357
1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
SUGAR CANE GROWERS COOPERATIVE OF
3 FLORIDA, INC., ROTH FARMS, INC.,
and WEDGWORTH FARMS, INC.,
4
and
5
FLORIDA SUGAR CANE LEAGUE, INC.,
6 UNITED STATES SUGAR CORPORATION,
and NEW HOPE SOUTH, INC.,
7
and
8
FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
9 ASSOCIATION, LEWIS POPE FARMS, 92-3039
W.E. SCHLECHTER & SONS, INC., and 92-3040
10 HUNDLEY FARMS, INC.,
11 Petitioners,
12 vs.
13 SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,
14
Respondent,
15
and
16
MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA, the UNITED STATES OF
AMERICA, FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, and
FLORIDA WILDLIFE FEDERATION,
19
Intervenors.
20 . . . . . . . . . . . . . . . . . . . /
21
22 VOLUME III
23 DEPOSITION OF FRANK L. NEARHOOF
24 November 18, 1992
25
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1
2 DEPOSITION OF FRANK L. NEARHOOF
3 Taken in the above-styled cause, pursuant to
4 notice, at the Department of Environmental Regulation, 2600
5 Blair Stone Road, Tallahassee, Florida, on November 18,
6 1992, commencing at 9:00 a.m.
7
8 Reported by:
9 JERRY L. ROTRUCK
10 Certificate of Merit
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Sugar Cane Growers Cooperative
of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,
3 Inc.:
4 Gary Perko, Esq.
Hopping Boyd Green and Sams
5 123 South Calhoun Street
Tallahassee, FL 32301
6
On behalf of the Petitioners Florida Sugar Cane League,
7 Inc., United States Sugar Corporation and New Hope
South, Inc.:
8
William L. Hyde, Esq.
9 Peeples, Earl & Blank
215 South Monroe Street
10 Suite 350
Tallahassee, FL 32301
11
On behalf of the Respondent South Florida Water Management
12 District:
13 Paul L. Nettleton, Esq.
Popham, Haik, Schnobrich & Kaufman, Ltd.
14 4100 One Centrust Financial Center
100 Southeast Second Street
15 Miami, FL 33131
16 On behalf of the Intervenor United States of America:
17 Suzan Hill Ponzoli, Esq.
Assistant U.S. Attorney
18 155 South Miami Avenue, Suite 600
Miami, FL 33102
19
On behalf of the Intervenor Department of Environmental
20 Regulation:
21 Tim Smith, Esq.
Deputy General Counsel
22 State of Florida Department of Environmental Regulation
Twin Towers Office Building
23 2600 Blair Stone Road
Tallahassee, FL 32399-2400
24
Also appearing: Mr. Davis
25
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1 INDEX TO WITNESS
2 FRANK L. NEARHOOF Page
3 Examination (continued) by Mr. Hyde 362
Examination by Mr. Perko 464
4
5
6 INDEX TO EXHIBITS
7 No. Marked
8 8 362
9 9 467
10 10 469
11 11 476
12
13
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1 S T I P U L A T I O N
2 IT IS STIPULATED AND AGREED by and between counsel
3 appearing for the respective parties as follows:
4 THAT the deposition of FRANK L. NEARHOOF was taken
5 by agreement for the purpose of discovery, for use as
6 evidence, and for such other purposes as may be permitted
7 by the Florida Rules of Civil Procedure and other
8 applicable law;
9 THAT all objections, except as to the form of the
10 question, are reserved until the trial of this cause; and
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was not waived.
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 D E P O S I T I O N
2 Whereupon,
3 FRANK L. NEARHOOF
4 was recalled as a witness, having been previously duly
5 sworn to speak the truth, the whole truth, and nothing but
6 the truth, was examined and testified as follows:
7 EXAMINATION (continued)
8 BY MR. HYDE:
9 Q Mr. Nearhoof, I would like you to identify a
10 document that has been labeled Exhibit No. 8.
11 (Whereupon, Exhibit No. 8 was marked for
12 identification.)
13 BY MR. HYDE:
14 Q Would you tell me what that composite document
15 is?
16 A It is a directory of files on a computer disk.
17 Q Does this directory reflect all of your computer
18 disk files?
19 A All of my computer disk files, period?
20 Q No, all of your computer disk files as they may
21 pertain to the Everglades SWIM Plan.
22 A To the best of my knowledge, that is correct.
23 Q During the course of your testimony yesterday, you
24 testified, I believe, that the draft permit on the
25 district's permit application A had been prepared on your
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1 computer, yet we don't see any evidence of that work on any
2 of these disks.
3 A That file is not contained on a computer disk,
4 that is in our mainframe DEC computer, which I can go
5 through some gyrations and dump down through a program to a
6 disk, in either an ASCII or a word processing file if you
7 desire.
8 Q Is that the only information that you have
9 maintained on a different computer system than the stuff
10 you have already presented to us here?
11 A I don't believe there is anything else on the DEC
12 system. I usually maintain data and whatever word
13 processing files on disks. That was rather a large file.
14 Q I would like to take you through and have you
15 identify these items that are listed in your directory by
16 page. I think all of these pages are consecutively
17 numbered, and I would like you, as you go down the line,
18 just to categorize the file by type and source, and if you
19 could also identify the files that you created? I cannot
20 think of any better way to do that than just go down each
21 column and then each item in each column and move over to
22 the second column on the page and then move to the next
23 page.
24 Would you begin with the page 1, the first column,
25 the first listing which is -- begins CH4_CO2? What is that
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1 file?
2 A First of all, in some of these cases, I may have
3 to actually refer to the file to recall the exact source of
4 the file. In some cases I will remember it, and in other
5 cases I may not, and in most cases, the file has a notation
6 on the spreadsheet, if it is a spreadsheet or whatever, as
7 to what source it came from.
8 Q We may want to do that. We have a computer here
9 so you can punch that in.
10 A That is fine. In some cases, I usually can
11 identify it as I recall what it is.
12 I think in this particular case the CH4_CO2 file,
13 I believe -- I think an FM3 file, for starters, is a
14 graphic file. That would have resulted from a spreadsheet,
15 and I believe that is going to be the CH4_CO2.WK3
16 spreadsheet in the right-hand column, which would be the
17 parent file to the file in the left-hand column, which is a
18 graphic of some methane and CO2 data, and I believe it is
19 Dr. Jones, Dr. Ron Jones's data originally, as I recall.
20 Q What about the second listing, CRDTA1?
21 A I attempt to name these files with something that
22 will jog my memory from what they are and from whence they
23 came. That doesn't always work. I would have to look at
24 this one, I am afraid.
25 Q We will come back to that one in a minute. The
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1 third one, DUKEDTA?
2 A I believe that is some of Dr. Curtis Richardson's
3 data, and I don't recall specifically which data these
4 would be.
5 Q The next line, FIGURE7?
6 A I believe those are the data for Figure 7 of my
7 September '82, I mean '92, whatever year that is, document,
8 which specifically would be structure data for inflow
9 structures to the Everglades Protection Area and some
10 interior flow structures within the Everglades Protection
11 Area, and the original source was from, I believe these
12 numbers came from the SWIM Plan. I have cited the source
13 here as SFWMD unpublished data.
14 Q The next line is S5A.
15 A Those I believe are a DAT file. I believe those
16 are raw data files of inflow phosphorus concentrations for
17 the S-5A structure.
18 Q Is that also from the water management district?
19 A Yes.
20 Q What does the DAT stand for?
21 A It usually is a data file.
22 Q The next line is also S5A, followed by the
23 letters, IDX. What does that refer to?
24 A I don't recall what the .IDX file would be, off
25 the top of my head.
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1 Q The next line is S6. What is that referring to?
2 A S6, that is also going to be a data file, as I
3 recall, total phosphorus from the S-6 pump structure.
4 Q The next line is S6 followed by the letters IDX.
5 A Again, I don't recall what the postscript IDX is
6 representative of.
7 Q The next line is S6ATP.
8 A That is a .WK3, which is a LOTUS spreadsheet
9 file. I believe that is going to be some more total
10 phosphorus data from the S-6 pump station. I don't recall
11 what the A in that file name would stand for. I would have
12 to look at that file to give you a more precise answer.
13 Q What is the source of that information?
14 A I believe that would have been from the water
15 management district, as I recall.
16 Q Is that a file that you manipulated, or is it one
17 you simply obtained from the district and did not modify in
18 any respect?
19 MR. SMITH: Object to the form.
20 THE WITNESS: I would have to look at the
21 spreadsheet to recall exactly what was done, what
22 statistical evaluation I may have done with that file.
23 BY MR. HYDE:
24 Q We may come back to that in a moment. The next
25 line is STATP.
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1 A I would have to look at that file to recall
2 exactly what I might have done there.
3 Q The next line is SVSMTP.
4 A I would have to look at it.
5 Q The next line is TDPOUT.
6 A It is probably total dissolved phosphorus output
7 from something, and again, I don't recall exactly what that
8 might be.
9 Q Do you recall the source of that data?
10 A I would have to look at the spreadsheet to try and
11 recall that.
12 Q The next line is TP_BIO.
13 A The CGM file is usually some sort of graphic that
14 would be resulting from one of the spreadsheets.
15 Q Do you know what this file is referring to?
16 A I would have to look at it.
17 Q Let's go to the second column. What is the first
18 line, CH4_C02?
19 A That is one we discussed earlier as methane and
20 C02 data from Dr. Ron Jones in a spreadsheet.
21 Q The second line in the second column is CT&SGDTA.
22 A Gosh, I don't recall off the top of my head what
23 that file contains.
24 Q The next line is FIGURE7.
25 A That is a .FM3 which is a graphic file from the --
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1 somewhere earlier we had a FIGURE7.WK3 worksheet which
2 contains the data used to derive Figure 7 from my document.
3 Q The next line is MCPDAT.
4 A I would need to refer to the file to recall.
5 Q The next line is S5A.
6 A That is a .DTA file. I believe that is from, oh,
7 gosh, I believe that is a SYS.DAT and I believe actually
8 the original S5A.DAT file may have been imported into a
9 SYS.DAT file, and I believe the .DTA is the SYS.DAT
10 designation for the resulting SYS.DAT file that is created
11 from the original data.
12 Q The next line is S5AS6.
13 A Dot PRN, and I think that may be an output file
14 from that same SYS.DAT file of the S-5A, and this
15 apparently is S-5 and S-6 data. I would have to look at
16 the file to be sure.
17 Q The next line is S6 followed by DTA.
18 A That is -- would be the equivalent of the S5A.DTA.
19 I believe that is essentially the equivalent of the S5A.DTA
20 data file that was mentioned a moment ago, and I believe
21 that is a SYS.DAT data file resulting from the input of the
22 S6.DAT file in the first column.
23 MR. HYDE: Why don't we go off the record for a
24 moment and see if we can figure out some way to more
25 expediently identify these documents.
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1 (Discussion off the record.)
2 MR. HYDE: Let's go back on the record to explain
3 what we are doing. We went off the record temporarily
4 to ask whether there was any more expeditious way of
5 identifying these computer disk items on the computer
6 disk.
7 BY MR. HYDE:
8 Q Going back now to the first one that was
9 unidentified, column 1, line 2, CRDTA1.
10 A We are on CRDTA1?
11 Q Yes.
12 A Those are data from Dr. Curtis Richardson's, and
13 I believe this would be his 1991 annual report document. I
14 have it listed here as Publication 91-09, which shows, it
15 looks like, total dissolved phosphorus and PO4 phosphorus,
16 let's see. I don't know to what degree you want me to
17 describe what exactly is contained in this document.
18 Again, if I go through a lot of detail --
19 Q I think that description that you gave is
20 sufficient. I just want to identify what it is.
21 A Okay.
22 MR. SMITH: This is not an objection, but
23 basically he is reading off what he already has there
24 in the autoview anyway.
25 MR. HYDE: This might be able to go along better
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1 if we allow some flexibility and interaction between
2 Mr. Davis and Mr. Nearhoof. Is that okay?
3 MR. SMITH: Sure.
4 MR. DAVIS: If you could also tell us if you
5 entered the stuff, I think these are things you
6 probably entered as got them from the district?
7 THE WITNESS: That is correct.
8 MR. DAVIS: That would be --
9 THE WITNESS: This file is the CT&SGDTA.WK3 file,
10 which is a LOTUS spreadsheet file of phosphorus
11 concentration of cattail, Typha, and sawgrass, Cladium,
12 c-l-a-d-i-u-m, which were obtained from Dr. Curtis
13 Richardson's 1991 document.
14 BY MR. HYDE:
15 Q The next item was line 6, S5A followed by IDX.
16 MR. DAVIS: How about if we use the way they are
17 on the disk here as opposed to the way they are on
18 this. It would be a lot easier.
19 The next one is on here is DUKEDTA.
20 BY MR. HYDE:
21 Q That is column 1, line 3.
22 A This again is a LOTUS spreadsheet of total
23 phosphorus accumulation rate data which I believe I
24 obtained from the Dr. Curtis Richardson's 1991 document.
25 This one does not have a header clearly identifying it,
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1 unfortunately, but I do recall.
2 Q Do we want to go through and identify these line
3 by line?
4 MR. DAVIS: The next one would be FIGURE7.
5 THE WITNESS: FIGURE7 is total phosphorus
6 concentrations from various flow structures. These
7 data were obtained from the South Florida Water
8 Management District, and they were used to derive
9 Figure 7 in my 1992 document.
10 BY MR. HYDE:
11 Q The next one is S5A followed by DAT.
12 MR. DAVIS: The next one, let me go through them
13 on this, because they are -- this is the way they are
14 on the disk. MCPDAT.
15 THE WITNESS: These are on a spreadsheet which I
16 entered these data from a document. They are McPherson
17 total phosphorus concentration data from 1973. These
18 data were obtained from McPherson, et al., 1976, which
19 is identified further in my document.
20 MR. DAVIS: The next one would is S6ATP.
21 THE WITNESS: These appear to be S-6A total
22 phosphorus data from 1977 to some subsequent date,
23 which I believe would be 1988 or thereabouts. I would
24 have to look at the bottom of the spreadsheet to see
25 the period of record, which, as I recall, I entered
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1 into the spreadsheet from data obtained from the water
2 management district.
3 MR. DAVIS: TDPOUT.
4 THE WITNESS: This is a spreadsheet which is
5 labeled Total Dissolved Phosphorus Soil. This is an
6 output file from a software package, CurvePlot I
7 believe is the name of the software package, and how do
8 I get over here, I am not sure if another column here
9 -- I don't know if I have any further identification.
10 MR. SMITH: For the record, this is TDPOUT.WK3 and
11 not FM3. I see two TDPOUTs on this page.
12 MR. HYDE: Thank you for the clarification.
13 THE WITNESS: We did distance. I believe these
14 data are a regression of some of Dr. Curtis
15 Richardson's data, and I believe this is a regression
16 of the total dissolved phosphorus concentrations versus
17 weighted distance from the inflow structures. That is
18 what this would appear to be, and I have not,
19 unfortunately, clearly labeled the file.
20 This file is SVSMTP, which is a spreadsheet, and
21 the spreadsheet is headed, Comparison of Inflow and
22 Interior WCA-2A Data from SWIM.
23 This is a file labeled Temp, t-e-m-p, which is my
24 designation for temporary worksheet, which I
25 transferred something into this, and it has gone
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1 further, and I never clearly identify temporary
2 worksheets, so this one, I don't know if I could
3 resurrect the memory of what this actually is or not.
4 MR. DAVIS: That is all of them on the first disk.
5 Do you recognize those? I didn't look at the
6 disk.
7 THE WITNESS: No, on that one, I don't.
8 MR. HYDE: Just for purposes of clarity of the
9 record, we are dealing with the directory contained on
10 page 2 of Exhibit 8.
11 THE WITNESS: This is actually a program, and I
12 don't -- I have never -- I did not use this program.
13 This is probably -- the file is dated July 1991. It is
14 probably a program that came along with some data that
15 I obtained from the district in a file, and I never
16 actually utilized this program, and to be honest, we
17 have to work through the program to see what actually
18 it is doing. It looks like it is computing the flow-
19 weighted mean total phosphorus concentration.
20 BY MR. HYDE:
21 Q Are you referring to the entire document or entire
22 page or just the first column, first line?
23 A Well, I am referring to the first -- the second
24 line of text, which is a comment column preceding the
25 actual run of the program, which appears to be describing
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1 what the program is doing, but however, as I stated, I have
2 not used this program personally.
3 MR. SMITH: He wants the file.
4 THE WITNESS: The file name is FWMAWY.F.
5 MR. DAVIS: If Frank is saying he didn't use any
6 of these files or programs, as far as I am concerned we
7 can move on, if he doesn't remember the source of them.
8 THE WITNESS: I don't remember -- I didn't use
9 this program. Now, I don't -- wouldn't want to make
10 the blanket statement that there may be something
11 further.
12 MR. DAVIS: All of these files I think relate to
13 that program. They are input and output files for that
14 program.
15 THE WITNESS: Based on the fact they are all dated
16 the same thing, I probably obtained this disk from the
17 district and further used the data contained on this
18 disk, and it will later appear in another file which I
19 have probably in a spreadsheet form.
20 At any rate, the dates indicate that I have not
21 modified any of these files or really done anything
22 with them in any way, and saved the file subsequently.
23 MR. DAVIS: But you would say you have not
24 reviewed this program, and you don't really know what
25 the program does?
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1 THE WITNESS: That is correct, aside from what I
2 read from the --
3 MR. DAVIS: Right. We can move on to the next
4 disk. It will be disk 3.
5 MR. HYDE: That refers also to page 3 of Exhibit
6 8.
7 MR. DAVIS: Right.
8 THE WITNESS: This is a file that -- from a disk
9 that I probably obtained from a BMP rule workshop, I
10 suspect. I don't, to my recollection, believe I have
11 used these data.
12 MR. DAVIS: Let me just go down and look at one
13 file, it is labeled PROGRAM, and ask you if you are
14 familiar with that program.
15 THE WITNESS: No. No.
16 MR. HYDE: We are now examining disk 4, also page
17 4.
18 THE WITNESS: These are monthly flows which
19 were -- I don't recall if I obtained these from STORET
20 or directly from the district. They are flows for the
21 S-6 pump station. Actually, they are daily flows.
22 MR. DAVIS: How about disk 5? Do we need to look
23 at it?
24 THE WITNESS: I believe these are nutrient data,
25 and I think this may be the disk I received originally
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1 from the district for Conservation Area 1. I think
2 there are some data for cations for nutrients. I
3 believe PHY might be stage data, but I would have to
4 look at that to be sure what data are contained there.
5 MR. DAVIS: What about the file LKCOSER?
6 THE WITNESS: I don't recall. I would have to
7 look at it.
8 MR. DAVIS: No headers.
9 THE WITNESS: I can't identify that. It has no
10 header. It is probably a file that I received on this
11 disk from the district, and I may not have used it, and
12 so I never -- I don't know what it is.
13 MR. DAVIS: Look at page 6.
14 THE WITNESS: 6 is an S5AS6.DAT, that is probably
15 a data file which I used for -- of S-5A and S-6 pump
16 station total phosphorus data to input to, usually the
17 .DAT file is something I use to input to SYS.DAT.
18 MR. DAVIS: What about 7?
19 THE WITNESS: That is S67579Q. I suspect those
20 are flow, the Q probably stands for flow data, I would
21 have to look to be certain, for the S-6 pump station,
22 probably from '75 to '79.
23 MR. DAVIS: I am talking about disk 7.
24 THE WITNESS: I am sorry. 2ASOIL, that is a -- I
25 presume that these are phosphorus data for, WCA-2A soil
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1 phosphorus data. I don't know the source without
2 looking at the spreadsheet, offhand.
3 MR. DAVIS: That is the graphics, to print the
4 graphics file?
5 THE WITNESS: These are WCA-2A sediment
6 characteristics, a spreadsheet which is labeled Davis
7 1990. I believe these were -- and I have not headed
8 the -- what this is, this is bulk densities.
9 There is a file labeled DOTPFIG1.WK3, which is a
10 work -- a LOTUS worksheet which is actually the output
11 file from a software program called TableCurve, and I
12 believe this is total phosphorus and dissolved oxygen
13 data, and I would have to pop off the column to be
14 sure, for the Everglades Protection Area.
15 Yes, those are -- those are total phosphorus
16 concentrations and dissolved oxygen concentrations for
17 stations throughout the Everglades Protection Area, and
18 this is, as I say, the output from a software program
19 that has regressed those data.
20 MR. DAVIS: Where would be the run that generated
21 the output for these files or the program, do you have
22 a program here that --
23 THE WITNESS: It is a software, it is TableCurve.
24 You upload the data to the program, and essentially it
25 will use a series of equations that it will attempt to
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1 fit your data to, and you can select a subset of the
2 equations if you wish to restrict it to simple or
3 compound equations. It will then fit your curve to
4 whichever equation or set of equations you have
5 selected and ranked the best fit to those equations,
6 and then it will dump your output to -- right to a
7 LOTUS file, and that is what I have done here, this
8 output has gone right straight to a LOTUS file. The
9 actual run, itself, is not contained in a file.
10 This is a Word Perfect 5.1 text file which
11 describes --
12 MR. HYDE: What is it labeled?
13 THE WITNESS: MACINV. It is describing
14 essentially the methodology by which the
15 macroinvertebrates were collected in the Terczak 1980
16 study. I was probably writing this at home and had it
17 in a separate file.
18 MR. DAVIS: What about disk 8? Look at that and
19 see --
20 THE WITNESS: This looks like it contains an array
21 of different files here. Is that the first one?
22 MR. DAVIS: Yes.
23 THE WITNESS: The first of which appears to be a
24 blank spreadsheet.
25 MR. DAVIS: Temp?
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1 THE WITNESS: It is an empty temporary file.
2 This is a Word Perfect 5.1 text file which
3 contains --
4 MR. HYDE: What is it labeled?
5 THE WITNESS: AUT_SYN, which essentially is no
6 longer on the screen because Dr. Davis has moved along
7 to the next file.
8 MR. DAVIS: That is fine. I don't care about the
9 text files.
10 THE WITNESS: These are -- this is file -- this
11 file is labeled BELANGER. It is a LOTUS spreadsheet,
12 which is labeled Dissolved Oxygen Balance, Water
13 Conservation Area 2A, Drs. Belanger and Platko, 1986.
14 MR. DAVIS: This would have been a file that you
15 looked at in order to reanalyze that data for your
16 September paper?
17 THE WITNESS: Yes. I looked at these data from
18 their document.
19 MS. PONZOLI: I would like the record to reflect
20 that Dr. Davis is questioning Mr. Nearhoof, and I would
21 certainly hope that the Florida Sugar Cane League would
22 afford the respondents and respondent intervenors the
23 same courtesy in examining their experts, that our
24 experts would have access to questioning directly.
25 MR. HYDE: Ms. Ponzoli, all we are doing here is
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1 trying to identify what are documents on a computer
2 directory. It is not going into substantive testimony,
3 and it is simply being done in accommodation concerned
4 with this deposition to expedite it.
5 MR. SMITH: She is just asking for the same kind
6 of flexibility.
7 THE WITNESS: Next is file number is BTNSCTDO.
8 This file is a LOTUS spreadsheet file labeled
9 Everglades Water Conservation Areas Paired Dissolved
10 Oxygen and Total Phosphorus Data. These are arithmetic
11 means of the total phosphorus and dissolved oxygen data
12 that I obtained from the district. This actually would
13 have been, I think, the input file for the data that I
14 analyzed via the TableCurve file that we discussed
15 earlier.
16 MR. DAVIS: We cannot seem to find any numbers in
17 that particular spreadsheet.
18 THE WITNESS: It appears to be a blank
19 spreadsheet. I don't know. This is a spreadsheet
20 labeled D-O-R-E-N, DOREN, LOTUS spreadsheet, which has
21 soil phosphorus and macrophyte data from Doren, et al.,
22 1992, for WCA-1, WCA-2A and Everglades National Park.
23 MR. DAVIS: Would that citation be from the
24 September report?
25 THE WITNESS: Yes. I revised that citation to --
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1 it reads in the report, Doren, et al., in prep, as
2 opposed to Doren, et al., 1992.
3 MR. DAVIS: But you did have a copy of that paper,
4 and you turned it over in the production?
5 THE WITNESS: That is correct. This spreadsheet
6 is labeled DOTP. It is LOTUS spreadsheet data, headed
7 Everglades Water Conservation Areas Paired Dissolved
8 Oxygen and Total Phosphorus Data.
9 MR. DAVIS: What would have been the source of
10 that, do you know, the data?
11 THE WITNESS: The original data came from the
12 water management district.
13 This file is labeled EVERPRES. This is a Word
14 Perfect 5.1 file, and the heading is Workshop
15 Presentation, and this is essentially a Word Perfect
16 file of an earlier version of my document which
17 probably matches one of the February, or April, fairly
18 closely, version.
19 MR. DAVIS: It would have been something drafted
20 by you?
21 THE WITNESS: That is correct. This file is
22 labeled LNWRIMTP. This is a LOTUS spreadsheet of data
23 for the Loxahatchee National Wildlife Refuge total
24 phosphorus concentration data.
25 MR. DAVIS: Is this a spreadsheet you generated,
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1 or did you get it from someone else?
2 THE WITNESS: This, I believe, I believe I
3 generated this spreadsheet, as I recall.
4 This file is labeled R&MCOMP. It is a Word
5 Perfect 5.1 file, and the header, it is a text file,
6 the header is Research and Monitoring Program, which I
7 believe contains a number of the settlement agreement
8 research and monitoring components. I think it is a
9 listing line by line. That is what it appears to be.
10 MR. DAVIS: Look down --
11 THE WITNESS: That is what it is, it is
12 essentially a line-by-line listing of the narrative
13 text from the settlement agreement for research and
14 monitoring.
15 MR. DAVIS: Is this something you generated?
16 THE WITNESS: Well, this is -- yes, I took the
17 text from the settlement agreement and put it into this
18 Word Perfect file.
19 This file is labeled R&MOBJ. This again is a Word
20 Perfect 5.1 file which is headed, Settlement Agreement
21 Research and Monitoring, again, I think, as was the
22 last one, which contains a line-by-line listing of
23 research objectives, which again I believe are a line-
24 by-line listing of the objectives as they are stated in
25 the settlement agreement.
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1 This file is labeled SOILIMP. This is a Word
2 Perfect 5.1 file which describes phosphorus exchange
3 between the soil and the overlying water column and is
4 a text file that will be, if you look at my document
5 there, a close approximation of this particular text
6 will appear in my document. This is where I was doing
7 something at home, probably.
8 MR. DAVIS: It looks like there is nothing there.
9 THE WITNESS: It would appear that there is
10 nothing there.
11 MR. HYDE: Which file is this for?
12 THE WITNESS: This is STNCOMP, which is a LOTUS
13 spreadsheet which contains nothing. In all likelihood,
14 I created a spreadsheet and intended to import some
15 data in it and never got around to it.
16 MR. DAVIS: We have a group of files called
17 TCINPUT and INPUT2, TCOUT1, TCOUT2 and then TCOUTPUT.
18 Can you characterize those as a group?
19 THE WITNESS: I don't recall what these files are.
20 Based on their form, these are most likely also a
21 temporary file. Inside of one temporary file, I have a
22 number of temporary input and output files that have no
23 header, and based on the numbers alone, I would surmise
24 that these may be phosphorus data in the one column,
25 but that would be a guess. I am not sure.
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1 MR. DAVIS: Do you know what they would have been
2 used for?
3 THE WITNESS: I don't recall. The last column
4 looks like it might be distances. The right column
5 looks like it might be phosphorus. They may be soil
6 phosphorus data from transects south of the S-10s, but
7 that is a guess.
8 MR. DAVIS: What about disk 9?
9 THE WITNESS: Let me look at the spreadsheet.
10 As I recall -- and I have not headed this
11 spreadsheet -- I think these are loading data from
12 Water Conservation Area 1, in either one of the inflow
13 structures or both of the inflow structures totaled,
14 and I was looking just to see the relationship between
15 the inflow loads and interior marsh site data, was, in
16 essence, just looking for relationships.
17 MR. DAVIS: So in general, the acronym would be
18 LD, load, versus --
19 THE WITNESS: IMP, interior marsh phosphorus I
20 think is probably what that stands for. As I say, I
21 try and name my files with something that logically
22 suits the data, but it doesn't always.
23 MR. DAVIS: What do you think the next one,
24 LDVSIMPA, would stand for?
25 THE WITNESS: That may be -- as I recall, I looked
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1 for the relationship between the S-5A structure and
2 marsh data, the S-6A, and I believe I looked at
3 adjacent marsh sites for those structures, and then I
4 looked for the combination of the two essentially on
5 all of the sites, and I was looking with some time lag,
6 the previous six months loading versus the current
7 geometric mean marsh concentrations. I was just
8 looking at in a number of different ways the same data,
9 and all those files will reflect that.
10 MR. DAVIS: So these are all files that you
11 created?
12 THE WITNESS: That is correct, with data that I
13 got from the water management district.
14 MR. DAVIS: What about 10?
15 THE WITNESS: 10 looks like that would be
16 Everglades National Park data from inflow structures to
17 Everglades National Park, the S-12 and S-333
18 structures, some flow-weighted annual means, some flow-
19 weighted monthly means, MM, monthly mean. That may be
20 just a monthly mean that is not flow-weighted. I would
21 have to look at the file, itself.
22 This was, again, it was I believe an exciting
23 weekend at home looking at these data in a number of
24 different ways.
25 MR. DAVIS: These are all files you would have
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1 created, then?
2 THE WITNESS: That is correct.
3 MR. DAVIS: What about 11?
4 THE WITNESS: Well, 11 looks like it would contain
5 some Loxahatchee National Wildlife Refuge nutrient data
6 in addition to some additional S-12, S-333 data. It
7 also contains a spreadsheet with some calculations for
8 the Shark River Slough interim standard. A and B, I
9 think, are fancier versions of this one, Shark River
10 Slough, long-term, and I am not sure what the Word
11 Perfect file is. LOXBYSTA, I assume these are nutrient
12 data arranged by station as opposed to -- I believe
13 they were arranged by date in the other spreadsheets,
14 as I recall.
15 ROSNER I believe is a statistical test for
16 outlyers which I used on Loxahatchee data, I believe.
17 And again, these are Shark River Slough data.
18 MR. DAVIS: The file labeled BOTH.WK1, inflow and
19 marsh data, has some stations called EP date, and then
20 it gives offset and some other stuff. Where did that
21 file come from and what does station EP represent?
22 THE WITNESS: Is there anything in further
23 columns? I am not sure what the designation "EP"
24 stands for here. These are obviously an array of
25 nutrient data and depth data, but I don't know what the
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1 designation "EP" is. What was the header of this
2 file? BOTH. I don't recall. Are they all EP?
3 MR. DAVIS: There is another station, NE1. Do you
4 know where that station is?
5 THE WITNESS: I don't know.
6 MR. DAVIS: Where would we go in your documents to
7 find a station location map or description of where
8 these stations are?
9 THE WITNESS: I don't know.
10 MR. DAVIS: Did you use any of this data for any
11 purpose?
12 THE WITNESS: I don't recall. I don't recall what
13 these data exactly are. I don't believe I did.
14 MR. DAVIS: There is another station called MP201.
15 THE WITNESS: (Shakes head in the negative.)
16 MR. DAVIS: Do you recall where the data came from
17 originally?
18 THE WITNESS: No.
19 MR. DAVIS: Do you maintain a record of disks you
20 receive and who you got them from?
21 THE WITNESS: No.
22 MR. DAVIS: How about disk 12?
23 THE WITNESS: It looks like it has different files
24 on it. I would have to look. The file labeled CRDTA1
25 is header Curtis Richardson Soil Poor Water Phosphorus
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1 Data from Publication 91-09. Do you need further --
2 there is a file labeled EAARULE, which is a Word
3 Perfect 5.1 file which essentially is details of a
4 conversation with George Shih on 3/6/92 concerning BMP
5 rule issues.
6 MR. DAVIS: It would be something prepared by you?
7 THE WITNESS: This was -- as I recall, I did this
8 because I had this conversation at home, and I made
9 this file on the computer at home subsequent to that
10 conversation, so I would have a record of the
11 conversation.
12 MR. DAVIS: How about disk 13? I know what that
13 is. Do you know what it is?
14 THE WITNESS: I think it is the BMP rule on
15 spreadsheet calculations, spreadsheet program.
16 MR. HYDE: Let's take a brief recess.
17 (Brief recess.)
18 BY MR. HYDE:
19 Q Which file number are we on now?
20 A We are on file 14. This one is labeled 2AJONES.
21 This is a LOTUS spreadsheet which I created which contains
22 soil phosphorus and alkaline phosphatase data from Dr. Ron
23 Jones. I believe this -- I believe the rest of the files
24 on this disk are going to contain soil phosphorus and
25 alkaline phosphatase data for different areas from Dr.
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1 Jones, and one of them is probably a composite file
2 containing all of his data.
3 MR. DAVIS: So essentially all of these files
4 would be from Jones or files you created from Jones
5 data?
6 THE WITNESS: I believe so. From the look of the
7 file headers, I believe that is right.
8 MR. DAVIS: 15. Do you know --
9 THE WITNESS: I believe these are phosphorus
10 accumulation data and water quality data from the
11 phosphorus accumulation data, specifically I believe
12 are from Dr. Reddy's '91 document, and the water
13 quality data are from South Florida Water Management
14 District water quality data.
15 MR. DAVIS: 16.
16 THE WITNESS: These files I would have to look at
17 to be sure, but they are labeled LOX plus an additional
18 part to the title, and I think these are Loxahatchee
19 National Wildlife Refuge nutrient data.
20 MR. DAVIS: We are going to look at one labeled
21 LOXNUT.WK3.
22 THE WITNESS: All right. These are the file,
23 LOTUS spreadsheet file headed South Florida Water
24 Management District Water Quality Nutrient Data,
25 Loxahatchee National Wildlife Refuge, and it has a
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1 listing of station numbers and years, months, days, and
2 I believe the next columns you are going to find would
3 be total phosphorus data for those stations.
4 MR. DAVIS: Is this the data that was used to
5 develop the standards or the limits for the
6 Loxahatchee?
7 THE WITNESS: This is all of the data available
8 for the Loxahatchee National Wildlife Refuge stations
9 in addition to the marsh stations from which the levels
10 were derived.
11 MR. DAVIS: What about 17?
12 MR. HYDE: May I make a clarifying comment here?
13 I note from the Exhibit 8, there is a 17a, b, c, d.
14 Are we referring to 17a?
15 MR. DAVIS: Basically, what this is, 17a is just a
16 printout of the directories that are on the disk, and
17 each one of the subsequent sheets is a listing of the
18 files in each one of the directories.
19 THE WITNESS: Right.
20 MR. DAVIS: And as far as I am concerned, Frank
21 can tell us what all of those contain and we don't need
22 to go through each one of them because I am sure I know
23 what they are, but --
24 THE WITNESS: These are -- as I recall, these are
25 model runs for Stormwater Treatment Area 1, 2, 3 and 4
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1 from Burns and McDonald's modeling, and as Dr. Jones
2 has pointed out, the 17, whatever, b, c, d are
3 subdirectories under those.
4 MR. HYDE: Mr. Jones.
5 THE WITNESS: Whatever.
6 MR. DAVIS: Did you do anything with the Burns-
7 McDonald model, yourself, or did you just --
8 THE WITNESS: How would you classify "do anything
9 with the Burns and McDonald model"?
10 MR. DAVIS: Run the model, review the program?
11 THE WITNESS: I did not personally run the model.
12 I did review some of the -- some of the components of
13 the model.
14 MR. DAVIS: Let me just talk to Bill for a
15 minute.
16 (Discussion off the record.)
17 MR. HYDE: Let's take a break from the
18 identification of these documents for a moment.
19 BY MR. HYDE:
20 Q I would like to ask you a few questions about this
21 modeling exercise that you were just referring to.
22 Who else with the Department worked on that or
23 reviewed that exercise besides you?
24 A In addition to myself, Doug Gilbert reviewed the
25 stormwater treatment area modeling. George Baragona I
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1 believe may have conducted some review of the stormwater
2 treatment area modeling. As we discussed yesterday, Post,
3 Buckley, Schuh & Jernigan as a consultant for the
4 Department also conducted a review of the stormwater
5 treatment modeling conducted by Burns and McDonald.
6 Q To your knowledge, did any of those persons reach
7 any conclusions concerning the appropriateness of this
8 modeling?
9 A How would you define "appropriateness"?
10 Q Well, did the Department determine that it was an
11 acceptable model for their purposes in determining how
12 these stormwater treatment areas would function?
13 A I am unaware of any decision that the Department
14 may have made that it is an appropriate model to use.
15 Q Did you determine whether it was an appropriate
16 model to use?
17 MR. NETTLETON: Object to the form.
18 THE WITNESS: I raised some questions and comments
19 on the completeness summary, related to some of my and
20 also based on Post, Buckley Schuh & Jernigan's concerns
21 with the modeling, and those particular comments were
22 answered. Those particular concerns that were
23 expressed in our completeness summary were responded to
24 by the water management district.
25 BY MR. HYDE:
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1 Q Which completeness summary are you referring to?
2 A Those particular comments would have been
3 expressed in a completeness summary around April of '92. I
4 am not certain of that. We have to refer to my files on
5 the permit application completeness.
6 Q I believe you just testified that the district
7 filed a response to your comments and concerns?
8 A That is correct.
9 Q Did that filing address them satisfactorily?
10 A I never made a decision that it was satisfactory.
11 I had no further comments based on their response, and I
12 believe I -- I don't know if I formally -- I probably did.
13 I don't recall specifically if I formally responded to the
14 person who was handling the permit application, that that
15 was the case.
16 Q Did any of the other persons you identified as
17 having reviewed this model offer any opinions as to whether
18 that model was an appropriate one?
19 MS. PONZOLI: Objection to form.
20 THE WITNESS: Again, I don't know about whether
21 anybody discussed or -- in writing or otherwise, the
22 appropriateness. I have no knowledge of --
23 BY MR. HYDE:
24 Q Did any of those persons ever offer any opinions
25 as to whether that model would, in fact, yield the results
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1 that it is purporting to yield?
2 MR. NETTLETON: Objection to form.
3 THE WITNESS: Yield -- the reports?
4 MR. SMITH: The results.
5 THE WITNESS: The results that it is purported to
6 yield, it yields the results that it yields. I am not
7 really sure of exactly how you mean there.
8 BY MR. HYDE:
9 Q Did you make a determination as to whether the
10 assumptions employed in that model were valid?
11 A I believe some of our comments that we made on the
12 initial modeling may have been related to assumptions. I
13 would have to refer to the specific comments to resurrect
14 my memory of whether that is true or not.
15 Q Let me ask the question a little bit differently.
16 Did anyone with the Department ever make or render a
17 determination as to whether this model was a valid model?
18 MR. NETTLETON: Object to the form.
19 THE WITNESS: I don't know.
20 BY MR. HYDE:
21 Q Who, if anyone, would know the answer to that
22 question?
23 A I don't know. The person who handled the permit I
24 suppose would be the appropriate person to ask if anyone
25 formally made that decision.
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1 Q Was that Marlene Stern?
2 A Yes.
3 Q Did anyone associated with the Department -- by
4 that, I mean also including the Post, Buckley, Schuh &
5 Jernigan people -- ever make a determination as to whether
6 the assumptions utilized in the model were valid?
7 A I don't know if they ever formally stated that the
8 assumptions used in the model were valid. However, Post,
9 Buckley did supply us with a formal response to the
10 district's last completeness submittal in which they stated
11 that all of their concerns, as I recall the letter to have
12 stated, had been addressed satisfactorily, and I would have
13 to look at the response to give you the exact wording of
14 that.
15 Q Was that the one-page response that you were
16 referring to yesterday?
17 A Yes.
18 MR. HYDE: I have no further questions. We can go
19 back to identifying the directory.
20 MR. DAVIS: We can skip to disk 26. There is a
21 file called LNWRIS. Can you tell us what the acronym
22 stands for and what that particular file purports to
23 do?
24 THE WITNESS: This is the Loxahatchee National
25 Wildlife Refuge interim standard. It is a worksheet
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1 which contains the calculation of the Loxahatchee
2 National Wildlife Refuge interim levels as they are
3 termed in the settlement agreement. I believe this is
4 a duplicate of a file that we actually looked at
5 earlier.
6 MR. DAVIS: Is this a file you would have created,
7 or is this one that you would have gotten from someone
8 else?
9 THE WITNESS: I created this.
10 MR. DAVIS: So the formulas and stuff that are in
11 the lower portion of that sheet are formulas that you
12 would have generated, or were they generated from
13 someone else?
14 THE WITNESS: I didn't necessarily generate the
15 original formula. However, I am the one that expressed the
16 formula in the spreadsheet.
17 MR. DAVIS: Let me talk to Bill for a minute.
18 (Discussion off the record.)
19 BY MR. HYDE:
20 Q Mr. Nearhoof, let me ask you a few questions about
21 this last document. Did you prepare the equations that are
22 utilized in that document?
23 A I did not prepare the equations, no.
24 Q Who did?
25 A Well, this -- the equation is a standard equation
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1 for a multiple linear regression, that whenever the first
2 multiple linear regression was derived mathematically,
3 however many years back that may have been, and I don't
4 know the history of mathematics well enough to tell you the
5 exact date of that, is where that equation was derived.
6 Q Did you -- were you primarily the person who
7 created that document?
8 A Created this worksheet?
9 Q Yes.
10 A Yes, I created this worksheet.
11 Q Did you obtain the information that is expressed
12 in this worksheet from any other source?
13 A The information expressed in this worksheet was
14 derived from water management district data.
15 Q Was any of this information generated or created
16 by Dr. William Walker?
17 A Dr. William Walker performed these same
18 calculations.
19 Q Did you review these calculations, or did you
20 simply accept them at face value?
21 A As you can tell, I have input the data into a
22 spreadsheet and performed my own evaluation of the data and
23 the calculations.
24 Q Do you know who decided what dependent and
25 independent variables went into the equations?
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1 A I don't know who ultimately made that decision.
2 The -- during the technical discussions, various parameters
3 for which we had data were discussed and presented and
4 evaluated, and this particular relationship was evaluated
5 in the course of that.
6 MR. PERKO: For clarification purposes, when you
7 say technical discussions, do you mean the meetings you
8 attended in March and April of 1991 regarding the
9 settlement negotiations?
10 THE WITNESS: That is correct.
11 MR. HYDE: Thank you.
12 BY MR. HYDE:
13 Q Did you or anyone associated with the Department
14 evaluating this document ever come to any conclusions as to
15 the validity of the equations employed in it?
16 MS. PONZOLI: Object to the form.
17 THE WITNESS: I don't know that anyone ever
18 formally made that conclusion. These equations, as I
19 stated previously, are commonly accepted multiple
20 linear regression equations that are available in any
21 textbook regarding that, and I believe would have --
22 the validity of these basic equations is accepted
23 throughout the field of mathematics.
24 BY MR. HYDE:
25 Q What about the results that were obtained from
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1 this exercise? Did you or anyone else associated with the
2 Department ever make any independent judgment as to the
3 validity of the results obtained?
4 MS. PONZOLI: Objection to the form.
5 THE WITNESS: I never made any determination as to
6 the validity of the results obtained. The validity of
7 this method and results obtained from this method, I
8 believe, as I stated, are well discussed in any number
9 of texts.
10 BY MR. HYDE:
11 Q Did anyone else with the Department ever make such
12 a determination, to your knowledge?
13 A I don't know.
14 MR. HYDE: Let me take a two-minute break here.
15 (Brief recess.)
16 MR. HYDE: Back on the record.
17 MR. DAVIS: I think we are through as far as the
18 disks.
19 BY MR. HYDE:
20 Q Mr. Nearhoof, can you explain how the data on that
21 file, LNWRIS, after the OFW period were back-adjusted?
22 A The -- as I said, a multiple linear regression was
23 performed on the data, one of the variables of which was
24 the year, and in the particular case of the Loxahatchee
25 National Wildlife Refuge, that year was used as a dummy
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1 variable.
2 Q What year were you referring to?
3 A It was the '78-'79 water year. I believe those
4 data were, they were October, I think those were water year
5 October '78-September '79. I think that is right; I would
6 have to look at the spreadsheet to be sure. The results of
7 the regression were then used to adjust, as you put it, the
8 data subsequent to the 1978-'79 baseline year back to that
9 baseline year, and then the additional data set was used to
10 define the variability in the data related to the marsh
11 levels, stage height levels.
12 Q Why was that data adjusted back to the 1978-1979
13 year?
14 A Because that was the Outstanding Florida Waters
15 baseline year.
16 Q Are you familiar with the regression techniques?
17 A Yes.
18 Q What is regression technique?
19 A A regression technique is a means by which one
20 type of data is related to another type of data, and that
21 relationship is defined by the form of the regression
22 equation.
23 Q What does an R2 value tell you about a
24 regression?
25 A I believe you are referring to what is termed an
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1 R-squared value.
2 Q R-squared?
3 A Which defines essentially the strength of that
4 relationship.
5 Q How high should R-squared be in order for you to
6 consider the regression meaningful?
7 A How would you define "meaningful"? So the
8 regression analysis provides to you -- it is hard to say,
9 useful information of the relationship that you were
10 seeking?
11 MR. NETTLETON: Object to the form.
12 MS. PONZOLI: Join in the objection.
13 THE WITNESS: The R-squared value, no matter what
14 its magnitude, would convey useful information to you
15 regarding the relationship between the variables being
16 evaluated.
17 BY MR. HYDE:
18 Q Let me ask the question this way. How high should
19 the R-squared value be in order to make a decision to spend
20 $400 million?
21 MS. PONZOLI: Object to the form.
22 MR. SMITH: Object to the form.
23 THE WITNESS: I have never evaluated such a
24 decision based on that.
25 BY MR. HYDE:
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1 Q Mr. Nearhoof, you reviewed Dr. William Walker's
2 August 1992 record on the calculation of settling rates for
3 Water Conservation Area 2A?
4 A I have not -- yes, yes, I have.
5 Q Why did you hesitate in answering that? It
6 sounded like you were about to say no and then you said
7 yes.
8 A Well, I was going to qualify it as to the degree
9 of the review.
10 Q Why would you qualify it as to the degree of the
11 review?
12 A Well, I have not spent a lot of time replicating
13 any of Dr. Walker's calculations contained in that
14 document, as I might eventually do, but I have conducted a
15 review of that document, yes.
16 Q Is that because you didn't fully understand Dr.
17 Walker's methods?
18 A No. It is more from a time constraint.
19 Q Did you check his calculations?
20 A No. As I stated, I have not replicated Dr.
21 Walker's calculations in that document.
22 Q Did you check his methods?
23 A I have conducted no formal comparison of Dr.
24 Walker's methods with the suggested validity of those
25 methods in the literature, no.
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1 Q What did your review constitute?
2 A I essentially have read through the document, I
3 think on the order of one time, and may have glanced at it
4 another time or two for a specific page since then, and
5 that is it.
6 Q Do you have the data sets that Dr. Walker used to
7 calculate the water column phosphorus concentrations?
8 A I believe I would have all of those data sets in
9 my possession, yes, but they are probably contained in the
10 files on those disks. I am pretty sure most of those data
11 should be on there.
12 Q Can you identify which file that was in the list
13 of files that you provided to us yesterday and that we just
14 went through identifying today?
15 A Well, those calculations are done primarily from
16 flow data for the S-10 structures. I actually -- I am not
17 sure if I do have flow data from the S-10 structures, now
18 that I think about it, and the additional data were taken
19 from water column total phosphorus concentration data that
20 I do have in a file, and I believe they -- I don't recall
21 the exact name of that file. It is from the -- I believe
22 it was WQ data or something like that, for water column
23 total phosphorus data for the interior marsh sites in
24 Conservation Area 2A.
25 Q Who has possession of that S-10 data which I
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1 believe you stated you did not have in your possession?
2 A The flow data for the S-10 structure reside in the
3 district's data base.
4 Q How would you know specifically what data were
5 utilized by Dr. Walker?
6 A Well, I don't know specifically what data. I know
7 only that he used the flow data and water quality data
8 available from the district, in addition to some phosphorus
9 concentration data that are available from either the
10 district or Dr. Reddy.
11 Q Wouldn't you need to know exactly the data that he
12 utilized to adequately replicate or analyze his analysis?
13 A Are you asking me to replicate or analyze?
14 Q First, to replicate.
15 A To replicate his calculations, you would need all
16 of the data available, yes.
17 Q To analyze his analysis.
18 A I believe in order to fully analyze that
19 particular analysis, you would want to look at all of the
20 data.
21 Q But you have not done that yet?
22 A No.
23 Q Do you know if anyone with the Department did
24 that?
25 A No.
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1 Q If not you, who would have done that kind of
2 analysis, if it was done at all?
3 A I don't know of anyone else at the Department that
4 would have done that calculation, offhand.
5 Q Do you know how Dr. Walker calculated a flow-
6 weighted concentration at marsh stations where no flow was
7 measured?
8 A I believe Dr. Walker used the flow data from the
9 inflow structure stations and assumed an evapotranspiration
10 rate which is established for the Water Conservation Areas
11 and calculated some change in mass of the water flowing
12 through and used that to derive the flow at stations for
13 which water quality data were available.
14 That is my understanding of how that calculation
15 was done. Again, I have not duplicated that calculation.
16 Q What assumptions did Dr. Walker make?
17 A I would have to refer back to the document to give
18 you the exact assumptions that Dr. Walker stated in his
19 document. I don't recall them from memory.
20 Q Is that document readily accessible to you?
21 A Yes. I think -- I think that document was in my
22 document production. I am not certain of that, but I
23 believe it was.
24 Q Let me ask you this general question first. Do
25 you agree with the assumptions that Dr. Walker employed?
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1 A Do I agree -- state that again, please.
2 Q Do you agree with the assumptions that Dr. Walker
3 employed?
4 A As I --
5 MS. PONZOLI: Object to the form.
6 THE WITNESS: I would have to go back to the
7 document and rereview the document to see what
8 assumptions Dr. Walker stated that he used in order to
9 make that determination.
10 BY MR. HYDE:
11 Q Maybe to expedite this a little bit, when we take
12 our break for lunch if you could take a quick look at those
13 assumptions, and we could -- I could ask you like one brief
14 set of follow-up questions in that regard. I think it
15 would save everybody's time at this time. Is that okay?
16 MR. SMITH: I don't have any problem, to the
17 extent that he can do that in that short a time.
18 THE WITNESS: I may not be willing to tell you
19 what, exactly what I think of those assumptions in that
20 period of review. I would have to look.
21 MS. PONZOLI: I guess I oppose witnesses being
22 forced to spend their few minutes' break in major
23 mental exercises.
24 MR. HYDE: We can do it now if you want to. That
25 is fine. Why don't we come back to that in a few
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1 minutes and --
2 MS. PONZOLI: Is this an area on which Mr.
3 Nearhoof is going to offer an opinion at the final
4 hearing, Mr. Smith? I think that has some relevance.
5 MR. SMITH: I think that the way we are going to
6 approach it, we will rely on Dr. Walker's work, and all
7 we have to do is show it is reasonable in the field to
8 do that. We are not going to do an independent
9 analysis or independent presentation of that work.
10 MR. HYDE: Did anyone from the Department ever
11 make the determination that it was reasonable?
12 MS. PONZOLI: Objection to the form.
13 MR. SMITH: Are you asking Frank or me?
14 MR. HYDE: Either or both of you. That is what
15 the line of questioning has been directed at all
16 along.
17 MR. SMITH: I don't know. I guess I might object
18 to the form also. It depends on what you mean by
19 "determination," but I think it is clear --
20 MR. HYDE: I guess I am trying --
21 MR. SMITH: -- it is clear the document, to the
22 extent it relies on that work as, presumes or does rely
23 on it as being reasonable.
24 MR. HYDE: I am trying to determine whether
25 anybody ever made a call as to whether Dr. Walker's
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1 analysis was reasonable, or if they just accepted it at
2 face value and left it at that.
3 MS. PONZOLI: I am going to object to the
4 question, as to its form.
5 MR. SMITH: Ask Frank.
6 BY MR. HYDE:
7 Q Mr. Nearhoof, did anyone with the Department ever
8 make any analysis as to whether Dr. Walker's -- or a
9 determination as to whether Dr. Walker's analysis was
10 valid?
11 A I don't know if anyone from the Department ever
12 made that, such a determination.
13 Q Who would be most the appropriate or knowledgeable
14 person to whom I should direct such a question?
15 A I would -- Mr. Harvey, I would assume, or -- would
16 be a more appropriate person than I to address that.
17 Q Does the Department consider the calculation of a
18 valid settling rate for phosphorus to be critical to the
19 design of the stormwater treatment areas?
20 MS. PONZOLI: Object to the form.
21 THE WITNESS: What do you define as critical?
22 BY MR. HYDE:
23 Q Essential.
24 A Essential. The calculation of the so-called
25 apparent settling rate is one of the basic calculations
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1 that has been performed related to performance of
2 stormwater treatment areas.
3 Q Is it important to the design of the STAs?
4 MS. PONZOLI: Objection to the form.
5 BY MR. HYDE:
6 Q Let me ask you this, first of all. Do you know
7 what a settling rate is?
8 A Yes.
9 Q The apparent settling rate?
10 A Yes.
11 Q What is that?
12 A I term it -- a ratio between the apparent settling
13 rate causes confusion because it is somewhat a misnomer. I
14 would term it more a ratio between the water column and
15 phosphorus, in this case, concentrations and the resultant
16 phosphorus concentrations in the underlying soil.
17 Q Why would one want to determine an apparent
18 settling rate for purposes of designing the stormwater
19 treatment areas?
20 A Essentially, it measures the rate at which the
21 underlying soils of the water area you happen to be
22 analyzing the data for is sequestering the total phosphorus
23 from the water column as it flows through whatever area you
24 are analyzing.
25 Q Does that have some critical relationship to the
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1 size of the proposed stormwater treatment areas?
2 A I don't know if I would use the term "critical."
3 It is a basic calculation which has a strong relationship
4 with the sizing.
5 Q Did the Department consider the establishment of
6 a, in your words, apparent settling rate part of the
7 reasonable assurances that the district has allegedly
8 provided to the Department?
9 A I don't know.
10 Q Do you know who in the Department made a
11 determination that the district's -- the district had
12 provided the Department reasonable assurances that the
13 permit application A would operate in compliance with
14 applicable rules and regulations?
15 A I don't know who made the ultimate decision that
16 that would be the case for the permit.
17 Q Who should I ask for such information?
18 A That permit is issued out of another division, and
19 either the person who was in charge of the permit
20 application or the director of that division might be a
21 more appropriate person to ask that question of.
22 Q Are you suggesting that the question might be more
23 appropriately propounded to Marlene Stern?
24 A That is correct.
25 Q Anyone else?
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1 A Well, I don't know. As I stated, I don't know who
2 made the ultimate decision, so it would be speculative of
3 me to state who would be appropriate to ask that question
4 of.
5 Q What, if any, part did you play in a departmental
6 decision that reasonable assurances had been provided by
7 the district for permit application A?
8 A I provided technical comments to the division out
9 of which the permit application was handled regarding
10 various technical aspects of the permit application.
11 Q Were those technical comments in writing?
12 A Yes.
13 Q Where might we find them?
14 A They will be in my file for the permit
15 application.
16 Q Are these your comments that were provided as part
17 of the several iterations of the completeness summaries?
18 A Yes.
19 Q Are there any other comments that exist
20 independent of those completeness summaries?
21 A No.
22 Q Do you have any opinion as to what the best
23 estimate of the settling rate is?
24 A The best estimate that I have seen presented is
25 eight meters per year for the apparent settling rate.
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1 Q Do you think that is the best estimate?
2 A Do I think independently that that is the best
3 estimate? I have never formally made a determination that
4 that is the best estimate.
5 Q Are you saying, in effect, that is the operative
6 estimate and that is what you are relying upon?
7 MS. PONZOLI: Object to the form.
8 THE WITNESS: That is the estimate that has been
9 presented to the Department in the district's permit
10 application.
11 BY MR. HYDE:
12 Q Did anyone with the Department ever make a
13 determination as to whether that was the best or most
14 appropriate estimate of the settling rate?
15 A I don't know if anyone ever formally made a
16 determination that that was the best estimate.
17 Q What person in the Department should I propound
18 such a request to?
19 A Again, that application was out of another
20 division, and I would suggest you start with the person who
21 handled the permit application for that division as at
22 least a starting point.
23 Q That would be Marlene Stern?
24 A That is correct.
25 Q Did the Department, to your knowledge, ever make
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1 an informal determination that that was the best estimate
2 of the settling rate?
3 MR. SMITH: Objection to form.
4 THE WITNESS: What would you -- an informal
5 determination?
6 BY MR. HYDE:
7 Q Did anyone ever opine, either in writing or
8 orally, to you that the settling rate that was proposed
9 was, in fact, the best or most appropriate settling rate
10 for the STA design?
11 A I have nothing in my files or anywhere else in my
12 possession that has a formal, in writing, opinion that
13 states a formal opinion that that is the best estimate.
14 There are conversations with various people in the
15 Department I think that indicate that it is a valid method
16 of making such an estimate.
17 Q Which persons did you have those conversations
18 with?
19 A Doug Gilbert has worked with me in evaluating the
20 data. I had conversations as well with George Baragona
21 concerning various aspects of these calculations, and I
22 don't recall whether -- as I recall, I don't recall George
23 ever having specifically said this is the best estimate. I
24 don't really know that he has ever stated that it was
25 technically valid or otherwise, and that is probably the
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1 only two people that I ever really discussed the technical
2 aspects of the apparent settling rate that I can recall.
3 Q Did Mr. Gilbert say that this was a valid way of
4 estimating settling rates?
5 A I don't recall if Mr. Gilbert ever specifically
6 stated that it was a valid way. We discussed the method in
7 general. I don't recall whether he would have ever
8 specifically made that statement.
9 Q Did you, Mr. Gilbert or Mr. Baragona ever discuss
10 the quality of the data sets that were utilized to make
11 that determination?
12 A Yes.
13 Q Did any of you ever make a determination as to
14 whether those data sets were valid and useful in that
15 regard?
16 MS. PONZOLI: Object to the form.
17 THE WITNESS: Valid. There are two questions
18 there. I have no way of determining the ultimate
19 validity of the data, as I was not present during the
20 sampling in which it occurred, and have no reason to
21 believe that the data are in any way invalid.
22 Their usefulness, as I have said, they are data
23 that are used in a basic calculation regarding the
24 apparent settling rate which is used as a basis for
25 design of the stormwater treatment areas, and so I
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1 would, I guess, then term it useful.
2 BY MR. HYDE:
3 Q Did the Department at any point ever review or
4 analyze the data that was submitted to it in this regard to
5 determine whether that data was, in fact, accurate?
6 A The district has a, I believe, a quality assurance
7 plan on file with the Department for their data acquisition
8 program, and as I recall, it is an approved quality
9 assurance plan. I would suggest that you might talk to
10 Sylvia Labie, who is the administrator of our Quality
11 Assurance Section, regarding the water quality status or
12 the quality assurance status of the district's water
13 quality data.
14 Q Do you know whether that quality assurance quality
15 control plan was in effect when this data was collected by
16 the district?
17 A I don't know.
18 Q Well, if it wasn't in effect, isn't your prior
19 statement relying upon the QA/QC program rendered somewhat
20 meaningless?
21 MS. PONZOLI: Objection to form.
22 MR. SMITH: Objection to form; argumentative.
23 MR. NETTLETON: Objection.
24 THE WITNESS: Well, the --
25 BY MR. HYDE:
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1 Q Let me express the question this way. If there
2 was no QA/QC plan in effect, how can you or the Department
3 form any considered judgment as to the validity of that
4 data when it is collected?
5 MR. NETTLETON: Objection to the form.
6 MR. SMITH: Objection.
7 MS. PONZOLI: Join in the objection.
8 THE WITNESS: The existence of a quality assurance
9 plan for the Department for data primarily confirms
10 that the Department has formally signed off on the
11 quality assurance program that is being utilized in
12 collecting those data. However, the lack of such a
13 quality assurance program does not invalidate the
14 quality of those data.
15 Quality assurance plans have only been in effect
16 in the last 10-some years, for the most part, and you
17 wouldn't, therefore, disqualify virtually all data that
18 have ever been collected in history prior to the
19 existence of a quality assurance plan.
20 BY MR. HYDE:
21 Q So this data we are referring to here is rather
22 dated in that it was more than 10 years old, is that
23 correct?
24 MR. SMITH: Object to the form.
25 THE WITNESS: We are talking about multiple data
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1 sets here, some of which probably does date back more
2 than 10 years. Other data is more recent than that.
3 BY MR. HYDE:
4 Q Does the fact that that older data, the older data
5 was not collected pursuant to a QA/QC program render it
6 slightly more suspect than data that was subsequently
7 collected pursuant to a QA/QC plan?
8 MR. NETTLETON: Objection to the form.
9 MR. SMITH: Object to the form.
10 MS. PONZOLI: Join in the objection.
11 THE WITNESS: No. I would not say it renders it
12 more suspect. Otherwise, in this instance the equation
13 would be invalidated or suspect.
14 BY MR. HYDE:
15 Q Since there was no QA/QC plan in effect at the
16 time this older data was collected, what other assurances
17 might the Department have that that data set was accurate
18 and appropriately collected?
19 MR. NETTLETON: Object to the form.
20 THE WITNESS: Restate the question again, please.
21 BY MR. HYDE:
22 Q Since there was no QA/QC plan in effect at the
23 time that the older data was collected, what other
24 assurances does the Department have that the collection of
25 that data was appropriately and validly accomplished?
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1 MR. NETTLETON: Object to the form.
2 MR. SMITH: Object to the form.
3 MS. PONZOLI: Join in the objection.
4 THE WITNESS: The Department has looked at the
5 data that have been used and the methods employed in
6 both the collection and the analysis of the data.
7 Those collection and analysis methods are essentially
8 standard methods that were somewhat universally
9 employed, if not tacitly approved, at the time of the
10 collection of that data, and the Department, while we
11 have not formally blessed, if you will, the validity of
12 the data, has no reason to suspect that those data are
13 in any way invalid.
14 BY MR. HYDE:
15 Q Does the Department have any knowledge or do you
16 have any knowledge as to whether the -- that data was
17 collected in accordance with those standards that were in
18 existence at the time?
19 MR. SMITH: Objection to form.
20 THE WITNESS: What standards, precisely?
21 BY MR. HYDE:
22 Q I believe you stated that there were some standard
23 ways of collecting data even though a QA/QC plan had not
24 been put into effect prior to the collection of this older
25 data. Is that essentially correct?
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1 MR. NETTLETON: Object to the form.
2 THE WITNESS: I am sorry, restate that one more
3 time.
4 BY MR. HYDE:
5 Q Prior to the adoption of a QA/QC program, was
6 there or were there standards and methodologies that were
7 commonly accepted within the scientific community as to
8 whether or how such data should be collected?
9 A I don't know if there were standard, accepted
10 methodologies within the scientific community. I don't
11 know whether such standards were ever formally promulgated
12 for collection of such data.
13 The methods used in data analysis I think
14 represent standard methods in -- that have been set forth
15 in -- there is a standard methods handbook that essentially
16 details those particular methods, and I believe the data,
17 the methods that were used by the district are contained in
18 such handbooks for the analysis, itself.
19 Q Are you talking about methods of collection or
20 methods of analysis?
21 A I am talking about methods of analysis that are
22 contained in the methods handbook. Methods of collection,
23 I don't know if I have ever seen any formal handbook on
24 methods of collection that would have existed.
25 Q Were these methods of analysis accepted at the
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1 time this older data was collected?
2 A They were set forth in methods, standard methods
3 handbooks, and therefore I would have to say that they were
4 accepted.
5 Q Do you know whether the district in collecting
6 this data employed these accepted methods of analysis?
7 MR. NETTLETON: Object to the form.
8 THE WITNESS: To my knowledge, their analyses were
9 performed by accepted methods.
10 BY MR. HYDE:
11 Q What is the basis for that opinion?
12 MR. NETTLETON: I object to this line of
13 questioning. I don't mean any offense to the witness,
14 but I don't know that he has been qualified as a QA/QC
15 expert, which is your line of questioning at this
16 point, nor has he been offered in that regard.
17 BY MR. HYDE:
18 Q Let me ask this question, if I could focus things.
19 Who at the Department did any review as to the quality of
20 the data sets that were employed or reviewed by the
21 Department concerning the older Loxahatchee National
22 Wildlife Refuge data?
23 A I have reviewed the data from the, as you termed
24 it, older Loxahatchee National Wildlife Refuge data. I
25 believe, I am not sure to what degree, Doug Gilbert had
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1 looked at that particular data set.
2 Q Did you accept that data at face value as being
3 accurate?
4 A I have no basis on which to reject that data as
5 being inaccurate, and so I --
6 Q Do you have any basis for concluding that it is
7 accurate?
8 MS. PONZOLI: Object to the form.
9 THE WITNESS: No.
10 BY MR. HYDE:
11 Q Mr. Nearhoof, do you think an adequate uncertainty
12 analysis has been done in relationship to the settling rate
13 and the sizing of the stormwater treatment areas?
14 MS. PONZOLI: May I hear that question again,
15 please?
16 MR. HYDE: Sure.
17 BY MR. HYDE:
18 Q Do you think an adequate uncertainty analysis has
19 been done relative to the settling rate and the sizing of
20 the stormwater treatment areas? Perhaps I should first ask
21 you, do you know what an uncertainty analysis is?
22 A Yes.
23 Q What is that?
24 A It is essentially an analysis of the relative
25 bounds of error around whatever analysis you happen to be
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1 performing.
2 Q Do you know what type of uncertainty analysis was
3 performed by Dr. Walker?
4 A Regarding what specific analysis are you asking
5 that question?
6 Q Regarding the sizing of the stormwater treatment
7 areas?
8 A Dr. Walker's document that I believe is the
9 August, the August '92 document that you discussed earlier,
10 contains such an uncertainty analysis. As I stated
11 previously, I have not reviewed that document in a
12 tremendous amount of detail.
13 Q Do you know what Dr. Walker concluded in that
14 regard?
15 A I would have to review the document again to bring
16 to mind whatever specific conclusions Dr. Walker may have
17 offered in that document.
18 Q Are you sure that such an uncertainty analysis
19 was, in fact, included in Dr. Walker's August 1992
20 document?
21 A I am not 100 percent certain, but I believe he
22 performed such an analysis.
23 Q Has the Department done any independent analysis
24 of Dr. Walker's uncertainty analysis?
25 A Not at this time.
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1 Q Do you intend to do so at some point in the
2 future?
3 A I have no plans to do so. However, that does not
4 preclude the fact that I may do so.
5 Q Do you know whether anyone with the Department
6 will be performing such an independent analysis of Dr.
7 Walker's uncertainty analysis?
8 A I don't know.
9 Q Do you consider that uncertainty analysis to be an
10 important part of the reasonable assurances that the
11 district has provided to the Department?
12 A The uncertainty analysis that Dr. Walker has
13 performed was not submitted, actually, as a part of the
14 permit application that the district submitted to the
15 Department.
16 Q Is the Department, despite the fact that the
17 district submitted as part of the permit application -- or
18 is the Department relying upon that uncertainty analysis as
19 part of the alleged demonstration that reasonable
20 assurances have been provided?
21 MR. SMITH: I am going to object because he has
22 already answered he doesn't know who has made that
23 alleged determination.
24 THE WITNESS: I don't know if the Department is
25 relying on that analysis or not.
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1 BY MR. HYDE:
2 Q Are you currently interacting with the staff of
3 the South Florida Water Management District concerning the
4 Everglades SWIM Plan?
5 A No.
6 Q You are not having any -- you are not exchanging
7 any correspondence or having any telephone or other
8 discussions with staff at the water management district?
9 A Yes. I conduct conversations via telephone with
10 staff of the water management district.
11 Q With whom do you typically deal at the district?
12 A I have -- I don't think I have any one person with
13 whom I typically deal at the district. I have
14 conversations with a number of district staff members that
15 I might discuss things with.
16 Q Can you identify the primary persons with whom you
17 are dealing?
18 A Depending on your definition of "primary," I have
19 conducted conversations with any number of staffers at the
20 district level, which would include, and I can give you a
21 partial list, and I will probably leave someone off, Larry
22 Fink, Tom Fontaine, Margaret Cook, Sue Newman, Garth
23 Redfield, Gary Goforth, Ron Bearzotti, B-e-a-r-z-o-t-t-i,
24 Tony Federico, and I am certain I am leaving someone off.
25 Paul Wahlen, W-a-h-l-e-n.
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1 Q With whom do you typically deal concerning the
2 scientists that are employed by the United States or by one
3 of its affiliated agencies?
4 A How would you define "deal"?
5 Q With whom are you regularly discussing aspects of
6 the Everglades SWIM Plan?
7 A Aspects of the Everglades SWIM Plan.
8 MR. SMITH: If you are.
9 THE WITNESS: I don't know that -- I don't think I
10 am currently conducting any conversations with anybody
11 that is associated with a federal agency concerning the
12 SWIM Plan. I am currently not working on anything
13 regarding the SWIM Plan.
14 BY MR. HYDE:
15 Q Do you recall the substance of your conversations
16 with Mr. Federico?
17 MR. SMITH: At what time?
18 MR. HYDE: I don't know that he has identified a
19 time.
20 BY MR. HYDE:
21 Q Do you recall approximately when you had your
22 discussions with Mr. Federico?
23 MR. SMITH: Objection to form. You were talking
24 about before, you were eliciting his typical dealings
25 in the very recent past, and now it is broad, it could
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1 be any time.
2 MR. NETTLETON: I also object. I believe the
3 witness testified that he hasn't talked with any of the
4 South Florida Water Management District staff regarding
5 the SWIM Plan, and then you asked him who does he deal
6 in general with on any subject matter, and that is the
7 list of names. I don't see where this is relevant if
8 it is not related to the SWIM Plan.
9 BY MR. HYDE:
10 Q Let me ask you, what subject matter have you
11 discussed with the staff of the water management district
12 whom you just identified?
13 MR. NETTLETON: Object to the form.
14 THE WITNESS: Subject matter, in which period of
15 time, now? Because I have dealt with any number of
16 things over a long period of time.
17 BY MR. HYDE:
18 Q Let's say after the execution of the settlement
19 agreement.
20 A I have had discussions with people regarding the
21 BMP rule, stormwater treatment area design, research and
22 monitoring, status of grant monies available and permit
23 applications, and I've probably had conversations with
24 people regarding other topics that don't come to mind.
25 Q Have you had any discussions with Mr. Federico
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1 during that period of time regarding the stormwater
2 treatment areas?
3 A I am sure I have.
4 Q What about the proposed monitoring plans?
5 A Is the question have I had a conversation with Mr.
6 Federico about the proposed monitoring plans?
7 Q Yes.
8 A Yes.
9 Q And the permit applications?
10 A I don't recall if I have had any discussions with
11 Mr. Federico, offhand, regarding the permit applications.
12 He was not the principal contact person for those permit
13 applications for the district.
14 Q Were those conversations by way of telephone or
15 were they in person?
16 A Both of the above.
17 Q Do you recall where the in-person communication or
18 person-to-person communications occurred?
19 A The district has come to Tallahassee to meet with
20 the Department on more than one occasion, and the
21 Department has gone to the district to meet with the
22 district staff on more than one occasion, and conversations
23 have been conducted in both places.
24 Q Were any of these meetings or discussions held
25 during the meeting of the SAGE Committee?
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1 MR. SMITH: Objection as to form unless you
2 clarify what you mean by "during the meeting." Do you
3 mean during the days there was a meeting or during the
4 same --
5 BY MR. HYDE:
6 Q During the actual meeting, itself.
7 A Was --
8 Q Did any of these conversations with Mr. Federico
9 regarding the stormwater treatment areas or the monitoring
10 plans occur during the SAGE meetings themselves?
11 A I don't recall. I would have to review the
12 minutes of the SAGE meeting to recall if there was any
13 conversation during the course of the meeting.
14 Q Did any such conversations occur outside of those
15 meetings?
16 A I have had conversations outside of SAGE meetings
17 with Mr. Federico at a number of times, and I am sure there
18 were conversations during some of those times which
19 included discussion of stormwater treatment areas.
20 Q And monitoring plans, too?
21 A And monitoring plans, too.
22 Q Does the Department decide prior to meeting with
23 the district, such as at a SAGE meeting, what position, if
24 any, it should take on the various issues that come up
25 during the course of that meeting?
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1 A I don't -- well, I can't make a blanket statement
2 as to whether such a decision is made for all meetings. I
3 don't recall having ever been told that the Department had
4 some specific position that we would be presenting at a
5 meeting.
6 Q Well, do you and any other Department employees
7 who attend such meetings with you discuss your concerns and
8 likely positions prior to that meeting, or do you simply
9 respond, for lack of a better term, off the cuff to the
10 issues and subjects that are brought forward?
11 A I think the response is probably best termed as
12 that off the cuff, although I, as I am sure other
13 Department representatives at these meetings, am aware of
14 our rules and regulations, and I am generally trying to
15 make whatever comments I should make, I should happen to
16 make in a meeting in the context of my understanding of
17 those rules and regulations.
18 Q I have a few final questions here.
19 Are you familiar with the Department's waste water
20 to wetlands rule?
21 A Not intimately.
22 Q Do you know whether it was ever considered as part
23 of the SWIM Plan analysis by the Department?
24 A No.
25 Q Do you know whether it was ever considered in the
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1 Department's review of the district's permit application A?
2 A No.
3 Q Yesterday, you stated that you had assisted in the
4 preparation of the conditions to the draft department
5 permit to the district for permit application A, is that
6 correct?
7 A That is correct.
8 Q Have you ever written permit conditions for any
9 other permit applications before?
10 A Yes.
11 Q Do you recall which applications those were?
12 A I -- well, let me clarify that. They are not
13 conditions for permit applications. They are -- the
14 conditions are for the permit. I don't recall, I would
15 have to go back through our reading files to bring to mind
16 what specific permits I may have written conditions for.
17 Generally speaking, they have been conditions regarding
18 various research -- not research, but monitoring that would
19 be associated with the permit, as a rule, although I may
20 have written conditions for a permit that would not be in
21 that context.
22 Q What kind of permits are we typically speaking of
23 here?
24 A Generally speaking, I deal with domestic or
25 industrial waste point source dischargers and would,
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1 therefore, have been involved with writing a condition for
2 a permit for a domestic or industrial point source
3 discharger.
4 Q Are those permit conditions that you prepare more
5 or less standard form types of conditions, or do you
6 independently create one on a case-by-case basis for a
7 given file?
8 A I would create a specific condition on a case-by-
9 case basis for that particular permit.
10 Q I believe in the first day of this deposition I
11 asked you some questions regarding some water quality based
12 effluent cases upon which you had worked, and I think you
13 identified the Terra Ceia Bay, Plant City, King's Bay,
14 Crystal River facilities. Did you draft any permit
15 conditions for those operating permit applications?
16 A A point of clarification, the Plant City was a
17 water quality based effluent limit that I was involved
18 with, as was the Crystal River. However, the Terra Ceia
19 Bay is a minimum impact which is related to the Grizzle-
20 Figg Bill.
21 I don't recall having recommended a specific
22 permit condition for those particular permits. The Crystal
23 River permit that was subsequently issued as a result of
24 the WQBEL does not any longer involve a surface water
25 discharge. Therefore, there is no reason for any
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1 monitoring to be associated with that particular permit.
2 The Plant City WQBEL is still under discussion
3 with the City of Plant City, so there is no permit being
4 issued at this point in time. We are still resolving what
5 the ultimate disposition of that particular permit will
6 be.
7 I don't believe I have written anything for the
8 City of Palmetto discharge to Terra Ceia Bay, that I can
9 recall.
10 Generally, when I write a permit condition, by the
11 way, that would be a suggested permit condition for the
12 district to include in the permit. The district itself is
13 in charge of issuance of the permit and may, in fact,
14 modify my permit condition if they deem it appropriate.
15 Q Did or have you ever written any permit conditions
16 for a permit that involved a discharge of agricultural
17 waters?
18 A I don't believe so, but I am not certain of that.
19 Q During our discussion the other day of your
20 construction of the dissolved oxygen standard, I believe
21 you made some statements that had some interrelationship
22 with the cause or contribute water quality standard. Do
23 you recall that line of questioning?
24 A Yes.
25 Q Could you explain that relationship for me? I
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1 don't think we ever really fleshed it out at the time that
2 I asked those questions to you earlier.
3 A As I understand the cause or contribute, which is
4 in our anti-degradation rule, it is -- a discharge cannot
5 cause a violation of a water quality standard or further
6 contribute to a violation of a water quality standard that
7 may be in existence prior to that discharge.
8 Q Is that the basis for your conclusion that further
9 diminishment of dissolved oxygen concentrations as a result
10 of phosphorus loading constitutes a violation of state
11 water quality standards?
12 A Would you restate that again one more time?
13 Q Is that the basis for your conclusion -- and I am
14 paraphrasing it here -- that even where -- strike that --
15 that where the dissolved oxygen concentrations of a water
16 body are further diminished below five milligrams per liter
17 standard as a result of phosphorus concentrations, that
18 further diminishment is itself a violation of state water
19 quality standards?
20 A In part, yes.
21 Q Is there anything else that bears upon your
22 conclusion in that regard?
23 A As I recall in my testimony the other day I also
24 stated that 17-302 and I think it is .560(29), which is the
25 dissolved oxygen criterion, also requires that normal daily
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1 and seasonal fluctuations be maintained, and the fact that
2 those fluctuations are being affected by the dischargers
3 also constitutes a violation.
4 Q Are those two rules the only basis for that
5 determination?
6 A I believe so.
7 Q Do they interact with any other rule that lends
8 support to your conclusion?
9 A Not that comes to mind.
10 MR. HYDE: I am finished. I think it is probably
11 appropriate for us to go to the Hopping Boyd offices
12 for our counsel meeting.
13 (Lunch recess.)
14 EXAMINATION
15 BY MR. PERKO:
16 Q Mr. Nearhoof, I want to go back for a few minutes
17 on the Nearhoof report which has been marked as Exhibit No.
18 3.
19 When did you first begin the analyses that
20 ultimately resulted in this report?
21 A Sometime at the latter part of 1991, I don't know
22 precisely when, October or November, I suppose. I started
23 amassing the documents that I may not have already had in
24 my possession and reviewing them.
25 Q What sources of information did you look to to
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1 compile the references that are in your report?
2 A Probably the original source was the SWIM Plan,
3 and from there I contacted various scientists that I was
4 able to get in touch with and requested if they had any
5 additional documents, and, if so, could I get a copy, and
6 as I progressed through the drafting of the report and ran
7 across something, I would request it. It snowballs.
8 Q Who are the scientists that you contacted?
9 A I have had discussions with a number of
10 scientists. I have spoken with probably all of the
11 scientists at the water management district that I cited in
12 here, and some additional scientists that I have not cited
13 in here, in addition to scientists at Everglades National
14 Park as well as the Refuge, Lance Gunderson, John
15 Richardson, Tom Belanger, Dr. Curtis Richardson. There are
16 probably others that aren't popping into my mind. Oh, Dr.
17 Jones.
18 Q Do you recall what district scientists you talked
19 to other than the ones that are cited in the report?
20 A I don't believe I have cited, Paul Wahlen isn't an
21 author in any of the reports that I cited, I don't believe,
22 nor is Larry Fink or Garth Redfield. I don't believe Sue
23 Newman is an author of any of the references cited in the
24 report, that I recall. I am not sure about that,
25 actually. Jim Grimshaw. I don't know if this is any
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1 relationship to the report, but I have discussed data with
2 George Shih. That is all that is popping into my mind
3 offhand.
4 Q What about employees of the Refuge on the U.S.
5 Fish and Wildlife Service?
6 A I have discussed various aspects of the report
7 with Burkett Neely and Mark Maffei, and I probably had some
8 discussions with maybe Robin Goodloe, I think, at one time,
9 as I recall.
10 Q In Everglades National Park?
11 A Mike Soukup, Tom Armantono. Dan Scheidt is not
12 with Everglades National Park now, but was. Ron Reschke,
13 R-e-s-c-h-k-e, is currently with EPA, but has done work in
14 the Park. That is all that are coming to mind for now.
15 Q Mr. Nearhoof, when did the Department first
16 determine that there were water quality violations,
17 violations of the water quality standards referenced in
18 your report?
19 A The earliest determination of violations that I
20 have seen a record of I believe are in a memo, and I forget
21 to whom the memo was originally written, but they were from
22 Dr., as I recall, from Dr. Landon Ross, and it would have
23 been like 1987, I believe. That memo, I believe, is in my
24 records and was produced. That is the earliest record that
25 I have seen. I don't know if there is any determination
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1 that may have predated that that I am aware of.
2 Q Before I get into the substance of the report, I
3 would like to refer you back to Exhibit No. 7, which is --
4 do you have that with you?
5 A I don't have any exhibits. All I have is my file
6 here.
7 Q I will just read you the sentence that I am
8 interested in. This is the OFW memo identified authored by
9 Richard Harvey. I am looking at the third page, which is
10 Bates No. 0892329. The fourth paragraph, second sentence,
11 says, "During the settlement negotiations, however, the
12 scientists involved in reviewing the data concluded that
13 violation of the Class III nutrient criterion had occurred
14 due to the discharges that existed at the time of, and
15 since, the OFW designation."
16 Could you tell me who those scientists referred to
17 are?
18 A I was -- to my recollection, I was not responsible
19 for writing this particular sentence. I believe Mr. Harvey
20 originally --
21 Q Do you know who these scientists are?
22 A I would assume Mr. Harvey is talking about the
23 scientists that reviewed the data during the settlement
24 negotiations. It would be speculative to know to whom he
25 was referring in this.
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1 Q Do you have any knowledge of who those might be?
2 A Well, I was a scientist that was involved in
3 reviewing the data and I concluded that violations had
4 occurred, so I suppose he was referring to at least myself.
5 Q Anyone else that you are aware of?
6 A Well, I am not really sure to whom Mr. Harvey
7 intended this to refer, so as I say, I don't know that --
8 Mr. Harvey and Tom Swihart and myself were, as I recall,
9 the three Department representatives that were present
10 during these technical discussions, and I assume he is
11 referring to the three of us or one of us or all of us or
12 some subset thereof.
13 Q I thought that you stated earlier that the
14 technical discussions in which you participated related to
15 the data that were used to derive the concentration limits
16 and levels for the Park and Refuge. Did you also discuss
17 violations of the Class III nutrient criterion?
18 A I don't recall the exact details of discussions
19 regarding violations. As I recall, there was probably some
20 discussion at these of violations of various criteria.
21 Q Do you know if violations were discussed in any
22 other meetings that you are aware of?
23 A Meetings other than the meetings that I
24 participated in?
25 Q Exactly.
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1 A I don't know. I wasn't at any other meetings
2 other than the ones that I participated in, so I don't
3 really know what discussion was conducted at those
4 meetings.
5 Q What data indicates that there were violations of
6 the Class III nutrient criterion at the time of the OFW
7 designation?
8 MR. SMITH: I need to stop you just for a moment
9 to make sure we have an understanding my continuing
10 objection doesn't have to be reraised again and again
11 and again. The same one I made to this whole line of
12 questioning before I am making to this whole line.
13 MS. PONZOLI: I want my objection reflected also.
14 MR. HYDE: What is the continuing objection?
15 MR. SMITH: The objection is to the relevance of
16 what was discussed in those meetings during the
17 settlement negotiations as opposed to the substance of
18 the science, regardless of what the time and place was,
19 and whether it had to do with the settlement
20 negotiations.
21 MR. NETTLETON: Same objection.
22 MR. SMITH: Any reference to the settlement
23 negotiations or settlement agreement as I see it is
24 irrelevant, as we discussed previously. You have the
25 right to ask about the science and the technical basis
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1 for our document here and for the SWIM Plan.
2 MR. PERKO: I believe my question is what data
3 indicates there were violations of the Class III
4 nutrient criterion at the time of the OFW designation.
5 MR. SMITH: If you know.
6 THE WITNESS: I don't know to which data Mr.
7 Harvey was referring in this particular statement that
8 indicated that they existed at the time of the OFW
9 designation.
10 BY MR. PERKO:
11 Q Do you agree with the statement that they existed
12 at the time of the OFW designation?
13 A I would have to rereview the data to look at the
14 actual dates of the data that I have reviewed because the
15 focus of the document that I wrote was to document that
16 there are violations that have occurred, and not so much to
17 designate when those particular violations may have
18 occurred, so that would require some rereview.
19 Q Let me turn your attention to Exhibit 3 of the
20 Nearhoof report. Do you have any notes or memoranda of the
21 interviews that you conducted with the scientists in the
22 area?
23 MR. SMITH: I object to the form, specifically
24 with reference to the word "interviews."
25 BY MR. PERKO:
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1 Q Paragraph 1, on page 1, you state that you
2 conducted interviews with many of the scientists directly
3 involved in the Everglades research. Do you have any notes
4 or memoranda of those interviews?
5 A The documents that I produced contain some
6 handwritten notes that are a combination of some notes that
7 I had taken from documents as I reviewed them, and I don't
8 recall -- I would have to review that file to recall if
9 there are any notes that came directly from an interview
10 with a scientist. There are some facts, memoranda, if you
11 will, from various people related to this document which
12 are also contained in my --
13 Q So if you had any notes of those interviews, they
14 would be in the documents produced?
15 A That is correct.
16 Q In the first full paragraph of page 2, you state
17 that, "A large body of evidence indicates that phosphorus
18 is the primary limiting nutrient throughout the remaining
19 Everglades." How was phosphorus determined to be the
20 limiting nutrient in the Everglades?
21 A The details of that determination in some cases
22 are contained in the references that are cited in that
23 paragraph. In other cases, these references may have
24 merely substantiated the fact that that is the case.
25 I think actually in looking at the references that
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1 I have cited here, I think the evidence lies in most of
2 these references.
3 Q Do you know offhand how phosphorus was determined
4 to be the limiting nutrient?
5 A Well, in a number of these cases they are dosing
6 studies in which if you essentially dose a site with
7 phosphorus, you get a response, generally in the form of
8 increased biomass, and if you dose it with nitrogen you
9 don't get a response, which indicates that growth of the
10 system is limited by the nutrient phosphorus that you are
11 adding during that dosing.
12 Q In the next paragraph, you state that,
13 "Substantial portions of EAA nutrients are transported to
14 the Everglades Protection Area, either in dissolved or
15 particulate form in surface waters or as atmospheric
16 deposition from burning of cane fields or processing plant
17 emissions."
18 In what form would phosphorus be in any
19 atmospheric emissions originating from the EAA?
20 A In what form would it be?
21 Q Ashes or particulate?
22 A Phosphorus would be presumably absorbed to -- I am
23 not a meteorologist, by the way, so I would be wandering
24 slightly far afield of my expertise here, but I believe it
25 would be mostly absorbed in the particulates in the
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1 atmosphere. Phosphorous is not naturally a gaseous
2 substance, except under high temperature.
3 Q Carrying on to page 3, you state, "Nutrient-
4 induced impacts have been well documented in SFWMD
5 Technical Publications, journal articles and unpublished
6 data. These impacts were substantiated by LOTAC II after
7 three years," parens, "(1987-1990)," end parens, "of
8 extensive technical deliberations."
9 How did LOTAC II substantiate these conclusions?
10 A I was not present during all of the LOTAC
11 II deliberations, except for I may have attended a couple
12 of LOTAC meetings, but I don't recall having been present
13 during any deliberations where they substantiated these,
14 so I don't know how they came about making that conclusion.
15 However, those conclusions are stated in the LOTAC II
16 summary document that summarizes their findings of fact,
17 although I don't know if they are expressed that way in the
18 document.
19 Q I guess my question is, did LOTAC do any primary
20 research on nutrient impacts, or did they rely on the work
21 of others?
22 A I don't know if LOTAC performed any original
23 research of their own. I don't think so. I think they
24 primarily reviewed available data and research, but I don't
25 know with certainty that that is the case.
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1 Q In the second to the last paragraph of page 3,
2 you state that, "The Department's criterion regarding
3 nutrient-induced imbalances of flora or fauna was written
4 as a narrative rather than numeric criterion with the focus
5 of maintaining the assemblage of flora and fauna
6 characteristic of the ecosystem in question."
7 What do you mean by "characteristic of the
8 ecosystem in question"? And specifically at what time do
9 you mean characteristic of the ecosystem in question? With
10 regard to the Everglades, do you mean as of the time that
11 nutrient rule, nutrient criterion was promulgated, or do
12 you mean natural background conditions?
13 A What I meant in writing this particular sentence
14 was the assemblage of flora and fauna that would be found
15 to naturally occur in the Everglades ecosystem without the
16 influence of nutrient impacts or other impacts.
17 Q Essentially prior to construction of the federal
18 project, the central and south Florida project?
19 MR. NETTLETON: Objection.
20 MS. PONZOLI: Object to the form.
21 MR. SMITH: Object to the form.
22 THE WITNESS: No.
23 BY MR. PERKO:
24 Q In paragraph -- the second from the last paragraph
25 on page 3, I am paraphrasing, but you essentially set forth
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1 how the Department implements or interprets the nutrient
2 criteria, is that a correct statement?
3 MS. PONZOLI: I object to the form.
4 THE WITNESS: We are talking about the next to the
5 last paragraph on page 3?
6 MR. PERKO: Right.
7 MR. SMITH: Beginning with the word "Evaluation"?
8 MR. PERKO: Yes, and continuing on to the next
9 page.
10 THE WITNESS: Continuing on into the next
11 paragraph on the next page, I believe it would be a
12 fair statement that I am essentially summarizing the --
13 BY MR. PERKO:
14 Q Do you know if that -- if the statements in this
15 description of how the Department implements the nutrient
16 criteria is set forth in any departmental guidance
17 memorandum?
18 A Not to my knowledge.
19 Q Did you rely upon any guidance memorandum of the
20 Department in developing this report?
21 A No.
22 Q In the last paragraph on page 3, you state that,
23 "If available, quantitative data set measurements such as
24 taxa richness, diversity, Florida Index, percent
25 composition of important taxa, functional feeding group
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1 indices, et cetera, may be used in this determination."
2 What is the Florida Index?
3 A I am not intimately familiar with how exactly the
4 Florida Index is used.
5 By the way, let me go back to your last question.
6 There is actually a memorandum from either Dr. Ross or Russ
7 Friedenborg, I don't recall which, which had some details
8 of the nutrient impact statement; that is, I don't know if
9 it would be termed a guidance memorandum, but I had asked
10 them for some information which is incorporated to some
11 degree in this particular statement. So I might state it
12 to some degree on the last question.
13 Q Was that document included in the materials that
14 you produced?
15 A Yes.
16 Q Do you know the approximate date of that
17 document?
18 A It would be, I suppose, late 1991 or early 1992. I
19 think it was in a folder labeled Department, Department
20 Studies or something like that.
21 MR. SMITH: Just to clarify for the record, it is
22 not what I would call a guidance memorandum. It has
23 not been formally adopted by the Department or any
24 division thereof. It is simply input into this
25 document.
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1 THE WITNESS: I think I had intended to state it.
2 I didn't know whether I would call it a guidance
3 memorandum. It is not labeled.
4 MR. SMITH: A guidance memorandum has a very
5 specific meaning here in the Department.
6 MR. PERKO: Okay.
7 MR. HYDE: May I ask the question, does it have
8 any meaning or weight whatsoever?
9 MR. SMITH: Which --
10 MR. HYDE: Does this memorandum from Mr.
11 Friedenborg or Dr. Ross have any weight or significance
12 to the Department?
13 MR. SMITH: Have any weight?
14 MR. HYDE: Or is it just a mental exercise by the
15 author?
16 MR. SMITH: It is not a guidance memorandum in the
17 sense of setting down a policy for all time. It is the
18 best available knowledge coming from the people who
19 actually apply this in the laboratory. In that sense,
20 Frank gave it weight, since it is coming from people
21 who deal with that nutrient criterion more often than
22 he does.
23 BY MR. PERKO:
24 Q Would you agree with what Mr. Smith just stated?
25 A Yes.
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1 MR. SMITH: That is good.
2 BY MR. PERKO:
3 Q Turning on to page 4, the first paragraph under
4 Section 3.1.1, you identify phosphorus as a conservative
5 substance, is that correct?
6 A I think I described it as a relatively
7 conservative substance.
8 Q Would you consider reagent grade orthophosphorus
9 to be a relatively conservative substance?
10 A I would describe reagent grade orthophosphorus to
11 be relatively less conservative than total phosphorus, and
12 more conservative than, say, nitrogen, which has a very
13 complex cycle, and that is what this particular sentence
14 was intended to convey. It was a substance which you would
15 expect to be able to follow some pattern in the ecosystem,
16 and I was really speaking more of total phosphorus here
17 than, say, orthophosphorus.
18 Q Turning on to Section 3.1.2, in the second
19 sentence of the first paragraph in that section, you state
20 that, "Therefore, elevated interior marsh phosphorus
21 concentrations are closely associated with water flow
22 patterns from the canals through the marsh." Is that
23 correct?
24 A That is correct.
25 Q If discharges from the EAA result in elevated
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1 nutrient concentrations in interior portions of the
2 marshes, what other constituents would you also anticipate
3 to be elevated?
4 MS. PONZOLI: Object to the form.
5 MR. SMITH: Object to the form.
6 THE WITNESS: What other constituents would be
7 considered to be elevated?
8 BY MR. PERKO:
9 Q Would you expect to be elevated.
10 A Well, any constituent that is higher in
11 essentially the discharge concentration than exists
12 commonly in interior marsh sites, you would expect to see
13 some relationship in that concentration with the inflow.
14 Q Could you be more specific and identify a
15 particular constituent that you would expect to be in
16 elevated concentrations?
17 MR. SMITH: Same objection.
18 MS. PONZOLI: Same objection.
19 THE WITNESS: Probably the best example would be
20 chlorides, that would be expected, I think, to be
21 higher concentrations at the inflow sites than exist at
22 interior marsh stations where dilution is occurring
23 through rainfall, and therefore you would expect to see
24 some patterns resulting from that dilution as flow
25 through the marsh progresses.
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1 BY MR. PERKO:
2 Q At the bottom of page 5, you state that, "At
3 phosphorus-enriched sites, the soil can act as a source of
4 phosphorus to the water column, at least for short periods
5 of time." Would not the same be true for unenriched sites
6 or at unenriched sites?
7 A There is a flux of phosphorus between the water-
8 soil interface, and the degree of that flux is essentially
9 related to the differential in concentration between the
10 surface water concentrations underlying the soil and the
11 concentrations in the soil.
12 If you have elevated soil concentrations related
13 to surface water concentrations, there is a more likely
14 possibility that that flux is going to be an upward or from
15 the soil to the surface water direction. However, it is a
16 continuous process of absorption/desorption of phosphorus
17 to the soil particles.
18 Q Can soil act as a source of phosphorus to the
19 water column in unenriched sites?
20 A Yes.
21 Q In your opinion, what impact has the IAP -- are
22 you familiar with the IAP, Interim Action Plan?
23 A Yes.
24 Q In your opinion, what impact has the IAP had on
25 the extent that elevated nutrient concentrations have
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1 penetrated WCA-2A?
2 A I don't know. I have never seen any quantitative
3 data that would show the relationship between the effects
4 of the implementation of the IAP and increased penetration
5 of nutrients in -- did you ask WCA-2A, is that specifically
6 what you asked, WCA-2A? Yes.
7 Q Do you know if anyone else in the Department has
8 looked at the potential impact of the IAP?
9 A I don't know.
10 Q Moving on to Section 3.1.3, Microbial Community
11 Impacts, you state that, in the bottom paragraph,
12 "Phosphate addition stimulated the microbial respiration
13 rate of the low and intermediate phosphorus soil, but did
14 not affect the microbial respiration rate of the high
15 phosphorus soil." This is in reference to the Amador, et
16 al., 1991 study.
17 How was the stimulation of microbial respiration
18 rates measured?
19 A I believe they -- I believe they measured CO2
20 output from the soil. I would have to review the paper
21 again real quickly to recall their methods exactly, but I
22 believe that was their method.
23 Q Getting back to the first paragraph in that
24 section, 3.1.3, you mentioned that the Everglades are a
25 detrital-based system. What is a detrital-based system?
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1 What are its characteristics?
2 A I think this particular statement came from a
3 suggestion from Dr. Jones, and is a descriptive statement
4 of the importance of this effect that I am describing in
5 this section.
6 I believe by this particular statement Dr. Jones
7 meant the fact that it is a peat system in which there is
8 an accretion of organic matter which is not being degraded
9 at a rate that precludes it from building up, and that is
10 the way the peat has built up in the Everglades soils, and
11 I believe that is what Dr. Jones is referring to.
12 Q What happens in a detrital-based system if rates
13 in decomposition increase?
14 A You would then no longer have a peat accretion,
15 which would fundamentally change the underlying
16 characteristics of the soil of the system.
17 Q In nutrient-enriched areas such as below the S-10s
18 are rates of detritus accumulation higher or lower than
19 unenriched areas?
20 A I believe the accumulation rates, and I would have
21 to look at the data and refamiliarize myself to be certain,
22 but I believe they are higher in the more, influenced by
23 the nutrient-enriched sites than they are at the less
24 enriched sites.
25 Q Are oxygen concentrations higher or lower?
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1 A They are lower.
2 Q Than enriched sites?
3 A Oxygen is lower at enriched sites.
4 Q Moving on to page 8, the first two full
5 paragraphs of page 8, you discuss the impacts of nutrient
6 additions on alkaline phosphatase activity, is that a
7 correct paraphrase?
8 A State the -- state what you said again.
9 Q In the first two full paragraphs of page 8, you
10 discuss the impacts of nutrient additions on alkaline
11 phosphatase or AP activity, is that correct?
12 A That is correct. The first paragraph, I am really
13 describing the functionality of alkaline phosphatase. I
14 think in the second paragraph I am describing the effects
15 of nutrient enrichment on that activity.
16 Q What did changes in alkaline phosphatase activity
17 or how do changes in alkaline phosphatase activity affect
18 higher order organisms?
19 MS. PONZOLI: Object to the form.
20 THE WITNESS: I don't -- have not made a direct
21 correlation between the degree of -- the effect the
22 nutrient enrichment has on the alkaline phosphatase and
23 a quantitative analysis of further effect in that
24 enrichment and subsequent effect that the alkaline
25 phosphatase would have on higher trophic levels.
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1 BY MR. PERKO:
2 Q How would you expect changes in alkaline
3 phosphatase activity to affect higher order organisms?
4 MS. PONZOLI: Object to the form.
5 THE WITNESS: I don't know that I would actually
6 expect the change in the alkaline phosphatase activity
7 so much to affect any higher organisms as the fact that
8 the alkaline phosphatase activity change is indicative
9 of a change in the fundamental function of the
10 microbial community reflected in -- also in their
11 increased respiration rates that were described in this
12 section.
13 BY MR. PERKO:
14 Q I guess what I am trying to figure out is, what
15 impact would changes in alkaline phosphatase activity have
16 on flora and fauna in the Everglades?
17 MS. PONZOLI: Object to the form.
18 THE WITNESS: I don't believe I stated here that
19 the alkaline phosphatase activity has a direct effect
20 on the flora and fauna, but more that it is an
21 indicator of the enrichment that is causing a
22 fundamental change in the microbial metabolism.
23 BY MR. PERKO:
24 Q Does reduced alkaline phosphatase activity reduce
25 or enhance phosphorus in the soil?
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1 A I have not looked at the relationship between
2 phosphatase activity and soil phosphorus sequestration
3 rates, so I could not answer that.
4 Q Moving on to the next section, Section 3.1.4,
5 Periphyton Impacts, the first full paragraph of page 9, the
6 statement that, "Phosphorus enrichment has been
7 significantly correlated with adverse changes in the
8 taxonomic composition and community structure of Everglades
9 Protection Area periphyton communities in WCA-2A and
10 WCA-3A," how are adverse as opposed to other than adverse
11 changes defined?
12 A How was adverse --
13 Q What do you define as an adverse change in
14 taxonomic composition?
15 A The next sentence is elaborating on that
16 statement, in that they are altered species composition.
17 Some of the species that are characteristically present in
18 unenriched sites are no longer present in enriched sites.
19 Species that aren't present in unenriched sites are present
20 in enriched sites.
21 In addition, the next parenthetic section has
22 reduced taxa richness stimulation of the growth of
23 pollution-tolerant species such as Microcoleus, increased
24 growth rates and community phosphorus content.
25 Q I understand that you consider those to be adverse
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1 changes. My question is, how did you determine those
2 changes to be adverse?
3 A Well, the focus of the nutrient criterion in
4 question is to maintain the characteristic assemblage of
5 flora and fauna native to the Everglades, and nutrient
6 enrichment that causes a deviation from that characteristic
7 assemblage to an assemblage of organisms that include
8 pollution-tolerant indicator species is an adverse change.
9 Q My question really is, is the mere absence or
10 decrease in species populations necessarily an adverse
11 change?
12 A Is the mere absence --
13 Q Or even a decrease --
14 A Decrease in --
15 Q -- in species composition or population
16 necessarily adverse?
17 A Decrease in species composition or population, are
18 you talking about less organisms there? Because I am
19 talking about composition changes here.
20 Q Okay. Species composition, a decrease in species
21 composition, would any decrease in species composition be
22 adverse?
23 A I am talking about altered species composition in
24 the statement. It -- this is a community that is composed
25 of one set of organisms that then shifts under the
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1 influence of nutrient enrichment to become a community
2 composed of a different set of organisms. It is not
3 necessarily a decrease that I am talking about, if we are
4 talking about what I have got as the little circled 1 here
5 in the second sentence of the paragraph. I think that is
6 what we are discussing.
7 Q Well, let me rephrase the question, then. Would
8 any alteration in species composition be considered
9 adverse?
10 A Not necessarily.
11 Q How do you determine whether an alteration in
12 species composition is adverse?
13 A As I described in the earlier section where we
14 were talking about the imbalance, it is a matter of looking
15 at what, the characteristic assemblage you would expect to
16 find there, and if you see a shift to another assemblage of
17 organisms that no longer function in the same way that the
18 ecosystem originally did, then you would consider it to be
19 an adverse change.
20 Q What degree of a change would you consider
21 adverse?
22 MS. PONZOLI: Object to the form.
23 BY MR. PERKO:
24 Q Are we talking about areal extent?
25 A As I described again in the earlier section, that
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1 is a factor which would be taken into account. However,
2 there is no quantitative measure that is applied to this
3 determination that says this areal extent is adverse and
4 this areal extent is not adverse. It is a comparison
5 between unimpacted and impacted sites, and a determination
6 using a number of tools that I have described in here that
7 you have for making that comparison, including best
8 professional judgment, as we stated, in making that
9 determination.
10 Q Do you really have any yardstick or criterion to
11 determine adverseness, whether a change is adverse?
12 MS. PONZOLI: Object to the form.
13 MR. SMITH: Objection, already asked and answered.
14 MS. PONZOLI: Again.
15 MR. HYDE: It has been asked, I don't know.
16 MR. SMITH: It has been answered several times.
17 MR. PERKO: He has identified several criteria he
18 looks to to determine whether change is adverse, but
19 there is no statement as to the degree of any of these
20 criteria or anything else. What I am trying to figure
21 out is the degree that you are looking for in
22 determining whether any of these particular changes are
23 adverse.
24 MR. NETTLETON: Objection, asked and answered.
25 Are you looking for a number?
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1 MR. SMITH: You may answer. I am not sure.
2 MS. PONZOLI: He has answered. I guess I maintain
3 an objection.
4 MR. SMITH: If you have anything to add, you may
5 answer. I thought it was asked and answered, and I
6 maintain the objection, but I am not instructing you
7 not to answer.
8 THE WITNESS: There is no numeric adversity
9 index.
10 BY MR. PERKO:
11 Q Moving on to page 10, second to the last
12 paragraph, you state that, "In a separate vegetative
13 transect study in WCA-1, Doren et al. (in prep.) found a
14 significant negative correlation between cattail and
15 distance from the perimeter canal and a positive
16 correlation with soil phosphorus concentration."
17 Would you also expect a negative correlation in
18 water levels along the same transect?
19 A Not necessarily.
20 Q Do you know if a negative correlation in water
21 levels was observed in this study?
22 A I don't recall if this particular study has water
23 depth data available for the site in the study or that I
24 have --
25 Q Let me ask you this. Is cattail occurrence
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1 correlated with water level?
2 MS. PONZOLI: Object to the form.
3 THE WITNESS: I don't think there is a
4 relationship between -- cattail is more tolerant, I
5 believe, of deeper depths than some Everglades
6 vegetation such as sawgrass. However, there is a
7 transition, I believe I have explained this previously,
8 of different water depths throughout the Everglades,
9 and in the unenriched Everglades you find an assemblage
10 of plants which represents that transition of water
11 depths from the characteristic sawgrass marsh to an
12 aquatic slough in the deeper depths.
13 However, the historic unenriched Everglades does
14 not transition, based on the data I have evaluated, to
15 a cattail marsh.
16 BY MR. PERKO:
17 Q Where you find cattail stands in the Everglades,
18 do you also find generally higher water levels?
19 A I don't know that I would make that general
20 statement. You can find cattail in the Everglades in a
21 marsh site that may be high and dry at the time you find
22 the cattail site.
23 Q In the second full paragraph on page 11, you cite
24 the Steward and Ornes dosing study. Do you know what the
25 dosing levels were in that study?
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1 A I don't recall the precise dosing levels in the
2 study. I do recall it is stated in the study, and I could
3 get the study and give you that, the study was produced.
4 Q Do you remember -- do you know how those dosing
5 levels compared to levels currently observed in WCA?
6 A I don't recall having done that comparison.
7 Q In the bottom paragraph on page 11, you state that
8 sawgrass prefers, among other things, prolonged
9 hydroperiods, is that correct?
10 A This --
11 Q "Research indicates that Everglades Protection
12 Area sawgrass and slough communities prefer low nutrient
13 levels, prolonged hydroperiods, shallow water depths," et
14 cetera?
15 A Yes.
16 Q My question is, what do you consider to be a
17 prolonged hydroperiod?
18 A There was a citation from whatever the study, I
19 think this is Urban, et al., yes, that I have cited here.
20 I don't recall what they defined as a prolonged
21 hydroperiod in this particular study. I would have to
22 refer back to see if they clearly define length of
23 hydroperiod.
24 Q Do you know if they did define what a prolonged
25 hydroperiod is for purposes of those conclusions?
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1 A I think I just stated -- I don't recall if they
2 defined numerically number of days inundated that they
3 would consider prolonged.
4 Q Did they just state that sawgrass just generally
5 prefers prolonged hydroperiod without explanation?
6 A I don't recall.
7 Q Moving on to page 12, the first paragraph, about
8 the middle of the paragraph, you state that, "Transects
9 with uniform hydroperiod in WCA-1 and WCA-2A have
10 significant correlations between cattail occurrence and
11 phosphorus concentrations, indicating that phosphorus has a
12 more significant influence than hydroperiod on macrophyte
13 community composition in the Everglades Protection Area."
14 How would you design an experiment to discriminate
15 between hydroperiod and nutrient enrichment as the
16 mechanisms controlling the occurrence of cattail?
17 MS. PONZOLI: Object to the form.
18 BY MR. PERKO:
19 Q If you know.
20 MS. PONZOLI: I don't know this witness has been
21 designated as a witness who has expertise in
22 experimental design.
23 BY MR. PERKO:
24 Q You can answer the question.
25 A I don't know how I would design this particular
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1 experiment. I would have to spend a little bit of time
2 referring to literature and consulting with whomever I
3 deemed appropriate in setting up such an experiment.
4 Q Are you aware of any such experiments currently
5 being undertaken?
6 A I believe Dr. Richardson is attempting to set up
7 an experiment that does this type of determination,
8 Dr. Curtis Richardson. Dr. John Richardson, in his
9 document which is in my document production, has done, I
10 believe it is a discriminate analysis which looks at the
11 various factors influencing community composition, and
12 found, as I recall, in his results that the factor of
13 phosphorus concentration had a significantly larger
14 influence on community composition as to whether cattail
15 occurred in the community than did hydroperiod.
16 Q Did you discuss that conclusion with Dr. Curtis
17 Richardson?
18 A Did I discuss Dr. John Richardson's conclusions
19 with Dr. Curtis Richardson?
20 Q Did you discuss the conclusion that phosphorus
21 concentrations have a more significant impact than
22 hydroperiod?
23 A I don't believe I have discussed that directly
24 with Dr. Curtis Richardson.
25 Q If I could direct your attention to Figure 20, I
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1 believe yesterday you testified that the data you used in
2 developing this figure was obtained from the South Florida
3 Water Management District, is that correct?
4 A Yes.
5 Q Was that data included in your document
6 production?
7 A Yes.
8 Q Do the points on this graph represent average
9 values or values for a single sample, do you know?
10 A These represent average values.
11 Q Average values. Over what period of time were
12 they averaged?
13 A They were averaged over different periods of
14 time. I looked for interior marsh stations which had -- I
15 believe I restrict those, as I recall the analyses, to
16 stations which had more than three values, and the period
17 of time over which the data were taken, I think I would
18 have to look back to the dates to recall that exactly. It
19 was a year or two or three, I believe, worth of data, as I
20 recall.
21 Q Would that be indicated in the data that you
22 produced to us?
23 A That is correct. It is on the hard data sheets I
24 provided and also in spreadsheet form.
25 Q Is that data included on the disks that you
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1 provided?
2 A Yes.
3 Q Moving on to Figure 21, do the points on this
4 graph also represent average data?
5 A Yes.
6 Q Was that data provided in your documents?
7 A Yes. These data, this is a subset, 21 is a subset
8 of Figure 20. Figure 20 represents data throughout, for
9 stations throughout the Everglades Protection Area, which
10 included, as I recall, WCA-1, 2, 3, and I believe there are
11 stations in Everglades National Park as well.
12 Figure 20 is the subset of just the stations along
13 the transects in WCA-2A. I believe it is in a separate
14 spreadsheet as well. I am sure it is, because that is how
15 I made the graphic.
16 Q Moving on to Figure 22, do you know what the water
17 depths of the various stations indicated in this graph were
18 at the time of the samples?
19 A I don't know.
20 Q Does the plot represent actual data or simulated
21 data?
22 A I believe these are actual data.
23 Q Did you develop this plot yourself, or was this
24 something that the district put together?
25 A This plot I believe came from the SWIM Plan. I
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1 think it also is in another reference. I think this same
2 plot may be in Belanger, one of the Belanger references. I
3 don't recall which.
4 Q Do you know where the probes were located
5 relative to the sediment-water interface?
6 A No, I don't recall if they specified that.
7 Q Moving on to page 16, the last sentence of the
8 first paragraph, you state that, "Research data,
9 evaluation, interpretation, and expert scientific and
10 engineering opinion indicate that a 50 p.p.b. phosphorus
11 concentration limit for discharges to the Everglades
12 Protection Area is technically achievable through a
13 combination of best management practices (BMPs) and
14 stormwater treatment areas (STAs)."
15 Do you recall any specific data or reports that
16 support this statement?
17 A I believe the SWIM Plan supports this statement.
18 Q Are you aware of any specific experiments that
19 support this statement?
20 A Well, there are a number of -- I don't know if you
21 would term them experiments. By experiment, are you --
22 well, would you define "experiment" for me?
23 Q For example, a dosing study.
24 A I don't know precisely how you would utilize a
25 dosing study in support of this particular calculation.
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1 Q That is all I have on the report.
2 You briefly testified that Richard Harvey and Tom
3 Swihart accompanied you to the meetings that you attended
4 during the settlement negotiations. Are you aware of any
5 other Department personnel that were involved in the
6 settlement negotiations and the meetings during that time
7 period?
8 A I believe Bart Bibler attended one or more
9 meetings.
10 Q Was he assigned to any particular issues, do you
11 know?
12 A I don't know.
13 Q How were these meetings -- how was the
14 Department's participation in those meetings organized?
15 Did you set up specific people that were assigned to
16 specific issues?
17 A I was not in charge of setting up any assignments
18 in this. Mr. Harvey asked me to accompany him during these
19 negotiations.
20 Q So Mr. Harvey might be a more appropriate person
21 to ask that question, do you think?
22 A That is correct.
23 Q I am going to show you what I am going to ask the
24 court reporter to mark as Exhibit No. 9.
25 (Whereupon, Exhibit No. 9 was marked for
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1 identification.)
2 BY MR. PERKO:
3 Q It is a series of spreadsheet calculations. Do
4 you recognize that, for the record?
5 A Yes.
6 Q And what is that? What are those documents?
7 A This -- well, the top one, do you want me to go
8 through them one by one?
9 Q Just generally.
10 A In general. These are printouts of spreadsheets
11 of data for various stations in the Everglades and
12 calculations associated with those data.
13 Q You previously testified that during the March and
14 April 1991 meetings that you attended, you reviewed data
15 for the Loxahatchee and Everglades National Park. Are
16 these that data that you reviewed?
17 A Yes.
18 Q Those are?
19 A These are, yes, these are data for Loxahatchee
20 National Refuge and Everglades National Park.
21 Q Are they the data that you reviewed during those
22 meetings?
23 A Yes.
24 Q Are you aware of any other data that you reviewed
25 at that time?
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1 A I don't recall any other data that I would have
2 reviewed at that time, offhand.
3 Q Are you familiar with the definition of imbalance
4 of flora and fauna contained in the settlement agreement?
5 MR. SMITH: Object to the form.
6 MS. PONZOLI: I also object to the form.
7 THE WITNESS: I couldn't quote it for you.
8 BY MR. PERKO:
9 Q Let me show it to you. I would like to mark this
10 as Exhibit 10.
11 (Whereupon, Exhibit No. 10 was marked for
12 identification.)
13 BY MR. PERKO:
14 Q Do you recognize what has been marked as Exhibit
15 10?
16 A Yes.
17 Q What is that document?
18 A It is the settlement agreement for Case
19 88-1886-CIV-Hoeveler, which is the United States versus
20 South Florida Water Management District and Florida
21 Department of Environmental Regulation.
22 Q I would like to direct your attention to page 2,
23 paragraph 1-F, which continues on over to page 3, the
24 definition of imbalance in natural populations of aquatic
25 flora and fauna and imbalance of flora and fauna. Do you
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1 know who drafted this definition?
2 A No.
3 Q Do you know who at the Department may have been
4 involved in drafting this definition?
5 A No.
6 Q Do you know if anyone in the Department concurred
7 in the proposed draft of this definition?
8 MR. SMITH: Object to the form.
9 MS. PONZOLI: Object to the form.
10 THE WITNESS: I don't know.
11 BY MR. PERKO:
12 Q Directing your attention to page 6, paragraph 3,
13 which is labeled, Introduction/Background of Problem, it
14 carries over through pages 7 and 8, do you know who drafted
15 this paragraph?
16 A No.
17 Q Do you know who at the -- who, if anyone, at the
18 Department concurred in any proposed drafts of this
19 paragraph?
20 A No.
21 MR. SMITH: Object to the form.
22 MS. PONZOLI: Join in the objection.
23 BY MR. PERKO:
24 Q Mr. Nearhoof, I would like to direct your
25 attention to Exhibit 5, which is the Department's Notice of
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1 Intent to Issue Permit for the district's permit
2 application A.
3 A I don't have a copy of that.
4 Q I believe you stated yesterday that you
5 participated in the drafting of specific condition 4a in
6 this document, page 12?
7 A That is correct.
8 Q And that specific condition states that, "By July
9 1, 1997, the District shall implement strategies to ensure
10 that phosphorous loads discharged from the EAA to the
11 Refuge shall be reduced by approximately 85 percent as
12 compared to mean phosphorus loads measured from the 10-year
13 base period, 1979 to 1988."
14 Is that correct?
15 A That is correct.
16 Q What is the regulatory basis for this
17 requirement?
18 A I would state that the regulatory basis for this
19 requirement is the requirement in the Douglas Act that
20 specifies that the district must propose interim levels for
21 phosphorus to meet, comply with the ultimate level of
22 phosphorus to the maximum extent practicable, and this is
23 the technically-based proposed phosphorus load reduction
24 that was proposed as that technically achievable phosphorus
25 level.
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1 MR. PERKO: Could you read back that answer,
2 please?
3 (Whereupon, the court reporter read the requested
4 portion of the record.)
5 MR. HYDE: Just for purposes of my clarification,
6 were you referring to discharges to the Refuge in that
7 question? I don't have a copy of it in front of me.
8 MR. PERKO: Yes.
9 MS. PONZOLI: Yes.
10 BY MR. PERKO:
11 Q What do you mean by the ultimate phosphorus
12 levels?
13 A The Douglas Act requires that the district propose
14 levels of phosphorus that will result in compliance with
15 water quality standards, and that is what I was -- full
16 compliance, and that is what I was referring to.
17 Q What water quality standards will be relevant?
18 A Applicable water quality standards to their --
19 applicable to nutrients, phosphorus specifically in this
20 case.
21 Q Let me direct your attention to specific condition
22 4c.
23 MR. SMITH: 4c?
24 BY MR. PERKO:
25 Q 4c. It states, "At least 60 days prior to the
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1 expiration of this permit, the District shall submit a
2 permit renewal application ensuring that by July 1, 2002,
3 inflows to the Refuge meet Class III water quality criteria
4 or long-term concentration levels, whichever are lower.
5 Derivation of and compliance with the long-term
6 concentration shall be as set forth in the Everglades SWIM
7 Plan. Compliance with the Class III water quality criteria
8 shall be determined through monitoring in the Refuge in
9 accordance with condition 13 below."
10 With regard to the long-term concentration levels
11 set forth in the Everglades SWIM Plan, what is the
12 regulatory basis for those levels?
13 A I believe the regulatory basis for those is the
14 OFW rule.
15 Q Who at the Department was responsible for
16 determining whether those long-term concentration levels
17 are consistent with the OFW rule?
18 A Tom Swihart, the administrator of the Standards
19 and Monitoring Section, I believe would be the appropriate
20 person to ask that question of.
21 Q Did you review those long-term concentration
22 levels for consistency with the OFW rule?
23 A I reviewed those levels from a technical
24 perspective, rather than for agreement with rule
25 requirements.
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1 Q What do you mean by technical perspective?
2 A The -- from just the methods used in technical
3 methods, statistical methods used in derivation of those
4 levels.
5 Q I would like to direct your attention to specific
6 condition 5b. It states, "At least 60 days prior to the
7 expiration of this permit, the District shall submit a
8 permit renewal application ensuring that long-term
9 concentration limits for the Shark River Slough, Taylor
10 Slough, and Coastal Basins are met by July 1, 2002.
11 Derivation of and compliance with long-term concentration
12 limits with Shark River Slough, Taylor Slough, and Coastal
13 Basins shall be as set forth in the Everglades SWIM Plan."
14 What is the regulatory basis for the long-term
15 concentration limits referenced in this paragraph?
16 A I believe these are again representative of OFW
17 concentrations.
18 Q Was Mr. Swihart also responsible for determining
19 the consistency with the OFW roughly?
20 A Mr. Swihart is administrator of the section in
21 which such a determination is usually made.
22 Q Mr. Nearhoof, did you review any provisions of the
23 proposed permit for consistency with state water quality
24 standards?
25 A No.
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1 Q Was your review limited to technical review, as
2 you put it?
3 A Well, it wasn't so much that I reviewed the permit
4 as was involved in crafting the various conditions. I
5 wasn't in charge of really reviewing the overall permit for
6 consistency.
7 Q Who was in charge for reviewing the whole permit
8 for consistency with state water quality standards?
9 A I don't know who ultimately made the decision that
10 this permit was consistent as an overall permit with water
11 quality standards.
12 Q Do you know if anyone at the Department considered
13 the -- let me ask you this. Are you familiar with the
14 monitoring provisions contained in the state water quality
15 standards?
16 A To a degree, yes.
17 Q Do you know if anyone in the Department considered
18 those monitoring provisions when reviewing this permit for
19 consistency with state water quality standards?
20 A I don't know.
21 Q Who would know the answer to that question?
22 A You can start by asking Mr. Harvey. I don't know,
23 as I say, who ultimately -- there were a number of people
24 involved in reviewing, and I am not sure who ultimately
25 would be the person to ask.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722
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1 MR. HYDE: We are going to make a special point of
2 telling Mr. Harvey you told us to ask all of these
3 questions of him.
4 THE WITNESS: He is just my boss. What can I
5 say, might not be for long, right?
6 MR. PERKO: I would like you to mark this as
7 Exhibit No. 11, please.
8 (Whereupon, Exhibit No. 11 was marked for
9 identification.)
10 BY MR. PERKO:
11 Q Mr. Nearhoof, are you familiar with Exhibit No.
12 11?
13 A Yes.
14 Q Did you review it prior to producing the documents
15 in response to -- prior to producing documents in
16 preparation for this deposition?
17 A Yes.
18 Q I direct your attention to the bottom of the
19 second page of this document, requesting you to provide the
20 following documents for inspection and copying, paragraph
21 1, "All documents pertaining to DER's decision not to
22 contest, in the U.S. Court of Appeals or U.S. District
23 Court on remand, that any Florida statutory authority
24 supported the United States' claim of jurisdiction in a
25 federal court to perform regulatory functions of the State
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722
477
1 of Florida."
2 Are you aware of any documents that fit this
3 description?
4 A No.
5 Q So you did not produce any?
6 A No.
7 MR. NETTLETON: Where are you reading from?
8 MR. PERKO: The second page.
9 BY MR. PERKO:
10 Q Paragraph 2, "All documents pertaining to DER's
11 participation in any state officials' discussions of and
12 decision upon requests by EAA farmers, in and after January
13 1991, that the State officials assert to the U.S. Court of
14 Appeals and to have the U.S. District Court that the
15 federal courts lack constitutional jurisdiction to perform
16 or superintend State regulatory functions under Florida
17 law."
18 Are you aware of any documents that fit this
19 description?
20 A No.
21 Q So you did not produce any such documents?
22 A No.
23 Q Paragraph 3, "All documents pertaining to the
24 memorandum dated 5/23/90 from Bart Bibler to," quote,
25 "`Dan/Randy/Frank/Bob Gough/Rox,'" end quote, "and appended
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478
1 memorandum of Bob Gough dated 5/24/90, relating to possible
2 legislation," quote, "`"that the federal government does
3 not have standing under state laws,"'" parens, "`(or
4 something along those lines,'" end quote.
5 I would like to direct your attention to a copy of
6 those memoranda attached to your Cross-Notice Duces Tecum
7 or Exhibit No. 11.
8 A Right, last page.
9 Q Do you recognize this document?
10 A No.
11 Q Was the reference to Frank in the memo from Bart
12 Bibler dated 5/23 to you?
13 A I don't believe so. I don't recall ever having
14 received this memo, and I would not normally have been in
15 this particular loop of people, so I don't think it refers
16 to me, and if it did I wasn't present that day and had no
17 recollection.
18 Q Do you know who the reference to Frank may have
19 been?
20 A Heck if I know. I am not even sure if I know
21 another Frank in the Department that comes to mind.
22 MR. PERKO: I have no further questions.
23 MS. PONZOLI: No questions.
24 MR. HYDE: Will you be instructing your witness
25 about reading or waiving reading?
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479
1 MR. SMITH: We will read.
2 (Whereupon, the deposition was concluded, and
3 reading and signing by the witness was not waived.)
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A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722
480
1 C E R T I F I C A T E
2 STATE OF FLORIDA )
3 COUNTY OF LEON )
4 I hereby certify that the foregoing transcript was
5 taken down as stated in the caption, that the witness was
6 first duly sworn, having identified himself to me, and the
7 questions and answers thereto were reduced to typewriting
8 under my direction;
9 That the foregoing pages 362 through 479 represent
10 a true, correct, and complete transcript of the evidence
11 given upon said hearing;
12 And I further certify that I am not of kin or
13 counsel to the parties in the case; am not in the regular
14 employ of counsel for any of said parties; nor am I in
15 anywise interested in the result of said case.
16 Dated this ____ day of ________________, 1992.
17
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23 __________________________
JERRY L. ROTRUCK, CM
24 Court Reporter and Notary Public
State of Florida at Large
25
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481
1 C O R R E C T I O N S
2 Corrections to the deposition of FRANK L. NEARHOOF, taken
in the case of Sugar Cane Growers Cooperative of Florida,
3 Inc., et al., vs. South Florida Water Management District
and Miccosukee Tribe of Indians of Florida, et al.,
4 Intervenors, Case No. 92-3038, 92-3039, 92-3040, taken on
November 18, 1992.
5
Page-Line Correction
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____________ ____________________________________
18 Date Signature
19
AS TO SIGNATURE ONLY
20
IN WITNESS WHEREOF, I have set my hand and affixed
21
my seal this _____ day of _________________________, 1992;
22
said instrument was acknowledged before me by _____________
23
who is personally known to me.
24
________________________________
25 Notary Public
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722