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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 358 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 359 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 360 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 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 361 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 362 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 363 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 364 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 365 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 366 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 367 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 -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 368 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 369 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 370 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 371 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 372 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 373 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 374 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 375 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 376 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 377 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 378 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 379 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 380 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 -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 381 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 382 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 383 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 384 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 385 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 386 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 387 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 388 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 389 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 390 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 391 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 392 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 393 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 394 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 395 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 396 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 397 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 398 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 399 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 400 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 401 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 402 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 403 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 404 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 405 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 406 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 407 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 408 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 409 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 410 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 411 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 412 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 413 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 414 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 415 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 416 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 417 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 418 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 419 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 420 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 421 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 422 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 423 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 424 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 425 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 426 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 427 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 428 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 429 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 430 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 431 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 432 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 433 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 434 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 435 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 436 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 437 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 438 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 439 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 440 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: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 441 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 442 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 443 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 444 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 445 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 446 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 447 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 448 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 449 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 450 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 451 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 452 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 453 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 454 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 455 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 456 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 457 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 458 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 459 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 460 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 461 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 462 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 463 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 464 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 465 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 466 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 467 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 468 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 469 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 470 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 471 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 472 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 473 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 474 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 475 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 476 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 479 1 MR. SMITH: We will read. 2 (Whereupon, the deposition was concluded, and 3 reading and signing by the witness was not waived.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 18 19 20 21 22 23 __________________________ JERRY L. ROTRUCK, CM 24 Court Reporter and Notary Public State of Florida at Large 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 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 6 7 8 9 10 11 12 13 14 15 16 17 ____________ ____________________________________ 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