ÿWPCDFRUIT 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 II
23 DEPOSITION OF PAUL C. PARKS, Ph.D
24 September 23, 1992
25
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 10 Certificate of Merit
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A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 10
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A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôfamiliar with the purpose of this
17 letter?
18 A It was to, it says, "We believe it is time for you
19 to call the sugar industry to account for its lack of
20 performance." That referred back to promises made at the
21 time that the farm bill came up, and Senator Graham had
22 argued that the sugar industry needed the 18 cent per pound
23 federal price support in order to pay for cleaning up the
24 Everglades, and this is a letter pointing out that that
25 hadn't actually happened, and asking Senator Graham to put
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô uncultivated, as is the Holeyland,
and it is to the west of
19 the Holeyland on the other side of the Miami Canal, and
20 north of 3A.
21 Q Do you have an opinion concerning whether either
22 of those tracts would be appropriate for use as stormwater
23 treatment areas?
24 A Yes.
25 MS. PONZOLI: Object to the form.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôed that meeting other than
5 yourself?
6 A Secretary Browner, the lieutenant governor, I
7 think Jim Webb was there, Charles Lee was there, Dana
8 Minerva and Dean Saunders.
9 Q Do you recall what was discussed at that meeting?
10 A Not specifically.
11 Q Was this --
12 A The Everglades remedy, the Everglades -- situation
13 with the Everglades, how the District was responding, and
14 what to do about cleaning up the water quality violations
15 in the Everglades, that was the general area.
16 Q Were there any followup meetings with Lieutenant
17 Governor MacKay of this type that you are aware?
18 A I don't recall any.
19 Q Dr. Parks, with regard to the case that we are
20 here today about, you have been listed by the United States
21 of America as an expert witness who will discuss violations
22 of state water quality standards and permitting
23 requirements of Florida law, and standing.
24 Are you familiar with the United States'
25 Designation of Expert Witnesses document?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô
15 water quality, changes in -- well, any change that might be
16 expected to affect the quality of the discharge.
17 Q Anything else?
18 A Well, not without going through the rules.
19 Q Nothing else that you can recall at this time?
20 A No.
21 Q Dr. Parks, what is the basis for your opinion that
22 DER permits are required for pump stations S-5A, S-6, S-7
23 and S-8?
24 A We, they are certainly stationary and they are
25 sources of pollution as, in terms of the definition of
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôl, Dr. Parks, I am intending to
focus on the
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôn the designation.
2 With regard to what you just testified, you indicated that
3 many of the deleterious ecological impacts caused by
4 hydroperiod changes associated with construction of the
5 project can be mitigated with management and structural
6 changes.
7 What management and structural changes do you have
8 in mind there?
9 A The general need is to have a hydroperiod within
10 what was the River of Grass which rises and falls more like
11 the, more like the original, and that would mean using the
12 conservation areas less as impoundments and more as
13 natural, as a flow-way which had a natural hydroperiod, and
14 it would mean releasing water into the upstream end of the
15 Everglades longer into the dry season so as to extend the
16 hydroperiod in time.
17 So those changes that would make the downstream
18 flow more natural as opposed to running down to the
19 impoundment and sitting there, and those changes which
20 would enable water to be admitted to the upstream end
21 towards the end of the rainy, towards the beginning of the
22 dry season, so as to extend the hydroperiod, those are the
23 kinds of management, those are the objectives of that
24 management of the structural changes.
25 Q Are you aware of any studies or analyses
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ônt District has long discussed
8 better distribution of discharges into conservation area 3A
9 as a consequence of building an STA down along the southern
10 part of the EAA.
11 I think there is some debate about whether you
12 want to put water of the proposed interim quality into
13 areas that have been, that have never received water of
14 that phosphorus concentration before; so while there might
15 be a benefit in terms of water quantity, it might be
16 outweighed by an effect on water quality if the discharge
17 only meets the interim's requirement.
18 Q What is that interim?
19 A 50 parts per billion.
20 Q Of --
21 A Phosphorus.
22 Q All right.
23 A But that has been discussed as a benefit to the
24 system in the north end of conservation area 3A.
25 Q Are there any other water quantity issues in south
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722ÔEverglades pollution?
18 Q Yes, as referenced in the United States'
19 Designation of Expert Witnesses on page 13?
20 A Not that I recall.
21 Q Dr. Parks, I am continuing to go through the
22 topics on page 13 of the United States' Designation of
23 Expert Witnesses, and there is a topic, Assessment of SWIM
24 Planning Process and Proposed Remedies. Have you been
25 asked to make an assessment of the SWIM planning process
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 194
1 parts per billion on the Everglades, and I concluded it
2 was reasonable.
3 BY MR. GREEN:
4 Q What is the basis for your conclusion that it was
5 reasonable?
6 A It is, there is information which is described and
7 cited in the SWIM Plan which provides a very clear
8 indication that water of at least 30 parts per billion
9 causes imbalance in aquatic flora and fauna. This means
10 that 50 parts per billion is not excessively stringent and
11 you can, therefore, conclude that it is an interim,
12 appropriate interim. You would not want an interim value
13 to be more than was necessary to achieve the final limit,
14 and we have clear indication that 50 parts per billion is
15 not more than is necessary, is not more removal or more
16 stringent than that which will be necessary to meet water
17 quality standards.
18 Q Anything else?
19 A Based on reports that have been presented and
20 material presented in the SWIM Plan that 50 parts per
21 billion can be achieved by the means proposed in the SWIM
22 Plan.
23 Q Have you made an independent judgment of whether
24 50 ppb can be achieved by the measures proposed in the SWIM
25 Plan?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 14 phosphorus discharge
concentrations be required in order to
15 accomplish ultimate compliance with state water quality
16 standards for discharges from the EAA to the Everglades?
17 A Yes.
18 Q What is the basis for that opinion?
19 MS. PONZOLI: It has been asked and answered.
20 BY MR. GREEN:
21 Q Let me ask another question, then.
22 What is the -- what rules of the Florida
23 Department of Environmental Regulation would support that
24 conclusion, if any?
25 A Now you have that conclusion being that more will
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 25 of Expert Witnesses, beginning
at the bottom of page 13,
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôory, quote, "Scientific
Application of
2 DER Water Quality Rules and Regulations to Specific
3 Particular Sites," end quote.
4 Have you been asked to evaluate the application of
5 DER water quality rules and regulations to specific
6 particular sites by the United States?
7 A Yes.
8 Q What sites were those?
9 A The points of discharge into the Everglades
10 Protection Area.
11 Q And have you carried out that task?
12 A I have.
13 Q Have you carried it out with regard to pump
14 station S-5A?
15 A Yes.
16 Q What were the results of your evaluation?
17 A That the receiving waters require a site-specific
18 determination of the numerical surrogate for the
19 Department's narrative nutrient standard, and that that
20 determination should include imbalance in natural
21 populations of aquatic flora and fauna, compliance with
22 other standards of the Department, particularly those
23 related to dissolved oxygen and biological integrity, and
24 that that numerical surrogate should consider substances
25 and amounts which create nuisance growths of aquatic
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô asked to give any opinions with
15 regard to the application of DER water quality rules and
16 regulations to those other structures, that is, the
17 structures I just mentioned?
18 A I have not been asked to give an opinion about
19 S-10.
20 MR. HYDE: S-10?
21 THE WITNESS: 10.
22 MS. PONZOLI: Read his answer back again, please.
23 (Whereupon, the court reporter read the requested
24 portion of the record.)
25 BY MR. GREEN:
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô204
1 A No.
2 Q Are the opinions that we have asked you about this
3 morning final at this point, or are you doing more work on
4 them?
5 A Well, if some new factual information came to
6 light as a consequence of discovery, I might reevaluate
7 something, but other than that, I believe they are final
8 opinions.
9 Q Granted that that could occur, in your mind, do
10 you know what facts might change your opinions? I mean,
11 have you thought about that?
12 MS. PONZOLI: Object to the form.
13 THE WITNESS: No.
14 MR. GREEN: I have concluded all of what I had at
15 this point, Ms. Ponzoli.
16 MS. PONZOLI: I would like to take, Mr. Hyde, if
17 you don't mind, one second to clarify a point that I
18 think was confusing at the beginning of Mr. Green, it
19 is just for clarification, on the production of Dr.
20 Parks's documents.
21 EXAMINATION
22 BY MS. PONZOLI:
23 Q Dr. Parks, do you recall in the beginning of Mr.
24 Green's examination where he showed you Exhibit No. 1,
25 which was your Notice of Deposition Duces Tecum, and there
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722ÔTHE WITNESS: I am not sure of the
exact number,
16 but in the -- the second load of stuff that I took over
17 to the Sierra Club Legal Defense Fund office was partly
18 all stuff that had been produced in the previous, in
19 the federal lawsuit, reports, agency reports, bound
20 volumes of agency stuff, and -- but then it also
21 included some stuff that had not been produced in the
22 first, in the federal case. We went through the latter
23 of the stuff that had not been previously produced.
24 MS. PONZOLI: Thank you.
25 MR. HYDE: Is that all?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 1 Q For what purpose?
2 A I wanted to work with Florida Wildlife
3 Federation. I wanted to be associated with Florida
4 Wildlife Federation.
5 Q Did you have a specific proposal for them to
6 consider, such as doing work in the Everglades, for
7 example, or a specific project in mind, or was it more in
8 the nature of a general inquiry about prospective future
9 employment?
10 A I wished to be associated with Florida Wildlife
11 Federation for the purpose of working on Lake Okeechobee-
12 Everglades issues.
13 Q What did -- what were your first tasks for the
14 Federation in general terms?
15 MR. WHITE: I object to the form of the question.
16 THE WITNESS: What do you mean by tasks for the
17 Federation?
18 BY MR. HYDE:
19 Q What projects have you become engaged in, again,
20 in the context of Lake Okeechobee-Everglades issues?
21 A Well, my association with the Federation is such
22 that I determine the work that I do. My association with
23 Florida Wildlife is such that I determine the work that I
24 will do.
25 Q Well, take me through in general terms what you
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô misrepresents Dr. Parks' testimony
with regard to his
12 relationship with the Florida Wildlife Federation.
13 MR. HYDE: Okay, so noted.
14 THE WITNESS: Could you repeat the question?
15 BY MR. HYDE:
16 Q At what point did you begin initiating contacts
17 with affected regulatory agencies concerning Everglades
18 issues, roughly speaking? I am not trying to pin you down
19 to a specific date.
20 MS. PONZOLI: I still object to the form of the
21 question. I think it assumes things that I don't
22 believe are on the record.
23 THE WITNESS: I have been in contact with state
24 agencies dealing with the Everglades and Lake
25 Okeechobee, you know, in one way or another since 1973,
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôry.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô the discharge if it was an existing
3 discharge. I would determine whether dissolved oxygen was
4 the only issue, whether some other constituents of a
5 discharge might preclude a mixing zone. I would, of
6 course, look at the classification of the receiving waters,
7 particularly with respect to outstanding Florida waters.
8 Beyond that, I would make a preliminary assessment
9 of the nature of the mixing processes in order to, in order
10 to form a rough estimate of whether the discharge might
11 qualify under the rule for mixing zones, and at that point
12 I would prepare a detailed analysis of what else, what else
13 might have to be done to establish a mixing zone at that
14 particular location.
15 Q You highlighted the possibility of the discharge
16 being in an outstanding Florida water. Let me ask, are
17 OFWs eligible for mixing zones?
18 Let me state it differently. Can a discharge to
19 an OFW be granted a mixing zone?
20 A Well, if it doesn't lower ambient quality, but I
21 can't see why anyone would want one.
22 Q But theoretically, at least, under the rule, an
23 OFW is not automatically precluded from having a mixing
24 zone, would that be correct?
25 A I would like to refer to the rule.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô A Yes, I am.
8 Q Is that consistent with your understanding of the
9 agency's practice?
10 A No.
11 Q Okay.
12 A There are other criteria in the rules which a
13 mixing must meet.
14 Q I would like to refer you now to Exhibit 5-A, in
15 particular, Rule 17-4.244(1)(f) and (g). That is on page
16 14 of that document.
17 A Yes.
18 Q Both of those subsections list a number of water
19 bodies in which, I guess the basic point is how large the
20 mixing zone can be in those water bodies. The first,
21 section (f), speaks to canals, rivers, streams, and other
22 similar water bodies, and section (g) speaks to lakes,
23 estuaries, bays, lagoons, bayous, sounds, and coastal
24 waters.
25 What are the water conservation areas or what
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôhe cattails and they
21 also don't have phosphorus.
22 Where you have the phosphorus, you have cattails.
23 Where you have the same hydroperiod, you may or may not
24 have cattails, depending on the constituency of the water.
25 Secondly, the Everglades is a highly oligotrophic
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôly not privy to the
4 design of the major features of the settlement agreement.
5 I did on one occasion review -- it was proposed language
6 changes in a draft, in one of the drafts. I assume that
7 there were many drafts as time went on, but there was just
8 this one, and I was asked to take a look at the wording,
9 which I did, and to look at the wording that was there, and
10 the wording that was proposed, and I commented on that.
11 Comments did not really have to do with the broad
12 substance of the settlement agreement. I just never was
13 involved in that. It really had to do with kind of like,
14 how does this language, is this language clear, that kind
15 of thing.
16 Q Were you kept advised by the U. S. Attorney's
17 office or anyone else as to the progress of those
18 settlement negotiations?
19 A I was not kept apprised by the U. S. Attorney's
20 office --
21 Q Did you --
22 A -- or anyone else. I heard rumors all of the time
23 from various people.
24 Q Did you discuss with the other, I am calling them
25 conservation intervenors in the federal lawsuit, the
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô Everglades National Park were
designated as outstanding
17 Florida waters, in my opinion the pumping stations that
18 affect the quality of waters in Loxahatchee and the
19 Park, those being S-5A, S-6, S-7 and S-8, those pumping
20 stations required a DER permit, and therefore, their
21 effect on ambient water quality should not be used in
22 the baseline determination of the OFW water quality
23 which, which is the point of determination whether
24 ambient quality has or has not been lowered.
25 BY MR. HYDE:
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 226
1 action is required and it is the point of closest discharge
2 that requires regulation.
3 Q I believe you also testified that a series of
4 management and structural changes were necessary to
5 mitigate the adverse environmental consequences of the
6 hydroperiod alteration that has been effected over the
7 years, and I was wondering if when you were referring to
8 structural changes, were you intending to refer to anything
9 other than the stormwater treatment areas?
10 MS. PONZOLI: Object to the form.
11 THE WITNESS: In my previous answer to that
12 question, I tried to make it clear that I considered,
13 shall we call it, hydroperiod, hydroperiod improvement
14 a distinct and separate endeavor from pollution
15 control, and while the STAs could make some
16 contribution to hydroperiod control, their most
17 important function is to control the pollution.
18 Otherwise, there will not be any, the Everglades will
19 be damaged and it will not make, there wouldn't be any
20 point in improving the hydroperiod.
21 Very little has been done towards actually,
22 towards really exploring the management and structural
23 possibilities for Everglades hydroperiod improvement,
24 but I believe that those structural changes could,
25 would encompass structures other than the STAs.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 12 A I think that is a legal
conclusion that is beyond
13 my --
14 Q Okay. You stated earlier that a further decrease
15 in phosphorus concentrations will ultimately be necessary,
16 and you cited as your support the SWIM Plan. Could you be
17 more specific what portions of the SWIM Plan you were
18 actually referring to?
19 A You said a further decrease in phosphorus
20 concentration --
21 Q Will ultimately --
22 A Could you be more specific?
23 Q I think you testified that a further increase in
24 phosphorus concentrations below the interim standard of 50
25 parts per billion will ultimately be necessary. You cited
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô normal rainfall, depending on
antecedent conditions, the
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô as a consequence of lack of
2 rainfall. Water may be released from the water
3 conservation areas to canals that supply urban wellfields.
4 The conservation areas, of course, by virtue of
5 being wet, wet as in having water on them, also serve to
6 some extent to recharge the Biscayne aquifer, although
7 extensive efforts have been made to prevent that by
8 constructing conservation area 3B and 2B. Seepage was
9 occurring into the areas where they didn't want the water,
10 but some recharge still takes place.
11 Q You stated this morning that you felt the
12 phosphorus limitations being proposed would apply at the
13 point of discharge, and that some allowance would have to
14 be made for hydraulic impact, words to that effect. Could
15 you explain what you meant by "hydraulic impact"?
16 A The areas of hydraulic impact are very limited
17 geographical areas where the velocity of the discharge
18 water almost always in conjunction with construction
19 downstream of the discharge point combines to make, it
20 would create a different ecosystem, even in the absence of
21 pollutants, and in that limited place, you simply wouldn't,
22 there is not Everglades habitat, there would not be
23 Everglades habitat even in the absence of the pollutants in
24 the EAA discharge. In those cases it doesn't make sense to
25 apply the same criteria that you would in Everglades marsh,
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôhrough.
8 A I have used the term Everglades marsh. There are
9 other types of Everglades habitat, basically tree islands,
10 sloughs, wet prairies and marshes, and, because some of the
11 discharges are concentrated, put another way, improperly
12 diffused, this water tends to be deeper there. In the
13 absence of excess phosphorus I believe those areas would
14 represent, would be biologically equivalent to sloughs, and
15 therefore, I would confine my, the scope of the area of
16 impact to those areas where the water velocity precludes
17 one of the, any of the major Everglades habitats, or where
18 excavation, a manmade excavation precludes the existence of
19 one of the native Everglades habitats.
20 Q How, if at all, does the dilution of waters from
21 the EAA factor into the 50 parts per billion interim
22 limitation?
23 MS. PONZOLI: Object to the form. I honestly do
24 not understand your question, counsel. I -- can you
25 reword it? Because I even have difficulty letting him
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôa,
15 is that correct?
16 A I believe I went back and corrected that statement
17 about the S-12s.
18 Q So it would be S-5A and 6 structures would have to
19 meet the OFW criteria?
20 A The OFW criteria would have to be met in
21 Loxahatchee Refuge. It is only affected by discharges from
22 S-5A and S-6 and to some extent from the Acme Improvement
23 District. The OFW standards must be met in Everglades
24 Park, and the water quality is determined by all of the
25 discharges into the EPA. The major, the major discharges
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôl, can you, or do you know what
water quality
2 standards are allegedly being violated? Isn't it a purpose
3 of the SWIM planning process and the stormwater treatment
4 areas and the like to remedy some alleged violations of
5 water quality standards?
6 A Well, certainly -- would you read that back,
7 please?
8 (Whereupon, the court reporter read the pending
9 question.)
10 MS. PONZOLI: Object to the form. Do you want him
11 to answer the last question, Mr. Hyde? There were a
12 couple of them there.
13 BY MR. HYDE:
14 Q Let me see if I can do it.
15 The way I understand it, the following water
16 quality standards are allegedly being violated: one,
17 narrative nutrient standard; two, a nuisance species
18 standard; three, dissolved oxygen standard; and four, a
19 biological integrity standard.
20 Then there has been some mention of the anti-
21 degradation standard as well as the OFW no significant
22 degradation standard.
23 Are there any other standards, to your knowledge,
24 that are allegedly being violated?
25 MS. PONZOLI: Object to the form.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô I believe in a previous deposition
in the federal
14 case you may have made some observations or statements to
15 the effect that there may be violations of the ammonia
16 standard and/or the pH standard. Is that something that
17 you believe?
18 A That is true, ammonia, pH, and sulfide. If we are
19 trying to get an exhaustive list here perhaps I should go
20 through the rule parameter by parameter.
21 Q It is not necessary to do that. I would like to
22 ask you some questions about causation in the context of
23 violations of water quality standards.
24 MS. PONZOLI: Can you explain how you tie the two
25 together?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722ÔLI: You don't have to answer a
question
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô Mr. Hyde, if we are going to spend
the afternoon
3 making up hypotheticals and facts that are not in the
4 record -- we are not going to spend the afternoon doing
5 that. I have to tell you this isn't going to go on all
6 afternoon. I have been very, very generous in letting
7 you and Mr. Green go far afield, but this is going
8 beyond the pale.
9 MR. HYDE: Ms. Ponzoli, the only thing you have
10 been generous in is making repeated objections. All I
11 would like to do is ask some questions that are
12 directed to the issue of how one determines causation
13 in water quality violations.
14 MS. PONZOLI: I don't think that is actually what
15 Dr. Parks has been listed as an expert for the United
16 States in offering an opinion on, and in my opinion you
17 have no right to be questioning him on it at all, and I
18 think I have been generous and I wish to be given the
19 same generosity in the depositions I will be doing of
20 your experts and of Mr. Green's experts, and we will
21 just see what happens when we get there.
22 If you will form single questions to Dr. Parks,
23 this would probably go easier. Most of your questions
24 are compound questions, and that just adds to the
25 problem.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô
8 It is a fairly, it is a fairly complex problem, but it
9 is one that is well understood and it has been done for
10 a long time by the Department.
11 BY MR. HYDE:
12 Q Are you familiar with the biological integrity
13 standard?
14 A Somewhat.
15 Q If compliance with the biological integrity
16 standard is demonstrated, can shifts in benthic
17 microinvertebrate populations still be regarded as
18 indicative of other water quality violations? Do you
19 understand that question?
20 MS. PONZOLI: May I have it back again, please?
21 (Whereupon, the court reporter read the pending
22 question.)
23 MS. PONZOLI: The first question was, do you
24 understand the question?
25 THE WITNESS: I would have to rely on an expert
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô
23 domain, and the -- really, the memoranda, the DER memoranda
24 and reports speak for themselves better than I can; but my
25 recollection is it was limited Hester-Dendy data, but that
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôe, the Everglades Protection
9 Area?
10 A Yes.
11 Q As background conditions?
12 A By background --
13 Q Well, as, in areas that are not phosphorus-
14 enriched, so to speak?
15 A What kind of concentration are you talking about?
16 Q Background.
17 MS. PONZOLI: Counsel, if he cannot answer it
18 because you don't have a common understanding of
19 "background," you may have to give him --
20 MR. HYDE: Naturally occurring conditions in the
21 Everglades.
22 MS. PONZOLI: I think the problem is it would, the
23 problem is what you are calling background and what he is
24 calling background may be different.
25 THE WITNESS: The description of dissolved oxygen
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722ÔR. HYDE:
24 Q Why not?
25 A How much phosphorus are we talking about? What
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 253
1 are the conditions? Is the phosphorus just passing through
2 or has it been there for a while, long enough to alter the
3 community of organisms? Did it come from a bird or an
4 outfall? You know.
5 Q Well, isn't really what you are saying that if the
6 low DO can somehow be traced to a man-induced condition, it
7 is a violation, but if it is natural condition, it is not?
8 A No.
9 Q Could you explain to me why not?
10 MS. PONZOLI: Why isn't that his explanation?
11 Isn't that what he is really saying? Are you asking
12 him to give the same answer he gave before again in a
13 different way?
14 MR. HYDE: No, I postulated something that he did
15 not agree with, and I am asking him to explain why my
16 postulate is incorrect by his lights.
17 MS. PONZOLI: What I am saying to you is, you
18 reframed his answer and you said isn't that what he is
19 saying, and he said, no, that is not what I am saying.
20 He gave you his answer previously, so now you are
21 asking him to give his answer a second time. Is that
22 what you are asking for?
23 MR. HYDE: I am trying to better understand his
24 answer, Ms. Ponzoli.
25 MS. PONZOLI: Then you are going to have to frame
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôtself, contained oxygen-consuming
substances or substances
10 that, by virtue of microbial action, would consume oxygen,
11 or could consume it directly through inorganic reactions.
12 If the biochemical oxygen demand in the water is
13 increased as a consequence of the discharge, either through
14 increased rate of productivity of organic carbon or through
15 direct introduction of oxidizable materials, then you know
16 that there will be an increased rate of oxygen
17 consumption. That could conceivably be compensated by some
18 characteristic of a discharge, compensated for by some
19 characteristic of the discharge.
20 Q Was that a follow-up to your first --
21 A I am still answering, I am still answering the
22 question.
23 Q All right.
24 A The -- if the discharge flunked that test, so to
25 speak, meaning it had, it did increase the biochemical
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôproblem lies with the original
19 question, and it doesn't get better every time.
20 Now, if you want to go back and read back whatever
21 your question is, if Dr. Parks can answer it, he is
22 certainly free to answer it. If he cannot answer it
23 without building more hypotheticals for you, then you
24 are going to have to frame a question for him that he
25 can answer.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 13 constructive examples, and it
seems to me there would
14 be a whole host of these that could affect dissolved
15 oxygen concentrations, at least my reading leads me to
16 believe that. One is, as you suggested, water flow.
17 MS. PONZOLI: And your question to him is to list
18 everything he can think of that will affect dissolved
19 oxygen in the Everglades?
20 MR. HYDE: Yes.
21 MS. PONZOLI: Have you listed all that you know,
22 Dr. Parks?
23 THE WITNESS: No.
24 MS. PONZOLI: Would you do a list for him without
25 explanation? He wants a list.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 262
1 A For example?
2 Q Periphyton, p-e-r-i-p-h-y-t-o-n.
3 A Would the type of periphyton affect?
4 Q Yes.
5 A I don't know about differences in the rate of
6 consumption of oxygen per unit mass of different types of
7 periphyton.
8 Q So you are not sure of that particular factor?
9 A I am not exactly sure what the question is. Is
10 the question, can periphyton affect dissolved oxygen?
11 Q Yes.
12 A Yes.
13 Q How would you say that it affects it?
14 A They would use oxygen, they consume oxygen.
15 Q Is it sort of a wash? They consume some during a
16 portion of the day and release it during other portions of
17 the day?
18 MS. PONZOLI: Object to the form. Are you talking
19 about the same --
20 MR. HYDE: I am asking for my benefit.
21 THE WITNESS: No, it is not necessarily a wash.
22 BY MR. HYDE:
23 Q Do they produce more than they consume, or is it
24 vice-versa?
25 MS. PONZOLI: Object to the form. You have not
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôanic
3 carbon is fixed, is consumed in the water column or
4 not, and whether the oxygen escapes to the atmosphere.
5 BY MR. HYDE:
6 Q I would like to provide you with a document which
7 we shall label Exhibit 31.
8 (Whereupon, Exhibit No. 31 was marked for
9 identification.)
10 BY MR. HYDE:
11 Q Dr. Parks, I found this document in the boxes that
12 you produced for my benefit on Monday, and it is being
13 given to you just as I found it.
14 Do you recognize both the cover routing and
15 transmittal slip and the attached memorandum?
16 A Well, it has a DER transmittal slip which is
17 addressed to me. I can't read who it is from.
18 Q Is that perhaps the signature of Jay Thabaraj?
19 A It could be.
20 Q Does the date stamp on the cover slip of February
21 5, 1986, indicate the date that you received it?
22 A Probably.
23 Q Are you familiar with the attached document, the
24 memorandum?
25 A No.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôy, look at 17-302.200, the
definition of
10 nuisance species.
11 What, after having looked at that definition, what
12 do you consider to be examples of nuisance species in the
13 context of the water conservation areas? Perhaps I should
14 ask you specific questions.
15 Do you consider meleleuca to be a nuisance species
16 under this definition?
17 A Yes.
18 Q What about Brazilian pepper?
19 A Where are we talking about?
20 Q In the water conservation areas.
21 A I don't know that it occurs other than on spoil
22 areas.
23 Q Would you still consider it to be a nuisance
24 species if it occurred in waters of the State?
25 MS. PONZOLI: Object to the form of the question.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôre caused or result from
23 phosphorus concentrations in water discharged from the EAA,
24 or are caused or result from hydroperiod mismanagement.
25 Can you differentiate between the two?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôl allow
11 him to answer it again.
12 THE WITNESS: Since very early in the discussion
13 of water quality violations in the Everglades,
14 ecological changes and so on, there have been
15 statements by various lay people associated with the
16 sugar industry about the idea that cattails were
17 somehow caused by hydroperiod rather than nutrients.
18 In all of these years, I have yet to see a report by a
19 scientist backed up by any kind of data that suggests
20 that hydroperiod alone could create the kind of dense
21 monocultures of cattail that are found in the vicinity
22 of the points of discharge from the EAA, nor do I, as a
23 scientist, know of any hypothesis that would support
24 that, and I know of considerable evidence to the
25 contrary. There is nothing to distinguish.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôphorus which may contribute to the
growth and
12 expansion of the cattail communities, which appears to
13 be a scientific fact that most everybody that I have
14 read seems to acknowledge.
15 MS. PONZOLI: Then you don't need Dr. Parks, Mr.
16 Hyde.
17 MR. HYDE: I am trying to ascertain if he
18 subscribes to that as well, or if he believes that the
19 expansion of these cattail communities is solely being
20 caused by phosphorus in the waters.
21 MS. PONZOLI: He has explained his belief
22 regarding the expansion of cattail communities several
23 times in his two-day deposition. You are framing a
24 question presently that, in my opinion, cannot be
25 answered. It is a non-real-world situation by the
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô MS. PONZOLI: The original question
was, what do
20 you measure?
21 BY MR. HYDE:
22 Q What is the unit of measurement for determining
23 this body of water?
24 A Generally speaking, you wouldn't go out somewhere
25 and determine a violation. You would have set limits on
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ônt standard and all
7 other nutrient standards.
8 Q Let's say you are not in the permitting context.
9 Let's say you are in a notice of violation mode.
10 MS. PONZOLI: Object to the form.
11 BY MR. HYDE:
12 Q How do you determine whether a discharger has
13 violated this standard in terms of impacts upon the body of
14 water?
15 MS. PONZOLI: Object to the form. I think he has
16 indicated several times what he considers a violation
17 situation. Maybe I am mistaken, Dr. Parks.
18 THE WITNESS: This is simply a hypothetical that
19 wouldn't, in my experience, wouldn't occur. Either the
20 discharger has a permit that the owner is not complying
21 with, or else he has no permit and the violation is not
22 having a permit.
23 If he has a permit, it has effluent limits that
24 produce the result of no violation of this standard.
25 BY MR. HYDE:
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôcan give you and he
8 will give you the best answer he can. You have got to
9 ask a decent question.
10 MR. HYDE: I have been asking, Ms. Ponzoli, other
11 than your repeated coaching of the witness.
12 MS. PONZOLI: I am not coaching the witness. You
13 are asking poor questions, and I am not going to have
14 him answering poor questions just because you will not
15 form a single decent question.
16 That is the problem. It is not the problem that I
17 will not let him answer. I will -- I have a record for
18 a day and a half of letting this man answer virtually
19 everything.
20 BY MR. HYDE:
21 Q Well, I will ask this one final question and it
22 may be a repeat. I want to see if you can repeat it for my
23 benefit so we can move on to some different point.
24 Do you know whether there is a geographical
25 component to determining whether there is a violation of
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôquestion?
17 A Well, trophic state is a biological consequence of
18 water quality. They are not totally independent.
19 Q Do you intend to offer any opinions at the final
20 hearing in this matter concerning the stormwater treatment
21 areas, their design, treatment efficiencies, capabilities,
22 or the like?
23 MS. PONZOLI: He has not been asked to.
24 THE WITNESS: "Or the like"? I don't know what
25 else you would cover. Would you be more specific?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô.
6 Q Their sizing?
7 A No.
8 Q You seemed to hesitate when you said no that time.
9 Is that just an interpretation?
10 A Well, I was going to ask you to qualify sizing. I
11 assume I might be asked, is this a reasonable first step to
12 take, and I have given an opinion on that, and that
13 includes size.
14 Q Would you be offering an opinion as to whether,
15 for example, the stormwater treatment areas ought to be
16 35,000 acres or 50,000 or 70,000?
17 A An opinion based on what?
18 Q I am asking you whether you are going to offer an
19 opinion in that realm?
20 A No.
21 Q During the course of the last two days we have
22 been talking an awful lot about phosphorus, almost as if it
23 is, there is only one type of phosphorus. Is that in fact
24 true?
25 A No. Phosphorus -- no, it is not true.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722ÔOver the long haul, it is
9 going to all get equalized out.
10 Q Are you saying -- let me give you sort of an
11 example to see if you agree with me. A certain type of
12 phosphate might be more readily usable by microphytes such
13 as cattails, thereby promoting their growth, at a greater
14 rate than an equivalent loading of some other type of
15 phosphate, is that a conceivable scenario?
16 A I don't know the answer to that with respect to
17 cattails.
18 Q Will the proposed stormwater treatment areas
19 remove better certain of these categories than others?
20 MS. PONZOLI: I am going to object to the form, I
21 am going to object to the question. He has already
22 testified that he will not be offering testimony of
23 treatment efficiencies of STAs.
24 THE WITNESS: Could you repeat the question?
25 (Whereupon, the court reporter read the pending
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôyou just referred to in August of
22 1988?
23 A At any time?
24 Q Yes, at any time prior to the initiation of the
25 lawsuit.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôfirst occasion?
11 A I am just trying to remember. I think that
12 Charles Lee was there, I think that Jim Webb was there, and
13 I don't really recall who else. There were others.
14 Q What was your purpose of meeting with the U. S.
15 Attorney at that time?
16 A He invited me.
17 Q Do you know why he invited you?
18 A I think that he wanted to ask conservationists
19 what their views were on the state of the Everglades and
20 what should be done about it.
21 Q To your knowledge, had he been solicited by anyone
22 else to take some affirmative action regarding the
23 Everglades?
24 A I don't have any knowledge of that.
25 Q Did he ever discuss with you different theories of
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô to this line of
16 questioning, that is, discussions between counsel and
17 organizations that were involved in the federal
18 lawsuit, to the extent it goes into privileged
19 communications between counsel and the organizations.
20 MR. HYDE: I am just trying to determine whether
21 any recommendation was made as to pursuing a cause of
22 action under state law. I don't think that is cause
23 for any privileged information.
24 MR. WHITE: If you are asking the witness to
25 disclose what advice he was getting from his counsel
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôanges in wording, but there
15 has not been any fundamental difference in my role, nor do
16 I know that there were actual changes in wording. I just
17 don't know for sure.
18 Q Are these contracts just for a short period of
19 time, are they renewed periodically, or are they, do they
20 reflect changes that might reflect a difference in the
21 scope of your services?
22 MS. PONZOLI: Object to the form. I think he just
23 answered your question, or actually you have combined
24 several questions in one. First was a time question
25 and then what is the scope. The scope has been
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô It is a memo from me to several
conservationists.
18 Q What is the subject matter of the memorandum?
19 A A meeting with Lieutenant Governor MacKay.
20 Q It is entitled, "Concepts to be presented at
21 January 30 meeting with Lieutenant Governor MacKay."
22 Were these issues contained in the memorandum and,
23 in fact, discussed with Mr. MacKay? I am speaking just in
24 general terms, now.
25 MS. PONZOLI: What was the question?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô per billion, using the design
algorithm that is described
25 in the SWIM Plan.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô Were you privy to any of the
discussions with the
14 people negotiating the settlement agreement when they
15 latched onto this 50 parts per billion interim limitation?
16 A No.
17 MS. PONZOLI: Object to the form of the question.
18 BY MR. HYDE:
19 Q Are you familiar with an entity known as the
20 coordinating committee?
21 A Just the coordinating committee?
22 Q Yes.
23 A No, I don't think so.
24 Q Are you familiar with any organization that might
25 have those two terms in its title?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôments ago prior to our last break
you
21 noted that the, at least one of the purposes of the South
22 Florida Geographic Initiative was to investigate mercury
23 contamination in south Florida. To your knowledge, is that
24 Initiative going to be looking into whether waters leaving
25 the EAA might be causing or contributing to that problem?
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ôs as described by Dr. Hahn, with
23 respect to EAA?
24 BY MR. HYDE:
25 Q Yes.
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 6 MS. PONZOLI: Objection to the
form. I don't know
7 what you mean by "breakup." I have never heard that
8 term.
9 MR. HYDE: It is commonly used in a whole host of
10 public and private presentations.
11 MS. PONZOLI: Okay, fine. If Dr. Parks knows
12 what it means, then he can respond.
13 THE WITNESS: What I know is if you add
14 phosphorus, the mat disappears.
15 BY MR. HYDE:
16 Q Do you assume by its mere presence it is the cause
17 of the mat's disappearance, or can you relate it to some
18 other chemical or biological activity?
19 A I think the clearest indication is in the Park's,
20 Everglades National Park's dosing studies which took place
21 in Shark River Slough, an area of very extensive periphyton
22 mats, and in, actually in both the channel that received
23 phosphorus and the channel that received nitrate, the
24 periphyton mat disappeared.
25 Now, you know, what the primary cause was, and the
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 18 land. It is not draining
cultivated land, and I would
19 expect that there would be less soil oxidation and
20 therefore differences in quality.
21 Q Do you know whether it is better quality water or
22 worse quality water, particularly in the context of
23 phosphorus?
24 A I don't know.
25 Q Do you know whether that -- first of all, do you
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô-5A water.
18 Q Do you know whether the Department of
19 Environmental Regulation is trying to bring it under the
20 same kind of permitting that the, say, the S-5 structure is
21 being brought under?
22 A Well, the SWIM Plan describes all of the tributary
23 inflows into the Everglades Protection Area and proposes a
24 schedule for dealing with those, and I assume that when DER
25 approved the SWIM Plan that it did so in anticipation that
A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722Ô 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 904-224-0722Ô