DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA Case No.s 92-3038 92-3039 92-3040 _____________________________________ SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, et.al., Petitioners, vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Respondent. UNITED STATES OF AMERICA, et. al., Intervenors. ______________________________________/ 99 Northeast 4th Street Miami, Florida March 31, 1994 9:00 o'clock a.m. Deposition_of_Doctor_William_Patrick_(Cont.'d) __________ __ ______ _______ _______ _________ Taken before Joan Carol Ocker, Court Reporter and Notary Public in and for the State of Florida at Large, pursuant to Notice of Taking Deposition filed in the above cause. JACK BESONER AND ASSOCIATES (305) 371-1537 APPEARANCES: ON BEHALF OF THE PETITIONERS: Earl, Blank, Kavanaugh & Stotts, P.A. Two South Biscayne Boulevard, Suite 3636 Miami, Florida 33131 BY: Mark Kobelinski, Esq. ON BEHALF OF THE UNITED STATES: United States Department of Justice Environmental and Natural Resources Division Post Office Box 663 Washington, D.C. 20044-0663 BY: Susan Ponzoli, AUSA ON BEHALF OF THE RESPONDENTS: Popham, Haik, Schnobrich & Kaufman, LTD. 100 Southeast 2nd Street, Suite 4000 Miami, Florida 33131 BY: Paul L Nettleton, Esq. ALSO PRESENT: Michael Sokup - - - - - - - - - I-N-D-E-X _ _ _ _ _ WITNESS: PAGE_ _______ ____ Dr. William Patrick Direct Examination by Ms. Ponzoli (cont.'d) 218 - - - - - - - - - JACK BESONER AND ASSOCIATES (305) 371-1537 218 1 DIRECT EXAMINATION (CONT.'D) BY MS. PONZOLI: 2 Q. Dr. Patrick, you have brought, or your attorney has brought a number of documents we had discussed 3 yesterday, and I would like to identify them and just understand what it was. 4 You produced a portion of a transcript that you had reviewed prior to coming. Because of the length of the 5 transcript, I don't think I'm going to attach it to the record, unless somebody has a particular desire. But I 6 would like to know the purpose for which you reviewed this transcript. 7 A. Well, I didn't review the whole transcript. As I indicated to you, I cited the transcript as containing a 8 statement by Tom Fontaine that it would take a year or two for the constructed wetlands in the ENR to reach the point 9 where they would be processing the drainage water. Q. Is that really pretty much the purpose for which 10 you read this transcript? A. Well, no, it wasn't the purpose for which I read 11 it. I just read it because it was furnished to me and I went through it. That was the point that caught my 12 attention, which I cited yesterday, since there was some question about how long it would take for the STA's to 13 achieve their desired effect on phosphorus removal. Q. Did anything else in the transcript strike you as 14 noteworthy? A. Well, yes. The apparent anxiety of the board 15 over their EPA'S letter maybe of noncompliance. I'm not sure. A letter requiring that they get a permit for 16 discharge. And apparently there was some mention of criminal penalties associated with that that several of 17 the board members commented on. That's about all I remember from that. 18 Q. Do you have any experience in testifying on meeting compliance within NPDES? 19 A. I don't recall that I have. Q. Do you anticipate that you will be called upon to 20 offer any testimony in that regard in this particular case? 21 A. No, I don't have any idea if I will. Q. I'm going to hand you -- 22 A. Apart from the projected level of phosphorus to be achieved by the proposed STA's, which I assume will 23 also be required to meet the same standards. Q. Just so that I am clear. As I recall your 24 testimony yesterday, it was the time factor that you disagreed with on the STA's. You felt that it would take 25 six to eight years, maybe even up to ten years to achieve JACK BESONER AND ASSOCIATES (305) 371-1537 219 1 the 50 ppb as opposed to a shorter time frame that you referred to as Mr. Fontaine did, Dr. Fontaine, at the 2 board meeting. Is that accurate? A. Yes. 3 Q. Let me hand you the next document that you produced and ask you if you will identify it for us. We 4 marked it as Patrick 3. A. These are the results of the field redox study 5 that I established in conjunction with Dr. Davis in various parts of the water conservation areas. 6 Q. And is it my understanding that you will be testifying on the redox and not Dr. Davis? 7 A. Yes. I don't know about Dr. Davis, but I anticipate testifying. 8 Q. I would like to review those before I question you on them. I just want to identify them for the record 9 right now. I'm going to hand you Patrick Number 4 and ask you if 10 you would identify that, Dr. Patrick. A. The first page shows the redox sample locations 11 in water conservation area 2A and 3. Q. Did you use the same sample locations for your 12 phosphorus, your peat accretion and mercury that we referred to yesterday in Patrick Number 2? There was BP 13 40, 50 - I don't recall all the numbers. A. I don't believe that's exactly the same location. 14 I mean, they are -- It's at the same distance, and as I recall, very close to the sample sites and is designed to 15 represent the sample sites. Q. Is this why there is a BP-10A? That would 16 represent a little different site from BP-10? A. Yes. R is for redox. And these are just A and B 17 were the replicates. And the BP-10 through 60R were the redox sites, but at the same distance south of the 10C 18 structure. Q. I'm going to return to this, but just so we can 19 identify it. This is a composite exhibit. Is the second page -- What is the second page, Dr. Patrick -- 20 A. The second page -- Q. -- other than extremely difficult to read? 21 A. The second page shows sample locations in the Loxahatchee for, I think, the ESP sampling stations. And 22 it also shows the BP stations in water conservation area 2A, which are, incidentally, blown up on the next page. 23 Q. Now, are these redox the ones we're looking at on the third page of this exhibit? 24 A. No, they are the same general location as the redox, but they are the phosphorus and cesium locations. 25 Q. And these are the same ones from yesterday that JACK BESONER AND ASSOCIATES (305) 371-1537 220 1 we discussed? A. Yes. And continuing on with the second page of 2 this, the high concentration of sample locations farther south in water conservation area 3, represent a large 3 number of the samples that we discussed yesterday. And this area is blown up on the fourth page, so you can see 4 it in more detail. Q. And these are the phosphorus and mercury samples, 5 phosphorus, cesium and mercury? A. Not cesium. 6 Q. You only did cesium along 10C? A. Yes. These are the other samples that the 7 results of which you had yesterday, which we discussed in some detail. 8 Q. And the numbers are not designations would match, is that accurate? If I wanted to match the data with the 9 location, that would match? A. Yes. That's the case at least for all except 10 possibly the ESP samples, which were samples that were taken by Dr. Davis and/or his staff. I think our only 11 participation in those was to analyzes the phosphorus in those. But the others - and there are a few of those - 12 but all of the others are samples locations that I took cores myself. 13 Q. Did you use any other dating techniques other than cesium? 14 A. No. Q. I would like to return to that one also, since we 15 identified it. A. That one being what? 16 Q. Patrick 4. I would like to return and discuss it. I just want to identify these and get them into the 17 record and continue. I'm going to hand you Patrick 6 and ask you to please 18 identify that. A. This document shows the sample designation -- 19 MR. KOBELINSKI: Six or five? Q. I apologize. 20 A I have six. Q. I have six also. I probably did them out of 21 order. We'll just do six. A. Six is the one I have in front of me. 22 Q. Right. A. Six shows the sample location, the vegetation 23 type, the actual ground location, latitude and longitude, the characteristics of the cores, the inside/outside depth 24 and the water depth, and comments on the make at the time of sample. 25 Q. Now, do these designations of locations match the JACK BESONER AND ASSOCIATES (305) 371-1537 221 1 maps in Patrick 4? A. Yes. 2 Q. And these will match with your phosphorus and whatever other sampling you did at the at various 3 locations? A. Yes. 4 Q. You would put these together, and it's my understanding that you intend to give testimony at trial 5 based upon all of this data and your interpretation of it; is that correct? 6 A. That's correct. Q. I would like to take either at a break or lunch 7 or something and look at these things together, if I can, before we discuss them. 8 Just so I'm clear from what we said yesterday, though, you did indicate that a number of the sites had, 9 in your opinion, background phosphorus at them. Is that accurate? 10 MR. KOBELINSKI: Could you read that back -- Q. Remember we went through the tables of the 11 phosphorus? A. Yes. 12 Q. And I asked you to indicate to me which of the sites from the phosphorus readings would be an unenriched 13 - I believe that's the term we used - unenriched site? A. Apparently unenriched. Yes, that's correct. 14 Q. Okay. So now I guess we'll need to go back to Patrick 5. I'll hand you Patrick 5. Can you identify 15 Patrick 5 for me? A. The first seven pages of Patrick 5 contain the 16 results of a separate sampling in the northern part of 3A made in January, '94 by myself and Dr. Davis, in which we 17 went into areas of typha and caladium and took core samples. And we were guided in this in a general way by a 18 staff member of Breedlove and Dennis who had helped map this. So when he identified the general area, then we 19 went in and made specific selections of sites that had these different vegetation types and we took cores and 20 measured water depth and characterized the area in which you see here. There were seven of those locations. The 21 eighth page shows a location map of those sites. Q. Okay. The squares are the several of the 22 seven -- Excuse me. The seven sites? A. Yes. 23 Q. And the two dots, are those just structure dots, the S-150 and S-7? 24 A. Yes. Three dots to the left. Q. The following map? 25 A. The following map is what is left of Loxahatchee JACK BESONER AND ASSOCIATES (305) 371-1537 222 1 after sampling. The following page, the ninth page, shows sample 2 locations in the water conservation area 1, the Loxahatchee refuge, and contains new information on our 3 additional core samples made just in recent days that were designed to supplement our initial transects. 4 Q. These are the ones you did on the 28th? They have already been done? Your recent is not as recent at 5 my recent. A. The 28th of what? 6 Q. March. MS. PONZOLI: Didn't you go in on the 28th of 7 March? MR. KOBELINSKI: You lost me with your recent is 8 not my recent. I don't know when we went in. I think that is what Dr. Patrick is referring to. 9 THE WITNESS: Yes. BY MS. PONZOLI: 10 Q. The 28th is on here? A. I'm not exactly sure the date. I think that's 11 right. It was just in the last few days. It was the 28th or 27th. 12 Q. Will you identify those and tell me which ones those are? 13 A. Yes, I can. Q. Will you please mark them on there for me? 14 A. They are already identified. Q. All right. Just tell me which ones. 15 A. They are at the bottom, which is near 10C, north of 10C structures. LR32, 33 and 34. 16 Q. Is that it? A. On the bottom it is. On the west site about 17 halfway up, they are 30 -- No, maybe it's 29. Well, it may be 20 -- These are numbered. There are LR28, 29, 30 18 and 31. Q. Yes, sir. 19 A. You see those? Q. Yes, sir. I see an 18 also, and a 19. 20 A. The 18 and 19 were from a previous transect. And these were -- These are the new samples. And I think 21 that's all, as best I can make out from this map. Q. And the purpose of these new samples, would you 22 please tell me what that purpose was? A. Was to better delineate the transects, the west 23 to east transect across the mid part of Loxahatchee, and the south to north transect going north from 10C. 24 Q. Was this to determine where you reached background within the refuge? 25 A. Yes. JACK BESONER AND ASSOCIATES (305) 371-1537 223 1 Q. Was that the purpose? A. Yes. 2 Q. And what is the surface soil reading of phosphorus at those locations, approximately? 3 MR. KOBELINSKI: Which locations? A. Well, the ones that were just taken? 4 Q. Where you reached background. When do you think you are reaching background? 5 A. In the west to east transect? Q. Yes, sir. 6 A. Which is our first sample, was 18. Q. That was early on, right? 7 A. Yes. I think at 19 it went from west to east. The spacing I selected was one sample location very near 8 the edge near, I think it's the L-7. Q. And that would be near the canal, the LR18 would 9 be near the canal, LR18? A. Yes. The way it looks here, and as I recall, 10 that was the number. Anyway, there was a sample located near the canal. Then the next sample was at some 11 distance. Perhaps I don't have the document in front of me. You do have it. 12 Q. Which one is it? Do you know? A. It's the Loxahatchee data. But it's not 13 important right now. Q. No, we can do it later? But you do believe it's 14 among this pile of documents? A. Right. 15 Q. Okay. A. The next sample site is 19, and then maybe 28 was 16 the next. And I increased the distance of sampling as I went. But I discovered on analyzing these, that the only 17 station that had elevated phosphorus was 18. By the time I got to 19 I was at background levels of phosphorus. 18 Q. That's the number I wanted. Can you give me what you believe the background number for the soil phosphorus 19 is? A. It would be somewhere in the 500 part-per-million 20 range. It may be somewhere a little lower. Q. Parts per million? 21 A. Yes. In the Loxahatchee. But we can see that in detail when we get -- 22 Q. No, I agree. A. And so as a result of having missed the 23 transition area with my grid with my transect sampling, I requested that we be allowed to take additional samples 24 along that transect to properly delineate the transition area where there was a decrease in phosphorus, because the 25 phosphorus was high at 18 right adjacent to the canal. JACK BESONER AND ASSOCIATES (305) 371-1537 224 1 And I thought sample 19 would be in the transition area, but was already through the transition area. So that's 2 the reason for these additional samples. Q. All right. I see the Reddy stations are going to 3 represent Dr. Reddy soil phosphorus. Is that accurate? A. Yes. 4 Q. And the Richardson stations are what? A. Those are stations sampled by Dr. Richardson for 5 cores in which he analyzed phosphorus, too, as I recall. Q. Okay. I think that was part of the information 6 you said you were relying upon, but had not produced. Is that accurate? 7 A. I'm sorry -- Q. Dr. Richardson's data. Remember we discussed 8 yesterday? A. In the Loxahatchee? 9 Q. Yes, sir. A. Yes. I know I have seen Dr. Richardson's data, 10 and Dr. Reddy's data as well. Q. Right. 11 MS. PONZOLI: Mr. Kobelinski, do you know which data is this? 12 MR. KOBELINSKI: That was all turned over. I don't know if that's a year ago now or what, but that 13 all was turned over, both of them. And I'm sure with courtesy documents. But that's the entry access, it 14 was turned over within a matter of a month it was taken. 15 MS. PONZOLI: Let me ask you this, then. I have not handled the entry and access. And I know the 16 documents, at least it's my general understanding, there has been exchanges of those documents. 17 What I was not aware of was that the league came in on behalf of different researchers, Dr. Patrick, 18 Dr. Richardson, so when you turn over the data, am I going to be able to look at the data and say this is 19 Dr. Richardson's data and this is Dr. Patrick's data? Or am I just depending on these data? 20 MR. KOBELINSKI: My understanding, you will be able to differentiate that. Again, I guess that's 21 something I can check at lunch. MS. PONZOLI: You don't know. You don't know, 22 either? MR. KOBELINSKI: My understanding, you will be 23 able to differentiate. THE WITNESS: You have the data. You have the 24 Patrick data, which is identified. BY MS. PONZOLI: 25 Q. You turned it over with your documents? JACK BESONER AND ASSOCIATES (305) 371-1537 225 1 A. Yes. Q. But I can't necessarily assume that all the rest 2 of it is Richardson. If I'm supposed to be comparing, I will need to be able to be sure I can do that. 3 MR. KOBELINSKI: The other option is call for Curtis' deposition and ask to fax it to us. 4 MS. PONZOLI: That would really be excellent if we can do that. Because I would like to have these 5 pieces to talk to Dr. Patrick about while is still here. 6 BY MS. PONZOLI: Q. Dr. Patrick, you said we have in our documents 7 the Delfino stations. Is this mercury data that Dr. Delfino did? 8 A. Yes. I asked Dr. Davis do plot Dr. Delfino's locations here, because I wanted to examine his mercury 9 data along with mine. Q. Right. Did you provide that Delfino data among 10 your documents? A. No. That's a report from IFAS to the Water 11 Management District, I think. That's a public report. Q. Are you relying upon that for any testimony that 12 you might give? A. No. Not that I have been asked to give. 13 MS. PONZOLI: Mr. Meddleton, are you familiar with this Delfino report on mercury? I heard he did 14 mercury work, but I have no personal knowledge. MR. MEDDLETON: No, I'm not familiar with it. 15 MS. PONZOLI: Can you put your hands on it easily? 16 MR. KOBELINSKI: I had heard first just a few moments ago what it was. So I didn't know what it 17 was, either. MS. PONZOLI: If you can, I would appreciate it. 18 BY MS. PONZOLI: Q. What did that Delfino mercury information tell 19 you, Dr. Patrick? A. Dr. Delfino's report showed mercury in a large 20 number of profiles throughout the water conservation areas and his location map, though his report was not detailed 21 enough to see the actual location. And so Dr. Davis has the capacity to take the latitude and longitude data and 22 plot it. So I wanted the location of Delfino's data, since I had also done mercury profiles in some of these 23 same areas. Q. What opinion did you come to based upon Delfino's 24 data, either in combination with yours or separately. MR. KOBELINSKI: I raise the same objection I did 25 yesterday with regard to mercury opinions. If you JACK BESONER AND ASSOCIATES (305) 371-1537 226 1 ask scientific or -- Q. And I have said if you were, Doctor, that you 2 asked to sit on the stand and offer mercury opinions, and you said you would decline to do that. 3 A. Actually, I have not really analyzed his data that closely and compared. I just wanted this as a basis. 4 I have devoted most of my time to matters for which I was asked to provide, myself. 5 MS. PONSOLI: I would just most respectfully, Mr. Kobelinski, like to be clear that if there comes a 6 time when Dr. Patrick is going to offer opinions on this, that we would like the opportunity to question 7 him prior to his sitting on the stand. MR. KOBELINSKI: As I explained yesterday, Dr. 8 Patrick would not be providing direct testimony on mercury to the extent other parties provide testimony 9 on mercury. Obviously, we reserve the right to either rebut or provide comment on that. 10 We have stated even in that situation that Dr. Patrick wouldn't be relying upon his own sampling 11 that has been conducted, notwithstanding that that has been provided to you and you have questioned him 12 about it. I would agree to the extent that although, as I 13 said, you have already questioned extensively about it, even his own data, to the extent that he is going 14 to be relying upon his own data in rebutting if that occasion ever arises. I think at that point it would 15 probably be appropriate just to review his deposition to see whether or not that there would be any 16 additional need, since you spent a good portion of yesterday going over his testimony on mercury and his 17 opinions drawn from if. And I know I have not stopped you from asking. 18 I just raised a standing objection. MS. PONZOLI: I realize you had not stopped me 19 from questioning, but he has inclined to give opinions because he has not been asked to formulate. 20 And I would point out for the record that if Dr. Patrick were to sit on the stand, I doubt seriously 21 that it would be in rebuttal capacity, but in a supporting capacity in a case already presented by 22 the cooperative, for example. So it would not be in the nature of rebutting, but in the nature of 23 support. So I would still maintain that I had a right to do a deposition of his opinions. 24 We don't need to belabor this. We feel differently and you may feel differently at the time. 25 MR. KOBELINSKI: I think the record is clear as JACK BESONER AND ASSOCIATES (305) 371-1537 227 1 to whether he has or has not had opinions. I think that as far as rebuttal testimony goes, that perhaps 2 it is an issue that is going to be addressed to the witnesses to the extent that we haven't had an 3 opportunity to truly find our what rebuttal opinion is as opposed to direct opinion. 4 But I agree with you. We will just see what happens if it arises. 5 MS. PONZOLI: Okay. BY MS. PONZOLI: 6 Q. Just so I'm clear, Dr. Patrick, you have formed no opinions on this Delfino mercury data in relation to 7 your mercury data; is that right? A. That's correct. As a matter of fact, I'm not 8 even sure that I have seen these Delfino plots before now. Q. I bet there is a beautiful exhibit waiting for 9 you to testify from at trial. I just have this feeling it's going to look something like this. 10 MR. KOBELINSKI: Can we wager on that? Q. Have you seen any exhibit prepared on your 11 behalf? A. No. 12 Q. On your testimony? A. No. 13 Q. Have you discussed preparing any exhibit for trial? 14 A. I was asked to make some recommendations for exhibits, which I have not done. 15 Q. If you were to make those recommendations, what would they be? 16 A. I haven't put any effort into that, yet. And so I really can't answer that. 17 Q. All right. Well, then can we identify these last maps and maybe finish with this particular composite 18 exhibit. The next one is what, following the one we simply 19 finished discussing of Loxahatchee -- A. I don't -- 20 Q. Oh, you are not finished with this one? A. Well, it's up to you to decide, but I haven't 21 discussed all the new sample sites. Q. Oh, no. Please, tell me the new sample sites. 22 A. On the south end I indicated that there was new sample sites 32, 33 and 34, at least the only ones that I 23 can see. And the reason for that is, my first location, which was 21, was some distance from the canal at 10C. 24 And I thought I was in an area of increased phosphorus. But the phosphorus was near background levels even at 21, 25 or at my first location was 22. I'm not really sure. So JACK BESONER AND ASSOCIATES (305) 371-1537 228 1 I wanted to go back in and take samples closer to the canal in 10C to probably delineate the transect area. 2 And regarding the question on exhibits, it's pretty apparent that the concentration of phosphorus was distance 3 from those two points would be an obvious exhibit topic. But I haven't really worked through that, yet. 4 Q. And you were still using this 50 parts per million as a background level in the surface of the soil? 5 A. It was 500 earlier. Q. I'm sorry. It was 500. I misstated it. And 6 that's the measurement? A. Approximately. It may be somewhat lower in 7 Loxahatchee or in the interior of Loxahatchee. As I indicated, we'll get a chance to look at the actual data. 8 Q. We need to do that in more detail. Was there anything else that you wanted to point out 9 about this particular map? A. Well, I didn't want to point out anything. 10 Q. Well, I realize you are here under subpoena. But I was using that in a euphumous way. 11 A. I understand. You had asked me about these new samples to discuss, though. And I felt to complete my 12 answer, I should do that. Q. I appreciate that. The next map is of 2A. And 13 what does it reflect? A. As the legend shows, this map depicts the Reddy 14 data stations in which Dr. Reddy did a grid sampling of 2A. And the Patrick data samples, which are appropriately 15 indicated with a star. Q. I have to tell you, Dr. Patrick, I don't think 16 these stars do you justice. A. They are rather small, aren't they? 17 And the Duke data, which are represented by triangles. And the Delfino data. 18 Q. Which are X's. MS. PONZOLI: I don't mean to be ungrateful, Mr. 19 Kobelinski, but this one is really difficult. MR. KOBELINSKI: If you look at the next page -- 20 MS. PONZOLI: So long as we can read and understand it. 21 MR. KOBELINSKI: We're just helpful people. MS. PONZOLI: I think we're getting along just 22 fine. THE WITNESS: I presume the Reddy data is in your 23 possession with the sample locations and the Delfino data is not our data. And so it's only the Patrick 24 and the Richardson data or Duke data that I know about in some detail. 25 BY MS. PONZOLI: JACK BESONER AND ASSOCIATES (305) 371-1537 229 1 Q. So you are not relying upon the Reddy and Delfino data for your testimony? 2 A. Well, not the Delfino data because it is mercury data. But yes, I would utilize the Reddy data. 3 Q. All right. A. But I was pointing out that you should have an 4 accurate map of the Reddy data, since it was done for the district. 5 Q. Well, this case has, I can tell you from the federal side, I have a minimum of two million documents. 6 So to say I have something is sort of not helpful in every instance. 7 MS. PONZOLI: If he is actually relying upon it, Mark, I would appreciate having it to compare. I 8 think that's sort of the requirement. MR. KOBELINSKI: Yes. The Reddy data I can -- 9 MS. PONZOLI: Put your hands on? MR. KOBELINSKI: Sure. We have all the 10 phosphorus stuff. MS. PONZOLI: I would appreciate it, so we can do 11 some comparisons. BY MS. PONZOLI: 12 Q. And then these are just larger maps of what we had just covered, is that accurate, Dr. Patrick? Sheet 13 two and three? A. Well, it's a partial coverage. It doesn't 14 include the Reddy data. Q. You are right. Is doesn't cover all of 2 is what 15 it doesn't include. MR. KOBELINSKI: It just includes the box area. 16 A. But it doesn't include all of the Reddy data shown on the previous map. 17 Q. It includes all of the Duke and Patrick; is that right, within the box? 18 A. It apparently includes all that is in the box. Q. Okay. And that is the portion that you are 19 testifying on. You are not testifying on what is found in the other areas? 20 A. That's -- I can't confirm that because we have, as I have shown you on an earlier map, we have stations 21 down below that. Q. You're right. You do. 22 MS. PONZOLI: Do we have blowups of those larger areas, Mr. Kobelinski? 23 MR. KOBELINSKI: No. MS. PONZOLI: Because I really can't read it. If 24 you can get us a larger 2A, the worst part you can't at the -- Well, one is Reddy, one is Patrick, one is 25 Duke and Delfino. JACK BESONER AND ASSOCIATES (305) 371-1537 230 1 MR. KOBELINSKI: I had, just to respond to that, I had this actually, as you can tell from the bottom, 2 I had these created just for this. MS. PONZOLI: I do appreciate it. 3 MR. KOBELINSKI: I'll see if we can. I mean, it's just a question of what his plotter can do. I 4 don't know what he has. MS. PONZOLI: Right. 5 MR. KOBELINSKI: We can attempt to. But again, this is something that Bill didn't even have. We 6 just created it for the depositions for convenience sake. 7 MS. PONZOLI: I appreciate it. THE WITNESS: Could I mention I think a hard copy 8 of this is being sent today. MR. KOBELINSKI: That's true. He is Fed-Exing 9 something, a copy or a fax. THE WITNESS: And I think you can examine every 10 location from that hard copy. MS. PONZOLI: Good. Can we take a real fast 11 break? Five minutes? (Thereupon, a recess was taken, after which the 12 deposition continued as follows:) BY MS. PONZOLI: 13 Q. Dr. Patrick, I have handed you Patrick Number 7. Can you identify it, please? 14 A. This is a cover letter from Dr. Wang from Environmental Services and Permitting, indicating he would 15 send me soil samples indicating that he wanted phosphorus samples done on it. These are not samples that I was 16 involved in the collection of. But we were just analyzing these on a fee basis. 17 Q. And it has similar information, it would appear, to what you had on some of your sampling, the vegetative 18 type, the location. A. Yes, it appears to have. 19 Q. All you did on this was the phosphorus -- A. Yes. 20 Q. -- analysis. You are not relying on it in any way? You are just producing it on your phosphorus work? 21 A. I can't say I will not rely on it. I don't know if you even - if this was included in the phosphorus data 22 that I turned over to you. Q. Right. 23 A. If it was, and I have possession of it, when I look at all the phosphorus analysis or all the profiles, I 24 will look at these too. Q. Right. I appreciate it. All right. That's 25 that. JACK BESONER AND ASSOCIATES (305) 371-1537 231 1 So just to make sure that we are together on what we did yesterday, you have produced the Davis map that we had 2 requested yesterday; is that right? A. Yes. 3 Q. And the vegetative data that we had discussed? A. Right, that's correct. 4 Q. And we were requesting the Richardson documents and that we will receive those perhaps sometime today. 5 MR. KOBELINSKI: Right. That is something we just talked about today. Did we go through that 6 yesterday? MS. PONZOLI: When we noticed duces tecum and did 7 go through and talked about the second part and said he had relied on Richardson and Davis' work, but had 8 not produced them. And so we had requested that those be produced. And I understand you produced 9 part of them today and requested the other part by telephone a few minutes ago. 10 MR. KOBELINSKI: I hadn't realized, I'm sorry, the breadth of that with my notes yesterday. 11 Otherwise, I would have produced them this morning. BY MS. PONZOLI: 12 Q. And we got the redox this morning? A. Yes. 13 Q. And the mercury report there -- Not mercury report. It's the mercury data that you already produced? 14 A. That's correct. MS. PONZOLI: And then the only thing is that you 15 are still inquiring on, other than the report, that there was no dispute over the articles and the 16 manuscript. MR. KOBELINSKI: Yes. 17 MS. PONZOLI: Are the correspondence, contract and report letters you are still requiring into your 18 possession on that; is that right, Mr. Kobelinski? MR. KOBELINSKI: That's correct. 19 BY MS. PONZOLI: Q. Let's go back, Dr. Patrick, to what your opinions 20 are. You had given approximately nine areas that you expected to give testimony on. And then we went through 21 your designation of issues. I think what I would like to do, Dr. Patrick, is 22 continue going through your description of what you believe you are going to testify on and the supporting 23 documents. And then if we covered everything given by the attorneys, we're finish. If not, we will clean up. Is 24 that the most orderly fashion to do it? A. It seems to me the most logical. 25 Q. You talked yesterday about phosphorus accretion JACK BESONER AND ASSOCIATES (305) 371-1537 232 1 and vertical distribution in 2A and 3. Is that accurate? A. Yes. 2 Q. Did you have more that you will offer as an opinion at trial than what you had discussed with us 3 yesterday? A. I think the data in Loxahatchee would also be 4 included in what I would testify. Q. All right. I would like to do Loxahatchee, if 5 it's possible, as a discreet section and do all of the Loxahatchee. 6 A. That's what I understood yesterday. Q. I will continue to put Loxahatchee aside. 7 You listed cesium dating and accretion determination of phosphorus; is that right? 8 A. Yes. Q. And then largely 2A south of 10C, I believe we 9 have discussed that, have we not? A. Yes. 10 Q. Do you have anything else that you will be offering in that regard? 11 A. Nothing I can think of. Q. Okay. All right. And then we have cesium dating 12 in Loxahatchee, so we'll put that aside with the Loxahatchee discussion. 13 You have redox in 2A and 3. Those are the documents you produced this morning. 14 A. Yes. Q. I would like to take a chance to look at those. 15 I'm going to set that aside for a second. You have evaluation of STA's for removal of 16 phosphorus. Do you have more to add on that than you have already discussed with us? 17 A. Well -- Q. We sort of touched on it a little yesterday, but 18 I don't think we really discussed it. A. I thought we discussed it in great detail. 19 To answer your question do I have more to add, that doesn't seem to be the appropriate approach to me. I'm 20 pleased to answer any questions you have in regard to that. 21 Q. I understand. I understand. I have already restated this morning that you have a dispute with the 22 STA's regarding the length of time it will take for them to achieve the goal of the 50 ppb. You have stated 23 already for the record that STA's will, in fact, remove phosphorus at some point. Are those two opinions correct? 24 A. Yes. Q. All right. I guess I'm not looking to put 25 negative words in your mouth regarding STA's, but I need JACK BESONER AND ASSOCIATES (305) 371-1537 233 1 to know what you are going to say. You said you would, in fact, offer testimony whether 2 the STA program as set out in the SWIM program is practical, reasonable and will achieve restoration goals 3 regarding water quality and hydroperiods. I would like to know what your opinion of that would be. 4 A. This is a topic that I discussed in considerable detail yesterday regarding the way the STA's would 5 initially function in an area of high available phosphorus. And I can -- 6 Q. You don't need to say. You don't really need to recover. I'm looking for a way to elicit those other 7 opinions that you have, vis-a-vis, the STA's that we did not cover yesterday. And you wanted me to ask you 8 specific questions, so I'm trying to figure out a way to ask you those specific questions. 9 A. Right. MR. KOBELINSKI: Is there a question? I'm sorry. 10 A. As far as I know, there is no question. Q. Is that all because of the using, that it's not 11 practicable and reasonable because you believe using the farm land and the phosphorus budget that you discussed 12 with us yesterday, you believe it renders it impractical and unreasonable; is that right? 13 A. That is correct. For several years of time. Q. Okay. All right. The next opinion -- 14 A. And you may also recall that I indicated that it was more desirable to remove the phosphorus closer to the 15 source than it would be to create a huge reservoir of phosphorus adjacent to water conservation areas. 16 Q. Is that right? Because you indicated yesterday that in your opinion it would be, I guess, more practical 17 to use the word used here to remove high phosphorus concentrations from a smaller amount of water as opposed 18 to the larger amounts of water that would need to be treated in basin-wise STA. 19 A. I wanted to mention that, because your question was such that you indicated that I would only testify on 20 this particular point here. And so I know I did raise that other point as well. 21 Q. Right. A. And I may have raised another point or two, but 22 we would have to review my testimony. Q. Whatever you told me yesterday is fair game to 23 say at trial. The next area then indicated you would be testifying 24 on the STA's is whether the size or the need for them has been correctly determined. What opinions will you be 25 offering on size and need? JACK BESONER AND ASSOCIATES (305) 371-1537 234 1 A. Well, based on my discussion yesterday, that in my opinion they will not function to remove phosphorus for 2 some years. Any size is the size issue is inappropriate. And so if you want me to discuss sizing after some years, 3 perhaps a decade, until the STA's have achieved the same condition as present 2A does, only then will it be 4 appropriate, I think, to discuss the sizing. Q. I think you have lost me. If we start with the 5 size as they are sized in the present SWIM plan, I understand what your opinion of them is regarding their 6 ability to remove the phosphorus in a timely manner and efficient manner. 7 What I don't understand is that you were saying the sizing issue is premature at this time. 8 A. Well, obviously, in my, view it is. In the sense that regardless of the size, I don't think that they will 9 remove. I think there will be a source of phosphorus rather than a sink of phosphorus for some appreciable 10 time. If you consider that after some years of operation, 11 they then begin to function in the same way that 2A does. Where there is all of the excess phosphorus is tied up and 12 they are just processing the incoming phosphorus, then it might be appropriate to discuss the size. And if you want 13 to, if you are asking me then to discuss size at that time and under those conditions, I would be willing to do so. 14 Q. Do you think you will be offering testimony at trial on that? 15 A. I could be. Q. All right. Would you tell me how you would 16 determine the size and when? A. Well, the size, probably the best basis for 17 determining the size at that time when the STA's finally achieve the conditions where they have utilized all the 18 excess phosphorus and they were functioning just as 2A is functioning now, then the matter of size does become 19 appropriate. And me feeling about size is that the settling rate, the 10.25 settling rate is probably higher 20 than it should be. And this would require a larger size of STA's to remove the amount of phosphorus. 21 Q. Let me just cut to the chase on what your bottom line opinion is, since you were advocated yesterday 22 potentially doing things closer to the farm, either on the farm, wetland treatment areas combined with lime rock, 23 phosphorus removal combined with water manipulation, I assume these are the type of things? 24 A. Combined with smaller wetland, created wetland. Q. You mean smaller STA's at the end of the basin? 25 A. On the farm land or closer to the farm, closer to JACK BESONER AND ASSOCIATES (305) 371-1537 235 1 the source. Q. You are talking about having both the basin STA's 2 and farm? A. You mentioned the farm. 3 Q. Right. A. Okay. Well, whatever is required to achieve the 4 phosphorus removal. It would be, in my view, better to remove it farther away from the conservation areas than it 5 would be to have this huge reservoir of phosphorus right adjacent to the water conservation areas. 6 Q. Because of the initial phosphorus release and the opportunities for bypass or whatever? 7 A. Well, because in time to come, any change in the hydrology of the STA's, if they dry out for some period of 8 time, they are going to release very large amounts of phosphorus. 9 Q. All right. Well, let me just be clear, because this is where I was heading with my concept of cutting to 10 the chase. Dr. Patrick, is it your opinion that we just need to 11 go back to the drawing board and determine what the remedial program knows to be for this phosphorus reduction 12 program? A. Essentially, I would agree with that statement. 13 That's what my deposition, to this point, I think has made clear. 14 Q. Right. I think so. And do you have some estimate of how long -- Let's assume that your clients are 15 successful and the SWIM plan is rejected as being factually operative as required. We're back to the 16 drawing board. Do you have an estimate as to how long you believe it would take for scientists to determine an 17 appropriate phosphorus removal program? MR. KOBELINSKI: Is your question assuming the 18 same mandate of 50 ppb? Q. Let's set some standard so we can work against 19 it. Let's say you assume the 50 ppb. A. I was going to ask the same thing of you to 20 stipulate some level of discharge. I think this could be achieved in a very few years by a variety of methods, 21 which I have indicated. And this would be, first of all, better water management at the farm level. Because 22 farmers have not managed their irrigation for drainage water to phosphorus discharge. So there are things that 23 can be done, even at the farm level, such as management practices that would maintain a higher water level in the 24 fields themselves, the development of varieties that have a higher water tolerance, the selective removal of high 25 phosphate water from the fields and it's treatment. JACK BESONER AND ASSOCIATES (305) 371-1537 236 1 Q. You mean treating hot spots? A. Well, or just the general, as I indicated to you 2 yesterday, there are times when the drainage water, which has been in contact with the soil, has higher amounts of 3 phosphorus, I have shown it can be up to a thousand parts per billion or one part per million for short periods of 4 time. So you have small amounts of water with high amounts 5 of phosphorus. And I'm making the general statement that it's much more effective and cost efficient to remove 6 large amounts of phosphorus from small amounts of water. So management can be employed at the farm level and in the 7 drainage distribution level to treat those parcels of water separately than the flood water that comes in from 8 storms that persist for several days. That is low phosphorus discharged water. 9 So there is -- And then I think that the extensive amount of limestone available, which is a substance that 10 will precipitate phosphorus, can be utilized as I have shown in this study that I have carried out. 11 And I think there are other management practices that farmers are always able to develop when they have a 12 certain goal to achieve that can, all of these things together, remove appreciable phosphorus, perhaps down to 13 the required level, perhaps not. And if it isn't removed to that level, then some other treatment method, chemical 14 method, STA, smaller STA's might have to be developed. But my overall recommendation is, as I have stated 15 several times, that this concept of letting all of the water go with some best management practice or reduction 16 to say 20 percent, letting all of this water go and huge STA's, in my view, would not be the most cost effective or 17 actually effective method of treating, of reducing the phosphorus loading to the water conservation areas. 18 Q. Right. I think you had indicated that. And you don't see any economy of scale in treating the water in 19 larger STA's versus all the various different ones on the various farms. I think that is inherent in your answer, 20 but I want to confirm you don't see economy of scale. A. Not at all. I think the individual farmer should 21 be encouraged to develop methods to remove the phosphorus level, to use lower phosphorus fertilizing level. If 22 there is no penalty for them to discharge any particular amount of phosphorus, then I think there will be a lot 23 more phosphorus entering the system. Q. Right. Two questions. The first one, the time 24 frame you say is several years. You think it would take what, up to two years to develop this new program? Is 25 that -- I mean, I need to know. I think that's in issue JACK BESONER AND ASSOCIATES (305) 371-1537 237 1 for people -- A. I think that attention of farmers has been 2 achieved. Q. We got their attention? 3 A. I think that they were thinking about ways that this can be done. And that they are and they probably now 4 are designing methods that can be used to do this. Certainly, certainly, they are thinking about how to 5 achieve this 20 percent reduction as mandated in best management practices. So it's hard to give a time scale. 6 But, I think some of this is already in place. And I think in may be just in a fair few years this could be - 7 these methods could be worked out. Q. So in your opinion, the farmers would be 8 physically capable of being committed to reaching far more than a 25 percent reduction up to potentially a 75 percent 9 reduction, which is what 50 ppb would represent in a gross manner. It might represent far more than that for some 10 farmers. But you believe that the farmer could be required to achieve on the farm a 75 percent reduction in 11 one to two years? A. No. I didn't make it that clear. You know, I 12 didn't make it that definite. Q. Right. 13 A. And I can't guarantee that at their own farm level a reduction of 50 part per billion. I suspect that 14 some farmers could achieve lower than that and some farmers higher than that. And there probably should be a 15 mechanism, and maybe there will be in place anyway, penalties for discharging higher than that and benefits 16 for discharging lower than that, either at the farm level or at the drainage distribution level. I think this has 17 to be done. I think more interest should be put at all levels in 18 the system, rather than at the resources put into huge STA's at the lower end of the system. 19 Q. I understand. A. I thought I made that clear yesterday. 20 Q. Well, you did. What I think is relevant to the regulators in the effective parties down stream is the 21 type of timeframe that you, as an expert, are placing on the development of this program so that people would have 22 that in the back of their mind. You think it would take approximately two years to develop this program? 23 A. That seemed reasonable to me. I'll answer it in this way. I think it will take much less time to develop 24 and put into place an effective program of phosphorus removal than will be achieved by the construction and 25 operation of the STA's. JACK BESONER AND ASSOCIATES (305) 371-1537 238 1 Q. Well, let's assume we took two years to decide what the program is and let's assume a very different 2 world than the world we have known in the last six years, that we do litigate over that program. We just do it. 3 How long would you assume that it would take to implement the program, literally on the ground by the various 4 mechanisms? A. The lime rock, the on-farm STA, whatever, 5 something like three years. And I haven't put thought in that, but that is what appears to me now to be a 6 reasonable estimate. Q. Okay. 7 A. Because individual operators can move faster than -- 8 Q. The government? A. -- government programs. 9 Q. That's not always true, Dr. Patrick. Some government people move right fast. 10 A. I didn't say government people. I said government. 11 Q. So we now have the programs in place. We, the on-farm STA's. What is the reasonable estimate of how 12 long you think it would take for these on-farm STA's to begin functioning in some efficient fashion? Because they 13 are going to have the same inherent problems of basin-wide STA constructed on farm lands with all the phosphorus. 14 MR. KOBELINSKI: Object to the form of the question. Only to the extent I assume the question 15 is to on-farm STA's as potential components as opposed to that being the sole treatment that Dr. 16 Patrick is recommending. MS. PONZOLI: Exactly. 17 MR. KOBELINSKI: You are not saying well, we're just going to build farm STA's. 18 MS. PONZOLI: No. BY MS. PONZOLI: 19 Q. And you correct me if I'm wrong, Doctor Patrick. You told me you have not quantified how large these STA's, 20 on-farm STA's had to be. A. That's correct. 21 Q. And so I assume from that answer, you do not have quantified in your mind how much lime rock treatment would 22 be required with how much water management treatment with what size STA. You still have not quantified these 23 various elements, the closer to the source treatment areas, is that correct? 24 A. That's correct. Q. But even with those sort of ambiguous variables 25 in mind, I want to know how long is it going to take the JACK BESONER AND ASSOCIATES (305) 371-1537 239 1 on-farm STA's to begin functioning officially, however big they are? 2 A. I thought you covered that maybe in some peripheral way yesterday. But I'll go over it again. 3 The value of the on-farm or near-farm constructed wetland, I wouldn't characterize as storm treatment areas 4 because they are treating drainage water rather than storm water. They function much faster than the proposed STA's 5 because, as I indicated to you yesterday, I think the value of those is to treat this high phosphorus water that 6 would have up to a thousand parts per billion of phosphorus. 7 This small amount of water that has high phosphorus contains a good part of phosphorus loading. And it 8 wouldn't take maybe only a year or so before a community cover of a wetland plant community could be removing this 9 level. Because if the STA's as designed were receiving water with thousand parts per million of phosphorus, that 10 would drive the system toward more absorption of phosphorus by the soils, and so the soils would tend to be 11 more of a sink than a source. Which they will be with this low phosphorus 150 parts per billion, 140 parts per 12 billion water coming in. Or maybe a little less than that with the BMP reduction. 13 The same soil with a high phosphorus loading would like to serve as a sink with a low phosphorus loading 14 would serve as a source. So my single point I'm trying to make is that these on-farm or near-farm constructed 15 wetlands would function earlier and more effective because they are dealing with high phosphorus. They would be 16 designed, in my view, to deal with the high phosphorus drainage water. 17 Q. I apologize for my ignorance, but you are going to have to help me. You went through an equation with me 18 yesterday where you said the plants come in to the vegetative cover. How long does that take? You said one 19 or two years to have a vegetative cover in a constructed wetland. 20 A. I did. Q. They come in, they have a certain capacity to 21 remove phosphorus. And it's just that's the way that plant grows. It has a maximum capacity, and once it 22 recovers its maximum, that's all it can do. And you were using Steve Davis' figures, as I recall. 23 A. Standing crop we call that. Q. The plant pulls X amount of phosphorus out of the 24 soil. It can only use X amount of phosphorus. X amount of phosphorus is coming over the land with the water. So 25 a whole lot of this is going out on the other end is the JACK BESONER AND ASSOCIATES (305) 371-1537 240 1 net result of what you said? A. Yes. Except for the emphasis on the "whole lot." 2 Q. I don't understand. If even more is coming in, why even more isn't going out. Is goes down? 3 A. Well, keep in mind that the constructed wetlands at this farm level will not necessarily discharge as much 4 water as the purposed STA's. The STA's are a flow-through system designed with treatment water. 5 The on-farm system can be managed in such a way that this high phosphorus water stays in the system longer. 6 Because these constructed wetlands can be maintained in a way to have a low water level until this high phosphorus 7 water is pumped into them. In fact, evaporation will be allowed to remove a good part of that water. So the 8 discharge results would not necessarily have to be the same for on-farm constructed wetland as it would for a 9 flow -through STA. Because the STA's, as I understand, are designed not to remove water but to treat water and to 10 send it downwards. So there are going to be a lot of differences in constructed wetlands, on-farm or near-farm 11 constructed wetlands. Q. Are you thinking of them in terms of being a 12 reservoir where the farmer put it in and takes it out? A. That could be the case. But there will be a time 13 where there has to be drainage. But that can be put on the field. It doesn't have to go in the drainage. 14 Already, there are all kinds of options with management practices that farmers have developed and adopted using 15 that can segregate the high phosphorus drainage, put it in a situation where it can be removed and then, instead of 16 putting it into the drainage system, put it back in the field where it's needed for irrigation. So they can serve 17 somewhat as a reservoir. But this is only one of the treatment programs I'm talking about. 18 Q. I understand. So you would have two years to establish that vegetative cover so they would be able to 19 perform however they perform? A. Yes. 20 Q. And the lime rock programs, have you modeled any of this on the farm? I think you indicated you haven't, 21 because you haven't quantified because you wouldn't have modeled it? 22 A. When you get to my report, we have some removal values, which you may say could be tantamount to a model. 23 Q. Okay. Have you reviewed the Burgess and McDonald or Brown and Caldwell reports? 24 A. To some extent. Q. Are you going to dispute those or rely on those 25 at trial? JACK BESONER AND ASSOCIATES (305) 371-1537 241 1 A. Well, their effectiveness as STA's, I think I have indicated that I do not agree that they will achieve 2 the designed concentration. And I notice it's very significant that in the profess of the report they assume 3 no liability for the effectiveness for these designs, since they indicate that they based it on criteria 4 furnished by government scientists. MR. KOBELINSKI: Counsel, I would also, just for 5 the record, as I believe Dr. Patrick mentioned yesterday, he has been out of the country for several 6 weeks. I believe he has already seen the 1994 Burgess and McDonald report. But I don't know what 7 time he has spent, how thorough a review he has done of that. So with regard to your question how much 8 you are going to be testifying about that, obviously, the fact that it just came out this year has some 9 impact, given the fact that he was out of the country. 10 MS. PONZOLI: Well, if he is going to offer any opinions on that, then I guess I would ask you to 11 produce him again. MR. KOBELINSKI: He is here and you can ask him 12 about it. I'm just making a comment that, obviously, the fact that we're dealing now with a design 13 document that came out, you know, a couple years after the plan was documented does have impact, I 14 believe, on all witnesses. MR. MEDDLETON: Let me just state for the record 15 that that design document referred to is dated February 4, 1994 is simply a report put in final form 16 of essentially no changes from the draft report that came out in April of '93. So it's been around for 17 quite awhile. MR. KOBELINSKI: That being the case, I know he 18 reviewed the prior one. So it may not have an impact. I don't know. I'm just saying to the extent 19 the 1994 one is different, that can cause a problem or may cause a problem. 20 MR. MEDDLETON: I'm misrepresenting -- Gail Miller testified in her deposition there was 21 essentially no change between that and the April, 1993 version. 22 BY MS. PONZOLI: Q. Have you reviewed the Brown and Caldwell and 23 Burgess and McDonald report on on-farm wetlands? A. No. 24 Q. Have you done any modeling or quantitative fashion on the water supply and flood control needs of the 25 EAA if you use this type of on-farm reservoir where you JACK BESONER AND ASSOCIATES (305) 371-1537 242 1 put the water in, take it back and manipulate it in that way? 2 A. No, except it would not necessarily change the overall water requirement. It would just cause the water 3 to cycle internally rather than bringing in irrigation water from outside sources. 4 Q. But you did no hydrologic consultation how that would work? 5 A. Not in a quantitative way. Q. Is there anything else, Dr. Patrick, on the size 6 or the need for STA's that we haven't discussed that comes to mind that you would be saying at the time of trial, 7 opinions you would be offering? A. None that I can think of. 8 Q. All right. Fine. And also, the next question that you have been listed 9 for is whether the district has correctly determined the short-term and long-term phosphorus absorption and uptake 10 during the STA. Have we discussed that? A. Would you read that one again? 11 Q. Here. A. We have discussed that in detail. 12 Q. Good. And the next one, I think we have covered also, is whether the STA as designed will achieve the 13 required phosphorus reduction and long-term total phosphorus outflow concentration of approximately 50 ppb. 14 Would you like to read it? A. No. 15 Q. I think we have done that one, haven't we? A. I would agree. 16 Q. This is an STA-1, whether the STA program required by the SWIM plan arbitrarily ignores better 17 locations for STA's, the need for larger or smaller STA's and a linkage between STA and hydroperiods, which the 18 district is aware of, and had an outside contractor evaluate it. You are listed as giving an opinion on that. 19 Have we covered that also? A. May I see that? I don't think we have covered 20 all of that. Q. Right. Arbitrarily ignoring the location. Is 21 that on-farm treatment you are referring to? A. I would interpret that be to so. The need for 22 larger or smaller STA's, I think I had covered that on-farm or near-farm constructed wetlands. 23 Q. Right. I'm sorry. I only used short term when I was saying it. 24 A. It's not necessarily for storm-water treatment in my view. Farm land. 25 Q. I understand that. I apologize. JACK BESONER AND ASSOCIATES (305) 371-1537 243 1 A. So long as we understand each other. I don't know what the district is aware of, and if it had an 2 outside contractor evaluate. So I probably won't plan to testify on what the districts knows and what they don't 3 know. Q. Will you be testifying on a linkage between STA 4 and hydroperiod improvement? A. Are you speaking of the proposed STA's or are you 5 speaking also of my proposed on- or near-farm constructed wetlands? 6 Q. Let's take it one at a time. Let's talk about the STA program first, the one that is in the SWIM 7 program. Will you be testifying on those, on a linkage between those and the hydroperiod improvement? 8 A. I have some thoughts about the relationship between STA's as proposed and utilization of water 9 resources. Essentially it goes like this: The presence of large 10 areas of surface water is going to increase, vegetative surface water is going to increase the evapotranspiration 11 more than would be the case if these STA's were not in position or as the current system or because there is not 12 as much water exposed or not as much water lost. So STA's are obviously going to result in less water being 13 available down stream from the STA's. That would be the case if they were not there. 14 Q. Have you done any quantitative indication of this, or have you reviewed any quantitative indication of 15 the loss? A. My years of experience and knowledge. 16 Evaporation, transpiration, evapotranspiration, leads me to understand this simple concept that you get more than 17 evapotranspiration from a water surface, particularly if it's vegetative, than you do from a non-water-surface 18 system, or the water is present in channels and there is less surface water exposed. I don't think there would be 19 any soil/water scientist in the world who would dispute that. 20 Q. This is based on your own experience as a soil scientist and as a scientist, but not based on a 21 quantitative indication? A. No. But it could be easily quantified to some 22 level of accuracy. Q. Sure. You are listed also, again, as an expert 23 who will testify as to whether the district is at present able to determine or has correctly determined a design 24 criteria for the STA's. Do you have an opinion on that? A. Well, we have covered that to some extent. 25 Q. Is this the size issue that we have discussed? JACK BESONER AND ASSOCIATES (305) 371-1537 244 1 A. It's the original issue that we have discussed which relates to the size. In other words, I contend that 2 the STA's won't function as designed for an appreciable period of time. 3 Q. But there is nothing beyond -- I mean, you will speak more at length at trial, but that you pretty much 4 have given me what your opinion of regarding that is? A. Yes. There will be a source rather than a sink 5 until they achieve the conditions that presently exist in 2A. 6 Q. And then finally on STA's, you're listed as an expert who will give an opinion as to whether it's 7 premature to design and construct STA's given presently under both the STA design criteria and underlying factors 8 that will determine STA performance and a lack of any comparable project or field result. 9 A. And your question is? Q. Do you have an opinion beyond the opinions you 10 have already offered me? A. I have covered this, I think, in some detail, 11 except that I think it's absolutely essential on the basis of this statement to wait until results are available from 12 the ENR, which were initially designed to do just that, to determine these parameters before STA's are constructed. 13 Q. Okay. I think we have gone through all the STA issues you should testify on. 14 And there is one of your areas of testimony you had told us yesterday was ENR research on phosphorus removal 15 and effectiveness and that you had intended to offer testimony at trial in that particular area. 16 A. Yes. And it's essentially along the line that STA's can't probably be designed until prior research on 17 smaller size unions, which in this case is ENR, which incidentally is the largest constructed wetland in the 18 world, itself, can be obtained unless the results of this doubt can be obtained. 19 Q. All right. Do you have opinions on the design of the ENR and the test cells and that design's ability and 20 the efficiency and effectiveness of STA's? A. Not in particular. The design seems generally 21 adequate. There are some additional treatments that might have been included. But I have no real quarrel with the 22 design, as I understand it. Q. What additional treatments would you have 23 recommended they include? A. Well, I have thought that that research should be 24 done on combining sugar crops, sugar cane farming with rice farming to serve as an additional filter or sink for 25 phosphorus from drainage water in the sugar area. Because JACK BESONER AND ASSOCIATES (305) 371-1537 245 1 the sugar farms, sugar cane requires that the water table be at some depth below the soil surface. Rice requires 2 that the water depth be above the soil surface. So I think it would -- And rice is being grown at the 3 time when the rainfall is highest during the rainy season. And so it could serve as a reservoir for some of this high 4 phosphate drainage water from the sugar. In other words, cropping systems could be linked to help remove 5 phosphorus. And this is the recommendation I made at a district workshop that I attended. 6 Q. On the ENR? A. Yes, when it was initially being planned. 7 Q. All right. How long do you believe from today, - let's start today, not six years ago when the ENR was 8 begun or in '81 when it was first on the books - but as we sit here today with the test cells designed, how long do 9 you believe it will take before we have the kind of information we would need to begin constructing the other 10 STA's. Assuming we decide to go with the basin-wide program or even assuming we decide to go with a mini-STA 11 and on-farm construction program and other mechanisms that remove phosphorus, how long will we need to study IMR? 12 A. I would estimate three to four years we should have some indication. 13 Q. Well, now, you had told me that you thought we could design a program in two years for this combination 14 of basin-wider treatment areas and on-farm treatment areas. How do we combine that two-year program with the 15 three or four years of research? Reconcile that for me. A. The ENR is designed to mimic the STA's. So it is 16 utilizing water with a phosphorus content of, let's say, approximately 150 parts per billion. Probably something 17 like 150, 140. Where as I have indicated earlier, on-farm or near-farm treatment areas could be designed for parcels 18 of water that are drainage water that are much higher in phosphorus and would give responses faster, because these 19 areas would be more likely to serve as sinks for this high phosphorus water as compared to sources for the low 20 phosphorus water, which would be the case in the Knights Farm area, which is used for the ENR program of research. 21 So a different period of time will be required, because we're treating different kinds of water in different kinds 22 of ways. But to continue answering this question why it would 23 take something like four years, I think after that period of time it would be known whether the ENR area would be 24 removing phosphorus from the incoming-drainage water and not passing it on through supplemented by soil phosphorus, 25 available phosphorus from the soil, as I indicated that I JACK BESONER AND ASSOCIATES (305) 371-1537 246 1 think the STA's will do. If I'm wrong, then after four years you should know that and you should start getting 2 some treatment effect. If I'm correct, I anticipate that the ENR will still be exporting phosphorus at that period 3 of time. Q. You indicated in several of your documents in 4 some of the designations that your knowledge of soil types would be part of the foundation of your testimony; is that 5 correct? A. Of the general soil areas of the Everglades. 6 Q. How does that interface with this STA testimony? Does it? 7 A. No, not really. Q. It really goes more to what is going on in the 8 water conservation areas with their different soil types? A. It's just really sort of background information 9 for the whole system. The STA's will be constructed on farm lands, which is derived from the sawgrass area that 10 has been farmed and subsided. MR. KOBELINSKI: Counsel, if you are going to be 11 going to a different area, just a short break. MS. PONZOLI: We can stop now. 12 (Thereupon, a recess was taken, after which the deposition continued as follows:) 13 BY MS. PONZOLI: Q. Dr. Patrick, I'm going to clean up something here 14 and identify a few documents and move into a little different area. I would like to go to Loxahatchee as a 15 group after lunch, and I would like to look at the new redox material you presented me with this morning. 16 First, I'm going to hand you some documents. We'll go off the record and mark a few documents. 17 (Thereupon, the documents were marked for identification.) 18 BY MS. PONZOLI: Q. Dr. Patrick, I would like to hand you a series of 19 documents. Dr. Patrick I'm going to hand you Patrick Number 8 and ask you to identify it, please. 20 A. This is a partial map of water conservation area 1 and 2, and shows sample sites in water conservation area 21 2 showing the BP sites, both those used for phosphorus and cesium and those used for redox potential. And it shows 22 one of the SED sites. Q. I forget. SED, did we talk about that yesterday? 23 A. No. I think the SED sites are some of Dr. Davis' locations. 24 Q. And you don't know what the significance of that site is? 25 A. I don't recall what that is. I don't think JACK BESONER AND ASSOCIATES (305) 371-1537 247 1 that's part of my sampling system. Q. I'm going to hand you a series of bar graphs. 2 The first one being Patrick Number 9, and ask you to identify it. 3 A. This is -- You asked me to identify this document? 4 Q. Yes, sir, I did. A. This document is a plot of the bulk density at 5 various depths for the cores taken in water conservation area 3A or 3. 6 Q. That we discussed yesterday? A. Yes, we discussed yesterday. 7 Q. In conjunction with the other work? A. Yes. 8 Q. I'm going to hand you Patrick Number 10 and ask you to identify that. 9 A. This is the phosphorus concentration on a volume basis for some of the -- This is Patrick 10, is a document 10 showing the phosphorus on a volume basis for several of the cores - not all the cores, but some of the cores - 11 that we have discussed yesterday. Q. All right. From Patrick Number 2, I believe it 12 was, wasn't it. A. Yes. And also there is one for BP-60 there, too, 13 which may have been from another Patrick document. Q. I'm going to hand you Patrick Number 11 and ask 14 you to identify that. A. This is the same sort of plot. In fact, it 15 should go the with Patrick 10. They are all the same, phosphorus concentration on a volume basis for a number of 16 the cores taken in water conservation area 2 and water conservation area 3. At least taken in 3. I don't know 17 if water conservation area 2 is represented here or not. I don't see any of the BP cores. Yes, they are. They are 18 in here, too. Q. I see them. 19 A. So phosphorus concentration on a volume basis for cores taken in water conversation areas 2 and 3. 20 Q. I would like to go ahead and identify some other documents that are not related to the data that you 21 related to before, but they were turned over, and have you tell me what they are. Patrick Number 12? 22 A. Yes. This is a review prepared to show the beneficial effect of predicted drainage of wetlands. 23 Q. And that's to help the vegetation grow. Is that accurate? 24 A. Pardon? Q. What is the beneficial effect of predicted 25 drainage of wetlands? JACK BESONER AND ASSOCIATES (305) 371-1537 248 1 A. On the vegetation. Q. To help the vegetation grow appropriately? 2 A. Yes. Even survive in some cases. Q. I ask you to identify Patrick 13. 3 A. This is a map of Loxahatchee showing most of the sample locations we discussed earlier today, with the 4 exception that it doesn't include the recent Patrick samples and it doesn't include the Delfino sample 5 locations. Q. What importance do you attach to the fact that 6 the Delfino information is missing from this? A. None, in relation to the phosphorus work. 7 Q. Did you ask that it be added to the map of water conservation area 1? 8 A. Well, that's what I told you this morning. Q. That you asked that it be marked there? 9 A. Yes. Q. I'm handing you Patrick Number 14 and ask you to 10 identify it, please. A. Well, this is a letter with supporting data from 11 Curtis Richardson to Rick Burgess. And it should not necessarily be a part of my deposition. 12 Q. All right. This is not -- You are not basing any of your opinions on this document. Is that accurate, Dr. 13 Patrick? I guess I had assumed that you had reviewed this document and some of your opinions would be coming from 14 the information reflected here, and that's why it had been produced. 15 A. I have seen this document and I'm aware of the results of the cesium cores. So in that connection, it's 16 possible I will utilize this document or the information in this document. 17 Q. All right. A. So it would be pertinent. 18 Q. Okay. I'll hand you Patrick Number 15 and ask you to identify that document. 19 A. This is a brief assessment of the effect of drying on the natural Everglades or vegetative areas on 20 phosphorus release. Q. Did you do this at someone's request, Dr. 21 Patrick? A. Yes. 22 Q. Whose request was that? A. Mr. Earl, I think. The law firm, anyway. 23 Q. Right. Had they asked you to provide some kind of a report on this particular opinion that's reflected 24 here? A. They asked me to study this, you know, the 25 possible effect of drying on the Everglades, as I recall. JACK BESONER AND ASSOCIATES (305) 371-1537 249 1 Q. All right. In regard to your study of this, what did you do to actually study it? 2 A. Well, it's laid out, I think, pretty well here in the document itself. And it's just an approximate -- It's 3 an estimate, really, of what is likely to be the situation as a result of the drying of various parts of the natural 4 wetland. Q. Is it fair to call this a literature review with 5 your opinions based on it? A. It's not necessarily a literature review. 6 Although, I use some documents, some data from some other documents. But it's really an assessment on my part. 7 Q. It's based on your personal experience? A. Yes. 8 Q. Okay. Let me ask you this, Dr. Patrick: What is the amount of field time that you have had in the Florida 9 Everglades since the time you began working on this case for the Florida Sugar Cane League? 10 A. That's difficult to say. I have had a fairly large number of field trips, maybe over a dozen. 11 Q. Over the years? A. Yes. 12 Q. Okay. Before that, prior to that dozen field trips, how much field work would you have done in the 13 Florida Everglades? A. None. 14 MR. KOBELINSKI: Object to the form of the question. 15 Q. None? A. I don't recall doing any specific field work in 16 the Florida Everglades before. MR. KOBELINSKI: Completing me objection to the 17 form, objection to the question. The witness stated more than a dozen, as opposed to a dozen field trips. 18 I object to the prior testimony. Q. I didn't mean to mischaracterize. You said 19 approximately a dozen. A. Yes. I mean, I could document, though I'm sure 20 it's somewhere in that range. There may be more than that. 21 Q. Right. Were those field trips of the approximate length of a half a day? 22 A. Some were hardly any where half a day. Meaning one day, two days. Some even three days. The first one 23 was at the invitation of the South Florida Water Management District, as I recall. And a number of trips 24 in relation to the various studies that I have done. Q. And that would have been back in 1989, 25 approximately? JACK BESONER AND ASSOCIATES (305) 371-1537 250 1 A. I think the first workshop that I attended was in '89. Could have been '88, but '89 probably. 2 Q. Were you already employed by the Florida Sugar Cane League at that time, Dr. Patrick? 3 A. No. Q. You came at the invitation of the Water 4 Management District? A. Yes. 5 Q. Did they pay your way to come? A. Yes. 6 Q. And under what, were you hired as a consultant to them at that time? 7 A. I don't think I was hired as a consultant. I was asked to make a presentation on phosphorus chemistry of 8 wetlands at that time. Q. Was this a SWIM plan or an ENR? Do you recall 9 the type of workshop it was? A. It was related to, I think, the ENR, yes. In 10 fact, I know it was related to the plan for the ENR. Q. Did you produce a report or some type of a, I 11 don't know -- Would there have been documents that you passed out at this presentation? 12 A. No. I think I used slides. I just discussed the phosphorus chemistry of wetlands based upon my prior 13 research. Q. All right. And the thrust of your presentation 14 to the Water Management District at that time was what in regard to the phosphorus chemistry of wetland, to the best 15 of your recollection? A. It dealt with the basic reactions of phosphorus 16 in wetland systems, the forms of phosphorus, their general reactions, the effect of flooding. 17 Q. Did you at that time indicate that wetlands, the treatment systems could be effective for removing 18 phosphorus? A. I was not asked to do that. I was invited to 19 present a more basic presentation of just general phosphorus chemistry of wetlands. 20 Q. Was the idea -- If we were to try this mechanism, what would be the processes going on in the phosphorus in 21 the wetlands? A. As I recall the workshop dealt with possible 22 treatments that might be used in the Knights Farm area, which I think even later was designated the ENR as a 23 nutrient-removal program. And at this workshop, there was several presentations made. And then there was general 24 discussion of what treatments might be effective in phosphorus removal. And that was the basis for my earlier 25 suggestion that a combination of cropping systems might be JACK BESONER AND ASSOCIATES (305) 371-1537 251 1 used, where sugar cane can be used in combination with a crop like rice that could utilize drainage water for 2 irrigation purposes. Q. That was the time you were referring you made 3 that recommendation to the Water Management District? A. Right. 4 Q. Would it be a fair characterization or not of any of your presentations that people listening to it would 5 have thought that you were indicating wetland treatment systems could be effective for removing phosphorus? 6 A. I don't think so. Because that was not the subject I was asked to address. 7 Q. Did you indicate to people at that meeting the concerns that you have indicated to me in this deposition 8 regarding wetland treatment systems for removing phosphorus, particularly on the basin-wide scale? 9 A. Yes, I think so, as I recall. I was concerned that typha was a species that was not noted for its 10 effectiveness in phosphorus removal, which is going to be obviously one of its limitations in the STA's. Since 11 typha is a very leaky plant and it takes up appreciable phosphorus, but it readily leaches phosphorus out. 12 Q. I think, if I recall correctly, you told me that regardless of what you plan, you are going to end up with 13 typha in this treatment system. A. That's my belief. Unless more effort is put into 14 establishing and maintaining other species, which can be done. 15 Q. Right. A. If the cost is, you know, if money effort is put 16 into it. But if it's allowed to colonize on its own, or if the water is maintained at a uniform deep level, even 17 with another species, it's my belief that typha is going to colonize the whole area. 18 Q. Is that based upon what you have seen throughout the water conservation area? 19 A. Based on what I have seen throughout the U.S. Q. Why is it that typha is so successful in out 20 competing the other species? A. Typha is a plant that readily comes in after some 21 disturbance. That disturbance may be deep water or removal of a form of vegetation layer. And so it's very 22 effective in colonizing systems like that. So if you just flood an area, the first thing that generally comes in is 23 typha. Q. Let me ask you in regard to the ENR, were there a 24 number of concerns voiced at this ENR meeting that this was not going to be a successful method of phosphorus 25 removal for an extended period of time? JACK BESONER AND ASSOCIATES (305) 371-1537 252 1 A. Well, I recommended that below the typha zones that other types of wetland and that perhaps rice itself, 2 irrigated rice, be established to utilizes the drainage water from the typha. And this is also going to be - I 3 don't know if we covered this in much detail - this is also going to to be a limitation in the STA's. If there 4 is complete typha, it's going to be hard to achieve 50 parts per billion, because typha is not noted for pulling 5 phosphorus down. If we use a model of 2A that we talked about so much, 6 we don't reach 50 parts per billion until we get into a mixed typha-sawgrass area. 7 Q. So it's your opinion that the STA's will have a tendency to fill up with typha, in addition to the other 8 reasons you have listed, have a difficulty in reducing phosphorus to a 50 ppb? 9 A. Yes. Q. Were these types of concerns voiced at this 10 meeting at the ENR in 1989? A. Yes. 11 Q. Okay. Who else spoke about these concerns at that meeting? 12 A. I don't know. There was general discussion, both in the field and in the conference room about this. This 13 started out to answer your question about field work. This is hard to answer. 14 Q. I know. A. It's hard for me to relay who else voiced those 15 concerns. I think Dr. Richardson also voiced his concern, as I recall. He attended the workshop. 16 Q. Right. A. And Mr. Davis. And Dr. Snyder from IFAS. 17 And others. Q. Is the change in water depth one of the 18 disturbances you are talking about which favors typha? A. A change from what to what? 19 Q. Well, to a deeper water depth? A. From shallow to deep? 20 Q. Yes, sir. A. Yes. Typha is noted for it's ability to tolerate 21 deep water. Q. But is that a disturbance? When you speak of 22 disturbance that favors typha, does that fit in the category? 23 A. It could be a disturbance or it could be planned. I designed a wetland system in California, which I planned 24 for the deep water areas to have typha in them, because the other species were planned for more shallow areas. So 25 this is generally accepted that typha will tolerate deeper JACK BESONER AND ASSOCIATES (305) 371-1537 253 1 water than some other species. Q. Is that the only wetland system you designed, the 2 one in California? A. I think so, yes. 3 Q. Okay. How large is that one? A. About three to four hundred acres. 4 Q. And does it have a name? A. Yes, it has a name. 5 Q. What is the name? A. This was a proprietary design. And I can't give 6 you the information on it on my own authority. Q. It's for a private owner? 7 A. Yes. Or it's not in the public domain. I'll put it like that. If you call it a corporate owner or private 8 owner, yes. Q. How long ago did you do this? 9 A. Six, eight years I suppose. Q. And did it function to the design that you had 10 predicted? A. It's just now being constructed. 11 Q. Is there a pattern to these things? What is the reason it took so long? 12 A. I don't know, exactly. But I can tell you what I think. This corporation went through a restructuring for 13 people that had designed this were either given other jobs and so it stayed on the shelf, or maybe the need for it 14 was not as great. Q. Was it for phosphorus and nutrient removal? 15 A. No, it was not designed for that purpose. Q. Okay. It was not designed for nutrient removal, 16 this wetland system? A. No, that was not the objective of the design. 17 Q. Was it designed for aesthetic reasons? A. Yes, you could say that. 18 Q. So have you ever designed any wetland for - I think you answered this, but I want to make sure - for 19 nutrient removal? A. Yes, I have done research on this and designed 20 small-scale systems. Q. And how small? 21 A. Well, pallet plant may be a laboratory level, flow chambers, flow pathways. This is covered in some of 22 the many publications I provided to you. Q. Right. And have you ever designed an actual on 23 the ground, such as the ENR? A. No. Except -- You mean to remove nutrients? 24 Q. Yes, sir. A. No. 25 Q. Have you examined those wetland-treatment systems JACK BESONER AND ASSOCIATES (305) 371-1537 254 1 that Dr. Kadlec has testified about in his view being successful? 2 A. I have studied those, but I have not been on the ground, I don't believe, at any of the ones he has talked 3 about. Q. Right. Do you not share his view that those 4 wetland-treatment systems have achieved some efficiency at nutrient removal? You can answer it negative or positive. 5 A. That's a very vague question. So it's hard to run water over a natural system without some phosphorus 6 being removed or supplied to it. So I don't share his view that the ones reported in his documents have achieved 7 the 50 parts-per-billion discharge. Q. Is it your understanding that he has indicated 8 that a number of these have achieved 50 parts per billion? Is that your understanding of his reported work on these 9 other systems? A. It's my understanding from reading over part of 10 his deposition that he was relying on these for the basis for his design. And my examination of the data didn't 11 show that they had achieved this level of removal. Q. Did you understand my question? I think I was 12 indicating that I wasn't -- Did you understand that Dr. Kadlec was saying that these systems had achieved 50 parts 13 per billion as opposed to him simply taking the formula for the systems and scaling it for the STA's? 14 A. Yes. I can't really say that I don't recall that he said these achieved necessarily 50 parts per billion. 15 Q. Right. A. That thesis relied on his design. 16 Q. And you were saying that you do not believe that those systems achieve the same level of phosphorus 17 removal, whatever it was, that he had reported? A. Oh, no. That was not my statement. My statement 18 was that the examination of the data from those systems didn't indicate to me that he had achieved a 50 19 parts-per-billion level. Q. Let me ask you, Dr. Patrick, do you consider 20 yourself an expert on designing wetland-treatment systems? A. In some ways I consider myself an expert on the 21 processes involved in nutrient transformations in wetland treatment of wetland systems. I do not consider myself an 22 expert in the engineering aspect of the wetland-treatment system, although I have essentially done this in a 23 practical sort of way. But I don't consider myself an expert. 24 Q. So it's really a component part of a design that you would feel you have the expertise to offer opinions 25 on? If a particular part of a formula relied on a certain JACK BESONER AND ASSOCIATES (305) 371-1537 255 1 phosphorus cycling, then you feel you are an expert to comment on that phosphorus cycling within the system? Is 2 that accurate? A. That's an accurate assessment. 3 Q. Do you consider yourself an expert on the vegetation of wetland-treatment systems? 4 A. Yes. Q. Okay. And that expertise derives from what 5 background? A. Various research projects over the years, copies 6 some of which have been provided to you. And from studies of wetland-plant communities, the nutrient dynamics of 7 nutrient wetland communities. Q. Just so I'm clear, then you consider yourself or 8 represent yourself to be an expert on the phosphorus dynamics of various forms of vegetation to remove 9 phosphorus, to absorb phosphorus? Do you consider yourself an expert on the dynamics of phosphorus removal 10 of vegetation as opposed to the dynamics of what phosphorus levels will cause community changes or shifts 11 or whatever within the Everglades? A. Well, I don't want to box myself in by 12 restricting my expertise to that. I think I'm qualified to deal with the effect of nutrients on vegetation changes 13 as well. MS. PONZOLI: Okay. Why don't we follow that up 14 after lunch and stop now for lunch. (Thereupon, lunch recess was had, after which the 15 deposition continued as follows:) AFTERNOON SESSION 16 BY MS. PONZOLI: Q. Dr. Patrick, I would like to return to Patrick 17 Number 15 that we had discussed a little before lunch. You said that you had been asked to do this 18 estimation. And I know this grew out of your explanation of your field trips into the Everglades, but I would like 19 to return to it just for a moment. A. I would like to offer a correction on this. 20 Q. All right. A. Halfway through it says March, 1985 -- March, 21 1975, quoting on Page III-79 of the SWIM plan. MR. KOBELINSKI: Three dash seven nine. Roman 22 numeral three dash seven nine. THE WITNESS: Right. This was an earlier 23 addition of the SWIM plan. It's page now III-100. MR. KOBELINSKI: Roman numeral three dash one 24 hundred. THE WITNESS: But the quote is the same. 25 MS. PONZOLI: JACK BESONER AND ASSOCIATES (305) 371-1537 256 1 Q. Let me just make sure I understood this correctly. Is the bottom line on this document, Dr. 2 Patrick, that you believe that the drying of the water conservation areas is, in fact, a significantly larger 3 source of phosphorus to the Everglades than even the drainage water coming off of the EAA? 4 A. Yes, that's what my estimation shows. It certainly is in the same order of magnitude, but I did 5 show it's higher. Fourteen hundred metric tons versus two hundred metric tons. 6 Q. Has anyone else made this observation? This is somewhat knew to me. 7 A. No. This is a natural consequence of the drying of any organic soil that when it's drained - more drained 8 than drying, really. When it drains, oxygen enters the system and becomes aerobic, micro-organic decomposes the 9 organic more faster. This results in mineralization or release of phosphorus. And this is a well known process, 10 and is what happened in the EAA drainage of the EAA and other parts of the Everglades, has resulted in oxidation 11 and subsidence. It's usually reflected in the subsidence of the surface layer, if it's extensive enough. 12 Q. Let me ask you. I reviewed this a day or two ago. I don't recall that you reflected how you did your 13 calculations, other than basically aerial extent. A. Yes, that's true. That's true. I took the 14 phosphorus release from the EAA, which has been worked on. And it's releasing phosphorus as a result of drainage at a 15 certain rate. And then I applied that rate with some modifiers to drain natural systems and said well, it 16 should, if these conditions hold, then drainage parts of water conservation areas 1, 2 and 3 as has been indicated 17 in the SWIM plan, would result in some release of phosphorus. 18 And I estimated that well, this drainage, if it extended to a depth of one foot for half a year, that 19 would be about 1/6 of that released in the drained EAA per unit area. And according to the SWIM plan, about 527 20 square miles of the water conservation areas are over drained. And so using the phosphorus release from the EAA 21 as a standard, then these natural areas would release something like 1400 metric tons as a result of oxidation. 22 Q. Have you done depth measurements of water conservation areas for muck, for organic matter? 23 A. No -- Well, yes, I have. And others have as well. It's shown in some of the material passed out this 24 morning. The depth to the limestone layer, you will see that in some of the information passed out. But one of 25 the most commonly made measurements in the Everglades is JACK BESONER AND ASSOCIATES (305) 371-1537 257 1 the thickness of peat, the muck layer. But I didn't necessarily use that whole depth. I just assumed that the 2 maximum depth of drainage as a result of this over-drained area would be own one foot. 3 Q. Right. A. And which is nothing more than an estimate on my 4 part, but it seemed reasonable. I didn't intend that it was drained to the depth of the EAA itself. It's drained 5 a little deeper, two feet. Q. Did you review any hydrographs of area 1, 2 or 3 6 when you made these assumptions? A. I have seen some hydrographs of some of those 7 areas. But I assume that the SWIM plan, the data in the SWIM plan was accurate. And then I have reviewed the 8 model developed by the district in this book on the Everglades that shows the over drained areas in the 9 Everglades. Q. You are talking about the Ogden Davis book is 10 what you are referring to? A. Yes. 11 Q. And which chapter is that you are referring to? I think you can probably locate it for me from the table 12 of contents. MR. MEDDLETON: Just for the record, that book is 13 not a district publication. THE WITNESS: Did I say it was a district 14 publication? MR. MEDDLETON: You indicated something with the 15 district. It wasn't clarified, but we'll get to that. 16 THE WITNESS: One of the editors is a district employee. 17 These plates are here. BY MS. PONZOLI: 18 Q. What are the pages, please? A. Four thirty-two plus. They are after page 432. 19 Probably not numbered. Q. And the the name of the article they appear in 20 is -- It's probably at the top, along the top of each page. 21 A. I don't think it relates. MR. KOBELINSKI: They just put all the plates in 22 the middle of the book. MS. PONZOLI: I'm sorry. I haven't realized 23 that. I haven't read it, but each individual chapter appeared to be an article. 24 THE WITNESS: I can't remember the page number. It's chapter 10, Computer Models to Simulate Natural 25 Everglades Hydrology. JACK BESONER AND ASSOCIATES (305) 371-1537 258 1 BY MS. PONZOLI: Q. That phosphorus that you say is released because 2 of the drying of the Everglades; is that right? A. Yes. 3 Q. Phosphorus is released through the drying? A. Yes. 4 Q. But I believe that you have indicated elsewhere in your documents that drying of wetlands is a natural 5 process. I know, though, this may not be a natural drying. Still drying is a natural process? 6 A. Of some wetlands, yes. Q. Would these Everglades have dried out naturally 7 over time? A. Apparently not to this extent. This is called 8 over drainage or over drying to the extent of this. Q. Is there a quantitative indication what this 9 means? A. Of what it means? 10 Q. To be over drained. Does it mean one foot, two feet, six inches? 11 A. Not to my knowledge. Q. Okay. 12 A. I just really didn't do that in depth of a study. But so far as I'm concerned, it's a relative term. 13 Q. And then I guess my question, what I'm driving at, isn't the phosphorus that might be released from over 14 drainage, as you call it, isn't that really recycling phosphorus that is just there? 15 A. Yes, I think most of it is recycled. Q. But the phosphorus that is coming in from the 16 outside source from the drainage water is an external source of phosphorus. As to the Everglades it is not 17 recycling, it is an external source? A. It's taken up in the same way that this 18 phosphorus is released. Q. But all phosphorus is taken up in the same way, 19 no matter whether it's artificial or national or recycled? A. If the surface subsides and there is less volume 20 there, then this, in a sense, might be considered excess phosphorus in a sense there is not as much substrate there 21 to contain the phosphorus. Q. Is the point of all this, Dr. Patrick, that the 22 Everglades are being polluted by themselves in the over drainage and not by the drainage water coming from the 23 EAA? MR. KOBELINSKI: Object to the form of the 24 question. Are you assuming that the Everglades are draining themselves? 25 MS. P