215

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3

SUGAR CANE GROWERS COOPERATIVE )

4 of FLORIDA; ROTH FARMS, INC.; and )

WEDGWORTH FARMS, Inc., )

5 Petitioners )

V DOAH Case No. 92-3038

6 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

7 of Florida; et al., )

Respondents. )

8

FLORIDA SUGAR CANE LEAGUE, INC.; )

9 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

10 Petitioners, )

V DOAH Case No. 92-3039

11 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

12 of Florida; et al., )

Respondents. )

13

FLORIDA FRUIT and VEGETABLE )

14 ASSOCIATION; LEWIS POPE FARMS; )

W. E. SCHLECHTER & SONS, INC., )

15 and HUNDLEY FARMS, INC., )

Petitioners, )

16 V DOAH Case No. 92-3040

SOUTH FLORIDA WATER MANAGEMENT )

17 DISTRICT, an agency of the State )

of Florida; et al., )

18 Respondents. )

19

Deposition of Peter Rhoads

20 VOLUME II

21 Taken before Elaine V. Williams,

Professional Reporter and Notary Public in and for

22 the State of Florida at large, pursuant to notice of

taking deposition filed by the Petitioners in the

23 above cause.

- - -

24 Wednesday, September 30, 1992

3301 Gun Club Road

25 West Palm Beach, Florida 33416

12:50 - 5:00 p.m.

216

1 APPEARANCES:

2

On behalf of the Petitioners Florida Sugar

3 Cane League, Inc., United States Sugar Corp.,

and New South Hope, Inc.:

4 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 By: WILLIAM EARL, ESQUIRE

JONATHAN L. GAINES, ESQUIRE

7

On behalf of the Respondent SFWMD:

8 South Florida Water Management District

3301 Gun Club Road

9 West Palm Beach, Florida 33416-4680

By: JACQUELYN W. BIRCH, ESQUIRE

10

On behalf of the Intervenor, United States of America:

11 Department of Justice

155 South Miami Avenue, Suite 627

12 Miami, Florida 33130-1693

BY: SUZAN HILL PONZOLI, ESQUIRE

13

14

- - -

217

1 - - -

2 I N D E X

3 - - -

4

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Peter Rhoads

7

BY MR. EARL: 218(continued)

8

9 - - -

10 E X H I B I T S

11 - - -

12

13 NUMBER PAGE NO.

14

15

16

218

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Peter Rhoads,

5 being by the undersigned Notary Public previously duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 CONTINUED DIRECT (Peter Rhoads)

9 MR. EARL: Can we go back on the record,

10 please?

11 BY MR. EARL:

12 Q. Mr. Rhoads, we are resuming your

13 deposition. I remind you, you are under oath.

14 A. Yes.

15 Q. Mr. Rhoads, is it true that the works of

16 the Central and Southern Florida Flood Control

17 project have substantially changed the flow of water

18 in the Everglades?

19 MS. BIRCH: Object to the form.

20 MR. EARL: Pardon me?

21 MS. BIRCH: I say object to the form.

22 MR. EARL: Why?

23 MS. BIRCH: What is the meaning of

24 substantial?

25 MR. EARL: I don't know.

219

1 MS. PONZOLI: Well, then I'm going to

2 object to the form also.

3 BY MR. EARL:

4 Q. Have you ever said anything like that,

5 Mr. Rhoads?

6 A. I believe I have, Counsel.

7 Q. You know what it means, don't you,

8 substantially, in that context?

9 A. In my definition, yes.

10 Q. Okay. Why don't you tell counsel what that

11 means in your definition.

12 MS. BIRCH: Well, I think he is trying to

13 respond to your questions, Mr. Earl.

14 MR. EARL: Right. And you had a question

15 about what substantially meant. Now I'm asking

16 him to explain it for all of our benefit.

17 THE WITNESS: The term substantial means,

18 in my opinion, a major, a big, a measurable

19 difference. I have used that phrase on numerous

20 occasions.

21 BY MR. EARL:

22 Q. So you would also then agree that the

23 Central and Southern Florida Flood Control project

24 has made a major, big difference in terms of the flow

25 of water in the Everglades?

220

1 A. Yes, I would generally agree with that.

2 Q. Okay. Has the work of that project also

3 substantially changed the distribution of water in

4 the Everglades?

5 A. Yes, I believe that is correct.

6 Q. Would you also agree with the statement

7 that the Central and Southern Florida Flood Control

8 Project has substantially changed and had adverse

9 effects upon the Everglades?

10 A. Yes, that is correct.

11 Q. What is hydroperiod, Mr. Rhoads?

12 A. In common parlance around the District, the

13 term hydroperiod means the length of time that a

14 parcel of land is inundated. It's been often

15 construed to mean the depth of duration. It, in

16 essence, is the length of time that a parcel of land

17 is inundated, basically.

18 Q. Is that also used to mean how much, how

19 deep and how long it's been inundated?

20 A. Yes, in general, general parlance, that is

21 correct.

22 Q. And is hydroperiod in its origins a

23 biological concept.

24 A. Yes, it is primarily a biological concept

25 rather than hydrologic.

221

1 Q. In your capacity as Everglades Restoration

2 Director, could you describe for me the problems the

3 Everglades is suffering as a result of hydroperiod

4 with reference to specific geographic areas, if you

5 can?

6 MS. PONZOLI: Would you read the question

7 back, please.

8 (Thereupon, a portion of the record

9 was read by the reporter.)

10 BY MR. EARL:

11 Q. And to make that a little even more

12 specific, Mr. Rhoads, as a result of the design and

13 construction operation of the Central and Southern

14 Florida Flood Control Project?

15 MS. PONZOLI: Object to form. It is a

16 compound question.

17 BY MR. EARL:

18 Q. Do you understand the question, sir?

19 MS. PONZOLI: It also calls for a narrative

20 which isn't really a proper form of a question,

21 but you have been doing it repeatedly.

22 THE WITNESS: The predominant problem of a

23 hydroperiod problem in the Everglades is the

24 overdrainage of the northern portion of Water

25 Conservation Area 3A. This is a portion of the

222

1 Everglades that historically received overland

2 flow from the north, and with the construction

3 of the containment levee system for the

4 Everglades Agricultural Area, significant

5 portions of that area no longer receive upland

6 flow from its northern boundary, and as a

7 result, the hydroperiod, the length of time that

8 those areas are inundated by water, are

9 substantially less than they were historically.

10 That's, in my opinion, the major hydroperiod

11 problem of the Everglades.

12 BY MR. EARL:

13 Q. Is a component of that the fact that sheet

14 flow has been replaced by four large pump stations

15 that put water in a single point?

16 A. The distributional changes that were

17 brought about by the pump stations inputting water at

18 specific points rather than the prior overland flow

19 coming across as a sheet, I think that is a fair

20 characterization cause of the problem. One cause of

21 the problem.

22 Q. And would that same situation exist -- are

23 you talking about the pump stations S-5A, 6, 7, 8?

24 Is that correct?

25 A. To a lesser degree, that type of phenomenon

223

1 does occur at S-5A, S-6 and S-7.

2 Q. Okay. To a lesser degree. Where does it

3 occur to a more substantial degree?

4 A. Beg pardon?

5 Q. You say to a lesser degree. Are you

6 talking --

7 A. What I mean by that is that the hydroperiod

8 impacts in the northern portion of Conservation Area

9 3A are the most pronounced hydroperiod impacts, in my

10 opinion. Similar type impacts occur in the northern

11 portion in the apex of Conservation Area 2A and to a

12 lesser degree in the northern portion of Water

13 Conservation Area 1.

14 Q. And those are all a result of structures

15 which are a part of the Central and Southern Florida

16 Flood Control Project, sir?

17 MS. PONZOLI: Object to form.

18 THE WITNESS: In large part, yes.

19 BY MR. EARL:

20 Q. You say in large part. I have to ask you

21 what's the remaining components?

22 A. The distributional components of the

23 hydroperiod problem of the Everglades is only one.

24 There is a timing component also of when the water

25 comes, and that timing component is determined in

224

1 part by the structural facilities, but it is also

2 determined in part by the upstream inflows. In other

3 words, when the water is delivered to the Central and

4 Southern Florida project.

5 Q. In that you would include releases from

6 Lake Okeechobee, for example?

7 A. Releases from Lake Okeechobee, runover from

8 the farm lands of the Everglades Agricultural Area,

9 inflows from adjacent areas, yes.

10 Q. You mentioned the apex of 2A. What

11 specifically caused the problem up there? What

12 structurally?

13 MS. PONZOLI: Object to form.

14 THE WITNESS: The northern apex of

15 Conservation Area 2A up until the mid 1980's

16 when structure S-10E was constructed by the

17 Water Management District with approval from the

18 Corps of Engineers, prior to that point in time

19 the apex of Conservation Area 2A had essentially

20 no surface water inflow. The levee system had

21 intercepted the historic overland flow input

22 into that area, and as a result, rainfall was

23 the primary water source.

24 BY MR. EARL:

25 Q. When you say the levee, you are talking

225

1 about the levee, part of the Federal project;

2 correct?

3 A. That is correct.

4 Q. And you mentioned also the problem in the

5 northern portion of Water Conservation Area 1;

6 correct?

7 A. That is correct.

8 Q. And would you describe the structural

9 design problems that caused that?

10 MS. PONZOLI: Object to form.

11 MR. EARL: Grounds?

12 MS. PONZOLI: Oh, I think you're implying

13 that whatever problem is there is only due to

14 the structure. That is my only objection.

15 MR. EARL: Okay.

16 THE WITNESS: The hydroperiod in the

17 northern portion of Conservation Area 1 is, in

18 all likelihood, shorter than it was historically

19 because primarily of the canal system. The

20 borrow canals serve to drain that northern apex

21 of Conservation Area 1, and because of that

22 difference in elevation between the profile of

23 the canal and the ground elevation, that area

24 has a shorter hydroperiod.

226

1 BY MR. EARL:

2 Q. When you talk about the borrow canals, do I

3 understand you as talking about the canals on the

4 interior side of the levees in the Water Conservation

5 Area 1?

6 A. That is correct.

7 Q. Okay. And am I also correct in

8 understanding that was part of the Corps of

9 Engineers' construction design; to get the fill

10 materials from inside the levee?

11 A. Yes, that is correct.

12 Q. And do I also understand correctly that the

13 Corps of Engineers had similar plans when they

14 constructed Water Conservation Area 2B, but did not

15 implement them?

16 A. Roughly similar plans that were not

17 implemented. The proposed canal across Conservation

18 Area 2A was not a borrow canal, it was a conveyance

19 canal across the area.

20 Q. And was that failure to construct largely

21 the result of the work of Mr. Dineen?

22 A. Yes.

23 Q. What other hydroperiod problems have been

24 created by the design and construction of the Federal

25 project?

227

1 A. The hydroperiod generally in both

2 conservation area 2B and 3B is, in all likelihood,

3 considerably shorter than it was under conditions

4 prior to man's influence in the area. Because of the

5 levee system, because of seepage losses from those

6 two areas, the hydroperiod in general in both of

7 those Water Conservation Areas is almost certainly

8 considerably shorter than it was historically.

9 Q. And what are the ecological impacts of

10 that?

11 MS. PONZOLI: Object to the form.

12 MR. EARL: Grounds?

13 MS. PONZOLI: Well, I guess unless he is

14 talking about Everglades crayfish, I'm not sure

15 Mr. Rhoads would be the one to answer that

16 question.

17 BY MR. EARL:

18 Q. You may answer, sir.

19 A. Could you repeat the question, please?

20 (Thereupon, a portion of the record

21 was read by the reporter.)

22 THE WITNESS: I am comfortable in

23 responding in general terms.

24 BY MR. EARL:

25 Q. In terms of Everglades restoration issues.

228

1 A. That the ecosystem in that area has adapted

2 to the shorter hydroperiod condition. Both the flora

3 and the fauna currently existing in that area are the

4 components that you would expect to find under a

5 shortened hydroperiod condition, rather than the

6 lengthier hydroperiod condition that existed

7 historically in those areas.

8 Q. So you're aware of no adverse ecological

9 effects from the shortened hydroperiod in 2B and 3B?

10 A. No, I did not say that.

11 MS. PONZOLI: Object to the form.

12 BY MR. EARL:

13 Q. Okay, sir. What adverse effects are you

14 aware of, sir?

15 A. Again, responding in general terms, the

16 productivity of a shorter hydroperiod marsh in the

17 Everglades is generally less than the productivity of

18 a longer hydroperiod marsh, so in general terms, the

19 shortened, abbreviated hydroperiod of those areas

20 contributes to less production than the normal

21 Everglades habitat would, and that I would consider

22 to be an adverse impact.

23 Q. Any other adverse impacts?

24 A. There may very well be other adverse

25 impacts. I have not studied that issue recently or

229

1 put in any serious thought or consideration on it.

2 Q. Okay. You talked about the cutting off of

3 sheet flow in the northern portion of Conservation

4 Area 3; correct?

5 A. Correct.

6 Q. What are the adverse ecological impacts of

7 that, sir?

8 A. In general terms, one of the most severe

9 impacts is the increased occurrence of fire in that

10 habitat under the shortened hydroperiod condition.

11 The area tends to dry out sooner, the soil profile of

12 peat tends to have less soil moisture during the fire

13 season, and as a result, as the peat tends to burn,

14 the perimeters of tree islands tend to burn, and that

15 alteration of the habitat is essentially irrevocable

16 in human time frames.

17 Q. Irrevocable, meaning irreversible?

18 A. Irreversible.

19 Q. Increased occurrence of fire. What other

20 adverse impacts?

21 A. I believe there are other impacts, but I

22 haven't considered that issue in depth lately and

23 haven't thought that through --

24 Q. Okay.

25 A. -- at length.

230

1 Q. Any vegetative changes up there that you

2 are aware of?

3 A. Yes, one could expect vegetative changes to

4 occur in response to the shortened hydroperiod, and

5 faunal changes also changing in the animal population

6 is in response to an abbreviated hydroperiod.

7 Q. Has sawgrass been replaced in that area?

8 MS. BIRCH: Mr. Earl, I just need a

9 clarification. Are you asking Mr. Rhoads these

10 questions related to overall Everglades

11 Restoration or are you asking him as a

12 scientist?

13 MR. EARL: I'm asking him in his capacity

14 as the Everglades Restoration Coordinator.

15 Whatever he knows. The kinds of things he tells

16 the board every month and says at workshops.

17 THE WITNESS: I need a repeat on the

18 question, please.

19 MR. EARL: Would you read back the last

20 question, please?

21 (Thereupon, a portion of the record

22 was read by the reporter.)

23 THE WITNESS: Based upon my last overflight

24 in that area, sawgrass continues to be the

25 dominant vegetation in that area; however, the

231

1 sawgrass does not exhibit the vigor that one

2 would expect in a longer hydroperiod Everglades

3 habitat.

4 BY MR. EARL:

5 Q. My question, I think, was a little bit

6 different. Has sawgrass been replaced, to your

7 knowledge?

8 A. Been replaced by what?

9 Q. By other vegetation.

10 A. By other vegetation?

11 MS. PONZOLI: Object to form.

12 MR. EARL: Grounds?

13 MS. PONZOLI: I think it is sort of vague.

14 I think you might want to quantify it or qualify

15 it somehow, Mr. Earl. It is your question.

16 THE WITNESS: Could you restate the

17 question for me.

18 BY MR. EARL:

19 Q. Sure. We were talking about the northern

20 end of Water Conservation Area 3 when you said there

21 had been a cutoff of sheet flow as a result of the

22 project, and I'm asking you whether sawgrass has been

23 replaced. You responded to me that you thought

24 sawgrass was still dominant, but it was not as robust

25 as you might otherwise expect.

232

1 A. Yes, sir.

2 Q. And I was asking you could you please

3 respond more specifically to my question regarding

4 has sawgrass in that area been replaced by other

5 vegetation, to your knowledge?

6 A. It depends on the specific area in

7 question. On the area in the vicinity of structures

8 S-339 and 340, which are the dividing structures, the

9 Miami Canal, has more cattail than it had prior to

10 the construction of those structures. There is

11 directly adjacent to them -- cattail in that area

12 appears to have replaced sawgrass, based upon my

13 overflights and my recollection of the vegetation in

14 the area. I think generally in the northern end of

15 Conservation Area 3A there has been, at least to some

16 degree, a transition of vegetation from sawgrass to

17 brush.

18 Q. Myrtle, for example?

19 A. Myrtle, willow, the more woody species

20 typical of more terrestrial habitat.

21 Q. And would you anticipate that would be a

22 consequence of the drying out of the area?

23 A. Yes. Yes. Probably.

24 Q. Does the District, to your knowledge, have

25 any numbers regarding the aerial extent of that

233

1 displacement?

2 A. They may. I'm not aware of specific

3 numbers on aerial displacement.

4 Q. Okay. Apart from you being aware of

5 specific numbers, who would have that information at

6 the District?

7 A. I would have to guess at that, Counselor.

8 Q. Well, your informed judgment based on your

9 years at the District, sir.

10 A. Brent Moll may have that information, Ken

11 Rutchey may have that information.

12 Q. Have any studies been done up there, to

13 your knowledge, of this phenomenon?

14 A. Yes, there have been.

15 Q. Would you describe those; who did them,

16 when?

17 A. Sometime in the late 1970's a then-employee

18 of the Water Management District, a biologist, Gary

19 Pesnell, was assigned the task of examining

20 vegetative changes in Conservation Area 3A,

21 particularly with regard to the overdrainage of the

22 northern end of Conservation Area 3A. Studies were

23 designed to document the precondition, before

24 construction, of S-339 and 340, and to follow up

25 after the construction of those facilities to

234

1 determine the effectiveness of those two structures

2 in alleviating the hydroperiod problem in that area.

3 Q. Any other studies you are aware of more

4 recent?

5 A. Not that I am aware of, no.

6 Q. Okay. And you have no idea of the order of

7 magnitude of the displacement?

8 MS. PONZOLI: Object to the form.

9 MS. BIRCH: Object. Asked and answered.

10 BY MR. EARL:

11 Q. Your answer, sir?

12 A. Quantitatively, I can't respond on that

13 one.

14 Q. Okay. Any other adverse ecological effects

15 that you are aware of in the northern component of

16 Water Conservation Area 3 as a result of the cutoff

17 of sheeting?

18 A. None that I can think of at this time.

19 Q. Okay, sir. Now, you mentioned that there

20 was a lesser but a comparable problem in the northern

21 part of Water Conservation Area 1; correct?

22 A. Correct.

23 Q. And what specifically does that result

24 from?

25 A. The problem in the northern portion of

235

1 Conservation Area 1 is more a problem of the borrow

2 canal system adjacent to the marsh at the northern

3 apex both precluding the overland flow of water into

4 the area and draining water out of the area. Because

5 of the difference in the surface water profile in the

6 canal system and the ground elevation, the area at

7 the northern apex simply does not have standing water

8 on the ground to the length of time it would were the

9 canal system not there.

10 Q. That has resulted in an adverse ecological

11 consequences?

12 A. I would characterize the shift from more

13 high direction vegetation to the more terrestrial

14 vegetation as being an adverse shift, yes.

15 Q. What is high direction vegetation? Is that

16 sawgrass?

17 A. The wetlands vegetation that was there

18 previously.

19 Q. Would that include sawgrass?

20 A. That would include sawgrass, white water

21 lily, the wetlands assemblages, wet prairie

22 assemblages that probably inhabited that area.

23 Q. Okay. And that has been supplanted, sir,

24 by more terrestrial species, for example?

25 A. Pine trees exist in the areas.

236

1 Q. Other types?

2 A. Brush, myrtle, willow.

3 Q. What is the relative size of this portion

4 of the northern area? Is it the apex area of

5 Conservation Area 1? Your answer is yes, sir? She

6 needs to hear it.

7 A. I'm thinking. I'd say roughly the

8 northernmost 500 to 1500 acres of Conservation Area

9 1.

10 Q. Again, have there been studies of this

11 change?

12 A. Not to my knowledge, no.

13 Q. Is there a comparable effect other than in

14 the apex around the perimeter of these interior

15 canals as you go south in Water Conservation Area 1?

16 MS. PONZOLI: Object to the form. May I

17 hear that question back again, please.

18 (Thereupon, a portion of the record

19 was read by the reporter.)

20 THE WITNESS: In some areas, yes, there is.

21 BY MR. EARL:

22 Q. Okay, sir. Which areas are those?

23 A. Generally in the northern half of the area

24 where the canal water level tends to be below ground

25 level more often than it does at the lower elevation

237

1 middle and southern portions of Conservation Area 3.

2 Those peripheral drainage effects are evident in that

3 northern area.

4 Q. Would you have any idea of the acreage that

5 would be involved in this?

6 A. Not really, no.

7 Q. Okay, sir. And do I understand you to say

8 primarily in the northern half of where the ground

9 water, where the canals are lower than the ground

10 water level? Also do I understand correctly when I

11 understand that in the southern half, as these canals

12 proceed further south down towards the S-10

13 structures, there are also some localized conditions

14 similar to this?

15 A. No. In contrast, in the southern area, the

16 converse is true much of the time. Because of the

17 drainage effect of the peripheral borrow canals, the

18 water tends to flow to the lower elevations of the

19 southern portion of the Conservation Area 1, pool,

20 and actually have an extended hydroperiod down in

21 that area, because -- you can think of it as the

22 water in the canal system supporting the longer

23 hydroperiod in the lower elevation lands in the

24 southern portion of the pool.

25 Q. You say the pool. Is that the pool behind

238

1 the S-10 structures?

2 A. The pool is a hydraulic engineer's term

3 basically referring to the water level within the

4 entire area. Within the conservation area, water

5 level is called the pool.

6 Q. And what causes that phenomenon?

7 A. As I mentioned, the canal system tends to

8 drain water from the higher elevation areas to the

9 north and move water to the lower elevation areas in

10 the southern portion of the area. The ground

11 elevation is lower in the southern portion of

12 Conservation Area 1 than it is in the northern

13 portion.

14 Q. This, in my terms, water flows downhill;

15 would that be correct?

16 A. That is correct, Counselor.

17 Q. What effects, if any, do the existence of

18 the S-10 structures have on Water Conservation Area

19 Number 1 in terms of hydroperiod as opposed to

20 pre-project?

21 A. Because the structures are only open during

22 periods of time when the water level is above the

23 regulation schedule of Conservation Area 1, and

24 because the structures are closed the rest of the

25 time generally, the structures have the effect, along

239

1 with the levee, of impounding water upstream.

2 Q. How large an area would this encompass?

3 A. At least several thousand acres.

4 Q. Which are inundated as a result of the many

5 levees in the S-10 structures; correct?

6 MS. PONZOLI: Object to the form.

7 MS. BIRCH: What is the question?

8 THE WITNESS: Could you clarify the

9 question?

10 BY MR. EARL:

11 Q. Sure. You said several thousand acres in

12 response to my question, and I am just trying to

13 understand, that are inundated as a result of the

14 S-10 and the levees?

15 A. I think it would be more accurate to state

16 that they have a longer hydroperiod. Yes, they are

17 inundated much of the time, but they do go dry on

18 occasion, so I think it would be more correct to

19 characterize that as having a longer hydroperiod.

20 Q. The water is there longer and over a larger

21 area because of those structures in the levees;

22 correct, sir?

23 A. That is correct.

24 Q. What was the condition in that area, from

25 your understanding, of pre-project conditions prior

240

1 to the construction of the levee and the S-10

2 structures?

3 A. Counselor, I don't really fell comfortable

4 responding to that question. It's been a long time

5 since I have read some of the early accounts of

6 vegetation in that area and it's been years since I

7 have reviewed those reports.

8 Q. Well, I ask in terms of restoration issues.

9 You're dealing with the restoration of other areas of

10 the Everglades, and I wondered what that was like

11 pre-project. You have no idea?

12 A. Well, in general terms, it has probably had

13 a shorter hydroperiod. In other words, the ponding

14 effect that we see from the current facilities almost

15 certainly did not exist because the levee was not

16 there to create those effects. So in that area,

17 there was probably lower peak stages and potentially

18 a shorter hydroperiod.

19 Q. Was there also sheet flow in that area?

20 A. Yes, almost certainly there was sheet flow

21 flowing south.

22 Q. Anybody at District are you aware of who is

23 familiar with pre-project conditions this that area?

24 A. Not that I am aware of. Yes. Steve Davis

25 is probably the most knowledgeable person we

241

1 currently have on the staff regarding that area.

2 Q. You don't mean to imply Steve Davis was

3 there on the grounds prior to project.

4 A. No. Nor have I meant to imply that I was

5 there prior to the project.

6 Q. I was more asking you in an old time with

7 the District, who was there when they did the

8 engineering and who was out on the site?

9 A. The only one I knew who filled that

10 category was Walt Dineen, and Walt is no longer with

11 us.

12 Q. Now, if you can, I would like you to go to

13 the S-10 structures and south of those structures. I

14 assume those structures and the levee cut off the

15 sheet flow into Water Conservation Area 2; is that

16 correct?

17 A. That is correct.

18 Q. Is there anywhere I can go, to your

19 knowledge, that would show the pre-project flows in

20 that area, hydrologic contours?

21 A. I doubt if the pre-project flows themselves

22 exist, no.

23 Q. From your general understanding of

24 pre-project Everglades conditions, would you have

25 expected that area to be one subject to broad ranging

242

1 sheet flow?

2 A. Again, I believe I mentioned this earlier,

3 but I may not have. It depends on how far back you

4 go. Prior to the C&SF project, the Everglades

5 Drainage District had constructed the primary

6 backbone canals; the West Palm Beach, the Hillsboro

7 the North New River, Miami canals. Those facilities

8 that were completed primarily during the '20's

9 provided the first change, first alteration that

10 occurred in those areas. Since there is very little

11 quantified about how the system responded during that

12 period and the instrumentation really did not go in

13 until after the C&SF project was implemented, I need

14 to point out that caveat in our discussion on all of

15 the facilities so far. Pre-man's influence I think

16 was my understanding of your question.

17 Q. Well, yes, it was. I am glad you clarified

18 that. As I understand, this District is the

19 successor agency to the agencies that constructed

20 those canals; is that correct?

21 A. I believe, in a sense, that is correct,

22 yes.

23 Q. And then am I also correct in assuming when

24 the federal project was designed and constructed, the

25 Federal Government revised and deepened and otherwise

243

1 substantially modified those canals and their

2 utilization?

3 A. That is true.

4 MS. PONZOLI: May I hear the question,

5 please?

6 (Thereupon, a portion of the record

7 was read by the reporter.)

8 THE WITNESS: That is generally correct,

9 yes.

10 BY MR. EARL:

11 Q. Mr. Rhoads, how are you going to go about

12 fulfilling your mandate and this agency's mandates of

13 Everglades restoration in that area? How are you

14 going to determine what the base line was in terms of

15 sheet flow, for example, and water flows?

16 MS. PONZOLI: Object to the form. I don't

17 think you have established what his mandate is,

18 Mr. Earl.

19 MS. BIRCH: I join that objection.

20 BY MR. EARL:

21 Q. What is your mandate in terms of Everglades

22 restoration, Mr. Rhoads?

23 MS. BIRCH: Are you asking what the

24 District mandate is or his mandate is and the

25 role of his office performance, Mr. Earl?

244

1 MR. EARL: Obviously his office is

2 coordinating restoration of the Everglades, and

3 the District is under a requirement of law to

4 restore the Everglades, as I understand, and I'm

5 asking him as the director of that operation,

6 what it is.

7 THE WITNESS: In simplest terms, it is the

8 development, modification and implementation of

9 the Everglades SWIM Plan. The organization is

10 using that as the vehicle for the restoration of

11 the Everglades. In more detailed terms, the

12 restoration of the Everglades involves

13 overcoming three general classes of problems:

14 Number one, the water quality problem; number

15 two, the hydroperiod problem; and number three,

16 the exotic species problem, particularly

17 Melaleuca invasion in the Everglades.

18 BY MR. EARL:

19 Q. And don't you also have a requirement to

20 restore the Everglades to its natural hydroperiod?

21 A. No. To the best of my knowledge, that is

22 not a mandate of the organization of the agency.

23 Q. What is your understanding of the

24 requirement in terms of hydroperiod?

25 A. In terms of hydroperiod, my understanding

245

1 is that in general terms, it is the correction of

2 certainly the most severe of the hydroperiod problems

3 that have been created in the Everglades. The exact

4 goal, how far to carry that correction of hydroperiod

5 problems, has not, to my knowledge, been clearly

6 illustrated. We have not quantified that goal,

7 developed that goal with precision at this point in

8 our planning.

9 Q. Okay. I would like to go back to the

10 delineation of these most severe hydroperiod

11 problems. I presume we have been talking about some

12 of them now.

13 A. Yeah.

14 Q. And we were dealing with the Water

15 Conservation Area 2 immediately south of the S-10

16 structures. Could you explain to me what the

17 hydroperiod impacts have been, the results -- excuse

18 me. Let me start over again.

19 Could you explain to me what adverse

20 ecological effects the construction and design of the

21 Federal project have had on that area?

22 MS. PONZOLI: Object to the form.

23 MR. EARL: Grounds?

24 MS. PONZOLI: Compound question. I think

25 it assumes a prioritization of hydroperiod

246

1 problems that may or may not be accurate. I

2 can't recall from his testimony. But it is a

3 compound question.

4 THE WITNESS: Could you repeat the

5 question?

6 MR. EARL: I'll be happy to state it again.

7 BY MR. EARL:

8 Q. What, if any, adverse ecological effects

9 are you aware of as a result of the design and

10 construction of the Federal project, specifically the

11 S-10 structures and connected levees, impacting with

12 Conservation Area 2A?

13 A. What are the impacts of the structures and

14 the levees? Number one, it is disruptive. The

15 historical overland flow of water that occurred in

16 that area prior to construction of any facilities,

17 undoubtedly the current flow patterns are

18 substantially different. Those facilities also

19 provide for the introduction of water coming in from

20 the S-5A and S-6 pump station flowing across the

21 marsh in contrast to water that, prior to man's

22 influence, flowed across the marsh and entered the

23 area. In other words, on the northern upstream

24 adjacent side, there is currently a canal conveyance,

25 advancing canal, that brings water from other areas

247

1 in contrast to the marsh that existed in that area

2 historically.

3 Q. Those canals are part of the Federal

4 project; correct?

5 A. That is correct.

6 Q. So we have talked about the cutting off the

7 historical overland flow and we have talked about

8 delivering these canal waters to the area that

9 otherwise would have been disbursed over the

10 wetlands; correct?

11 A. Correct.

12 Q. Any other consequences in that area?

13 A. Those are the primary ones in my mind

14 currently.

15 Q. Now, those are the physical changes. What

16 have been the ecological or biological impacts of

17 those changes, as you under them?

18 MS. PONZOLI: Same objection as before.

19 MR. EARL: What is that, Counselor?

20 MS. PONZOLI: That he is really not an

21 ecologist specialist. I don't object, you know,

22 to your asking him generally as a restoration

23 person, but if you are trying to as ascribe a

24 higher expertise, I think he disqualified

25 himself from that.

248

1 THE WITNESS: My general understanding is

2 that the hydroperiod impacts in that northern

3 area are very difficult to discern because of

4 water quality impacts. My general understanding

5 is that the water quality impacts in that area

6 are the dominant force that have affected,

7 adversely affected, the area.

8 BY MR. EARL:

9 Q. You haven't, or has anybody, to your

10 knowledge, weighted that or eliminated the

11 hydroperiod variable period there in terms of

12 analyzing those in that area?

13 A. I believe Steve Davis has considered that

14 issue in some depth, yes.

15 Q. As we sit here today, you are not aware of

16 any changes that have been made in the northern

17 portions of Water Conservation Area 2A as a result of

18 hydroperiod changes; is that correct?

19 MS. PONZOLI: Object to form.

20 THE WITNESS: The geographic area is

21 important here. Which area are you referring

22 to?

23 BY MR. EARL:

24 Q. Well, let's talk about the area that is

25 called the nutrient enriched area to start with,

249

1 immediately --

2 A. South of the S-10 structures.

3 Q. Any changes at all there vegetativewise

4 caused by hydroperiod that you're aware of?

5 A. There may be changes caused by hydroperiod,

6 but my understanding is that the predominant

7 ecological changes, adverse changes, are a result of

8 the nutrient loading that has occurred through the

9 S-10 structures.

10 Q. Was there any -- we talked the other day,

11 Mr. Rhoads, about the drawdowns in Water Conservation

12 Area 2A and you indicated to me those were primarily

13 in the southern portion; is that correct?

14 A. Yeah. The primary effects of those

15 drawdowns were in the southern portions of the area.

16 Q. During the flooding of that area, the

17 increased hydroperiod of that area on the operation

18 of the Federal project, you indicated flocculent

19 materials became a problem.

20 A. Yes, I did.

21 Q. Okay. Was there any flocculent material

22 generation in the northern end, the area that we are

23 talking about; the nutrient enriched area?

24 A. I suspect there was; however, my

25 observational experience in the early '70's with Walt

250

1 Dineen was based on the sloughs in the central

2 portion of the area and southern portion of the area.

3 It was in those sloughs where it was visually very

4 evident of a formation of a flocculent material,

5 generally in deeper water depth. My recollection is

6 in those areas that were commonly inundated by over

7 two to three feet, those were the areas in the

8 sloughs where you would find that loose sediment

9 problem.

10 Q. And what was the impact of that sediment

11 problem?

12 A. In general terms, that form of sediment has

13 an adverse effect upon the benthic fauna in the

14 animals that live in the bottom. A loose type of

15 substrate results in a different type of benthic

16 flora that is generally less desirable than the type

17 of benthic fauna -- excuse me -- fauna, benthic

18 fauna -- that you find on a harder substrate, which

19 is typical of the Everglades. The types of animals

20 that are there, the numbers of animals that are

21 there, the chemistries of the sediments are different

22 under those sort of conditions than what you would

23 normally expect in the Everglades.

24 Q. And that situation arises, in your

25 observations, in the central area when you had two or

251

1 three feet of water?

2 A. In the central and southern portion of the

3 area where the water tended to pond and pool, yes.

4 Q. But you think there may have been some

5 flocculent materials, some flocculent situations?

6 Have you observed them in that area immediately to

7 the south?

8 A. It is certainly possible that at that time

9 it did occur in the area. I simply didn't observe

10 it.

11 Q. As a result of the operation of the Federal

12 project and the inundation of that area, isn't it

13 also true tree islands were lost?

14 A. In general terms, yes. It probably is

15 better to say that rather than losing the tree

16 islands in terms of its elevation, the flora of the

17 tree islands was substantially altered by the

18 inundation. In other words, trees were drowned out.

19 Loss of trees.

20 Q. So the elevation remained, but the trees

21 were gone?

22 A. That is essentially it, yeah, in many

23 cases. Not in all cases, but in many cases.

24 Q. And were there, in fact, tree islands in

25 the area that is now called the nutrient enriched

252

1 area that were lost?

2 A. There may have been, but I don't remember

3 that specifically.

4 Q. And were there any other vegetative changes

5 there as a result of the inundation?

6 A. As I indicated earlier, I cannot separate

7 the hydroperiod impacts from the water quality

8 impacts in that area.

9 Q. Are you suggesting that the nutrients in

10 the waters in the central and southern portions of

11 the Water Conservation Area 2A were responsible for

12 the loss of the tree islands, the trees on the tree

13 islands?

14 A. No.

15 Q. So that wasn't nutrients, was it. Sir?

16 A. I don't understand the question.

17 MS. PONZOLI: Object to the form;

18 narrative.

19 BY MR. EARL:

20 Q. That wasn't nutrients that killed the tree

21 islands, was it, sir?

22 A. No, in all likelihood, not.

23 Q. Hydroperiod causes vegetative changes,

24 doesn't it, sir? Hydroperiod changes cause

25 vegetative changes, do they not, sir?

253

1 A. Changes in inundation, hydroperiod changes

2 can result in changes in vegetation. Yes, as a

3 general statement, that is correct.

4 Q. And in your experience with the District,

5 you have seen such changes; correct?

6 A. Yes, I have.

7 Q. If we can, let's go back to the north of

8 the S-10 structures, the impounded area in Water

9 Conservation Area 1. Would you anticipate flocculent

10 material exists there?

11 A. Yes, in all likelihood.

12 Q. Would you expect if it exists there, it has

13 resulted in changes in the benthic fauna, as it did

14 in Water Conservation Area 2?

15 A. If it exists there, yes, it would result in

16 changes in the benthic fauna.

17 Q. Anybody at the District study that?

18 A. Not in that area that I remember, no.

19 There may have been work done by either Turzak

20 (phonetic) or Reeder back in the '70's or '80's. I

21 know there was work done south of the S-10 structures

22 in 2A. I don't remember whether there was work done

23 north of the S-10 structures. There may well have

24 been, but my memory fails me on the details on that.

25 Q. And would you expect that flocculent

254

1 material was generated in the area south of the 10

2 structures in what is now called the Nutrient

3 Enrichment Area during periods of high inundation?

4 A. That is possible that it was, yes. Quite

5 possible.

6 Q. And certainly, sir, would you expect if

7 such materials were generated, there would be a less

8 desirable benthic fauna resulting?

9 A. Under those conditions, yes.

10 Q. Do you know whether that's been studied?

11 A. There has been investigations carried out

12 of the benthic fauna south of the S-10 structures,

13 yes.

14 Q. My question, I think, sir, related

15 specifically to the impact of flocculent materials

16 from water depth on those organisms.

17 A. Normally when you sample benthic fauna,

18 you'll also make observations regarding substrate

19 condition, so any sampling of the benthos normally

20 results in collection of data regarding the condition

21 of the substrate. With regard to specifically

22 studying the relationship between benthos and the

23 composition of the sediments, I don't know.

24 Q. We talked about the sediment problem caused

25 by the inundations from project operations in Water

255

1 Conservation Area 2. We talked about the loss of the

2 trees and the tree islands. What other consequences

3 were there from the sustained inundation?

4 A. There was a loss of sawgrass associated

5 with the inundation first noted by Dineen in the late

6 '60's and it continued in the early '70's. The

7 sawgrass on the periphery of the wet water lily

8 sloughs did not do well there. It tended to die back

9 on the periphery of the sloughs. And there was clear

10 evidence with the dead sawgrass Combs during that

11 period. And I remember Walt Dineen clearly

12 attributing that to the extended duration of the

13 area.

14 Q. You, yourself, during this period were out

15 there in airboats observing this, weren't you?

16 A. On occasion, yes. Yes.

17 Q. Has that ever been quantified; the aerial

18 extent of that sawgrass that was lost?

19 A. No, I don't believe it has.

20 Q. Have you had any estimate?

21 A. I have no data.

22 Q. Any estimate?

23 A. No. That would be very difficult to

24 estimate.

25 Q. Okay. Loss of sawgrass on the periphery of

256

1 the water lily sloughs. Any other adverse impacts of

2 that inundation?

3 A. Wading bird feeding. The extent in the

4 hydroperiod, the constant inundation provided a

5 habitat that was not particularly conducive to wading

6 bird feeding.

7 Q. Meaning nesting and feeding patterns?

8 A. The feeding patterns. Most wading bird

9 feeding proceeds on a residing water level that tends

10 to concentrate the organism. If you don't have

11 receding water levels and you have relatively deep

12 water, you generally do not have wading birds

13 feeding, and that was the condition that existed

14 during much of the '60's.

15 Q. And the loss of the wading birds is

16 comparable to the phenomenon, I assume, that is

17 evidenced in Everglades National Park because of the

18 hydroperiod situation down there?

19 MS. PONZOLI: Object to the form.

20 MS. BIRCH: What was that question? Could

21 you read that back?

22 (Thereupon, a portion of the record

23 was read by the reporter.)

24 THE WITNESS: The ornithologists and

25 hibernocologists that I have talked with and

257

1 interacted with over the years feel that the

2 wading bird changes in South Florida and the

3 park are, in all likelihood, a result of habitat

4 loss rather than specific changes in a given

5 area. For example, the construction of the east

6 coast containment levee from S-5A south down to

7 Homestead cut off a very significant portion of

8 the peripheral Everglades. The construction of

9 the containment levees for the Everglades

10 Agricultural Area enclosed 500 to 700,000 acres

11 of what was Everglades. The loss of that

12 habitat is generally considered to be the

13 primary cause for the wading bird reductions.

14 BY MR. EARL:

15 Q. But I am talking Everglades National Park.

16 Are you not aware of the reported problems caused by

17 high waters down there in wading bird colonies?

18 MS. PONZOLI: Object to the form. You are

19 discussing facts that aren't in this record,

20 Counselor.

21 May we hear that question back again,

22 please?

23 (Thereupon, a portion of the record

24 was read by the reporter.)

25 THE WITNESS: There have been problems,

258

1 significant problems, within Everglades National

2 Park with regard to wading bird nesting and

3 breeding. I don't feel that I have the

4 expertise to talk about the causes of those

5 problems. My general recollection is that

6 there's probably a variety of causes for those

7 problems, not necessarily an extended

8 hydroperiod.

9 BY MR. EARL:

10 Q. Okay. Wading bird. What else did the

11 project's inundation with WCA-2 result in?

12 A. I think we have touched on the major

13 effects that came to mind. There may be others that

14 I don't recollect at this point in time, but I

15 believe we have touched on the major ones.

16 Q. Okay, sir. We are talking about major

17 hydroperiod problems caused by the project. We have

18 dealt with WCA-2A, an inundation, we have dealt with

19 the 10 structures. Let's go to the 11 structures.

20 What happened there, if anything?

21 A. Could you be more specific, please? Your

22 question?

23 Q. Sure. You have been describing impacts the

24 project has had on the hydroperiod and then telling

25 me your understanding of the ecological consequences

259

1 of that. I'm asking you to move your attention now

2 down to the 11 structures, both the north and south

3 of them, and tell me what hydrological impacts and

4 the ecological consequences are.

5 MS. PONZOLI: Object to the form; compound

6 question.

7 MR. EARL: If you would like, Counsel, I

8 would be happy to break it down. We'll be here

9 longer, but that's your choice.

10 Tell me, Mr. Rhoads, please tell me and

11 identify the hydrologic impacts of the Central

12 and Southern Florida Flood Control Project

13 design and construction in the area north and

14 south of the 11 structures.

15 MS. PONZOLI: Same objection.

16 THE WITNESS: In the southern apex of

17 Conservation Area 2A, there has been in general

18 a ponding in that apex because of the operations

19 of the S-11 structures and because of the

20 surface elevations of the 2A Conservation Area

21 2A. That change in inundation, that extended

22 inundation, that ponding for a number of years

23 during the '70's resulted in a different type of

24 vegetation than occurred several miles north of

25 there.

260

1 BY MR. EARL:

2 Q. Let me just ask you on that, sir --

3 A. Yes.

4 Q. -- what occurred several miles north of

5 there?

6 A. As you move north from that area, you moved

7 into sawgrass ridges and white water lily sloughs.

8 However, in that area of extended inundation, for

9 some reason, at least during much of 1970's, the

10 primary vegetation was eleocharis cellulosa. For

11 some reason, the vegetation was different in that

12 area.

13 Q. As a result of the inundation, sir?

14 A. Perhaps. The precise causal relationships

15 I don't think have ever been determined for that.

16 Q. Excuse me. How large an area was that?

17 A. At least several hundred acres.

18 Q. Okay.

19 A. The area south of the S-11 structures has

20 been substantially impacted by the canal system that

21 was constructed in that area.

22 Q. Part of the Federal project?

23 A. Part of the Federal project, yes. During

24 times of discharge out of the S-11 structures, stages

25 in that area were probably higher than typical, the

261

1 rate of changes generally higher than one would have

2 expected it to have been historically; however, the

3 canal system in that area, the borrow canals

4 primarily, have the general effect of moving the

5 water away from that portion downstream of the S-11

6 structures and conveying that water downstream to

7 more southerly portions of Conservation Area 3A. So

8 in a manner somewhat analogous to the impacts of

9 borrow canal system on northern Conservation Area 1,

10 the canal system in that portion of Conservation Area

11 3 tends to move water out of that area in what would

12 have been a much higher rate than what occurred prior

13 to construction of the area of the canal system.

14 Q. Was there a drying out effect there?

15 A. More northerly, north of the S-111

16 structures, yes, that phenomena that I described

17 earlier regarding Conservation Area 3A occurs in that

18 area just to the west and south of the S-150

19 structures, S-7 pump station. Down in the area just

20 downstream from the S-11 structures, yes, to some

21 extent there is an overdrainage because of the canal

22 system. The canal system tends to move the water

23 down into the vicinity of that, of the intersection

24 of the Miami Canal with the Snake Creek Canal, down

25 in the vicinity of the S-9 pump station, in that area

262

1 of the west.

2 Q. Now, let me just go back a minute. North

3 of the S-11 structures, in terms of impacts of the

4 project, you told me first -- and this is what I

5 first understood -- there was an increased inundation

6 immediately north, and that caused a change to

7 eleocharin from sawgrass in the '70's, and you just

8 told me about another area around to the north of the

9 S-11 around S-150 where you have the opposite; dry

10 out. Correct?

11 A. Yeah. What I indicated was in the area to

12 the south and west of the S-150 structures, the

13 problem that I had previously discussed about the

14 overdrainage of the northern portion of Conservation

15 Area 3A occurred within that area.

16 Q. Okay. Now, south, the borrow canals move

17 the water down, and you had a drying out effect,

18 perhaps not as great, and that moved that water down

19 where it otherwise wouldn't have moved down into the

20 area of the S-9 structures; correct?

21 A. That is correct. The L-38 west borrow

22 canal, L-68, L-68A borrow canal, leading down to the

23 L-67 borrow canal, has tended to drain that northern

24 portion of Conservation Area 3A and tended to move

25 the water down into that complex to the west of the

263

1 S-9 structures. Structure.

2 Q. And what were the, to your understanding,

3 the ecological consequences of that overdrainage

4 south of the S-11 structures?

5 A. No, the overdrainage occurred north of

6 Alligator Alley in that northern portion of

7 Conservation Area 3A.

8 Q. Tell me about that one.

9 A. That is the area that we discussed earlier

10 that was influenced by interception of overland flow

11 where L-5 is now. No overland flow coming in there

12 because of the levee 5; okay? And then overdrainage

13 because of the L-38 west and the L-68 borrow canals

14 in that area moving water out of that portion of

15 Conservation Area 3A north of Alligator Alley. The

16 farther south in that area, the less the impact of

17 that is noticeable, has been noticeable over the

18 years. But in the northern portions of that area,

19 particularly just to the southwest of S-150, the

20 vegetative response to that phenomenon has generally

21 been clear over the years.

22 Q. To the southwest, S-150?

23 A. Of S-150.

24 Q. Southwest. Okay. How large an area was

25 that? Can you identify that?

264

1 A. No, I did not estimate that.

2 Q. Your best estimate.

3 A. Somewhere between 50 and 100 square miles.

4 Q. 100 square miles?

5 A. Yeah. Receive some effect of that altered

6 hydroperiod.

7 Q. Okay. Describe the effects that you are

8 talking about from that altered hydrology.

9 A. We previously discussed the northern

10 portion of Conservation Area 3A and the impacts

11 there.

12 Q. Yes.

13 A. Do you want me to go over that again?

14 Q. With reference to this particular area,

15 yes.

16 A. Well, the effects I am talking about here --

17 MS. PONZOLI: Object to form. Is this

18 question only as to hydrology, Mr. Earl, or is

19 it hydrology in any other combination?

20 MR. EARL: We are asking the effects of the

21 draining, overdrainage, in the area, drying out

22 of the area, that the witness has described.

23 MS. PONZOLI: So it is only as to

24 hydrology, if I understand the question

25 accurately.

265

1 MS. BIRCH: Do you understand the question,

2 Mr. Rhoads?

3 THE WITNESS: Yes, I believe I do. The

4 general effects of the altered hydrology,

5 particularly the overdrainage in this area, has

6 been -- the most obvious has been the shift in

7 vegetation that I described earlier for this

8 area in general, which was from to a brushy,

9 more mesagrazeric type of vegetation.

10 BY MR. EARL:

11 Q. From what?

12 A. From the native sawgrass in the area with

13 occasional wet prairie community to a more

14 terrestrial like community with myrtles, baccahrus,

15 pigweed, willow, that sort of vegetation.

16 Q. Has this impact been studied, documented?

17 A. I believe it's been documented in Walt

18 Dineen's field notes. He was the one who first made

19 these observations. Let me see. Let me see. It may

20 have been documented at least in general terms in

21 Zaffke's technical publication of the vegetation of

22 Conservation Area 3A. That was a District technical

23 publication by Michael Zaffke.

24 Q. Dated what period of time?

25 A. Circa '79, late '70's, early '80's.

266

1 Q. Has this condition been alleviated in any

2 modifications in the interim or does it still

3 continue?

4 A. To a degree, the construction of the divide

5 structures S-339 is 340 has lengthened the

6 hydroperiod at least to a degree in this area. Those

7 structures in the Miami Canal offset the overdrainage

8 effects of the Miami Canal on that area, and that

9 extends to some distance to the east there.

10 Q. Well, how much of the 50 or 100 acres,

11 square miles, would you say were remedied by that?

12 A. I really couldn't estimate that with any

13 accuracy, Counsel.

14 Q. Still a problem, isn't it, down there?

15 A. Yes, but it is not as big a problem as it

16 was, because in addition to the S-339 and 340, the

17 conversion of the old Alligator Alley to I-75

18 resulted in a correction of the number of the flow

19 problems in that portion of the area. The borrow

20 canals for the old Alligator Alley tended to

21 contribute to that overdrainage in the area. With

22 the redesign of Alligator Alley and the construction

23 of I-75, measures were incorporated which we believe

24 have ameliorated some of that problem.

25 Q. Well, how would you characterize it, in

267

1 consideration of Everglades Restoration, how would

2 you characterize the significance of that problem

3 today, given these changes?

4 A. The northern portion of Conservation Area

5 2A still has, in my opinion, the predominant, the

6 largest single hydroperiod problem mainly because of

7 the --

8 Q. 2A, did you say?

9 A. I'm sorry. 3A. Conservation Area 3A.

10 Mainly because of the lack of inflow from the north.

11 The north portion of Conservation Area 3A simply does

12 not get surface water inflow, sheet flow, from the

13 north.

14 Q. And what in the SWIM plan is designed to

15 remedy that?

16 A. The SWIM plan has provisions for dealing

17 with the hydroperiod problem. It lays it out,

18 identifies it as a problem, indicates that it will be

19 dealt with in subsequent drafts of the SWIM plan.

20 Q. I am talking about this specific 3A that

21 you have just described. Is there anything, any

22 remediation or any remedial measures identified?

23 A. Specific remedial measures, no, I don't

24 believe so.

25 Q. Are any specific remedial measures analyzed

268

1 or evaluated in the SWIM plan for this situation?

2 A. No, I don't believe so. The SWIM plan

3 states that that will be carried out at some point in

4 the future.

5 Q. All right. Okay. We were working our way

6 down. We were south of the 11 structures. If we can

7 go back there, we talked about the overdrainage,

8 which is being routed down to S-9; correct?

9 A. Into that area, portion, of Conservation

10 Area 3A west of the S-9 pump station. From that

11 point, water is generally conveyed, primary

12 conveyance is down L-67A, down that borrow canal on

13 the west side of the L-67A levee.

14 Q. What does the Broward County Master Plan

15 say about that pump station? Do you know? You were

16 going to look into that at one time, weren't you?

17 A. Not to my recollection, Counselor.

18 Q. Is there a drainage District down there?

19 A. There are a number of drainage districts in

20 Broward County, yes.

21 Q. Does the county have a plan, a drainage

22 plan, as part of their comp plan or otherwise for

23 utilizing the S-9?

24 A. Could you repeat that question for me.

25 Q. Sure. Would you read back the question.

269

1 (Thereupon, a portion of the record

2 was read by the reporter.)

3 MS. BIRCH: If you know, Mr. Rhoads.

4 THE WITNESS: It's been many years since I

5 have reviewed the Broward County Land Use Plan,

6 Counselor, and I do not remember any of the

7 specifics of that portion of the plan.

8 BY MR. EARL:

9 Q. Well, what are you aware of? What is the

10 drainage basin for S-9 and what increasing

11 utilization of that are you aware of, if any?

12 A. The drainage basin for the S-9 pump station

13 extends eastward to approximately the S-13A divide

14 structure, which separates the C-11 basin into an

15 eastern and western basin.

16 Q. And does it extend down south of the S-13A

17 divide?

18 A. Yes. It is roughly a trapezoidal watershed

19 with the S-13A representing basically the eastern

20 extent of the western C-11 basin.

21 Q. Am I correct in understanding that is an

22 area of increasing development in Broward County?

23 A. It has been for the past 20 years, yes.

24 Q. Do you know what the increased demands are

25 going to be on that, utilizing it for backpumping?

270

1 A. Generally, the development permitted

2 through a regulatory program provides for limiting

3 the post runoff, post development runoff, to

4 predevelopment rates, so the --

5 Q. Does S-9 backpump at all now, do you know?

6 A. Oh, yes it does. Yes.

7 Q. Does it drain residential areas?

8 A. Yes. Generally low density residential

9 areas.

10 Q. Does that go into the marsh there?

11 A. I beg your pardon?

12 Q. Does that go into the marsh? Does it go

13 into the Everglades there?

14 A. It goes into the Everglades, yes. There is

15 a get away canal from S-9, and the water from the

16 pump station is pumped into the canal, and it does

17 interact with the marsh both there and in other

18 portions of Conservation Area 3A.

19 Q. And are you concerned about increasing

20 trends of nutrients in nutrient concentrations in

21 that?

22 MS. PONZOLI: Object to form.

23 MR. EARL: Grounds?

24 MS. PONZOLI: I don't think you're clear.

25 Are you talking about S-9 increasing trends and

271

1 S-9 concentrations of phosphorus? Is that your

2 question?

3 MR. EARL: I'm not going to answer. Is

4 that your objection?

5 MS. PONZOLI: My objection is your question

6 is vague and unclear.

7 MR. EARL: Okay, fine.

8 BY MR. EARL:

9 Q. Do you understand the question?

10 A. No, I don't, Counsel.

11 Q. Okay. Would you read it back.

12 I'll rephrase it.

13 Do you anticipate, as part of your

14 Everglades restoration duties, that there will be

15 increasing trends of phosphorus concentrations in the

16 S-9 discharge?

17 A. It is a potential source of concern. It

18 tends to be a lesser source of concern because the

19 Biscayne aquifer in that area is -- the carbonaceous

20 material is quite close to the surface, so the

21 phosphorus concentrations that we have historically

22 experienced at S-9 have been quite low. Because of

23 the nature of the substrate, the nature of that

24 watershed, it tends not to be a high source of

25 concern, at least in terms of nutrients coming into

272

1 the area. How that watershed might develop in the

2 future is a source of concern that needs to be dealt

3 with in subsequent updates of the SWIM plan, yes.

4 Q. What is your understanding of phosphorus

5 loading in the soils in that area?

6 A. In which area?

7 Q. The S-9 area.

8 A. In general, that watershed produces

9 relatively low concentrations of phosphorus primarily

10 because of the edaphic conditions; the soils in that

11 area. It has not, to the best of my recollection,

12 been characterized as a high nutrient source coming

13 into the Everglades.

14 Q. Well, I'm asking you more, sir, if you're

15 aware of any phosphorus soil testing that has been

16 done in that area in terms of --

17 A. In the C-11 basin?

18 Q. In the area of S-9, sir.

19 A. I'm sorry, I have lost the track here. I

20 don't understand the question.

21 Q. In the area of the S-9 discharges, okay,

22 are you aware of any phosphorus soil testing or

23 analysis that has been done?

24 A. Oh. I believe some has been done. I'm not

25 personally familiar with it. I have not reviewed

273

1 that data.

2 Q. Who's done it?

3 A. I'm not sure.

4 Q. Someone at the District?

5 A. Yes.

6 Q. Steve Davis?

7 A. I'm not sure.

8 Q. Who would you ask to find out?

9 A. Marguerite Koch.

10 Q. Okay.

11 A. Perhaps.

12 Q. Now, are there releases in that area from

13 District canals also into the marsh?

14 A. I don't understand.

15 Q. Does water get out of the District

16 conveyancing canals in the vicinity of S-9 out into

17 the marsh?

18 A. Oh, yes. Yes, it does.

19 Q. Okay.

20 A. Certainly in some areas where it is not

21 contained in the canal by an adjacent borrow mound.

22 Q. Okay. Moving, if you would like, to south

23 from S-9, that would be the easiest way, Mr. Rhoads,

24 let's continue and let's talk about adverse

25 hydroperiod impacts of the central and southern

274

1 project on the Everglades.

2 A. In general terms, that portion of

3 Conservation Area 3A.

4 MS. BIRCH: Excuse me. What is the

5 question?

6 (Thereupon, a portion of the record

7 was read by the reporter.)

8 THE WITNESS: Counsel, could you rephrase

9 the question for me, please.

10 MS. BIRCH: I am just objecting to the form

11 of the question as a narrative. I'm not sure

12 there is a question that Mr. Rhoads can answer.

13 MR. EARL: Well, if you would like, if

14 Mr. Rhoads would like, Counsel, I can go to

15 every structure and every levee and every dyke

16 and ask him, but I think that is an abuse of his

17 time, and I don't think the rest of us want to

18 do that, so I am trying to ask him to generally

19 cover it. He was about to answer. I think it

20 is a much more efficient way to do it.

21 Otherwise, we'll be here --

22 MS. BIRCH: I would agree with that,

23 Mr. Earl, if Mr. Rhoads can say that he

24 understands what he's being asked.

25 THE WITNESS: My understanding of the

275

1 question was, what are the adverse impacts of

2 hydroperiod in the southern portion of

3 Conservation Area 3A.

4 BY MR. EARL:

5 Q. We can start there, yes. That will be

6 fine.

7 A. That is the question I am responding to.

8 In general, the central portion has no adverse

9 impacts. That portion of the Everglades is nearly

10 pristine. The area in the general vicinity of the

11 Dade Broward levee, the southern portion of

12 Conservation Area 3, tends to experience a ponding

13 problem analogous to the southern portion of

14 Conservation Area 1. In other words, the hydroperiod

15 tends to be somewhat extended in this southern

16 portion of the area.

17 Q. Southern -- locate me, please, with some

18 structures. You say the southern portion of 3A?

19 A. Generally the area south of the midway

20 point between Tamiami Trail and the Dade/Broward

21 levee. Find the midway point between those two

22 structures, between Tamiami Trail and Dade/Broward

23 boundary. Boundary line for Dade and Broward county.

24 Q. Okay.

25 A. Between there and Tamiami Trail and the

276

1 southern portion of that area.

2 Q. Okay.

3 A. In the southern portion of that area, west

4 of L-67A, east of L-28, that area tends to experience

5 a lengthened hydroperiod because of a ponding problem

6 analogous to what I described earlier in the

7 Conservation Area 1.

8 Q. You are talking about the area north of the

9 S-12 structure specifically?

10 A. North of the S-12 structures. For an area

11 of perhaps five to ten miles north of that. That

12 area tends to have a somewhat lengthened hydroperiod,

13 which has resulted in white water lily sloughs being

14 a more -- a larger component of the landscape than

15 the sawgrass that one would find 15 to 20 miles north

16 of that.

17 Q. I presume the sheet flow has been

18 eliminated in this area by the construction in the

19 levee in the S-12 structures; correct?

20 MS. PONZOLI: Object to the form.

21 THE WITNESS: Sheet flow in the area we

22 have been discussing is perhaps the only area

23 that does have particularly good sheet flow

24 coming out of the central portion of 3A. In

25 other words, the area that we have been

277

1 describing receives sheet flow from the adjacent

2 marsh to the north; the central portion of

3 Conservation Area 3A. So the water tends to

4 flow across the land in that area.

5 BY MR. EARL:

6 Q. I got ahead of myself. I'm sorry. I was

7 south of the 12 structures. I apologize. You have

8 good sheet flow, and then it is impounded five to ten

9 miles of -- pools five to ten miles north?

10 A. Very roughly, yes.

11 Q. And that is a result of the design and

12 construction of those structures; correct?

13 A. Design and construction and operation of

14 the structures, yes.

15 Q. Okay. Pre-project, was that sawgrass

16 primarily in that area?

17 A. That area probably doesn't differ too much.

18 I think Walt Dineen's recollection in that area was

19 that there were more white water lily sloughs in that

20 area, in his opinion, based upon the extended

21 hydroperiod in that area, but it was sawgrass and

22 adjacent white water lily sloughs.

23 Q. There was pre-project -- it would be your

24 understanding there was more sawgrass than there is

25 now?

278

1 A. Probably in that area, yes.

2 Q. But even pre-project, there was probably

3 more white lilies than there were sawgrass in terms

4 of dominance?

5 MS. PONZOLI: Object to form. I don't

6 think that is what he said.

7 BY MR. EARL:

8 Q. I got the impression -- I am trying to --

9 we can, and will, go into minute detailing, but I am

10 just trying to cut it short. I had the impression

11 from your answer, Mr. Rhoads, that from Mr. Dineen's

12 recollections, this was not a predominantly sawgrass

13 area. There was sawgrass there more than there is

14 now, but there was also lily there; correct?

15 MS. PONZOLI: Object to form.

16 BY MR. EARL:

17 Q. Correct? Or explain -- tell me in your own

18 words what was there.

19 A. In part, yes. The extended inundation of

20 this area, while not severe, it does have -- did and

21 does have longer hydroperiod in that area. That

22 longer hydroperiod has tended to make the white water

23 lily sloughs a larger component of the vegetative mix

24 in that area than probably existed prior to the

25 construction of the Tamiami Trail in that area.

279

1 Prior to alteration of flow patterns in that area.

2 However, the area 15 to 20 miles north up in the

3 vicinity of the Dade/Broward County line is probably

4 as close to pristine Everglades as exists anywhere

5 within the system.

6 Q. Okay. Did the construction of the --

7 strike that. Prior to construction of the 12

8 structures that the Tamiami Trail has there; correct?

9 A. Yes.

10 Q. And what is your understanding of the water

11 conveyancing mechanisms, culverts that existed

12 pre-project, in terms of the hydrology? Was it

13 better water flow or not?

14 MS. PONZOLI: Object to form.

15 BY MR. EARL:

16 Q. Tell me your understanding of the

17 pre-project water flows across the Tamiami Trail.

18 A. Tamiami Trail had a series of culverts and

19 small bridges all the way along its extent across the

20 Everglades. There was not -- the L-67A and L-67C

21 borrow canals were constructed in the '60's, so the

22 Tamiami canal existed for an extensive period of time

23 with essentially no canals coming to it from the

24 north. It was essentially a large marsh, at least in

25 the central portion of the Everglades north of the

280

1 Tamiami Trail, and there were culverts underneath the

2 highway in which water flowed basically without

3 structural control. Without gated control anyway.

4 Q. Have you reviewed the modified water

5 deliveries EIS for this area?

6 A. Yes, briefly.

7 Q. Did you participate in the comments on it?

8 A. I don't believe I did, no.

9 Q. So what is your understanding of the

10 construction of the project due to the hydrology

11 along the Tamiami Trail? If we can just go from east

12 to west, whatever is most convenient.

13 MS. PONZOLI: Object to the form.

14 THE WITNESS: Going west to east from the

15 L-30 borrow canal, the construction of the L-29

16 levee north of the Tamiami Trail, west of,

17 basically, Crome Avenue, of the L-30, L-31 north

18 borrow canal, L-29 levee intercepted overland

19 flow and kept that flow from flowing south, in

20 large measure anyway, into the northeast Shark

21 River Slough. That applies for generally from

22 S-334 west to S-333. For that portion of the

23 Everglades cross-section west of S-333 out to

24 the L-28 levee, the system tended to impound

25 water to the north, but it also provided

281

1 structural control for the water flowing south

2 under the Tamiami Trail. The area to the west

3 of that in the Big Cypress area was largely

4 unaffected by construction of the C&SF project.

5 BY MR. EARL:

6 Q. Was it your understanding -- was the

7 project, in terms of disbursing flow, did it reduce

8 the number of disbursion points into the park?

9 A. It, in essence, concentrated the Everglades

10 flow to the west of where today sits structure 333.

11 In other words, the full flow section of the

12 Everglades no longer was functional, and the flow was

13 discharged in the western portion of the section.

14 Q. Through, as I understand it, four discrete

15 structures; correct?

16 A. That is correct.

17 (Thereupon, a recess was taken.)

18 MR. EARL: Can we resume?

19 MS. BIRCH: Yes, we are ready.

20 MR. EARL: Would you read back the last

21 question and answer, please.

22 (Thereupon, a portion of the record

23 was read by the reporter.)

24 BY MR. EARL:

25 Q. What is your understanding of the adverse

282

1 effects of the levee that was constructed from S-334

2 to S-333?

3 MS. PONZOLI: Object to form.

4 THE WITNESS: The construction of the L-29

5 levee, in essence, cut off overland flow going

6 into that portion of the Everglades south of the

7 L-29 levee, normally called the Northeast Shark

8 River Slough.

9 BY MR. EARL:

10 Q. Okay. How large an area was impacted, as

11 you understand it?

12 A. Oh, very roughly, on the order of 150

13 square miles.

14 Q. And what was the pre-project vegetation in

15 that area, as you understand it?

16 A. That area was one of the deeper portions of

17 the Everglades. There were tree islands, sawgrass

18 sloughs. That is a general characterization of the

19 vegetation pattern in the area.

20 Q. And what were the impacts of the project on

21 the vegetation in the area post project?

22 A. It tended to shift the vegetation pattern

23 to one more typical of the shorter hydroperiod area.

24 The slough areas were not as dominant. Where they

25 occurred, they covered a smaller area. There was, in

283

1 that area, probably a greater preponderance of wet

2 prairie community typical of even shorter

3 hydroperiod. It depends upon the specific area. The

4 L-29 canal and the L-67 extension canal both impacted

5 that area, and so there is considerable local

6 variation of the effect within that Northeast Shark

7 River Slough area.

8 Q. There was loss of sawgrass in the area?

9 A. Perhaps to some degree.

10 Q. Perhaps to some degree. Is it your

11 understanding there was or was not a loss of

12 sawgrass?

13 A. I'm not sure, Counselor.

14 Q. Was there a drying out of that area?

15 A. Yes, shortening of the hydroperiod, dryer

16 conditions.

17 Q. And would that tell you that there would be

18 a shift to woody vegetation, brushy vegetation?

19 A. Generally to some extent, yes.

20 Q. What is in that area now, as you look at

21 it?

22 A. Tree islands that were substantially

23 adversely affected by Hurricane Andrew, adjacent

24 sawgrass areas, some slough areas, some wet prairie

25 communities within that area.

284

1 Q. You don't see any myrtle, any willow?

2 A. Yes. Particularly in the area adjacent to

3 L-29, the shrubby vegetation characterized by myrtle,

4 baccahrus, willow, is quite common.

5 Q. How large an area would that be in terms of

6 the transformation to shrubby vegetation?

7 A. It varies. Generally, to my recollection,

8 a several hundred yard area adjacent to the Tamiami

9 Trail on the south side experiences very clearly

10 visually evident those conditions.

11 Q. Now, you mentioned the L-67 extension

12 canal. Are you familiar with that?

13 A. Generally, yes.

14 Q. And whose idea was it to construct that?

15 MS. PONZOLI: Object to form.

16 THE WITNESS: The L-67 extension canal was

17 constructed in the 1960's by a contractor to the

18 Corps of Engineers primarily, as I understand

19 it, in response to the Everglades National

20 Park's concern which developed in the early

21 '60's regarding insufficient quantity of water

22 reaching the park.

23 BY MR. EARL:

24 Q. It was federally designed, constructed?

25 A. That is correct.

285

1 Q. Is it your understanding the National Park

2 Service requested it?

3 MS. PONZOLI: Asked and answered,

4 Counselor.

5 THE WITNESS: My general understanding is

6 yes, they were supportive of the Corps designing

7 construction of that canal, yes.

8 BY MR. EARL:

9 Q. And what have been the adverse consequences

10 of the construction of the L-67, to your knowledge?

11 A. In very general terms, it altered the

12 hydroperiod both on the east side and the west side.

13 Since discharges were made in the western portion of

14 the cross-section to the west of the L-67 extension,

15 that area tended to experience higher water levels,

16 longer hydroperiod, while the area to the east of the

17 L-67 extension tended to experience a shorter

18 hydroperiod conditions. Water has been documented

19 historically going around the end of L-67 from the

20 west to the east.

21 Q. And what was the impact to the increased

22 inundation to the west, hydroperiod to the west, in

23 terms of vegetation ecological factors?

24 A. I have not been down in that area except on

25 very rare occasion down in that portion of the park.

286

1 I really don't have any recollection of vegetative

2 changes in those areas.

3 Q. Same would be true to the east? You have

4 no personal knowledge of that?

5 A. No. I have better knowledge in the area to

6 the east. As we described earlier, we discussed that

7 area.

8 Q. Shark River Slough?

9 A. The Shark River Slough area.

10 Q. Okay. Does that disturbance extend down

11 all the way to the length of L-67? We talked about

12 150 square mile area.

13 A. The 150 square mile area I referred to

14 earlier was basically the entire northeast Shark

15 River Slough east of the L-67 extension. That was

16 affected by the construction of L-29.

17 Q. Is it true, Mr. Rhoads, that most of the

18 hydroperiod problems the District has identified are

19 associated with the design operation of the Federal

20 project?

21 MS. PONZOLI: Object to form.

22 MS. BIRCH: Object to form.

23 MR. EARL: Grounds, Counselor?

24 MS. PONZOLI: I think his testimony has

25 been otherwise.

287

1 MS. BIRCH: And I want to hear the question

2 again.

3 (Thereupon, a portion of the record

4 was read by the reporter.)

5 MS. BIRCH: Grounds also, Mr. Earl, I

6 haven't heard Mr. Rhoads testify as to problems

7 identified by the District of hydroperiod.

8 MR. EARL: Okay.

9 BY MR. EARL:

10 Q. Is it true, Mr. Rhoads, that most of the

11 hydroperiod problems the District has identified are

12 associated with design operation of the Federal

13 project?

14 MS. PONZOLI: Object to form.

15 THE WITNESS: The problems that we spent

16 the past hour or so discussing, that I have

17 discussed, resulted from the Central and

18 Southern Florida project and the previous

19 changes, such as the Tamiami Trail, such as the

20 works of the Everglades Drainage District that

21 occurred in the area.

22 BY MR. EARL:

23 Q. Okay. Who was responsible for the work on

24 the Tamiami Trail? Is that the State of Florida?

25 A. I believe so.

288

1 Q. Okay. The Everglades Drainage District is

2 the state established by this agency as the successor

3 to; is that what you told me earlier?

4 A. Yeah, that is correct.

5 Q. Other than those two, what hydroperiod

6 problems impacting the Everglades are not associated

7 with the design operation of the Federal project?

8 MS. PONZOLI: May I hear the question

9 again, please.

10 THE WITNESS: Yes. Could you repeat the

11 question please.

12 (Thereupon, a portion of the record

13 was read by the reporter.)

14 MS. PONZOLI: Other than those two; is that

15 what you said?

16 THE WITNESS: Counselor, reference for the

17 word "two".

18 BY MR. EARL:

19 Q. Were the two you just gave me Tamiami

20 Trail, by DO State, and the Everglades Drainage

21 District?

22 A. Other than the EDD and the Tamiami Trail?

23 Q. Yes, sir.

24 A. I think the other project that has impacted

25 hydroperiod in the Everglades has been the

289

1 construction of Alligator Alley and, subsequently,

2 Interstate 75.

3 Q. And it is my understanding the State of

4 Florida undertook that construction?

5 A. I'm not sure. Yes. It was State of

6 Florida with federal funding; but I'm not familiar

7 with the details on that.

8 Q. Anything else?

9 A. No.

10 Q. Okay, sir. Now, with regard to the

11 project; what has been the impact, as you understand

12 it, on the Everglades, of the construction of the --

13 coastal -- what do you call it -- The Coastal Ridge

14 Levee protecting the developed urban areas as you go

15 south?

16 A. You are referring, I believe, to what is

17 normally called the Coastal Containment Levee.

18 Q. Okay, sir. And that stretches from where

19 to where?

20 A. Stretches from up at Lake Okeechobee, in

21 the vicinity of structure S-76, down to south of

22 Homestead levee L-31 west, south of S-175.

23 Q. It comes down what, the L-8?

24 A. The L-8, L-40, L-36, around Conservation

25 Area 2B, south L-37, L-33, L-30, L-31 north, L-31

290

1 west.

2 Q. All right, sir. And that was part of the

3 design and construction of the Federal project also;

4 correct?

5 A. That is correct, yes.

6 Q. What has been the hydrologic impact of the

7 construction of that levee on the Everglades?

8 A. In very general terms, what it did was to

9 separate the urban the coastal area from the interior

10 Everglades area. It basically provided for a

11 hydrologic separation of the surface water system

12 between the Everglades system, on the interior, and

13 the coastal area, which, for most purposes, drains

14 east to tide water.

15 Q. So prior to the construction of that levee,

16 the drainage was generally to the east?

17 A. It varied depending upon conditions.

18 Generally, overall flow in the system was from Lake

19 Okeechobee basically south, southeast, then south,

20 through the central portion of the area, and then to

21 the southwest as it went down across Tamiami Trail

22 and out in the Florida Bay. The East Coast coastal

23 ridge served as the boundary for that system. There

24 was some passage through at various point, through

25 the coastal ridge, but, before man's influence, that

291

1 was the general flow pattern.

2 Q. Hydrologically, what did that levee do to

3 the water in the Everglades?

4 MS. PONZOLI: I object to form.

5 THE WITNESS: Sorry, Counselor, I don't

6 understand the question.

7 BY MR. EARL:

8 Q. Okay. What was the purpose of the levee?

9 Why did they build it all the way from Lake

10 Okeechobee down to Homestead?

11 A. The purpose was to hydrologically separate

12 the Everglades from the coastal area to prevent water

13 from the Everglades from flowing eastward, as surface

14 water, into the urban and agricultural areas that

15 were existing to the east of the containment levee.

16 Q. And what did the project then do with those

17 waters that were contained?

18 A. As I mentioned a moment ago, that area east

19 of the containment levee drained to tide water. The

20 area to the west of the containment levee is the

21 Water Conservation Area and water flowed generally

22 south.

23 Q. I'm not making myself clear. I apologize.

24 If that was the pre-project condition, why did they

25 build a levee? I am trying to understand what the

292

1 hydrologic results of that levee were, in terms of

2 water in the area.

3 A. The area between the East Coast containment

4 levee and, essentially, the coastal ridge, prior to

5 man's intervention, was a wetland. It was, in all

6 likelihood, a shallow hydroperiod wetland. The

7 construction of the containment levee provided the

8 basic ability to drain that area to provide flood

9 protection and drainage to the area to the east of

10 the levee.

11 Q. How large an area, approximately, was that

12 area between the Coastal Containment Levee and the

13 coastal ridge -- natural coastal ridge?

14 A. Probably an area on the order of

15 three-quarters of a million to a million acres.

16 Q. 750,000 to a million acres?

17 A. Roughly. Very roughly.

18 Q. Was that part of the native Everglades?

19 A. Significant portions of that, yes, were.

20 And in all likelihood part of the periphery of the

21 original Everglades.

22 Q. And the result of that was to allow urban

23 development in that area; is that correct?

24 A. Agricultural and urban development, yes,

25 was one of the results.

293

1 Q. One of the purposes, wasn't it, of the

2 project?

3 A. That was the project purpose, yes.

4 Q. I'm sorry. Did you tell me that was part

5 of the natural Everglades? That 750 to a million?

6 MS. PONZOLI: Object to form. That's been

7 asked and answered.

8 MR. EARL: I am just not clear, Counsel. I

9 can have the court reporter read it back. I am

10 trying to save some time.

11 THE WITNESS: Portions of that area,

12 considerable portions of that area, were, in all

13 likelihood, the eastern fringe of the

14 Everglades. They were wetlands, and for

15 ecosystem purposes could realistically be

16 considered part of the Everglades.

17 BY MR. EARL:

18 Q. What human activities is the District

19 currently allowing in Water Conservation Area 3A?

20 A. Sports use of Conservation Area 3A is

21 managed for the District by the Florida Game and

22 Fresh Water Fish Commission. Because of high water

23 levels at this point in time, recreational use of the

24 area is highly restricted.

25 Q. There are some houses out there, fish

294

1 camps, are there not?

2 A. In portions of Water Conservation Areas,

3 yes.

4 Q. Who permits those; the District?

5 A. To the best of my knowledge, those are

6 unpermitted structures.

7 Q. Is that District land?

8 A. There are difficult questions of ownership

9 for those facilities.

10 Q. What about agricultural activities in

11 Conservation Area 3A? How much of that does the

12 District allow?

13 A. There is no agricultural activity within

14 Water Conservation Area 3A.

15 Q. Who grazes the cattle in Water Conservation

16 Area 3A?

17 A. No one, to my knowledge.

18 Q. Are you saying the Seminoles and the

19 Miccosukees do not have cattle grazing activities in

20 Water Conservation Area 3A?

21 A. Not to my knowledge. Not to the east of

22 L-28 levee, no.

23 Q. Is that the boundary of Water Conservation

24 Area 3, L-28 levee?

25 A. Yes. For practical working purposes, yes.

295

1 Q. You would be aware of any development

2 activities or agricultural activities in Water

3 Conservation Area 3A?

4 A. I suspect so, yes.

5 Q. And you are not aware of any?

6 A. I'm not aware of any.

7 Q. Okay. Any other activities development

8 allowed in the Water Conservation Areas?

9 A. There is at least one fish camp that is

10 permitted within Water Conservation Areas by the

11 District.

12 Q. Whose fish camp is that?

13 A. It's been so long. Holiday Park Fish Camp,

14 out from S-9 pump station.

15 Q. The construction of the coastal levee as

16 part of the Federal project, did that remove -- that

17 did remove, did it not, a substantial area that prior

18 to that was available for water flow and storage?

19 MS. PONZOLI: May I hear that question

20 again, please.

21 (Thereupon, a portion of the record

22 was read by the reporter.)

23 MS. PONZOLI: Object to form.

24 MR. EARL: Grounds?

25 MS. PONZOLI: I think it is vague. I don't

296

1 think it is clear at all what you are trying to

2 ask. I don't think you did it on purpose, I

3 just think it came out that way.

4 THE WITNESS: The construction of the East

5 Coast containment levee did remove, generally,

6 areas to the east of it from storage of water.

7 In other words, it provided for the drainage of

8 those areas.

9 BY MR. EARL:

10 Q. And did it raise the hydroperiod, increase

11 the hydroperiod, in areas to the west of the levee?

12 A. Yes, in general terms, it did.

13 Q. And did you anticipate, in your capacity as

14 Everglades Restoration Director, that that would have

15 had adverse consequences on the ecology of the

16 Everglades?

17 MS. PONZOLI: Object to the form.

18 THE WITNESS: Generally not, because -- the

19 reason for that is because when the east coast

20 levee system was constructed, it came in in the

21 aftermath of, basically, a severe overdrainage

22 of the Everglades by the Everglades Drainage

23 District canals. Those canals, while basically

24 ineffective during flood periods in controlling

25 flooding, they were too effective during dry

297

1 periods in draining the area. So the additional

2 impoundment resulting from the lower East Coast

3 Containment Levee tended to alleviate, or

4 ameliorate, some of those drainage problems. So

5 in my mind, it would generally be -- the results

6 of that levee construction were generally

7 positive compared to what was there previously.

8 BY MR. EARL:

9 Q. You mentioned earlier one of the adverse

10 impacts of the Federal project was the increased

11 incidence of fire; correct?

12 A. Yes, in portions of the Water Conservation

13 Areas, that is correct.

14 Q. What are the consequences ecologically of

15 fire?

16 A. It depends on the timing, severity and the

17 pre-existing conditions to the fire. In many cases,

18 fire is beneficial, and in other cases, fire has a

19 distinctly adverse effect upon the Everglades.

20 Q. Okay. Modified, the hydroperiod caused by

21 the project has resulted in more fire, has it not?

22 MS. PONZOLI: Object to form.

23 THE WITNESS: I'm not comfortable with that

24 statement, Counselor.

298

1 BY MR. EARL:

2 Q. Okay. How would you state it?

3 A. I'm not sure if the data exists, or the

4 recollections exist by naturalists, to demonstrate

5 one way or the other how that was. It also depends

6 on the area, to large measure, I believe. As

7 mentioned earlier, the period of the '40s, with the

8 Everglades Drainage District facilities in place, was

9 one of substantial overdrainage and fire, substantial

10 fire, during that period.

11 Q. Have you found, in the last 20 years, that

12 the area north of Alligator Alley, because of the

13 increased incidence of fires, has lost a significant

14 amount of peat?

15 A. Yes, that is correct.

16 Q. Has there been a burning oxidation of the

17 peat that's been laid down over the past 5,000 years

18 in this area?

19 A. Yes, that is generally correct.

20 Q. Because it didn't have enough water?

21 A. In general terms, that is correct.

22 Q. Is phosphorus released during fires in the

23 Everglades?

24 MS. PONZOLI: Object to form.

299

1 BY MR. EARL:

2 Q. Into the atmosphere or otherwise?

3 A. Generally, the oxidation of the peat

4 accompanying fire results in phosphorus being made

5 available. Just the process of oxidation converts

6 carbon oxygen into CO2, and it leaves the minerals

7 such as phosphorus. Some of it could be carried in

8 the smoke going from a fire. A significant portion

9 would be residual, as the ash.

10 Q. What, if any, hydroperiod problems are the

11 EAA farmers responsible for in terms of impacting the

12 Everglades?

13 MS. PONZOLI: Object to the form.

14 MR. EARL: Grounds?

15 MS. PONZOLI: I think it calls for

16 testimony that I'm not sure that this witness

17 can give, and I think it is such a broad based

18 question that it probably cannot be answered by

19 anyone.

20 MS. BIRCH: I would like to hear the

21 question.

22 (Thereupon, a portion of the record

23 was read by the reporter.)

24 THE WITNESS: As I mentioned earlier, one

25 of the factors in determining the time, the

300

1 rate, the amount of water discharged at the pump

2 stations from the EAA is what happens in the

3 area tributary to those pump stations. S-5A,

4 S-6, S-7 area tributary to those pump stations

5 is agriculture, and within the Everglades

6 Agricultural Area the water that is pumped out

7 of those pump stations is, in large measure,

8 water that was discharged from lands within the

9 Everglades Agricultural Area. Were those lands

10 not in agricultural production, the magnitude

11 and volume and runoff coming from those lands

12 would be much less than it is, and water would

13 not be pumped into pump stations. Following

14 that line of logic, the many lands in other of

15 those tributary areas, to the north of the pump

16 stations, are one of the reasons that

17 hydroperiod problems occur because of the levee

18 system in the pumps.

19 BY MR. EARL:

20 Q. Is that water used and pumped by the EAA

21 farmers pursuant to District permits?

22 A. In some cases, yes.

23 Q. Are there surface water management permits

24 for those systems?

25 A. Currently, not for most of them, but

301

1 shortly there will be for all of them.

2 Q. Is there use of water in that area, to your

3 knowledge, for any reason, not in conformance with

4 District water use regulations?

5 MS. PONZOLI: Object to form. It is what

6 the whole case has been about.

7 MS. BIRCH: Object to form.

8 THE WITNESS: Repeat the question, please.

9 MR. EARL: I'll rephrase it.

10 BY MR. EARL:

11 Q. Mr. Rhoads, you have talked about the fact

12 that the lands converted to agricultural use result

13 in runover and in different timing of water, less

14 than would be in native Everglades; correct?

15 A. That is correct.

16 Q. Is the water use by the farmers, in terms

17 of water quantity under 373, so far as you know, in

18 accordance with District regulations and permits?

19 MS. PONZOLI: Object to form. Calls for a

20 legal conclusion on the part of a nonlegal

21 person.

22 MS. BIRCH: Same objection, Mr. Earl.

23 BY MR. EARL:

24 Q. Okay.

25 A. I haven't been in the regulatory or legal

302

1 portion of that aspect of the District operations,

2 Counselor, so I don't feel comfortable responding.

3 Q. Okay. You don't know?

4 A. Don't know.

5 Q. Okay. You do understand, do you not, that

6 one purpose of the project was to allow agricultural

7 development in the EAA?

8 A. That was one of the purposes of the

9 project, yes.

10 Q. And one of the purposes of the project, was

11 it not, to supply water for that agricultural use?

12 A. Yes, that was one of the design

13 considerations of the project.

14 Q. And one of the purposes of the project, was

15 it not, was to provide flood control for that

16 agricultural use?

17 A. That is correct.

18 Q. Let's talk for a minute about the impacts

19 of operations of the Federal project. We have talked

20 to date about design and construction. Starting out

21 with hydroperiod; what hydroperiod impacts are you

22 aware of resulting from District operational

23 decisions on the project?

24 MS. PONZOLI: Object to form. I think we

25 have been talking about operations while we were

303

1 talking about all other hydroperiod terms. I

2 don't think it was isolated out -- that it was

3 only construction of the project. None of the

4 questions were ever structured in that way nor

5 answered in that way.

6 MS. BIRCH: I also object to the form. As

7 I recall, Mr. Earl, in Mr. Rhoads' response to

8 your questions regarding hydroperiod impacts of

9 the operation on the project, his answers were

10 responsive to what I believe include any

11 impacts. The questions were broad and overly

12 conclusive.

13 MR. EARL: Okay, Counsel.

14 BY MR. EARL:

15 Q. Are you aware of any operational options

16 the District has to alter hydroperiod in various

17 areas and adverse impacts those options have had over

18 the years?

19 MS. PONZOLI: Object to form. It is a

20 compound question.

21 THE WITNESS: Would you repeat that

22 question, please.

23 (Thereupon, a portion of the record

24 was read by the reporter.)

304

1 BY MR. EARL:

2 Q. Other than what we have talked about.

3 MS. PONZOLI: Object. You're making it

4 worse.

5 THE WITNESS: I don't understand your

6 question, Counselor.

7 MR. EARL: Okay. We'll go at it in more

8 detail.

9 MS. PONZOLI: Excuse me. What was -- would

10 you read back the last statement.

11 (Thereupon, a portion of the record

12 was read by the reporter.)

13 BY MR. EARL:

14 Q. What is your understanding of how the

15 District operates the project, Mr. Rhoads?

16 A. Within the Everglades area?

17 Q. Yeah.

18 A. The project's operated in accord with the

19 guidelines established by the Corps of Engineers.

20 Q. Those are regulations, schedules?

21 A. Regulations, schedules, structure operation

22 schedules, et cetera.

23 Q. And within those parameters, am I correct

24 in understanding the District has latitude to make

25 operational decisions?

305

1 A. With concurrence of the Corps of Engineers,

2 yes, there is some latitude in those.

3 Q. Isn't it true, Mr. Rhoads, that phosphorus

4 loading, at specific points, will be affected by

5 operational decisions as to how you route water; you,

6 being the District?

7 MS. PONZOLI: Object to form.

8 THE WITNESS: I'm sorry. I need a repeat

9 on that question.

10 (Thereupon, a portion of the record

11 was read by the reporter.)

12 THE WITNESS: I think that is generally

13 correct; that where the water goes, if the water

14 contains phosphorus, that is where the

15 phosphorus impacts would be.

16 BY MR. EARL:

17 Q. Okay. And does the District have some

18 latitude as to where it routes water within the

19 system?

20 A. Some latitude, but not a great deal. But

21 there is some latitude, yes.

22 Q. Are you aware of any operational latitude

23 in terms of where water is routed that would have

24 resulted in increased phosphorus loading at

25 downstream points?

306

1 A. Increased compared to what?

2 Q. Increased to what it would be if the water

3 had been routed elsewhere by the District?

4 MS. BIRCH: I object to the form of the

5 question.

6 Do you understand that question,

7 Mr. Rhoads?

8 THE WITNESS: I'm not aware of any options

9 right offhand. To the extent I understand the

10 question, no, I'm not aware of any options.

11 BY MR. EARL:

12 Q. Didn't, historically, the park service

13 complain about shunting water down L-67? You never

14 heard of that?

15 A. Yes. No. I am aware of that.

16 Q. Isn't that an operational decision by the

17 District?

18 A. In conjunction with the Corps of Engineers,

19 yes.

20 Q. Explain that to me; what that option was.

21 A. There are several structures in the L-67

22 extension canal. Those structures have operational

23 capability. The use of the L-67 extension canal to

24 handle discharges from Conservation Area 3A and

25 discharge those farther into the park, down into the

307

1 park, was considered to have adverse consequences

2 during the '80's, and as a result, the Corps of

3 Engineers, in conjunction with the park, modified

4 those facilities so that the L-67 extension

5 essentially did not discharge water down into that

6 portion of the park. The structures were modified to

7 be essentially nonfunctional most of the time.

8 Q. When was that?

9 A. I don't remember, other than sometime

10 during the early '80's, I believe. '83, '84.

11 Q. But water is still routed down L-67 canal;

12 is that correct?

13 A. My recollection, and I admit it is not

14 precise, my recollection is that those structures are

15 generally not operating. They are not operational.

16 The tie backs on those small culverts were beefed up.

17 I admit my knowledge in this area is fuzzy, but my

18 recollection was that those structures were not

19 operational; not operated.

20 Q. When the water was routed down L-67, how

21 long a period did that occur?

22 A. That occurred from the completion of

23 construction of L-67 extension during the '60's,

24 later portion, mid to later portion of the '60's,

25 until vicinity of 1983, 1984.

308

1 Q. Okay, sir. And during that time period,

2 the '60's to 1983 or '84, what was the alternative

3 delivery device to get water down to the park if the

4 L-67 canals weren't in use; weren't used?

5 Q. What was the routing of the water?

6 A. The S-12 structures were used for discharge

7 from Conservation Area 3A into Everglades National

8 Park. One of the problems associated with L-67

9 extension was that it would intercept that flow

10 coming through S-12C and S-12D and it tended to shunt

11 water further down into the system because the upper

12 portion of L-67C was intersecting that flow coming

13 through the S-12 structures.

14 Q. Okay. But if the -- not the extension

15 canal -- but if the L-67 canals weren't utilized to

16 send water down, what is the alternative routing to

17 get water into Water Conservation Area 3 and then

18 down to the 12 structures?

19 A. We may have -- I may have a

20 misunderstanding of your question earlier. I thought

21 we were talking about L-67 extension, but then you

22 mentioned the L-67 borrow canals. I need to make

23 sure that I was responding appropriately to your

24 question, counselor. I got confused there.

25 Q. Was water routed through the L-67 canals

309

1 down to the park as a way to get it quickly down into

2 the southern end of Water Conservation Area 3?

3 A. The L-67A borrow canal has been and

4 continues to be a primary delivery route.

5 Q. Okay. What is the alternative to that

6 delivery route to get water down there is my

7 question.

8 A. There basically is no alternative. That

9 structure, the borrow canal, L-67A borrow canal,

10 essentially is a nonoperable structure. In other

11 words, its conveyance capabilities are basically not

12 controlled. The S-151 structure is zoned within the

13 L-67A borrow canal, so the L-67A borrow canal

14 basically does not have any structures in it at the

15 current time.

16 Q. How do we get water -- and maybe you're the

17 wrong person to ask this -- what is your

18 understanding of how we get water down the

19 alternative routings; to get water down into Water

20 Conservation Area 3A coming down from the lake and

21 the primary canals?

22 A. There really are only three ways to get

23 surface water into Conservation Area 3A. Through the

24 S-8 pump station --

25 Q. Okay.

310

1 A. -- through the S-150 culvert series --

2 Q. Okay.

3 A. -- and through the S-11 structures.

4 Q. And the S-150 culvert is where, in

5 proximity to S-150?

6 A. Well, the S-150 is a series of culverts.

7 It is a culvert structure that discharges from the

8 L-18 borrow into the L-38 west borrow.

9 Q. So we can send water via the 11 structures

10 into the Water Conservation Area. Does it then find

11 its way down to the 12 structures eventually?

12 A. Eventually, yes, depending upon the rate of

13 discharge through the S-11 structures, it goes into

14 the marsh and goes through the canal system down

15 L-68A and down L-67A borrow.

16 Q. And we can send it -- at S-8, can we send

17 it out into the marsh or does it have to come down

18 the canal?

19 A. Discharges through S-8, under most

20 hydrologic conditions, go into to the canal system

21 and flow south along the Miami Canal.

22 Q. All right. And 150, we can send it into

23 the marsh, can we not?

24 A. No. Depending upon -- under some

25 hydrologic conditions, yes, but basically the

311

1 discharge side of the S-150 structure is the L-38

2 west canal, so discharges through the S-150 culverts,

3 go from the L-18 borrow into the L-38 west borrow

4 canal on the west side of US-27; through that

5 portion.

6 Q. And where does that lead them; to the S-11

7 structure?

8 A. Yes. The L-38 west borrow canal extends

9 from the S-150 culverts down, passes west of the S-11

10 structures and joins with L-68A without structural

11 control.

12 Q. So the primary source of water down to the

13 12 structures releases from the 11 structures, am I

14 correct, and sheet flow?

15 A. It depends on the conditions.

16 Q. Okay.

17 A. It depends upon rainfall conditions as to

18 the relative magnitude of inflows from S-150, S-8 and

19 the S-11 structures. It depends upon stage

20 conditions; where Conservation Area 2A is with regard

21 to its regulation schedule.

22 Okay. I believe those are the major

23 determining factors.

24 Q. I understand that. My question remains

25 through the S-11 structures -- if you're going to

312

1 send water down to the 12 structures, that is the

2 prime, principal vehicle for doing it, the S-11

3 structures; correct?

4 MS. PONZOLI: Object to form; asked and

5 answered.

6 MS. BIRCH: Object. Asked and answered.

7 BY MR. EARL:

8 Q. Okay. Is that true?

9 A. Depends on where the water coming from.

10 Q. Well, let's go back and tell me where it is

11 coming from then. You told me there was S-8, S-150

12 culverts and the S-11 structures were the primary;

13 correct?

14 A. That is correct.

15 Q. Where else can it come from to get down to

16 S-12?

17 A. Well, to get to the S-12 structure water

18 can come from Conservation Area 2A, Conservation Area

19 1, or Lake Okeechobee under dry conditions.

20 Q. Via what vehicle?

21 MS. PONZOLI: Object to form.

22 BY MR. EARL:

23 Q. How does it get from 2 is my question. How

24 does it get -- if you want to have a release from 2,

25 by what vehicle?

313

1 A. It goes through the S-11 structures into

2 Conservation Area 3.

3 Q. Okay. But let's not talk about that one.

4 We have already identified that. I am saying other

5 than the S-11 structures. You have told me under

6 most conditions, S-8 goes into the canal.

7 A. Yes.

8 MS. BIRCH: Object, argumentative.

9 Mr. Rhoads is trying to answer your question,

10 Mr. Earl.

11 BY MR. EARL:

12 Q. And S-150 culverts. Do we get water from

13 those that goes down to S-12?

14 A. Water can flow through the S-150 culverts

15 into the L-38 west canal and can go down to the S-12

16 culverts, yes.

17 Q. We talked about that. Any other routings?

18 Can it go down -- describe any other routings to get

19 it down to the S-12 structure.

20 A. Depending upon conditions, water can be

21 pumped at the S-8 structure, it can flow through the

22 Miami Canal, depending upon the status of S-339W,

23 whether it is open or closed, it can flow south

24 through the structure, or it can be disbursed into a

25 marsh at that location. 339 and 340 are normally

314

1 operated in tandem. They are normally operated

2 together. Assuming that both structures are open,

3 water would flow down the Miami Canal, then depending

4 on where it was going, it could either flow through

5 S-151, if it were opened; if it were closed, it could

6 flow along L-67A.

7 Q. Excuse me. Through S-151 into the marsh?

8 A. No, S-151 is a structure that is in the

9 L-67A levee to the east of the borrow canal.

10 Q. I see.

11 A. So there is a borrow canal running adjacent

12 to the L-67A levee.

13 Q. Right.

14 A. The structure is in the levee. So when the

15 structures open, water can continue to flow in the

16 Miami Canal from northwest to southeast. Basically

17 into conservation area 3B through structure 151.

18 Q. Goes into 3B. Okay.

19 A. 3B. And then can go farther, depending on

20 its direction.

21 Q. Okay. Any other routings?

22 A. To get water from where to where?

23 Q. We are talking about the 12 structures,

24 Mr. Rhoads. Trying to get it down to the 12

25 structures. I am trying to understand. I apologize

315

1 for my lack of understanding.

2 A. That's okay. We have talked about the S-11

3 structures and delivering water from Conservation

4 Area 2, we have talked about the S-150 structure and

5 the S-8 structure as routes from Lake Okeechobee to

6 the Conservation Area 3A, depending on where you want

7 to bring the water from, what the source of the water

8 is.

9 Q. And have we -- you were describing the

10 Miami Canal and the S-151 structure and the levee;

11 correct?

12 A. Correct.

13 Q. Okay. And you could send it down there

14 into 3B?

15 A. Correct.

16 Q. How do we get it into -- where does it come

17 from into the L-67 canal to get down to -- what is

18 that; 333 structure?

19 A. Yeah. The general flow patterns in the

20 L-67A borrow canal, which is west of the L-67A

21 levee -- water in the L-67A southwest of the Miami

22 Canal, southwest of S-151 basically -- water could

23 get there from several sources. It could come down

24 the Miami Canal, take a right-hand turn, and go down

25 the L-67A borrow canal.

316

1 Q. Through 151 also?

2 A. No. No. 151 is in the L-67A levee. The

3 L-67A borrow canal is on the northwest side of the

4 levee.

5 Q. There is no structure there?

6 A. There is no structure there.

7 Q. So you just shoot it down the Miami Canal

8 and it goes by gravity to the L-67A borrow canal?

9 There is no structure?

10 A. There is no structure at the junction

11 between the Miami Canal and the L-67 borrow canal.

12 That is an open channel connection.

13 Water can also come from the S-9 pump

14 station. Water can come also down the L-68A borrow

15 canal coming into that uncontrolled junction there

16 between the Miami Canal and the L-67A borrow canal.

17 Q. Okay. So there are several options the

18 District has if they want to -- they can turn on S-9

19 and send it down L-67; correct?

20 A. I don't view the operation of S-9 as an

21 option for moving water. The criteria for operating

22 S-9 are basically flowed control criteria for the

23 basin to the east of it.

24 Q. Is there another structure that the

25 option -- if I say I want to send water down, you

317

1 said from S-9, but from that area, is there a

2 structure that routes it down to the L-67 canal?

3 A. There are essentially open channel

4 connections just to the west of the S-9 structure.

5 Those canals are essentially uncontrolled canals.

6 From there, right on down to the S-12 complex.

7 Q. To feed those canals what structure is

8 there; an open and close structure?

9 A. You are referring to the L-68A complex

10 there, say, just to the west of the S-9 structure?

11 Q. Yes, sir. Is there a structure to the

12 north of that that you can open and close to send

13 water down?

14 A. There are a series of structures. If you

15 wanted to put water in there, you could do it from

16 the S-11 structures by opening the S-11 structures,

17 bringing water down the L-68A borrow. If you wanted

18 to bring water from Lake Okeechobee, you could open

19 the Hurricane gate up at S-2. You could bring water

20 down the North New River canal, you could pass it

21 through the S-150 culverts into the L-38 west borrow

22 canal, down, join the L-68 borrow canal, and you

23 could get lake water there.

24 Q. Okay. I understand those to the north.

25 Okay. I will pursue this with someone in operations

318

1 and I won't burden you anymore with this. I thank

2 you for your help on that.

3 The District's operational decisions in

4 routing water, Mr. Rhoads, will result in differences

5 in total volume of water delivered at a particular

6 structure; is that correct?

7 A. Could you repeat that question, please?

8 (Thereupon, a portion of the record

9 was read by the reporter.)

10 THE WITNESS: That is basically correct.

11 However, in many cases, the District has little

12 or no operational flexibility. For instance, on

13 the major pump stations that the District

14 operates, those are not optional decisions. The

15 decision to pump or not to pump is a flood

16 control decision based upon conditions in the

17 upstream watershed pump.

18 BY MR. EARL:

19 Q. But apart from that, apart from those

20 specific restrictions you have told me, it is

21 generally correct? You just told me generally

22 correct?

23 A. Yeah. Where the water goes determines

24 where the impacts of whatever constituents will be.

25 Q. And the District operational decisions, if

319

1 they change total volumes of water delivered at a

2 particular structure, will also change the loading of

3 particular water quality constituents at that

4 structure, would they not?

5 A. Theoretically, that is correct, yes.

6 Q. You consider hydrology to be a hard

7 quantitative science, Mr. Rhoads?

8 MS. PONZOLI: Object to form. I don't

9 think we know what you mean.

10 THE WITNESS: It is one of the more

11 quantitative of the sciences, yes.

12 BY MR. EARL:

13 Q. And there is a range of errors associated

14 with hydrologic numbers, isn't there?

15 A. Certainly.

16 Q. What is your understanding of the results

17 of the IAP; the approximate number of acre feet going

18 south that pre-IAP did not go south?

19 A. My recollection of that figure is fuzzy,

20 Counselor. I had that on one occasion.

21 Q. 205,000 acre feet?

22 A. 200,000 acre feet sounds appropriate, yes.

23 Q. Do you remember the presettlement SWIM plan

24 had a target, or a goal, of .03 milligrams per

25 lighter phosphorus?

320

1 A. Yes.

2 Q. How was that derived and what was the

3 purpose of it?

4 A. The point -- the 30 parts per billion

5 number, if I may, was, in my recollection, a

6 judgmental number. It was a number that Walt Dineen

7 in his best professional judgment felt was an

8 appropriate threshold number for phosphorus in the

9 Everglades, and was basically concurred by other

10 District biologists who were experienced in the

11 Everglades.

12 Q. Such as?

13 A. Steve Davis, Dave Swift, to my

14 recollection, were generally comfortable with that

15 number.

16 Q. And how is that going to be utilized, that

17 goal or target?

18 A. The long range goal of the Everglades SWIM

19 Plan is to alleviate the water quality problems

20 within Water Conservation Areas. Research over the

21 next four to five years may very well indicate that

22 the most appropriate threshold number to be using is

23 in that vicinity or perhaps lower. We'll need to

24 await the research to determine whether that number

25 is an appropriate one or whether the most appropriate

321

1 number is higher or lower than that.

2 Q. At the time, did you concur that that was

3 an appropriate number?

4 A. Yes, I did.

5 Q. Why was it called a target or a goal

6 instead of a standard or a phosphorous limit?

7 A. In my recollection, the logic was that a

8 specific standard would need rigorous justification

9 in terms of the science behind it. In other words,

10 there was a high requirement for formal standard

11 setting and that the 30 parts per billion number was

12 basically a professional judgment number that, while

13 it was the most appropriate number available, it

14 represented the consensus of scientific opinion here

15 at this agency. At that point in time it did not

16 have the underpinning that one would normally expect

17 to be established as a standard.

18 Q. Do you still believe the 30 parts per

19 billion is an appropriate target or goal?

20 A. It is in the appropriate range. It is in

21 the appropriate range is about the best I could say

22 at this point in time, Counselor.

23 Q. What do you think the appropriate range is?

24 A. I personally feel that that range is

25 somewhere between about seven parts per billion

322

1 upwards to approaching 50 parts per billion.

2 Somewhere in that range. And it may vary depending

3 upon various variables within the Everglades area.

4 Q. Which variables?

5 A. Habitat type, substrate type, vegetation

6 type.

7 Q. Any other variables? Habitat, substrate,

8 vegetation?

9 A. I would think those would be the primary

10 ones.

11 Q. Is this 30 parts per billion, this target,

12 is that synonymous with a threshold, vegetative

13 threshold, when you start to get into analysis? Was

14 that the purpose of that?

15 MS. PONZOLI: Objects to form.

16 MS. BIRCH: Object to the form.

17 THE WITNESS: The purpose of the 30 parts

18 per billion was to serve as a goal or a target

19 towards which to direct our remediation efforts.

20 BY MR. EARL:

21 Q. What did the biologists think the

22 significance was? You said there was a concurrence

23 that 30 parts per billion was an appropriate number.

24 A. My recollection was that if you could get

25 the inflow concentrations to 30 parts per billion or

323

1 less, then the consensus of the biologists was that

2 you wouldn't have much in the way of impacts.

3 Q. Impacts meaning what; vegetative changes?

4 A. Vegetative changes, microflora changes,

5 algor changes, periphyton, any of the vegetative

6 community impacts.

7 Q. What is your understanding of the natural

8 phosphorus levels on nonimpacted marshes in the

9 Everglades?

10 A. In unimpacted marshes, phosphorous levels

11 are generally very low; near detection, far below

12 detection in many cases.

13 Q. What would that be in parts per billion?

14 A. Generally less than 10 to 15 parts per

15 billion.

16 Q. Did you at any time believe that the 30

17 parts per billion target was appropriate to protect

18 Everglades National Park?

19 A. Yes, I believe so. Yes.

20 Q. Do you still think that is appropriate to

21 protect the park?

22 A. I believe that the appropriate number is in

23 the range that I described earlier, and that research

24 is necessary to determine what that appropriate

25 threshold is.

324

1 Q. And that is the ongoing research that you

2 talked about yesterday that TOC is --

3 A. Yes, it is.

4 Q. I'm sorry. The day before. Monday, I

5 guess it was.

6 A. Monday. Yeah.

7 Q. So right now you just don't know? It is

8 within the range, but you don't know specifically?

9 A. It is within that range, but I do not know.

10 Q. Okay. Now, you understand there is a 50

11 part per billion -- what is called a phosphorus limit

12 on inflows into the Water Conservation Areas;

13 correct?

14 A. I'm sorry, I missed the early part of the

15 question.

16 MR. EARL: Could you read back the

17 question?

18 (Thereupon, a portion of the record

19 was read by the reporter.)

20 THE WITNESS: Yes, I am familiar with the

21 50 parts per billion number.

22 BY MR. EARL:

23 Q. To your knowledge, where did that number

24 come from?

25 A. In very general terms, it is a technology

325

1 based number. It is a number that, in the opinion of

2 staff, can be obtained with available technology.

3 Q. What technology?

4 A. The range of techniques that are discussed

5 in the Everglades SWIM Plan. Best management

6 practices and stormwater treatment areas. A

7 combination of those technologies can produce inflow

8 concentrations of approximately 50 parts per billion.

9 Q. Okay. You say available technology. Where

10 has that been shown or established, to your

11 knowledge?

12 A. The information supporting that is

13 presented in the Everglades SWIM Plan.

14 Q. I understand that, sir. I'm asking you

15 your knowledge of it.

16 A. I don't understand the question.

17 Q. Okay. You say it is available technology.

18 Where has that been demonstrated in Florida?

19 A. Where has that -- "that" means the 50 parts

20 per billion?

21 Q. Yes. You told me it is a technology based

22 number that can be reached with available technology

23 in staff's opinion.

24 A. Yes.

25 Q. Okay. I'm asking you what available

326

1 technology you base that opinion on.

2 MS. PONZOLI: Asked and answered,

3 Counselor. He told you it appears in the SWIM

4 plan. Your question keeps shifting. It shifted

5 from generally, to Florida, and then back again.

6 MR. EARL: He said it is available

7 technology.

8 BY MR. EARL:

9 Q. Where are these numbers being achieved in

10 Florida?

11 A. They are being achieved in Conservation

12 Area 2A.

13 Q. Okay. There is one. Where else, sir?

14 A. I think that is the best example supporting

15 that.

16 Q. Do you know any others?

17 A. The Orange County Wetlands Project, up in

18 the Orlando area, the waste water -- that treats the

19 waste water from the eastern portion of the Orlando

20 metropolitan area.

21 Q. We are talking about Iron Bridge?

22 A. Iron Bridge, yes. Outflow from that

23 project has achieved those standards in the past.

24 Q. Has achieved what; the 50 parts per

25 billion?

327

1 A. Has achieved 50 parts per billion. Yes, it

2 has.

3 Q. Okay. Any other examples of this in

4 Florida?

5 A. There may be. I would consult the Kadlec

6 Newman report to determine other examples.

7 Q. Okay. I'll do that, but I'm asking you if

8 you are aware of any right now.

9 A. No. No, I'm not specifically aware of

10 anything.

11 Q. You say WCA 2A is achieving this now, sir.

12 You mean the northern portions of WCA 2A that are

13 receiving this in the pump stations?

14 A. Yes and no.

15 Q. Okay.

16 A. I mean as water flows across the northern

17 portion of Conservation Area 2A, the phosphorus

18 concentration decreases, and by the time you have

19 reached basically the middle of Conservation Area 2A,

20 you are substantially reduced. You're below at or

21 below the 50 part per billion level of phosphorus.

22 Q. We talked about the ENR project the other

23 day; correct, sir?

24 A. Yes, we did.

25 Q. Is the ENR a Vanguard project for the STAs?

328

1 A. It can be viewed in that manner.

2 MS. PONZOLI: Object to form.

3 MR. EARL: Grounds?

4 MS. PONZOLI: I don't know what you mean by

5 Vanguard, so --

6 BY MR. EARL:

7 Q. You, in fact, Mr. Rhoads, have described it

8 as the Vanguard project for the STAs, haven't you,

9 sir?

10 A. I believe I have used that term.

11 Q. Have you also described it as the prototype

12 project for the Everglades?

13 A. Yes, I believe so.

14 Q. Have you also stated that ENR is where the

15 District is going to gain its experience in the key

16 issues involved?

17 A. Usually I have said key operational issues,

18 yes.

19 Q. Okay. How long will it be, as we sit here

20 today, before sufficient data are available from the

21 ENR project enabling you to draw some conclusions

22 from that project?

23 MS. BIRCH: Objection. The question calls

24 for speculation and conclusions.

25 MS. PONZOLI: I think it is also vague, as

329

1 to sufficient data.

2 THE WITNESS: In response to that question

3 from Jim Nall in the past, I have normally

4 responded that it would take a minimum of two

5 years following completion of construction of

6 the project before there was a chance of being

7 comfortable with the results. The project

8 construction is scheduled for -- completion is

9 scheduled for July of 1993, which is ten months

10 from now, which would be roughly two years and

11 ten months at the earliest.

12 BY MR. EARL:

13 Q. It is still your judgment that it would

14 take two years after construction?

15 A. Based upon discussion with appropriate

16 staff, that appears to be a reasonable position.

17 Q. So two years and ten months; September,

18 October, '93, '94 --

19 MS. BIRCH: Showing a pause in Mr. Earl

20 asking you the question. I'm not sure he's

21 finished yet.

22 BY MR. EARL:

23 Q. August of '95? Would that be in the

24 ballpark?

25 A. In the ballpark, yes.

330

1 Q. To close the circle, in August of 1995 you

2 would anticipate having enough data to allow you to

3 draw conclusions on the ENR project; correct, sir?

4 A. More precisely, Counselor, that would be

5 the earliest date at which we would expect to have

6 potentially sufficient data to draw solid

7 conclusions.

8 Q. Conclusions about what, sir?

9 A. Regarding the ability of an artificial

10 marsh created to farm lands to perform in the manner

11 that we expect.

12 Q. That is the general. What variables will

13 you be looking at there in that conclusion; hope to?

14 A. The ENR project is utilizing the test cells

15 which are currently under construction, will look at

16 a range of operational parameters, such as flow rate,

17 water level, detention time, vegetation type, et

18 cetera. Those sort of variables will be examined as

19 part of the ENR project, with the primary objective

20 of establishing an optimal operational mode for such

21 a system.

22 Q. Okay, sir. To your knowledge, has the

23 South Florida Water Management District ever

24 constructed a stormwater treatment system for

25 nutrients?

331

1 A. Would you help me in how you define your

2 terms there?

3 Q. Sure. I am talking about a system like the

4 ENR or the STAs.

5 A. No, we have not constructed a system

6 similar to ENR previously.

7 Q. To your knowledge, has the South Florida

8 Water Management District ever operated a system

9 similar to the ENR or the STAs?

10 A. No, we have not.

11 Q. Is it a true statement of fact, Mr. Rhoads,

12 that no one has ever done a project like the Nutrient

13 Removal Project before on this type of soil?

14 MS. BIRCH: Are you asking him to the best

15 of his knowledge, Mr. Earl?

16 BY MR. EARL:

17 Q. Sure.

18 A. To the best of my knowledge, no. Not in

19 this climatological locale; this saw type, no.

20 Q. And is it still correct, to your judgment,

21 that the District is not sure of the length of time

22 it takes for the processes involved, including

23 vegetation, development and other processes in ENR to

24 develop?

25 MS. PONZOLI: Object to form.

332

1 THE WITNESS: There is still large

2 uncertainty associated with those processes,

3 yes.

4 BY MR. EARL:

5 Q. Have decisions been made on what type of

6 vegetation to put into the ENR?

7 A. I believe so, yes.

8 Q. Cattails were initially discussed, weren't

9 they?

10 A. Yes.

11 Q. Were they excluded?

12 A. No.

13 Q. Are they going to be included?

14 A. Natural regrowth, which in all likelihood

15 will be cattails, is going to be the predominant

16 vegetative mode for considerable portion of the ENR

17 project.

18 Q. I'm sorry. Natural --

19 A. Natural regrowth.

20 Q. Regrowth. Okay.

21 A. In other words, not planting, but letting

22 it come up where it will.

23 Q. Not going to plant bullrushes?

24 A. Yes, we will plant in portions of the area

25 bullrushes.

333

1 Q. What else?

2 A. A whole series of wetlands vegetation is

3 going to be tried in various locations within the

4 area in test cells and in the polishing cells,

5 different types.

6 Q. Am I correct in understanding the size of

7 the ENR is 3700 acres?

8 A. That is approximately correct, yes.

9 Q. And under the current planning, how much

10 phosphorus is scheduled to be removed from that

11 project? What is the annual load?

12 A. I don't remember what the current estimates

13 are. There have been a range of estimates over the

14 past several years from approximately 15 to up about

15 25 tons, and I would have to go back and check to

16 determine what the current best number was.

17 Q. The estimate is that that 3700 acres will

18 remove anywhere from 15 to 27 tons of phosphorus per

19 year?

20 A. On an average annual basis.

21 Q. Mr. Rhoads, do you still believe the

22 Melaleuca poses a significant threat to the

23 Everglades?

24 A. I do, yes.

25 Q. Do you still believe that Melaleuca poses a

334

1 significant threat to the conservation areas today?

2 A. Yes.

3 Q. Are cattails an exotic species?

4 A. No. Cattails are a native species.

5 Q. Native to the Everglades?

6 A. Native to the Everglades, yes.

7 Q. Mr. Rhoads, do you remember back -- you

8 worked on the Lake Okeechobee SWIM plan, too, did you

9 not?

10 A. Yes, I did.

11 Q. Do you remember the questions that arose at

12 that time regarding the Corps of Engineers'

13 application of 400 pounds a year of fertilizers on

14 the levees?

15 A. I recollect that being a question, yes.

16 Q. Is that still going on?

17 A. My understanding was that the Corps of

18 Engineers changed their formulation to a much lower

19 loading rate for fertilizer, and I believe they also

20 shifted to a slow release form of the fertilizer in

21 addition to reducing the formulation. That is my

22 general recollection of the answer.

23 Q. Do they maintain the levees round the lake;

24 correct?

25 A. Around Lake Okeechobee, yes.

335

1 Q. The District maintains the levees

2 elsewhere?

3 A. That is correct.

4 Q. Does the District apply fertilizers?

5 A. Not to my knowledge, no.

6 Q. Do you know what the annual loading the

7 Corps is currently using on its levees?

8 A. I'm sorry, I do not.

9 MS. PONZOLI: Mr. Earl, may we take five

10 minutes?

11 MR. EARL: Sure.

12 (Thereupon, a recess was taken.)

13 BY MR. EARL:

14 Q. Are you ready, Mr. Rhoads?

15 A. Yes, sir.

16 Q. You talked about Iron Bridge; the site of

17 that. Tell me what that project is. You have been

18 up there, haven't you?

19 A. Yes, I have been up there several times. I

20 believe it is approximately 1300 acres, and that is a

21 former pasture that's been created into a wetland for

22 the purpose of removing nutrients from treated waste

23 water effluents from the Iron Bridge Treatment Plant.

24 It is a multi-compartment vegetative system. Those

25 are the essential characteristics.

336

1 Q. Vegetated with what; bullrush?

2 A. Various types of vegetation. Cattail,

3 bullrush, assorted other aquatic vegetation.

4 Q. Number of acres?

5 A. 1300, if I remember correctly.

6 Q. Okay. Inflow concentrations?

7 Approximately.

8 A. Yeah. For some reason, I am drawing a

9 blank on that. I think in the -- no. I don't

10 remember. I remember outflow concentrations, but I

11 don't remember the inflow concentrations.

12 Q. 100 parts per billion, 200 parts per

13 billion coming in?

14 A. I seem to remember it was higher than that.

15 I seem to remember inflow concentrations upwards of

16 point 4, point 5 parts per billion phosphorus.

17 Q. Point 4 to point 5?

18 A. That is my recollection.

19 Q. Parts per million?

20 A. Parts per million, which is what, 400, 500

21 PPB, but that -- I am digging for that number for

22 you, Counselor.

23 Q. And what is the annual loading?

24 A. I'm sorry, I don't remember. Haven't

25 consulted those figures recently.

337

1 Q. Again, I am just trying -- is it 200 tons a

2 year or is it 50 tons or -- I am just trying to --

3 A. Yeah. I don't remember. I'm sorry.

4 Q. Okay. How long has it been in operation?

5 A. Three or four years, I believe.

6 Q. Are the soils comparable to those in the

7 ENR?

8 A. Basically not, no.

9 Q. What kind of soil is it?

10 A. It is a sandy soil, predominantly sandy

11 soil.

12 Q. Any other variables that are different than

13 you anticipate in the ENR?

14 A. Yes. The constancy of the waste water

15 inflow from a volumetric viewpoint.

16 Q. Is constant?

17 A. Basically constant. Certainly much less

18 fluctuation than you would encounter in an

19 agricultural runoff setting. Volume, variability,

20 inflow concentration is different.

21 Now, the more I think about it, I think the

22 inflow concentrations may not be too much different.

23 But again, I am stretching. I am stretching,

24 Counsel.

25 Q. Okay. Now, you say the volume flows are

338

1 fairly regular. Inflows?

2 A. Typically waste water.

3 Q. So this doesn't treat stormwater, just

4 strictly waste water?

5 A. Treats treated waste water.

6 Q. Is there any particular reason this project

7 was selected over other waste water to wetland

8 treatment systems?

9 A. The Iron Bridge project?

10 Q. Yes.

11 A. It is the closest geographically that I am

12 aware of.

13 Q. You mean just because it is in Orlando?

14 A. It is in Orlando. The climatological

15 variables, the temperature variables are less.

16 Q. The climate is different, however, isn't

17 it?

18 A. It is different, yes.

19 Q. And, therefore, temperature variances?

20 A. There are some differences.

21 Q. Now, I have limited you to Florida when you

22 were talking about available technology. Is it based

23 on projects outside of Florida?

24 A. Is what based on?

25 Q. I'm sorry. When we started this line of

339

1 discussion, we were discussing the 50 parts per

2 billion. You told me the staff had assumed that that

3 was available technology, and I asked you to describe

4 in Florida where that technology was available, and

5 you said the Water Conservation Area 2 and Iron

6 Bridge. Let me just finish off Florida. Are there

7 any other projects or sites in Florida where this

8 technology is available?

9 A. I believe there are some. I can't cite you

10 any specific examples.

11 Q. Who would know that?

12 A. I defer to Dr. Sue Newman on our research

13 department staff on that issue.

14 Q. Is the soil in Water Conservation Area 2

15 immediately south of those S-10 structures, is it

16 different than the soil at the proposed ENR site, to

17 your knowledge?

18 A. Not basically different. There may be some

19 fine differences in detail, but I believe they are

20 basically the same soils. They are organic soils.

21 Q. It was my understanding that the contour in

22 the southern boundary of the EAA was determined by

23 the Soil Conservation Service Survey and soil types,

24 and that the southern boundary was a demarcation line

25 in soil types. Is that not your understanding?

340

1 A. That is my understanding also.

2 Q. Am I correct in understanding that

3 immediately south of the S-10 structures there is a

4 Loxahatchee peat soil there?

5 A. I believe that is correct, yes.

6 Q. Does the ENR project site have Loxahatchee

7 peat soil?

8 A. I believe it does, but I'm not sure. I

9 don't remember the specific peat classifications.

10 Q. Again, who would know that? Dr. Newman?

11 A. Dr. Newman, I believe, would be the

12 appropriate one.

13 Q. I gather soil types are significant.

14 A. Yes.

15 Q. Are you aware of any sites outside of

16 Florida where this technology has been demonstrated

17 and utilized?

18 A. I know that sites exist, but I'm not

19 personally familiar with them.

20 Q. Okay. Who would I ask for that, sir?

21 A. Again, I would suggest Dr. Newman would be

22 the source I would turn to for that information.

23 Q. What is the difference between an STA and a

24 WMA, if you know?

25 A. I don't believe there is any difference.

341

1 There is just a difference in name.

2 Q. Why was the decision made to change the

3 name of what had been called the Water Management

4 Areas into STAs?

5 A. The basic rationale that I remember was

6 that the term water management area was too broad.

7 It encompassed potential recreational opportunities

8 and environmental restoration objectives, which were

9 not a key component of the treatment objective of the

10 areas, so the term stormwater treatment area was

11 considered to be a more appropriate title for the

12 artificial marshes.

13 Q. Who made the decision to change the name of

14 those things?

15 A. I don't know who made that specific

16 decision.

17 Q. Do the -- strike that.

18 What is a bypass in terms of STAs?

19 A. The term bypass has been applied in several

20 different manners during the conceptual design of the

21 stormwater treatment areas. It's been applied in a

22 high flow mode to cover the situation where the

23 inflow capacity of a stormwater treatment area were

24 exceeded. Then I could, in theory, bypass a portion

25 of the water so that it didn't go into the stormwater

342

1 treatment area, but went on out into the Everglades

2 system. In other words, a high flow bypass. It's

3 also been used in a low flow context. If water were

4 being moved through the canal system, say for water

5 supply purposes during a drought period, when the

6 Everglades were essentially dry, you could bypass a

7 stormwater treatment area, keeping the water within

8 canal banks, and move it to its destination without

9 it impacting or affecting the adjacent marshes. So

10 the term bypass, in my recollection, has been applied

11 in both those situations.

12 Q. Do the STAs, as configured in the SWIM

13 plan, do they have bypasses for unusual storm events?

14 A. I don't remember specifically how that was

15 handled.

16 Q. What is your understanding of the STAs as

17 presently being evaluated and developed by the

18 District? Do they have bypasses?

19 A. The STAs are currently being re-evaluated

20 by District consultants, and the use of the term

21 inflow bypass is, I believe, a conventional

22 application of the term. I believe the systems had

23 been designed so that a high flow bypass is not

24 necessary. In other words, the inflow capacity to

25 the stormwater treatment areas equate to the current

343

1 removal capacities from the area, so there is no

2 difference there.

3 Q. It is designed to encompass all storm

4 events?

5 A. All storm events that the existing system

6 could handle could be handled by the stormwater

7 treatment areas; the STAs. That is my understanding

8 of the current design concept.

9 Q. So there is no high flow and there is a low

10 flow?

11 A. That is essentially correct. I do hasten

12 to add that there is ongoing engineering on these

13 issues.

14 Q. Now, when is that going to be finalized,

15 the STA engineering, sir?

16 A. That is being carried out as a part of the

17 alternatives evaluation effort that I mentioned on

18 Monday. We expect all of those efforts to be

19 completed in January or February of this coming year.

20 Q. And will that also be a part of the optimal

21 plan? Will that be presented to the board in May?

22 A. Yes. As I indicated earlier, all of the

23 alternatives, we are attempting to analyze them to

24 the maximum extent possible in parallel equally, and

25 that would feed into the optimal plan the board will

344

1 make.

2 Q. I believe you told the Governing Board in

3 September that your understanding was that the SWIM

4 plan would not be -- implementation of the SWIM plan

5 would not be delayed by any appeals after the

6 hearing; is that correct?

7 A. Yes. Our counsel advised that the best

8 current assumption for scheduling purposes was that

9 appeals after February of 1994 would not stay the

10 implementation of the SWIM plan.

11 Q. Help me. Where does the February date come

12 from, February '94?

13 A. That is the staffs best estimate of when

14 the SWIM challenge, permit challenge, series of

15 events should reach conclusion. In other words, the

16 process we are involved in right now, the hearing in

17 April and the subsequent events after the hearing,

18 including the estimated time necessary to merge the

19 permit challenge with the SWIM plan challenge.

20 Q. Tell me what the District's estimate of

21 that is, how that works.

22 A. The whole series of events, we currently --

23 our best estimate is that by February of 1994, we

24 will have a final SWIM plan and a final DER permit.

25 Q. But if you can, take me back to the

345

1 constituents of that. When does the hearing officer

2 issue an order, come back to the Governing Board?

3 What is the current planning on that?

4 A. I do not remember the details between the

5 completion of the hearing sometime in May of 1993 and

6 the February, '94 date. It was included in that

7 handout that I provided at the September Governing

8 Board meeting.

9 Q. Could it -- just to save time, can we talk

10 about that tomorrow? If you could bring the graphic,

11 it would help.

12 MS. BIRCH: That's already been provided,

13 Mr. Earl.

14 MR. EARL: Well, I don't have it with me.

15 I apologize. But if it is readily available, if

16 he can bring it to the deposition, we can save

17 some time and talk about it.

18 MS. BIRCH: Okay.

19 MR. EARL: Thank you.

20 MS. BIRCH: To save time, we'll provide it.

21 BY MR. EARL:

22 Q. Mr. Rhoads, in your understanding in terms

23 of Everglades issues, is a 4.5 milligram per liter

24 value for DO a relatively high value to meet for

25 South Florida conditions?

346

1 MS. PONZOLI: Object to form. I don't

2 think there is anything that indicates

3 Mr. Rhoads particularly has expertise in this

4 area.

5 THE WITNESS: Based on my general

6 experience with dissolved oxygen levels in the

7 Water Conservation Area, that is a moderately

8 high value.

9 BY MR. EARL:

10 Q. Isn't it true, Mr. Rhoads, when you're

11 dealing with shallow water, a lot of biota, heavy

12 respiration at night, such as you have in the

13 Everglades, the DO drops down?

14 A. That is true.

15 MS. PONZOLI: Object to form. Assumes

16 facts that you haven't established.

17 BY MR. EARL:

18 Q. You can answer the question.

19 A. In general, yes. The dissolved oxygen

20 levels in the Everglades tend to show substantial

21 diurnal fluctuations.

22 Q. That means it goes up and down?

23 A. By day.

24 Q. And this dropping DO below the 4.5 level is

25 fairly common in the Everglades, isn't it, sir?

347

1 A. Yes, it is.

2 Q. Mr. Rhoads, is it true that over the past

3 decade, experimental research to quantify the present

4 qualitative nutrient criteria for the State of

5 Florida has not been conducted?

6 MS. PONZOLI: May I hear the question

7 again, please.

8 (Thereupon, a portion of the record

9 was read by the reporter.)

10 MS. PONZOLI: Object to form.

11 MS. BIRCH: Object to the form and to the

12 broadness of the question and the qualifications

13 of Mr. Rhoads to answer that question.

14 THE WITNESS: I'm not familiar in detail

15 with the studies that have been conducted during

16 that period; however, I am aware that some study

17 has been conducted on that subject.

18 BY MR. EARL:

19 Q. Do you ever recalling making a statement

20 over the past decade, "Experimental research to

21 quantitatively define the present qualitative

22 nutrients criteria in the State of Florida has not

23 been conducted"?

24 A. I don't remember having said that.

25 MS. PONZOLI: Mr. Earl, since you have

348

1 taken transcripts of nearly every time

2 Mr. Rhoads has ever spoken in public and had a

3 court reporter there, I'm sure you have many,

4 many quotes by Mr. Rhoads. Maybe you should

5 share them with him as you are going through

6 your recitations of them back to him. Provide

7 him with a list of all 400 or however many you

8 have.

9 BY MR. EARL:

10 Q. Is it also true that such research

11 specifically for the Everglades has to be done?

12 A. Yes, that is correct. That work's needed.

13 Q. Is it also true that research still needs

14 to be done to determine how much phosphorus is

15 dangerous out there in the Water Conservation Areas?

16 MS. PONZOLI: Object to the form.

17 MS. BIRCH: Object to form.

18 MS. PONZOLI: We realize you must be

19 quoting Mr. Rhoads, but I still I think this is

20 just really ridiculous, Mr. Earl.

21 THE WITNESS: To precisely quantify

22 appropriate thresholds, additional work would be

23 required.

24 BY MR. EARL:

25 Q. And is additional work required to

349

1 determine how much phosphorus is dangerous out there?

2 A. I'm not sure if the term "dangerous" is an

3 appropriate application in this situation.

4 Q. Okay. Is anybody at the District, separate

5 and apart from the work going on under the TOC

6 process, is anybody at the District doing ongoing

7 studies right now to determine this nutrient

8 threshold?

9 A. Not to my knowledge, no.

10 Q. Do you know anybody outside the District,

11 contractors or otherwise, who is doing such research?

12 A. I believe Curtis Richardson is doing some

13 work which may fall within this area, but I'm not

14 familiar in detail with his work.

15 Q. Anyone other than Dr. Richardson?

16 A. Not to my knowledge.

17 Q. Mr. Rhoads, who owns Water Conservation

18 Area 2A? Do you know?

19 A. The majority of the land within the

20 boundaries of Conservation Area 2A is in public

21 ownership. I believe there are isolated parcels of

22 private ownership where the public has a flowage

23 easement on the area, so there are degrees of

24 ownership within Conservation Area 2A.

25 Q. You say public. Is it the District, the

350

1 trustees?

2 A. One of the other trustees of the Internal

3 Improvement Trust Fund, Water Management District,

4 the School Board, the governmental entity in large

5 part. I believe there are still a few privately

6 owned parcels within the area.

7 Q. Are you aware of any Federal project

8 restrictions on using the Water Conservation Areas to

9 remove nutrients?

10 MS. PONZOLI: Object to form, to his

11 ability to speak for that.

12 THE WITNESS: I feel that question is

13 outside my expertise, Counselor.

14 BY MR. EARL:

15 Q. Okay. Are you aware of any? I'm not

16 asking experts, just are you aware of any?

17 A. I'm not aware of any.

18 Q. Who made the decision that Water

19 Conservation Area 2 and 3 couldn't be used to remove

20 nutrients?

21 MS. PONZOLI: Object to the form. It

22 assumes something you haven't established as a

23 fact.

24 MS. BIRCH: I join that objection.

25 THE WITNESS: I don't know who made that

351

1 decision.

2 BY MR. EARL:

3 Q. Well, in light of counsel's questions, has

4 such a decision been made, to your knowledge?

5 A. Our planning direction has been to pursue

6 the solution to the water quality problems outside of

7 the Water Conservation Areas.

8 Q. I understand that, but has a decision --

9 are you aware of any decision by anyone in authority

10 to not use those areas for nutrient removal?

11 A. In the sense that alternatives that utilize

12 those areas for nutrient removal are not under active

13 consideration at the current time, to the degree that

14 constitutes a decision, I would say yes.

15 Q. Well, let me get specific then. Has the

16 governing Cabinet, to your knowledge, made a decision

17 that the Water Conservation Areas can't be used to

18 remove nutrients?

19 A. Not to my knowledge.

20 Q. Has the Governing Board of this District

21 made a decision, to your knowledge, that the Water

22 Conservation Areas cannot be used to remove

23 nutrients?

24 A. Not to my knowledge.

25 Q. Are you aware of anyone else who has made

352

1 such a decision?

2 MS. BIRCH: Asked and answered.

3 BY MR. EARL:

4 Q. Are you?

5 A. I believe I responded to that earlier. No.

6 Q. Okay. Who would know that at the District?

7 Who would I have to ask?

8 A. Again, the question.

9 Q. Who, if anyone, has made a determination

10 that the Water Conservation Areas can't be used to

11 remove nutrients?

12 MS. BIRCH: Asked and answered, Mr. Earl.

13 MR. EARL: He asked me what the question

14 was, Counsel. I am trying to help him. The

15 question he's now answering is who I will ask at

16 the District who would know that? I'm sorry I

17 didn't make that clear.

18 THE WITNESS: I'm not sure who to ask on

19 that, Counselor. It is a part of the Everglades

20 SWIM Plan, as you will note. There are not

21 alternatives that look at nutrient removal

22 within the conservation areas.

23 BY MR. EARL:

24 Q. Is that so stated in the SWIM plan, to your

25 knowledge?

353

1 A. If not explicitly, it is implicit.

2 Q. Did you sit on LOTAC or were you an advisor

3 of LOTAC-II?

4 A. I was essentially the technical staffer to

5 LOTAC-II.

6 Q. Isn't it correct LOTAC-II determined the

7 use of the water conservation for nutrient removal

8 was not a technical question?

9 A. Yes, I believe they did, yeah.

10 Q. You're generally familiar, are you not,

11 Mr. Rhoads, with the rainfall chemistry as it relates

12 to nutrients in the Everglades?

13 A. To some degree, yes.

14 Q. What is your understanding of the range of

15 phosphorus in rainfall in the South Florida area?

16 A. That is a difficult question because the

17 scientists at the District who have looked at that

18 issue most recently have felt that the data base that

19 we have been using for a number of years has

20 substantial deficiencies, and so with that caveat,

21 that the most recent analysis has, you know,

22 indicated indicates that the historic data base that

23 the District has collected has some substantial

24 deficiencies, my general understanding of the range

25 of phosphorus concentrations in rainfall is roughly

354

1 from about 20 parts per billion up to about 100 parts

2 per billion. Generally within that range. The most

3 recent information that I am familiar with, though,

4 has clouded, in my mind, that concentration range.

5 The difference between dry precipitation, wet

6 precipitation, dry fall-out, bulk precipitation, the

7 complexity associated with that issue appear to be

8 substantially greater than I previously thought they

9 were.

10 Q. What scientist is working on this at the

11 District?

12 A. I believe Dr. Grimshaw. Jim Grimshaw has

13 done some work on that.

14 Q. What unit is he in?

15 A. He is in the Research Department, I

16 believe. It may be planning. It is one of the two;

17 planning or research.

18 Q. Anyone else working on that issue?

19 A. Yes, there is someone else, but

20 unfortunately, I don't remember right offhand who

21 that is. There is another person in addition to

22 Dr. Grimshaw.

23 Q. What are the deficiencies they have

24 identified in the historical data base?

25 A. I've not probed into it deeply enough to

355

1 determine the specifics of those.

2 Q. But I mean general areas. What are the

3 concerns?

4 A. Contamination of the samples,

5 appropriateness of the sampling methodology. Those

6 were two that I remember.

7 Q. Any others?

8 A. I seem to remember there were one or two

9 others, but I can't specifically remember what those

10 were.

11 Q. What is the -- you said prior to some of

12 these concerns arising, you thought the range was 20

13 to 100 parts per billion. What was that based on?

14 What sort of a sampling network, where are the

15 stations?

16 A. That is shown in one of the figures in the

17 SWIM plan. There is a figure that shows the location

18 of the sample sites, and shows the concentrations,

19 and shows the number of samples, I believe. It is a

20 full page figure. I believe it is in the thicker

21 volume of the SWIM plan. I don't remember page

22 citation on it.

23 Q. Okay. What is your understanding of what

24 the network is; where is it located, how many

25 stations?

356

1 A. I have only vague recollections of it. I

2 remember at least five stations in that network.

3 There was a station in Clewiston, West Palm Beach,

4 there was one, I believe, down at Everglades National

5 Park, and there were several others intervening.

6 Q. Who operated the network; the District?

7 A. The Water Chemistry Division of the

8 District in cooperation with -- it may have been in

9 cooperation with other people on that one who did

10 some of the operations on it. I don't remember the

11 details.

12 Q. Are any outside contractors working on this

13 right now?

14 A. Not to my knowledge, no.

15 Q. I believe in one of your reports to the

16 Governing Board you told them, "We're beefing up the

17 rainfall network." What is going on in that regard?

18 A. We have an ongoing relatively rigorous

19 experimental project being carried out near Clewiston

20 by the United States Geological Survey force. It is

21 evaluating alternate methodologies, details of site

22 placement, the effect of the actual sampling area

23 with regard to structures in the vicinity, it's

24 examining and developing QA/QC procedures for the

25 sampling. The field work has been completed, I

357

1 believe, and the Geological Survey is in the process

2 of preparing us a report.

3 Q. When do you anticipate that?

4 A. My recollection was quite soon. Either

5 September or October on that report.

6 Q. I did not ask the right question to get

7 this? I asked you about outside contractors when we

8 were talking about rainfall. You neglected to

9 mention this.

10 A. My apologies. The US Geological Survey is

11 technically a cooperating agency because technically

12 they put in some of the money for the work that is

13 done. When we say contractors, my normal concept is

14 a consultant that is hired specifically to do

15 something. Geological Survey is a somewhat unusual

16 category.

17 Q. For simplicity sake, the rest of the

18 deposition if I say contractors, can we include them

19 and other agencies?

20 A. Sure. I'll try to do that.

21 Q. Okay. They have had experimental stations

22 out there, one station?

23 A. They have established a series of stations

24 in the Clewiston area. At least one, two, three, I

25 believe. One out in the marsh, one on the levee, one

358

1 at the base of the levee. There may be more. And

2 they are trying alternate sampling procedures at each

3 of those stations and comparing their effectiveness

4 to determine an optimal methodology for sampling

5 nutrients and rainfall.

6 Q. Optimal methodology, meaning siting of the

7 stations?

8 A. Sampling protocol, quality assurance,

9 quality control procedures. Basically, what is the

10 best method, the most cost effective method, for

11 collecting rainfall nutrient information?

12 Q. Okay. Are they looking at the wet fall,

13 dry fall?

14 A. Yes. They are making that distinction, I

15 believe.

16 Q. What historically what has been the -- what

17 has the District been using? Bulk precipitation?

18 A. I believe so, yes.

19 Q. Do I understand right the wet fall, bulk

20 precipitation encompasses everything collected; wet

21 fall and dry fall?

22 A. That is my general understanding,

23 Counselor, although I do not profess expertise in

24 this area. But I believe bulk precipitation means

25 everything that comes in.

359

1 Q. Wet fall means the constituents in actual

2 rain?

3 A. That are dissolved in the rainfall.

4 Q. The dry fall would be the other atmospheric

5 depositions in the collection device?

6 A. That is correct. I believe that is

7 generally correct, yes.

8 Q. And the combination of those two is, in

9 your understanding, is called bulk precipitation?

10 A. Yes.

11 Q. What has, in the District data base, what

12 has been measured? Is it just total phosphorus?

13 A. You really need to talk to other staff on

14 that one, Counselor. I don't remember the full rage

15 of parameters. I believe other parameters were

16 sampled, but I'm not sure.

17 Q. To save you a second, I am just focusing on

18 phosphorus. What form of phosphorus; total

19 phosphorus?

20 A. I believe so. I believe it focused on

21 total phosphorus, but I'm not sure of that.

22 Q. Anything else going on in the rainfall area

23 in terms of analysis work that we haven't talked

24 about?

25 A. The US Geological Survey study is intended

360

1 as the prototype study for expansion of the District

2 network. When this experimental work is completed

3 and an appropriate protocol established, we intend to

4 use that to expand, to beef up, the District sampling

5 network.

6 Q. Who was responsible for this in the past;

7 the sampling and collection of rainfall at the

8 District?

9 A. Over the years, its generally been the

10 Water Chemistry Division.

11 Q. Who, until this recent change here, who was

12 responsible for that? Who is responsible for that?

13 MS. BIRCH: Object to the form of the

14 question. What recent change are you talking

15 about, Mr. Earl?

16 BY MR. EARL:

17 Q. Well, we are now questioning the collection

18 methodology, and I'm trying to find out who was doing

19 the collection and the work and responsible for it.

20 A. A variety of people over the years.

21 Q. Who most recently?

22 A. Most recently, I suspect Tom Fontaine would

23 be the most recent person. The responsibility

24 generally rested with the Director of Water Quality

25 Division. Since we no longer have a Water Quality

361

1 Division, though, yeah.

2 Q. Okay. Well, I have about four minutes of.

3 Your counsel has suggested it would be appropriate,

4 and I am agreeable, to adjourn at 5:00 o'clock.

5 A. If you are agreeable.

6 Q. I understand you would like that.

7 A. I appreciate that.

8 Q. Okay. Let's adjourn.

9 MS. BIRCH: Do you want to go on or would

10 you like to stop?

11 THE WITNESS: I appreciate the opportunity

12 to stop.

13 MS. BIRCH: Okay. We'll stop.

14 (Thereupon, a recess was taken.)

15

16 (Thereupon, at 5:00 p.m.,

17 the deposition was continued)

18

362

1 C E R T I F I C A T E

2

The State of Florida )

3 County of Palm Beach. )

4

I, Elaine V. Williams, Professional

5 Reporter and Notary Public, State of Florida at

large, do hereby certify that Peter Rhoads was by me

6 first duly sworn to testify the whole truth; that I

was authorized to and did report said deposition in

7 stenotype; and that the foregoing pages, numbered

from 215 to 362, inclusive, are a true and correct

8 transcription of my shorthand notes of said

deposition.

9

I further certify that the said deposition

10 was taken at the time and place hereinabove set forth

and that the taking of said deposition was commenced

11 and completed as hereinabove set out.

12 I further certify that I am not attorney or

counsel of any of the parties, nor am I a relative or

13 employee of any attorney or counsel or party

connected with the action, nor am I financially

14 interested in the action.

15 The foregoing certification of this

transcript does not apply to any reproduction of the

16 same by any means unless under the direct control

and/or direction of the certifying reporter.

17

In witness whereof I have hereunto set my

18 hand and seal this ____ day of_____________ 1992.

19

20

_______________________________

21 Elaine V. Williams, CP, CM

Notary Public, State of Florida

22 at large. My commission expires

March 27, 1993.

363

1 C E R T I F I C A T E

2 - - -

3

4 The State of Florida, )

5 County of Palm Beach. )

6

7

8 I hereby certify that I have read the

9 foregoing deposition by me given, and that the

10 statements contained therein are true and correct to

11 the best of my knowledge and belief.

12

13 Dated this ____ day of______________ 1992.

14

15

16

17

18 _________________________

19 Peter Rhoads

20

364

1 DATE: October 8, 1992

2 TO: Peter Rhoads

South Florida Water Management

3 3301 Gun Club Road

West Palm Beach, Florida 33416

4

RE: Sugar Cane Growers v SFWMD

5

Please take notice that on September 30, 1992 you

6 gave your deposition in the above referred matter.

At that time you did not waive signature. It is now

7 necessary that you sign your deposition.

8 Please come to our office, 319 Clematis

Street, Suite 500, West Palm Beach, Florida, at any

9 time between the hours of 9:00 a.m. and 4:30 p.m.,

Monday through Friday, to sign the deposition.

10 Notice that this address may be different than the

one where you gave your deposition.

11

If you do not appear to sign your

12 deposition within thirty (30) days, the original will

be forwarded to the attorney who requested your

13 appearance for deposition, for filing with the Clerk

of the Court. If you wish to waive your signature,

14 sign your name in the blank at the bottom of this

page and return to us.

15

Very truly yours,

16

MUDRICK, WITT, LEVY & CONSOR

17 REPORTING AGENCY, INC.

18

____________________________

19 Elaine V. Williams

NOTARY PUBLIC

20

21 I do hereby waive my signature:

22

______________________________

23 Peter Rhoads

24 cc:

cc:

25 cc: