay. What I would want to do before I
11 finalize this report is engage in at least some of
12 these proposed tasks.
13 Q. Am I correct in understanding that your
14 proposed tasks are not dependent on analysis of data
15 from current testing or sampling in the refuge?
16 A. I am sorry, say that -- could you repeat the
17 question.
18 Q. You have cited to the five or six things-to-
19 do ideas. Are any of those dependent on current
20 sampling in the refuge?
21 A. They're not dependent on current sampling in
22 the refuge so that I could form some opinion of the
23 model based on that data. However, obviously if there
24 is other data available and now I know of that, then I
25 will say at this point that I cannot form a final
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1 opinion until I have seen that data as well.
2 Q. When did you become aware that other data was
3 available?
4 A. Oh, I have known that for at least a month.
5 Q. Has anybody provided you with that data?
6 A. No.
7 Q. Have you asked for it?
8 A. Dr. Lettenmaier told me that it's in the
9 process of being collected and he was -- he thought
10 that probably only one or two dates were actually
11 available at this point and so it wouldn't be worth
12 looking at until a few more observations were
13 available.
14 Q. Are you doing any work with respect to
15 Everglades National Park?
16 A. Not currently.
17 Q. Has anybody defined your scope of work to
18 include any issues directly related to Everglades
19 National Park inflows or phosphorus concentration
20 limits for the park as distinct from the refuge?
21 A. Not currently.
22 Q. So that portion of the grounds/date for
23 opinion is probably somebody just ran the word
24 processor with the standard language.
25 MR. FITZGERALD: Could we have this marked as
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1 Exhibit-4.
2 (Exhibit-4 marked.)
3 Q. Doctor, I am providing you an excerpt of the
4 planning document of the Surface Water Improvement and
5 Management Plan, SWIM Plan if you will, for the
6 Everglades adopted March 13, 1992, by the South Florida
7 Water Management District, and the excerpts encompass
8 page 100 through page 105. If I can refer to paragraph
9 captioned number 2, Phosphorus Levels for LNWR,
10 Loxahatchee National Wildlife Refuge. This is the
11 portion of the SWIM Plan planning document, you
12 mentioned earlier you had reviewed the pages 102 to
13 105?
14 A. Yes, I have briefly read this.
15 Q. You are aware that the actual model as
16 derived and adopted by the water management district
17 employs 14 internal marsh stations to set its limits --
18 A. Yes.
19 Q. -- and targets. And three water gauging
20 stations or stage data stations for stage data
21 variables in the equations?
22 A. Yes.
23 Q. The top of page 103 there is a sentence that
24 says, "To account for the observed correlation between
25 marsh total phosphorus concentration and stage, the
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1 concentration levels vary with the average interior
2 stage on the date of sample collection." That's what
3 you were referring to earlier about the --
4 A. The statement to the effect --
5 Q. The potential problem with the model if that
6 turns out not to be true. Or no, I am sorry --
7 A. I didn't really say whether that was true or
8 not. There may be other variables to look at.
9 Q. In reviewing Dr. Walker's work and in
10 reviewing the material contained in this document, did
11 you find anything to suggest that the linear
12 relationship, the simple regression analysis that was
13 conducted by Dr. Walker to establish that relationship
14 was incorrect?
15 A. I have not at this point, because I have not
16 done an analysis of the goodness of fit of that model.
17 To produce this report, as I said, Dr. Lettenmaier said
18 let's take as given that this is the model that will be
19 used.
20 Q. Do you understand what the report means or
21 this section of the planning document means when it
22 talks about a ten percent rejection level for the three
23 stage data stations?
24 MR. BLANK: Where are you reading, Counsel?
25 MR. FITZGERALD: It appears several places.
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1 It's on page 104 and it's also back there I think on
2 102.
3 MR. BLANK: I saw ten percent --
4 MR. FITZGERALD: On top of 103.
5 MR. BLANK: That's relating to the 14 station
6 interior marsh mean concentration.
7 MR. FITZGERALD: Yes.
8 Q. Then on 105 -- I am sorry, 104, the middle of
9 the page, the paragraph starts "Effective July 1," it
10 talks about "the ten percent rejection level of
11 stations CA1-5, CA1-6 and CA1-16 at a given mean daily
12 stage." Do you understand what they are talking about
13 there by a ten percent rejection level?
14 A. I believe what they mean is the -- when they
15 developed the interim levels in Appendix E, they fit a
16 regression model that involved the variable stage as
17 predictor variable and also a time variable to account
18 whether you were in the baseline period or not. When
19 they fit this regression model, you can then come up
20 with a number of statistics and a number of ways of
21 quantifying statistics associated with that fit, and I
22 believe what they're referring to here when they talk
23 about a ten percent rejection level is the following:
24 For a given value of stage, if you make the assumption
25 of normally distributed errors, then you can predict
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1 what the distribution of the response variable is, in
2 this case the response variable is the geometric
3 mean -- sorry, in their model the response variable is
4 actually the mean of the log of the observations.
5 So for a given value of stage, if you make
6 the assumption normally distributed errors, then a
7 standard statistical method or technique tells you that
8 the distribution at that given level of stage is going
9 to be a normal distribution with a certain mean and a
10 certain variance. Since you know the distribution, you
11 can state what the 90th percentile is of that
12 distribution. If I remember correctly, that is what
13 they were using as the interim limit or the interim
14 level is what they're calling it here is the 90th
15 percentile of that distribution for a given value of
16 mean daily stage.
17 So what that means is if your model is
18 correct, if the assumptions of normal errors is
19 correct, if your model is correct, you have got the
20 right variables, then for a given value of mean stage
21 you can say that 90 percent of the time the mean of the
22 log should fall below this value. You can actually
23 transform the results back into the original units of
24 parts per billion, so you can say 90 percent of the
25 time your observed geometric mean should fall below
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1 this number. So what that means is that ten percent of
2 the time your geometric mean is going to fall above
3 that number.
4 Q. If your goal is to protect a resource and
5 that is defined as not allowing above a certain
6 concentration of, say, phosphorus, to be detected in
7 the area in your compliance test, am I correct in
8 understanding that by setting a 90 percent confidence
9 interval what you are saying is that in 90 percent of
10 the tests if your predictive model is correct, you
11 should in fact fall within the acceptable limits that
12 you have defined?
13 A. If you are defining the limit to be the 90th
14 percentile, then what that means is if the true
15 concentrations are -- if the true geometric mean
16 concentration is the same as it was in the baseline
17 period, then you would not exceed that limit except ten
18 percent of the time.
19 Q. So you are accepting a ten percent risk or
20 probability that you will exceed based on the model as
21 designed?
22 A. That's correct.
23 Q. Is it valid to assume a normal error
24 distribution in this case?
25 A. I couldn't answer that until I looked at the
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1 data more closely. Actually what they assumed was that
2 the original data, they assumed a log normal
3 distribution because they took the log of the data and
4 assumed that in log space -- logarithmic space --
5 Q. When you say "they," to whom are you
6 referring?
7 A. The people who developed the model that's
8 described in Appendix E.
9 Q. Dr. Walker did not employ that technique
10 initially, did he, in his paper that you reviewed?
11 A. No. The model that -- when I -- the
12 difference between the model in Dr. Walker's and the
13 model in Appendix E, I believe there's two main
14 differences. The first difference has to do with the
15 data that were used. In Appendix E data from stations
16 1 and 2 were not used. There were only data from 14
17 stations used, whereas in the report by Dr. Walker data
18 from 16 marsh stations were used.
19 The second difference is that Dr. Walker,
20 instead of taking the log of the observations and then
21 doing his regression and log space, he looked at
22 geometric means, which is essentially you take the log
23 of the data, take the mean and then transform it back
24 to the original units, that's one way of thinking of a
25 geometric mean, and then actually instead of using the
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1 geometric mean as the response variable he made another
2 transformation. He took one over the square root of
3 the geometric mean, and that he used as his response
4 variable in the regression model. So he assumed that
5 one over the square root of the geometric mean that
6 data were normally distributed.
7 Q. It's your testimony that you can't verify
8 that that is correct or not without doing further
9 analysis?
10 A. Yes. Let me say it's my testimony that I
11 can't say whether whether it looks like taking a log
12 transformation or doing what Dr. Walker did appears to
13 get you closer to a normal distribution or not. You
14 can't really say what transformation is correct,
15 because in reality you can't ever say that anything is
16 precisely normally distributed.
17 Q. Is the choice between the two, then, a matter
18 of personal preference or is there some factor that
19 would dictate you would use one or the other?
20 A. I am not sure what led Dr. Walker to use the
21 transformation that he did. It may be that he
22 originally took the log of the observations and for
23 some reason after looking at certain diagnostic plots
24 decided that that didn't work as far as bringing it
25 close to a normal distribution.
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1 Q. If one were able to bring to this work
2 experiential input from a limnologist, someone of that
3 character, could their input tilt you in one direction
4 or the other in choosing between the two techniques?
5 A. Most statisticians if they're doing analysis
6 would want to consult with an environmental scientist
7 to ask what's known in their field about how certain
8 quantities behave, and in fact I am aware from my work
9 in working with environmental data and water quality
10 data that in fact a lot of times people do assume that
11 the data are log normally distributed.
12 Q. What's your understanding of why stations 1
13 and 2 were dropped by the water management district in
14 its Appendix E analysis?
15 A. I don't think I recall all of the
16 explanation. I do recall that there were quite a
17 number of missing values at those two stations
18 something on the order of 40 percent, and I believe
19 that was at least one of the reasons given. Of course
20 that wouldn't be satisfactory to a statistician for why
21 you would drop data.
22 Q. You recall the 40 percent, so I know you have
23 an excellent short-term memory. When did you read
24 Appendix E?
25 A. I believe I read it yesterday.
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1 Q. Do you recall the discussion in Appendix E
2 related to the rejection of those values because as
3 well the perceived link between stage data and
4 concentration levels was such that at extremely low
5 water stages certain of the sampling sites could dry
6 down or become very, very difficult to sample, thereby
7 introducing a bias in the sample results?
8 A. I do recall that explanation now that you
9 bring it up.
10 Q. Is that the kind of thing that you would be
11 consulting with the limnologist or the environmental
12 scientist to learn in order to determine if your
13 population of data can validly be manipulated? Not in
14 the sense that -- you can always manipulate it whether
15 it's real world valid or -- this is your reality check,
16 right? Given the statements of the district proponents
17 in Appendix E, assuming for our purposes just for this
18 question that those are correct and there is that
19 direct linkage and they would come up with relatively
20 asymptotical values for peak concentration as the water
21 stage diminishes towards drydown, would that be a valid
22 reason in your mind for rejecting the data points from
23 stations 1 and 2 and reducing your field from 16
24 stations to 14?
25 A. Before I answer that question, let me see if
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1 I can summarize it. So the question is if certain
2 environmental scientists or limnologists explained that
3 the process that's going on is when the stage is so low
4 that you do have a problem with sampling for those two
5 stations, 1 and 2, if the environmental scientist
6 and/or the limnologist said that is that a valid reason
7 for dropping those stations? Is that the question?
8 Q. Yes, along with the 40 percent missing data
9 during the period of record.
10 A. I can't give you a definite opinion at this
11 point, because as a statistician I would have to worry
12 about is it really only those two stations that you
13 have that problem with or are there other stations as
14 well.
15 Q. So you would seek further information of an
16 experiential nature to answer that?
17 A. That's correct.
18 Q. How much absent data would you be willing to
19 accept in conducting this kind of analysis before you
20 would want to reject a data point? I take it from your
21 testimony 40 percent doesn't trouble you particularly.
22 A. When you say rejected data point, you really
23 mean rejected a particular station?
24 Q. Yes. I am sorry, by rejected data point I
25 mean sampling site.
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1 A. A statistician -- well, at least my
2 philosophy is that you want to use as much data as you
3 can. Even if they're missing values in a long series
4 you would still want to use as much data as you can,
5 and if there is not a good -- a very good reason for
6 leaving that data out, you would want to include that
7 in your model.
8 Q. If you have missing data coupled with a known
9 bias effect from the available data, would that
10 persuade you in the direction of omitting that data?
11 A. In a situation like that, I would either have
12 to investigate with the environmental scientist if
13 there is a way to somehow correct for that bias or else
14 leave those data out.
15 Q. Have you ever indicated to Dr. Lettenmaier or
16 anyone else that refinements would occur in your draft
17 report to take it to a finalized version based upon
18 water quality data generated as a result of further
19 sampling in the refuge?
20 A. Do I see -- let me again try and summarize
21 the question. Have I indicated to Dennis that my
22 report would be --
23 Q. Or anyone else.
24 A. Or anyone else. -- would be revised after I
25 received the data that's being collected now? I am not
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1 sure I understand your question.
2 Q. Yes. That's a fair summary.
3 A. At this point we haven't really discussed all
4 the details what would be involved in finalizing this
5 report, so I guess in general terms I have talked with
6 Dennis about yes, once we get new data we will probably
7 renew this study, perhaps do other bootstrap, maybe
8 with this model, maybe with a different model.
9 Q. Why would you bother doing another bootstrap
10 on Dr. Walker's model when it's not in the SWIM Plan?
11 A. Well, I guess I'd have to say at this point I
12 am not sure.
13 Q. Did anyone ever explain to you prior to your
14 conduct of the bootstrap analysis that in fact Dr.
15 Walker's May '91 model was not incorporated in the SWIM
16 Plan?
17 A. No, no one explained that to me.
18 Q. When did you first become aware that the SWIM
19 Plan Appendix E equations were not the same as Dr.
20 Walker's?
21 A. Last week.
22 Q. Did you ask Dr. Lettenmaier why he did not
23 have you do this analysis on the version that's in the
24 challenged SWIM Plan that's germane to this proceeding?
25 A. Yes, I asked him, and he said that he himself
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1 wasn't sure at that point which model was actually
2 going to be adopted by the water district, whether it
3 was going to be Walker's or whether -- Walker's model
4 or whether it's going to be what's in the appendix.
5 Q. Do you see the date of adoption on Exhibit-4?
6 A. Yes.
7 Q. That's before you first met with Dr.
8 Lettenmaier, isn't it?
9 A. Yes.
10 Q. In fact it's a good six months before Dr.
11 Lettenmaier first approached you to do any work in this
12 case.
13 A. Yes.
14 Q. So the version adopted was already adopted at
15 the time he approached you.
16 A. Uh-huh.
17 Q. Which is not Dr. Walker's model --
18 MR. BLANK: Counsel, when you use the term
19 "adopted," you are referring to the approval by the
20 board of the SWIM Plan, are you not?
21 MR. FITZGERALD: The board formally adopted
22 by a vote the SWIM Plan on March 13th. I understand
23 the legal implication of the challenge, but for the
24 purposes of the board it's adopted subject to
25 resolution of the case.
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1 Q. I suspect you were not aware of that, but for
2 our purposes counsel is certainly correct it's adopted
3 subject to the outcome of the case. But at the time --
4 I need to explore a little bit. What was your
5 understanding of what Dr. Lettenmaier meant? To your
6 understanding was he drawing a distinction between what
7 was actually in the SWIM Plan?
8 A. I don't think he was clear in his mind
9 what -- which -- what the final model was or is that
10 has been adopted.
11 Q. Is he assisting you in this work?
12 A. In which work are you talking about?
13 Q. The refinement and finalization of your draft
14 report.
15 A. Yes, I am working with him.
16 (Exhibit-5 marked.)
17 Q. I am showing you what's marked Exhibit-5. Is
18 this is the computer source code document you mentioned
19 at the outset of the deposition that you had provided
20 through counsel that document your application of
21 bootstrap?
22 A. That's correct.
23 Q. I have seen bootstrap programs that can
24 produce an out column for N equal to 1,000 as yours
25 does in a fraction of the length of your program. What
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1 other capabilities are reflected in your program as
2 provided beyond conducting the strict bootstrap
3 analysis?
4 A. Well, the way the program works is it -- for
5 each bootstrap sample it samples with replacement
6 the -- what's called the regression matrix. In this
7 case that would be the rows would correspond to the --
8 Q. Station, sampling station. Rows, do you mean
9 horizontally or vertically?
10 A. I will have to go back to look at this to
11 tell you whether I mean rows or columns, but --
12 Q. Let me suggest to you that rows are dates and
13 columns are stations.
14 A. Okay.
15 Q. And point you at your draft document where I
16 think you show that in your --
17 A. Here we go. 14 rows and 3 columns. The rows
18 correspond to the dates and the columns correspond to
19 the predictor variables in the model. So for each
20 bootstrap sample I randomly sampled those 14 rows with
21 replacement, did a regression fit, computed the limits
22 based on the same methodology that Dr. Walker used.
23 Now, the result of -- sorry, let me go back and ask --
24 let me make sure I understand your original question.
25 When your original question are you -- is it your
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1 understanding that all these pages were involved in
2 performing the bootstrap?
3 Q. That is --
4 A. Okay, that is an incorrect assumption. The
5 actual function that was used to perform the bootstrap
6 is this function named bootstrap.lm which goes from the
7 bottom of that page up to about --
8 Q. The bottom of the first page through about
9 eight lines on the second page?
10 A. Right, and then there is another function
11 bootstrap.pred.limits, which I can't recall whether I
12 used one of these or both of these. The other
13 functions here that you see listed out involve the
14 functions that I used, for example, to produce the
15 pictures in the report.
16 Q. You anticipate my question. I was going to
17 ask you whether or not the program source codes as you
18 have provided them in that document that runs, what,
19 ten, 15 pages can generate graphical displays. I take
20 it from your answer the answer is yes.
21 A. If you have S-PLUS.
22 Q. A little plug. I was going to ask you did
23 you do so in aid of your analysis?
24 A. Did I --
25 Q. Generate graphical displays.
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1 A. Right. And those are the graphical displays
2 that you see in this report.
3 Q. Other than the whisker graphs and the block
4 graphs and whatnot that you have provided as part of
5 your draft report from January 8th, 1993, did you
6 produce any other graphic displays to assist you in
7 your analysis?
8 A. Not in this particular analysis. There are
9 probably some functions listed in here that I used to
10 look at some of the raw data or maybe even do some
11 diagnostics on the model, but that I never proceeded to
12 completion with that work.
13 Q. Did you save the diagnostics to memory?
14 A. To this memory or to my computer?
15 Q. Not to soft memory. Electronic.
16 A. The diagnostics of the model are probably --
17 either the code to produce the diagnostics and/or the
18 code to produce pictures may be on my computer, but as
19 I said, it turned out that Dennis wanted me to assume
20 that this is the model that we're going to use and so
21 he didn't want me to pursue looking at diagnostics for
22 that model.
23 Q. The purpose of looking at diagnostics for
24 that model would be, and correct me if I am wrong, if
25 you wanted to try and design a better model.
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1 A. That's correct, or just assess how well the
2 current model's doing.
3 Q. So you didn't hard copy any of that
4 diagnostic work or the other pictures?
5 A. I may have, but it never was put into any
6 report that I produced. In fact you might consider
7 that work in progress if I ever end up doing anything
8 like that.
9 Q. Other than diagnostics, did you conduct any
10 other manipulations or analysis of the data to evaluate
11 the model proposed by Dr. Walker or the program
12 incorporated in Appendix E of the SWIM Plan?
13 A. I think I have -- I know I have fit some
14 other models where I think I used -- instead of using
15 the geometric mean as -- or actually one over the
16 square root of the geometric mean as the response
17 variable, I probably looked at different
18 transformations of the raw data, and I may have some
19 diagnostics printed out from those models, but in fact
20 I have not looked at them to see -- to interpret them.
21 Q. You believe those have been printed out?
22 A. I believe I printed out at least a couple
23 pictures of diagnostics, a couple graphs of diagnostics
24 from that.
25 MR. FITZGERALD: Counsel, I think those are
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1 producible under the notice. And I would like them
2 along with the other items that we identified earlier.
3 I certainly would not delay the proceeding for them,
4 but I think because they were done in relationship to
5 the development of this report which has been produced
6 that they are subject to discovery at this point.
7 Q. There is no proprietary information in there
8 or anything other than -- I mean those diagnostics and
9 materials that you have developed, they're all related
10 to your evaluation of Dr. Walker's model and the work
11 that he was doing? There's no proprietary data as the
12 foundation of that work?
13 A. No, no.
14 (Exhibit-6 marked.)
15 Q. Showing you what's marked as Exhibit-6 for
16 the deposition, I represent to you that this is an
17 excerpt from the Everglades SWIM Plan as adopted by the
18 South Florida Water Management District on March 13,
19 1992, from the appendices volume, and it's from
20 Appendix E, pages E-16 through E-23, captioned
21 "Phosphorus Levels for Loxahatchee National Wildlife
22 Refuge." I ask you to take a minute, just look through
23 that and tell me if this in fact is the portion of
24 Appendix E you were referring to earlier that you
25 received within the last few days and read yesterday I
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1 guess.
2 A. That's correct.
3 Q. The second paragraph on page E-16 states that
4 "Statistical analyses of these data," as identified in
5 the earlier paragraph, "utilize the logarithmic scale
6 of total phosphorus concentration which was found to
7 improve additivity," which is easier to spell than say,
8 refers you to figure C and then says, "and reduce
9 skewness," s-k-e-w-n-e-s-s. This is one of the
10 recommendations or comments you had in your draft
11 report on Dr. Walker's work that this is an approach
12 that should be pursued, was it not, the use of the
13 logarithmic scale?
14 A. The comment that I made in my report --
15 Q. That's page 3, comment number 2?
16 A. Yes, page 3, comment number 2. I was curious
17 as to why he used the geometric mean instead of taking
18 the log of the data and then using a transformation of
19 it, because taking the geometric mean and then taking
20 one over the square root is not something that you see
21 commonly done all the time in analyzing environmental
22 data.
23 Q. If you conducted a similar analysis of the
24 total phosphorus concentration and found that in fact
25 what is stated here is correct, that using a
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1 logarithmic scale improves additivity -- is that how
2 it's pronounced?
3 A. Yes.
4 Q. -- and reduces skewness, would that persuade
5 you of the validity of using the logarithmic scale as
6 the preferred method?
7 A. I would actually have to look at the data
8 itself, look at diagnostic plots of the data, things
9 like what are called Q-Q plots to assess whether taking
10 the log of the data really makes it close to a normal
11 distribution and whether that's, quote, the best way of
12 doing it. I doubt that you will ever get a
13 statistician to tell you there is a best way for doing
14 it.
15 Q. I can live with that. Do you agree that
16 analysis of the database which you conducted in order
17 to do your review of Dr. Walker's work exhibits a
18 permanence of the interior marsh stations, that is,
19 over time their total phosphorus values will tend to
20 stand in the same ratio, or to put it another way, the
21 difference in their log concentrations will tend to
22 remain constant?
23 A. I am sorry, can you repeat the question one
24 more time.
25 Q. Let me do it the easy way. You have reviewed
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1 the data. Do you agree that the database, which is
2 described herein and which is the same database
3 essentially but for the two stations that you analyzed,
4 demonstrate permanence of the interior marsh stations?
5 MR. BLANK: I object to the question as being
6 vague and ambiguous. I don't understand what you mean
7 by "permanence of the marsh stations."
8 Q. Do you see, Doctor, on page E-16, second
9 paragraph, the term "permanence" as that appears at the
10 start of the second full sentence?
11 A. Yes. As I understand this sentence, what
12 they're talking about is in statistical jargon there is
13 an idea of a fixed effect and a random effect, and the
14 difference between the two has to do with the
15 population that you are trying to make an inference
16 towards. So what they're saying is in this analysis
17 you would treat these stations as being in statistical
18 terms a fixed effect factor rather than a random effect
19 factor, because they're making the assumption that in
20 the future sampling will only be done at these
21 particular 16 locations and the limits will be applied
22 from data only from these 16 particular locations. So
23 I agree with the sentence and the thinking that you
24 would call these stations fixed effects if in fact
25 that's how you are going to conduct the sampling
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1 program in the future.
2 Q. You understand from the balance of that
3 discussion that that's exactly how they are going to
4 conduct the sampling. Once they reject stations 1 and
5 2, that is the plan as it stands?
6 A. Right, right. So that part of the sentence I
7 understand and as a statistician would agree with.
8 Q. We already talked about station CA1-1 and
9 CA1-2 on the 40 percent absent data.
10 MR. BLANK: I am sorry, Counsel, are you
11 posing a question?
12 MR. FITZGERALD: Trying to, although I think
13 maybe we already covered it and we can move on. I
14 think we did kind of cover that.
15 (Brief recess.)
16 Q. Would you agree with the characterization in
17 the Exhibit-6 that the 14 stations, excluding out CA1-1
18 and CA1-2, were almost always represented adequately in
19 the sample for statistical purposes?
20 A. As I recall, I would say yes. I don't think
21 there were too many missing values.
22 Q. Well, you analyzed the same data field in
23 reviewing Dr. Walker's work.
24 A. Right.
25 Q. Did you find there would be absent values to
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1 the point that it was not usable within reasonable
2 statistical limits?
3 A. No, no.
4 Q. In the data did you observe the correlation
5 between low stage and high concentrations of
6 phosphorus?
7 A. At this point all I can say is that I
8 observed the -- I reproduced Walker's model which in
9 fact has a statistically significant coefficient for
10 stage which that means yes, there is a -- there is a
11 significant correlation between concentration and the
12 variable stage.
13 Q. What was the level of statistical
14 significance?
15 A. In the model, when both the time variable
16 that indicates whether you are in the baseline period
17 or not and stage or in the model you get a
18 coefficient -- oh, actually I don't have the P-value
19 for the coefficient listed in here, but I