1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE )

OF FLORIDA; ROTH FARMS, INC., and )

4 WEDGWORTH FARMS, INC., )

Petitioners, ) DOAH Case No. 92-3038

5 v. )

SOUTH FLORIDA WATER MANAGEMENT )

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

- - - - - - - - - - - - - - - - - - x

8 FLORIDA SUGAR CANE LEAGUE, INC.; )

UNITED STATES SUGAR CORPORATION; )

9 and NEW HOPE SOUTH, INC., )

Petitioners, )

10 v. ) DOAH Case No. 92-3039

SOUTH FLORIDA WATER MANAGEMENT )

11 DISTRICT, an agency of the State )

of Florida; et al., )

12 Respondents. )

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13 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

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

and HUNDLEY FARMS, INC., )

15 Petitioners, )

v. ) DOAH Case No. 92-3040

16 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

17 of Florida; et al., )

Respondents. )

18 - - - - - - - - - - - - - - - - - - x

19 100 S.E. 2nd Street

Miami, Florida 33131

20 Monday, March 21, 1994

11:05 a.m. - 5:50 p.m.

DEPOSITION OF MILES M. SMART

Taken before BRIAN GARY BERKOWITZ, Shorthand

23 Reporter and Notary Public in and for the State of

Florida at Large, pursuant to Notice of Taking

24 Deposition filed in the above cause.

- - - - - - -

1 APPEARANCES

ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE LEAGUE,

3 INC., UNITED STATES SUGAR CORP., AND NEW HOPE SOUTH, INC.

4 EARL BLANK KAVANAUGH & STOTTS, P.A.

One Biscayne Tower - Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 BY: WILLIAM L. HYDE, ESQ.

7 ON BEHALF OF THE RESPONDENT SOUTH FLORIDA

WATER MANAGEMENT DISTRICT

SIMMONS & SOLOMON, P. A.

9 Fountain Plaza

10020 South Federal Highway

10 Port St. Lucie, Florida 34952

BY: DIANNE MISIAK, ESQ.

ON BEHALF OF THE RESPONDENT-INTERVENOR

12 UNITED STATES OF AMERICA

13 KATHY STARK, ESQ.

Assistant United States Attorney

14 99 N. E. 4th Street

Miami, Florida 33132

ALSO PRESENT:

16 HERBERT J. GRIMSHAW

17 INDEX

Witness Direct Cross Redirect Recross

18 MILES M. SMART

By Ms. Misiak 3 182

19 By Ms. Stark 135

By Mr. Hyde 182

SMART EXHIBITS

21 Exhibit 1.........................................42

Exhibit 2.........................................42

22 Exhibit 3.........................................67

Exhibit 4........................................116

23 Exhibit 5........................................127

Exhibit 6........................................128

24 Exhibit 7........................................129

Exhibit 8........................................131

25 - - -

1 Thereupon --

2 MILES M. SMART

3 was called as a witness and, having been first duly

4 sworn, was examined and testified as follows:

5 DIRECT EXAMINATION

6 BY MS. MISIAK:

7 Q. Would you state your name for the record,

8 please?

9 A. My name is Miles Smart.

10 Q. Dr. Smart, have you ever had your deposition

11 taken before?

12 A. Yes, ma'am.

13 Q. So you understand that you need to answer

14 verbally, that the court reporter can't take down nods

15 of the head?

16 A. Yes.

17 Q. If you don't understand a question, just ask

18 me to repeat it or clarify it, whatever is easiest, if

19 you don't understand, and if you need to take a break

20 at any time during this deposition, just let me know

21 and we will break.

22 A. I will.

23 Q. I think the first thing I'd like to do is go

24 over your CV. I understand this is not your most up to

25 date one.

1 If you could, for the record, tell me where

2 you are working presently?

3 A. I am currently the president of Smart &

4 Associates, Incorporated, an environmental consulting

5 firm, with offices in Cary, North Carolina, and a small

6 office in Orlando.

7 Q. When did you start this business?

8 A. February of 1993.

9 Q. What is it that you primarily do there?

10 A. Provide ecological consulting services,

11 primarily to private industry, in the areas of water,

12 water quality, water quantity, threatened and

13 endangered species.

14 Q. Threatened and endangered species, are they

15 just any threatened and endangered species, or are you

16 talking about periphyton, or macrophytons, or any

17 particular kind of species?

18 A. Primarily aquatic. That's a very small part

19 of what I do. My main emphasis is water quality, and

20 water quantity.

21 Q. What kind of jobs do you do? Like for

22 instance, can you give me an example of a client you

23 have for water quality, what you've measured, what

24 types of things you're measuring for water quality?

25 A. Sure. A good example would be looking at the

1 effect of a business' discharge on river -- on a river.

2 We would look at things like -- first of all,

3 we would set up a sampling program for the company, and

4 we would look at things like dissolved oxygen, and

5 temperature, the nutrients, heavy metals, organic

6 compounds, calculate how much they're putting into the

7 river, and calculate upstream and downstream impacts

8 that they -- that that industry would have on the

9 stream, and then work with the industry to figure out

10 how to mitigate problems, work with state agencies in

11 working with that industry to solve problems for

12 people. But that's a typical kind of approach that we

13 would take.

14 Q. When you do a job such as that, to determine

15 the water quality based on the outflow of what a

16 corporation is sending into the water, do you have a

17 control group? How do you -- what do you use as your

18 parameters to control what you find, to know what's

19 going in and what's already in there?

20 A. Most of the time we use a pretty simple

21 procedure called upstream-downstream sampling, if it's

22 in a river, and that is you go upstream of where the

23 discharge, quote-unquote, discharge is, and then you

24 would go ahead and sample downstream of the discharge,

25 and maybe in perhaps several locations, and then you

1 can compare what you find downstream to what you find

2 upstream.

3 Then you would also compare the data with

4 such things as state -- whatever the appropriate state

5 standard is or federal standard or whatever water

6 quality standard we're talking about.

7 Q. When you talk of downstream and upstream,

8 which one is the closer to the discharge from the

9 company? I'm just trying to get my terminology

10 straight.

11 A. If the discharge were located at point zero,

12 and flow is in the positive direction, we would have

13 sample sites at perhaps a negative one, and a negative

14 two, and then we would have downstream sites at perhaps

15 stations one, two, three and four.

16 So, you would have a gradient that you would

17 be sampling across.

18 Q. In this CV that I have, it says that one of

19 your areas of specialization is limnology.

20 A. That is akin to the term, "fresh water

21 ecology." It's the study of how organisms interact

22 with their environment. It's aquatic, of course, not

23 terrestrial.

24 Q. What's the relationship between ecology and

25 ecosystems? Is there a relationship between ecology

1 and ecosystems?

2 A. Well, let's define. Ecology is the study of

3 ecosystems.

4 Q. Okay.

5 A. So, when we look at -- or it can be the study

6 of ecosystems. Let's put it that way.

7 Ecology looks at how organisms and their

8 environment interrelate and what causes one to be there

9 and not the other, and try to understand how critters

10 live in their environment.

11 Ecosystem is the whole abiotic and biotic

12 community that makes up a particular geographical area.

13 Q. Let's start back here and find out, where did

14 you do your undergraduate study?

15 A. I have -- at Jamestown College, in Jamestown,

16 North Dakota. It's a small, private, liberal arts

17 school of about 1200 kids, in North Dakota.

18 Q. What was your major there?

19 A. I have a major in biology. I also have a

20 major in philosophy, and a minor in chemistry.

21 Q. It looks like you graduated in '75 from that

22 school?

23 A. Yes.

24 Q. Then you went to the University of Wisconsin?

25 A. Yes. And there, I pursued a master's degree

1 in biology, with particular emphasis in aquatic

2 biology, and graduated there in 1977.

3 Q. To get your master's degree, did you have to

4 do a thesis?

5 A. Yes.

6 Q. What was the subject of your thesis?

7 A. It was the -- let me see if I can remember

8 the name.

9 Nitrogen -- no, no.

10 Nutrient cycling by Ceratophyllum demersum

11 and Nymphaca tuberosa in Lake Onalaska, Wisconsin.

12 Ceratophyllum is a submergent aquatic

13 macrophyte, and Nymphaca tuberosa is the white water

14 lily.

15 I looked at how stands of those plants took

16 up nutrients from the sediments, incorporated them into

17 the plant tissue by looking at biomass, and then looked

18 at how they released that material into the

19 environment.

20 Q. Were there specific nutrients that these

21 plants were taking up? Did you limit your thesis to

22 specific nutrients?

23 A. Nitrogen and phosphorus.

24 Q. Were these nutrients being taken up from the

25 lake itself? Is that what you -- what was the actual

1 hypothesis?

2 A. The hypothesis was that the -- the nutrient

3 uptake was differential, depending upon the plant type.

4 We have two very different plant types.

5 Ceratophyllum is a submerged aquatic, which means it

6 lives under the water, and it has no true root system.

7 What we have here is an organism that has to

8 take all of its nutrients up from the water column

9 because it has no mechanism of absorbing from roots,

10 like an oak tree would.

11 Nymphaca tuberosa has a tubular and root

12 system, and it takes up nutrients, at least we found in

13 the studies, it takes up nutrients from the sediment,

14 primarily.

15 Q. Would there be a comparison, possibly,

16 between the submerged macrophyte and periphytons, in

17 that periphytons are not attached algae? Is that

18 correct? I mean they're -- what are they? Define a

19 periphyton.

20 A. Attached algal community, plus other critters

21 associated with that mass. It can include bacteria and

22 rotifers, and any number of organisms that make up this

23 assemblage that lives on plant material. In our case

24 we're talking about plant material.

25 Q. You're defining periphytons?

1 A. Right.

2 Q. A periphyton doesn't have a root system, does

3 it?

4 A. No. Algal -- and they're primarily algal

5 cells in this. Algal cells do not have, by definition,

6 roots.

7 Q. They also have to take up their nutrients

8 from the water column?

9 A. Yes, ma'am.

10 Q. Was your thesis ever published? Did you ever

11 publish this thesis?

12 A. Yes, I did, in 1980, in Hydrobiologia. And I

13 believe the name of the -- the article's name is there,

14 and I can't recall exactly what the title is.

15 Q. Then you went on and got your Ph.D. in

16 limnology.

17 A. Yes.

18 Q. It says here, "Land use and water quality

19 relations in the Missouri Ozark Plateau"?

20 A. "Province."

21 Q. "Province." What was that study about?

22 A. Looked at how land use affects water quality

23 in streams, and how that affects algal communities in

24 the streams.

25 Q. So, you were looking at algal communities in

1 this study?

2 A. Yes, ma'am.

3 Q. Just periphyton, or what kind of algal

4 communities?

5 A. We called the algal communities here --

6 periphyton had -- if you have read any of the material

7 about periphyton, it goes by several different names.

8 Aufwachs, which is the German term for it. We commonly

9 call it periphyton.

10 Back when I did my research at the University

11 of Missouri, we called it benthic algae, and so, what I

12 examined was benthic algae, and that was the slippery,

13 slimy stuff on the rocks in streams, and that is

14 periphyton. It happens to be epilithic periphyton,

15 living on rocks.

16 So we looked at that portion, and that's very

17 equivalent to periphyton, and we also looked at

18 suspended algae, which are -- "suspended" means

19 floating in the water column.

20 Q. That would be unattached?

21 A. Yes. They're phytoplankton.

22 Q. What kind of land use were you studying?

23 What kind? Agricultural, business, corporate?

24 A. We studied the basic land uses in the

25 Missouri Ozarks and those are, or were at that time,

1 primarily pasture land, urban land and undeveloped

2 forest land.

3 Q. What was your basic hypothesis in this study?

4 A. The working hypothesis was that land use

5 would affect water chemistry, water -- quote, water

6 quality, and ultimately, affect the algal biomass in

7 the streams.

8 Q. What was your conclusion?

9 A. That land use definitely affected water

10 quality, which definitely affected the accrual of the

11 periphyton in the algal biomass and the streams.

12 Q. Were there changes in the periphyton species

13 or families?

14 A. We did not look at species composition.

15 When you study periphyton or benthic algae or

16 any algal community, there are different ways you can

17 study them. One of them is accrual, growth, which is

18 how they grow, how much.

19 It's kind of like looking at a cornfield.

20 What's the yield? You can look at yield, when you talk

21 about the algal community. You can also look at it in

22 terms of what is the taxonomy of the critters and the

23 species, and those are basically the two ways one

24 examines algal communities, and we chose to look at the

25 chlorophyll A as an indicator of algal biomass for

1 those streams.

2 Q. Chlorophyll A is also what you used in your

3 present study, that you just produced a copy to us

4 today? That was one of your indicators?

5 A. Yes.

6 Q. Is that what you would call it?

7 A. Yes. It's common practice in limnological

8 studies to use chlorophyll A as an indicator of the

9 biomass of the algal community.

10 Chlorophyll A is used because it's a

11 ubiquitous phyto-pigment, it collects energy from the

12 sun, and all algae have chlorophyll A.

13 By looking at chlorophyll A, you can get a

14 handle on the biomass that's being produced in the

15 stream, or wherever.

16 Q. By "biomass," you mean the growth, how

17 much --

18 A. How much, yes.

19 MR. HYDE: I would just like to note, you

20 indicated that it was produced today.

21 I did talk with my paralegals, and they did

22 tell me that they did attempt to hand them over to

23 this office on Saturday, but it was closed.

24 I believe that it was hand-delivered, also,

25 to the United States Attorney's office on

1 Saturday, and I think someone was there, but I

2 don't know who, for a fact, it was.

3 I just wanted to note that.

4 MS. MISIAK: Thank you.

5 BY MS. MISIAK:

6 Q. Did you publish this study, the land use,

7 water quality --

8 A. Yes. Several different -- we excerpted --

9 let me make this clear.

10 I wrote the dissertation in chapters, with

11 anticipation that each chapter would be published as a

12 separate entity, and in fact, we did publish, I think

13 we published all of them, eventually, having to change

14 wording and those sorts of things to get them in the

15 journals, but we did publish, yes.

16 Q. In either one of these, did you ever go back

17 and -- like when you say you published them in

18 chapters, and so, this was in 1980. When was this

19 published?

20 You said in chapters. For instance, five

21 years later, say it was published in 1985, would you

22 have gone back to see if there had been any changes in

23 your hypothesis, or in the data that you had collected

24 in that five year period, if the actual site of your

25 test study had changed?

1 A. We didn't for the studies, for the simple

2 reason that going from 1980 to 1985, by the time you

3 get the material written, into the editors and have

4 them review it and send it out for the peer review

5 process, takes a year to a year-and-a-half, and so, to

6 get them published, 1983 to 1985, is pretty standard.

7 Did we go back and review? No, because we

8 had finished the studies and that we were, you know, we

9 were done with them and it was time to publish the

10 results. Perhaps, you know, sometime later somebody

11 else could come back and review those.

12 Q. Have you, in your career, ever done that,

13 ever done a study and had an hypothesis and a definite

14 conclusion, and then come back, say, ten years later to

15 determine if that conclusion was a true conclusion?

16 Have you ever kind of counter-checked yourself on

17 something like that?

18 A. I have never done that myself. However, it's

19 my understanding that at Missouri, that folks have gone

20 down and sampled -- gone down from Columbia to the

21 Ozarks, and sampled my stations, the stations I set up,

22 again, you know, ten years later, to see what had

23 happened. But I am not familiar with what the results

24 of that were.

25 Q. Then from there it looks like you -- during

1 school, you worked, apparently, as a research

2 associate, department of biology, University of

3 Wisconsin-LaCrosse?

4 A. Yes.

5 Q. Investigated nutrient cycling by aquatic

6 macrophytes. Macrophytes, that was what you were --

7 that was in '77. In '77 you were studying macrophytes

8 for your thesis?

9 A. Yes.

10 Q. Was this basically background, or did it

11 affect your thesis at all, what you were doing here, at

12 this department of biology at the University of

13 Wisconsin?

14 A. Yes. They gave me a research stipend to

15 conduct my research, so the aquatic macrophyte

16 recycling that is indicated there, was exactly my

17 thesis.

18 Q. Then in '77 to '80, you were a consultant for

19 Environmental Science and Engineering.

20 A. Yes. While I was a student at the University

21 of Missouri. I identified organisms for them.

22 Q. That's what you talked about; you talked

23 about taxonomic consultants. It says, "Benthic

24 macroinvertebrates and zooplankton."

25 A. Yes.

1 Q. I take it that's the big name, and then there

2 are families or species underneath those?

3 A. Yes.

4 Q. What are both of those? What's

5 "macroinvertebrate"?

6 A. Those are the bugs that live in the stream

7 bottoms, or lake bottoms. They are such things as

8 leaches, and chironomids. A lot of fly larvae have a

9 stage in their life where they live in the sediments.

10 Horse flies are a good example. They include

11 mayflies and stoneflies. It's the fauna that you would

12 find living in a stream bottom.

13 Q. And zooplankton?

14 A. They are the animal version of the plankton

15 community. You have phytoplankton, which are the

16 plants, and zooplankton, which are the animals.

17 So, they are the microscopic critters that

18 are animals, and those are things like Daphnia,

19 rotifers, copepods. Those microscopic sort of things.

20 Q. You are able to identify them how far down?

21 The species --

22 A. As far as the keys would take me at the time.

23 Some were down to family level. Most of the leaches, I

24 think, only go to family level.

25 Boy, it's been a long time since I did that.

1 Q. Is it phylum, family?

2 A. Kingdom, phylum, order, family, class. I'm

3 sorry, phylum, class, order, family, genus, species.

4 Q. Would that be the same in the plant kingdom?

5 A. No.

6 Q. What would be in plants?

7 A. Instead of phylum in plants, you have

8 divisions, and other than that, they're the same.

9 Q. A periphyton is a plant, right?

10 A. Yes.

11 Q. So, we have division, class, order, family,

12 genus, species?

13 A. Yes. I hope.

14 Q. Then you went to the School of Forestry.

15 A. That's at the University of Missouri.

16 Q. That's at the same time as you were

17 working --

18 A. Yes.

19 Q. That's when you were doing your Ph.D.?

20 A. Yes.

21 Q. The next is 1980 to 1985. It looks like you

22 were a lecturer at the University of Wisconsin, again.

23 A. Right.

24 Q. This co-principal investigator of

25 multidisciplinary research team that conducted

1 chemical, physical and biological studies on aquatic

2 systems, what was all that?

3 A. That is -- when I was on faculty at the

4 University of Wisconsin, I was also a fellow of the

5 River Study Center, which was a multidisciplinary group

6 of scientists that studied primarily the upper

7 Mississippi River.

8 We did a number of different projects. I

9 think some of them are listed there. Things like

10 following barges up and down the river, finding out

11 what effect they had on water quality, as one rather

12 large study.

13 We looked at the movement of water through

14 some lowhead dams that they had on the upper

15 Mississippi River, looked at how substrate was

16 distributed, and where the currents were across the

17 river.

18 Some of the people did fisheries work,

19 although I didn't do fisheries work.

20 We simply were a team of scientists that --

21 and each had different disciplines that we were

22 responsible for, and we wrote grants and got money and

23 did the research on the river.

24 Q. Under the same time period, 1980-1985, you

25 list some of the studies which were included in this.

1 It says, "A nutrient budget for small lake."

2 What is that?

3 A. There was a lake, it's Lake Onalaska, which

4 feeds into the Mississippi River, so we conducted

5 sampling -- let me back up.

6 What's a nutrient budget for a lake? Where

7 you do the inflow to the lake, what's coming in for the

8 nutrients, what's going out in terms of nutrients, and

9 what is in the lake that recycles.

10 So, you look at those three components and

11 try to figure out if the amount coming in is the amount

12 going out, or if the amount coming in is being used by

13 organisms to produce biomass, and then you have some

14 different number that would leave the system.

15 So, we conducted the necessary sampling to

16 determine the nutrient budget for Lake Onalaska.

17 Q. Do you know what nutrients you were studying

18 at that time? Do you recall?

19 A. Nitrogen and phosphorus.

20 Q. What organisms did you look at in the lake?

21 A. We looked at primarily macrophyte beds.

22 In addition to the Ceratophyllum and the

23 Nymphaca, the ones I worked on, back in 1975, we also

24 looked at Saggitaria lattifolia, we looked at Nuphar,

25 which is a floating leaf macrophyte.

1 We looked at the water lotus, and we looked

2 at a number of Potomogeten species, which are

3 submergent macrophytes, and we had different people who

4 were working on those different plants. Primarily they

5 were graduate students who were out doing biomass and

6 nutrient composition of, for example, the Potomogetens.

7 Q. Did you look at any periphytons from this

8 study, or just macrophytes?

9 A. No, just macrophytes.

10 Q. What is a "fellow"? Do you get paid for

11 being a fellow? What is a fellow? You said you were a

12 fellow.

13 A. Okay. That is a person who is associated

14 with the River Study Center, and I was appointed as a

15 scientist, with them, and I was paid by them.

16 It was a term -- I guess it's a person who is

17 paid to do research, and then that's what I was.

18 I was also the principal investigator on all

19 of those different projects, making sure that we did

20 the study of plants correctly, and the analyses were

21 conducted according to how they should have been, and

22 making sure that things got done on time, those sorts

23 of things.

24 Q. Then in 1986, you were a research assistant

25 professor at Duke University.

1 A. Yes.

2 Q. Effects of pollutants at the ecosystem level.

3 A. Right.

4 Q. What is the ecosystem level?

5 A. That's looking at a -- the biotic and abiotic

6 area.

7 For example, in that class, which was a

8 graduate student course, we looked at various

9 ecosystems, one ecosystem, and the students picked what

10 ecosystem they wanted to look at, and then they had to

11 do a presentation in class, as to how an impact

12 stressed that ecosystems, and one of the students, by

13 way of example, chose lead effects on a forest.

14 So, the ecosystem study is, if you put lead

15 into a forest, in the soil, how does it affect,

16 basically, nutrient cycling and energy flow in the

17 system. And by understanding energy flow and nutrient

18 cycling, you basically understand the ecosystem.

19 So, what he looked at was, if you had high

20 concentrations in the soil, how did that affect the

21 trees that were there, and in turn, how did that affect

22 the birds that were there, and so on and so forth.

23 So, he looked at all of the biotic and

24 abiotic components.

25 Q. So, this course wasn't just limited to water

1 communities?

2 A. No.

3 Q. Then you were a senior scientist, Carolina

4 Power & Light Company, '85 to '88.

5 A. Yes.

6 Q. Again, you're studying water chemistry and

7 water quality?

8 A. Yes.

9 Q. In the power plant generation, what they were

10 doing.

11 What kind of microorganisms were you again

12 looking at, to study the water quality, and water

13 chemistry, during this period of time?

14 A. I didn't look at any microorganisms. My

15 responsibility was the water chemistry, and trace

16 element programs, in particular looking at why some of

17 the reservoirs had very little life in them, and I --

18 it was my job to figure out what was going on, and it

19 basically boiled down to study the toxic effects of

20 selenium on organisms.

21 The reason that I didn't look at any of the

22 microorganisms or the benthic macroinvertebrates, or

23 fish communities, is that people were there. They were

24 part of the biology unit. We had a phycologist. We

25 had a fisheries person. We had three benthic

1 macroinvertebrate people, who were specialists in

2 benthic macroinvertebrates.

3 If I wanted to know something about benthic

4 macroinvertebrates, I would say, "We need to go out and

5 take some samples here and let me know what you find."

6 That's exactly what we did.

7 Q. These trace elements, is that selenium? Is

8 that the trace elements you were talking about?

9 A. Yes. Trace elements are just those that are

10 in very small quantities. Primarily, heavy metals are

11 trace elements. Other examples would be cadmium, and

12 nickel, and mercury. Arsenic. All the heavy metals

13 that one commonly associates with aquatic systems.

14 Q. Next you were senior environmental scientist

15 and project manager, Westinghouse Environmental

16 Services, 1988.

17 You did some environmental audits and

18 developed a study to assess impact of a Superfund

19 hazardous waste site on stream biota.

20 What exactly did you do?

21 A. There was a Superfund site in Indiana, and it

22 had a stream going through it, and it was PCB

23 contamination and my part of it was to figure out, one,

24 how to sample the stream to get representative samples

25 of the -- where PCB was in the stream, upstream,

1 downstream, fish tissue, sediment sample. That's what

2 I did.

3 Q. What type of stream biota did you study?

4 Macrophytes? Did you study periphyton?

5 A. No. We looked at benthic macroinvertebrates,

6 fish, sediment, and water.

7 Q. Then, you were vice president and division

8 director, senior scientist, Kilkelly Environmental

9 Assessments, Inc.

10 A. Yes.

11 Q. What did you do there?

12 A. Basically, ran the division for the company,

13 in dealing with large EPA contracts, primarily.

14 Looked -- with the Office of Environmental Effects

15 research, and a couple of the things that we were doing

16 was acid deposition, and my part of that was making

17 sure that the right people were doing the right work.

18 Give us a lot of project management. That's why I

19 didn't stay with it very long. And the other part was

20 looking at biocriteria in streams, and putting on, as a

21 facilitator to a conference in Athens, Georgia, for

22 Region IV states for EPA, putting on and facilitating

23 this conference to look at using biological organisms

24 to evaluate water quality in streams, and the

25 biological indicators were anything from fish to

1 macrophytes, to periphyton, to some of the rotifers,

2 and my job there was to make sure that we had several

3 speakers on each of those areas, and that they were --

4 that we got the information out to the people, and that

5 it went smoothly, and then we had discussion sessions

6 afterwards, and I led one of the discussion sessions on

7 how to implement biocriteria in state regulations.

8 Q. Did you guys come up with a list of organisms

9 that were indicators of water quality?

10 A. No. We weren't focused on specific organisms

11 that would be used for water quality, but rather,

12 groups of organisms. James Carr, who is in Blacksburg,

13 Virginia, VPI, is a big proponent of using fish in

14 something he calls metrics, to analyze the water based

15 on the fish community and based on certain conditions

16 that you see associated with that fish community. For

17 example -- he was one of the people who was there

18 talking with these fellows about using fish in writing

19 the regulations.

20 Q. What is acid deposition?

21 A. That's not a legal term, sorry. That's an

22 acid rain problem.

23 Q. Okay.

24 A. It's dealing with, from smokestacks, where

25 you have emissions from the smokestacks and then when

1 it rains, the acidity from the smokestacks in solid and

2 wet deposition, comes down, hits the ground and hits

3 the water and can cause adverse problems.

4 Q. 1989 to 1991, senior scientist, Eastern

5 Environmental Associates.

6 A. Yes.

7 Q. What did you do there?

8 A. A lot of hazardous waste work, associated

9 with things like tanks and spills of hazardous material

10 and how they impacted biota.

11 That was the primary thing that I did for

12 those years.

13 Q. What was this biota that you were looking at?

14 A. Primarily wetlands, where you would have some

15 material deposited into a wetland, and trying to figure

16 out if it would be positive or negative impact on the

17 wetland.

18 Q. This says, "Traced source of one foot of free

19 product floating on groundwater."

20 What does that mean?

21 A. Gasoline. We had a client who was -- the

22 state thought that his tanks had leaked and that

23 gasoline floating -- it was a foot of groundwater.

24 Sitting there floating on top of the groundwater, free,

25 it was gasoline, and they blamed him for doing that.

1 What we did was, we went back -- I knew of a

2 technique that we could fingerprint gasoline to see

3 whether it was Mobil, or Exxon, and the year,

4 basically, it was put into process based, on the

5 chemistry of the gasoline. So, we fingerprinted it and

6 found out who the violator really was.

7 Q. Then you were with Breedlove Dennis &

8 Associates, Inc., from 1991 until 1993, when you

9 started your company?

10 A. Correct. Right.

11 Q. Here it says that you were an expert witness

12 in the administrative hearing process.

13 A. Yes.

14 Q. What did that have to do with?

15 A. Water chemistry in a stream, here in Florida.

16 Q. Do you recall what stream that was?

17 A. Reedy Creek.

18 Q. What was the problem with it? What were they

19 trying to determine in this water quality?

20 A. Whether or not a transmission line that would

21 span Reedy Creek, would cause negative impact to the

22 stream.

23 Q. The transmission line was going to be in the

24 creek?

25 A. No, over it, and then placement of poles and

1 clearing, and those sorts of things.

2 Q. Who were you an expert for at that -- it

3 says, "expert witness." Who was your client?

4 A. Florida Power.

5 MR. HYDE: Is that Florida Power Corp., or

6 Florida Power & Light?

7 THE WITNESS: Florida Power Corp. Sarasota.

8 No, St. Petersburg.

9 BY MS. MISIAK:

10 Q. Then it says, "Functional attributes of a

11 wetland ecosystem receiving treated waste water

12 effluent."

13 You were to assess the impact of that

14 effluent?

15 A. Yes.

16 Q. It says, "Analyze sediment water and plant

17 chemistry."

18 What plant chemistry do you recall, did you

19 analyze?

20 A. It was in conjunction with the regulations,

21 the Florida statute that says that if you use a wetland

22 for discharge of municipal waste, there's a list of

23 chemicals that you have to analyze in various tissues,

24 and you have to analyze whether there are any

25 threatened and endangered species there, you have to

1 analyze for different chemicals, and I don't remember

2 what all of the chemicals were that we looked at in

3 what specific media, but it's exactly what was in the

4 Florida regulations that we were working from. But I

5 know it included nitrogen and phosphorus, and I believe

6 it included some heavy metals.

7 Q. Did you analyze algae and periphytons in

8 this, or just macroinvertebrates?

9 A. No. Macroinvertebrates.

10 Q. It says changes were assessed with GIS. What

11 is GIS?

12 A. Geographical Information Systems.

13 Q. What is that?

14 A. Using remote sensing to look at things like

15 tree cover and cover of herbaceous vegetation, to get a

16 handle on what's really out there.

17 Q. It says, "Periphyton biomass and species

18 composition relative to water chemistry, light

19 conditions and sediments in Water Conservation Areas in

20 South Florida."

21 Is that the study that you presented --

22 A. That's these.

23 Q. The "Periphyton community dynamics." Okay.

24 Who designed this study, this "Periphyton

25 community dynamics study"?

1 A. There were two of us who designed it, myself

2 and Dr. Jack Jones, Dr. John R. Jones.

3 Q. Was Dr. Jones also working at Breedlove

4 Dennis?

5 A. No. He is a professor of -- at the

6 University of Missouri.

7 Q. Was he one of your professors when you got

8 your Ph.D.?

9 A. Yes.

10 Q. What is his specialty?

11 A. Limnology.

12 Q. Then, some of the other things you did, you

13 obtained numerous permits, water quality sampling

14 design and implementation.

15 Does that mean you designed programs for

16 these people?

17 A. Yes. If, for example, a development needed

18 to have stormwater permitting, or needed to have some

19 kind of -- to show that they weren't degrading water

20 quality, they needed to take samples in a certain way,

21 at a certain time, so they were valid and statistically

22 sound and those sorts of things, I designed -- I

23 figured out where they needed to take the samples, how

24 often they needed to take them, and what they needed to

25 sample.

1 Q. "Consent order with DER for water runoff from

2 industrial operations." It says, "Evaluated situation

3 and successfully negotiated settlement."

4 Who was your client in that particular

5 instance?

6 A. CBS Industries, which is now called -- which

7 was bought and is now Sunshine Materials, Incorporated,

8 in Lake County, primarily is where they're located.

9 Q. What wetland were they encroaching upon?

10 A. One right near Lake Eustis. It was a wetland

11 that they owned.

12 Q. Was the problem with the DER, the water

13 quality was not up to the standards required by the

14 DER?

15 A. One of the concerns was water quality, yes.

16 Q. What were the other concerns?

17 A. They put concrete in a wetland.

18 Q. "Water chemistry in Water Conservation Areas

19 in South Florida was evaluated relative to land uses.

20 Literature was reviewed and samples were obtained and

21 analyzed. Attention was focused on the rates and

22 routes of phosphorus transport in the water column."

23 Was that also part of this, or was that a

24 different study?

25 A. Part of that was this, but it also included

1 some other things that were not associated with this

2 study.

3 Q. Who hired you to do this study?

4 A. I don't remember.

5 Q. Is this something that you published and

6 finished?

7 A. No. I didn't finish it. It was still

8 ongoing at Breedlove.

9 Part of it dealt with the Green Swamp area.

10 Q. Is that part of this litigation?

11 A. No, no. No. Green Swamp is up in Osceola

12 County, but it's part of the -- it's in the South

13 Florida Water Management District area, I believe, and --

14 MR. HYDE: Actually, it's in Southwest.

15 Primarily in Polk and Lake and Osceola Counties.

16 It's actually to the west of the Kissimmee --

17 MS. MISIAK: In Kissimmee --

18 MR. HYDE: It wouldn't be part of the

19 Kissimmee drainage basin. It's nearer to Tampa

20 and Lakeland.

21 A. I was working there, and also on a

22 development just south of Orlando, that is in the South

23 Florida Water Management District jurisdiction, which

24 is Shingle Creek, where we designed studies to look at

25 inflows and movement of phosphorus, and there were, as

1 always, wetlands in a stream channel, and trying to

2 figure out what was going in and what was going out.

3 Q. What type of land uses were you looking at

4 for this study?

5 A. Primarily agricultural. You know, old orange

6 groves, that kind of thing.

7 Q. Were there other people working with you on

8 this project?

9 A. Yes. In fact, that encompasses a series of

10 different projects. The Green Swamp was different from

11 the -- what I did is made a generic statement there,

12 that that's the kind of thing I was working on, and the

13 Green Swamp, I did that one, and that was for CBS

14 Industries. I remember that.

15 The Shingle Creek was called Project ABC.

16 It's a golf course development.

17 We were working for a land planner in

18 Orlando. And, I'm sorry, I cannot think of his name.

19 I just --

20 Q. In any of these studies, did you look at

21 periphyton to determine uptake of phosphorus or

22 anything like that?

23 A. No.

24 Q. Then we have today, where you have Smart &

25 Associates. How many employees do you have?

1 A. One.

2 Q. Just one?

3 A. Yes.

4 Q. So, the whole company is you and one other

5 person?

6 A. No. The whole company is me.

7 Q. You're it. You're the employee and the

8 director and --

9 A. Yes. It's a wonderful way to go.

10 Q. Who are some of your clients?

11 A. Weyerhauser, Golden Poultry, Panther Creek

12 Development, the Club at Mill Creek, Capital City Club

13 in Atlanta, Hudson National, Incorporated, New York.

14 Q. It keeps you busy.

15 What do you do for these people? Do you get

16 permits? Is everything different? What do they hire

17 you for?

18 A. Because I'm good. With most of the

19 developments that are there, the Panther Creek, to

20 do -- to do two primary things. One, put together

21 environmental monitoring programs for them, to make

22 sure that they know their base line condition, and that

23 they are in compliance with all regulations, and if

24 they're not, put together ways to fix it.

25 The other thing we do for those clients is to

1 write integrated pest management plans, so that they

2 don't have problems with herbicides and pesticides

3 coming off of their property and their golf courses.

4 With Weyerhauser and Golden Poultry, I'm

5 working with those in water quality issues. Golden

6 Poultry is an NPDES, national pollutant discharge

7 elimination system permitted, which they're having some

8 problem with into a severely stressed stream in North

9 Carolina, and I am working with them to figure out how

10 to minimize their problems.

11 Q. When you talk about a severely stressed

12 stream, how do you define that?

13 A. The state has classified -- not classified.

14 I don't have a classification for stress.

15 They have determined that it's stressed by

16 the fact that they have DO, dissolved oxygen

17 concentrations, in the summer, that are less than 3

18 milligrams per liter, and the state standard is 5

19 milligrams per liter on an average, and 4 milligrams

20 per liter instantaneous measurement.

21 It also has a relatively high biological

22 oxygen demand, at times exceeding 10 to 12 milligrams

23 per liter, and this is in an area that nobody can

24 figure out what's going on, where there shouldn't be

25 this. There shouldn't be that type of a severe

1 negative impact.

2 Q. How is dissolved oxygen measured?

3 A. With a YSI DO probe, standing for Yellow

4 Springs Instrument Company.

5 Standard technique is with a -- with this

6 probe. Other ways of doing it are Winkler method

7 titration, which is a wet chemistry technique, which

8 not very many folks use anymore. Take the meter out in

9 the field and measure.

10 MS. MISIAK: Let's take a break.

11 (Thereupon, a brief recess was taken,

12 after which the following proceedings

13 were had:)

14 BY MS. MISIAK:

15 Q. Next, what is eutrophication? What does that

16 mean?

17 A. Eutrophication is a term that describes

18 increased nutrients in loss of depth, and generally, in

19 a body of water, and generally is designated as to have

20 happened by a man induced phenomenon.

21 Q. Have you ever conducted any studies regarding

22 eutrophication effects?

23 A. Yes. Yes.

24 Q. Can you describe to me some of those?

25 A. One of them, the nutrient budget at Lake

1 Onalaska.

2 Q. Go ahead. Explain that one again, how

3 that --

4 A. We were looking at the inflow of the

5 nutrients, primarily phosphorus and nitrogen, and then

6 looking at how the aquatic community responded to the

7 inputs of those nutrients, and then what was being

8 discharged from the lake, and the lake was becoming

9 eutrophied, based on increased phosphorus

10 concentrations in the lake, and loss of depth, which

11 would promote the growth of more, in this case, more

12 submerged macrophytes.

13 Q. When you talk about loss of depth, are you

14 talking about water depth?

15 A. Yes.

16 Q. So the water is getting more shallow?

17 A. Yes.

18 Q. That's due to the overgrowth of the plants,

19 the biomass growth?

20 A. That's due to sedimentation and to the

21 biomass. And it's a slow process.

22 Q. Any other studies that you measured these

23 type of effects?

24 A. The Missouri, the work I did my Ph.D. on,

25 certainly looked at the eutrophication, because the

1 range of streams that we had were from very pristine to

2 those that had secondary effluent being discharged into

3 them. So, that, yes, is another example.

4 Q. When you are looking at these increased

5 nutrients, we're talking about phosphorus and nitrogen

6 again?

7 A. Yes. Although in the Missouri work, we also

8 looked at other things, like carbon and silica, and as

9 potential things that -- potential constituents that

10 could cause changes in those communities. But

11 predominantly phosphorus and nitrogen. And the

12 literature, the scientific literature on phosphorus and

13 nitrogen, you know, there is -- is this well developed

14 over the last twenty years.

15 Q. Is there a difference in the changes? Like

16 we always talk about phosphorus and nitrogen together.

17 Does nitrogen cause certain changes and phosphorus

18 cause other changes, or do they cause the same changes?

19 A. Generally, in fresh water ecosystems, you see

20 the changes that are caused by phosphorus.

21 Starting back in the early seventies, with

22 studies by folks like Vollenweider, and Schindler, and

23 those folks started looking at the increases in

24 phosphorus and how they affected the communities, and

25 they very clearly demonstrated that when you add

1 phosphorus as a nutrient, that you get more biomass.

2 So, in fresh water ecosystems, as a general

3 rule, that's what we see happening, is an increase in

4 biomass.

5 Q. What about nitrogen?

6 A. Nitrogen is more commonly a nutrient --

7 limiting nutrient in non-fresh water systems, like the

8 ocean, and if you see changes -- I'm not sure that I've

9 seen changes associated with nitrogen, per se, in the

10 work that I've done in fresh water systems.

11 Q. So, most of the changes that you've seen,

12 have been caused by phosphorus in these fresh water

13 systems?

14 A. Changes in biomass have been caused, that I

15 have seen, have been caused by the -- have been caused

16 by phosphorus.

17 Q. When you talk about changes in biomass, is it

18 just -- is there an actual change in the species that

19 are growing, or is it just increased growth?

20 A. Increased growth.

21 Q. Are there different types of periphytons?

22 Different classes?

23 A. Yes.

24 Q. I guess -- what did you call them? It wasn't

25 kingdom. It was --

1 A. Divisions.

2 Q. Divisions?

3 A. Yes.

4 Q. How many divisions of periphytons are there?

5 A. I'm not even sure right now. There are a

6 number of them, and the ones that we see in the

7 Everglades, for example, are things like Myxophyceae,

8 which are the blue-greens. You see the greens, which

9 are the Chlorophyceae. You see diatoms, which are the

10 Bacillariophyceae. You see Euglenaphyceae. You see

11 the dinoflagellates. Those are, I think, the common --

12 more common ones. But they all make up the periphyton,

13 and as I indicated earlier, the periphyton is also made

14 up of bacteria, and made up of little animals that

15 graze on the periphyton. So it's the algal community

16 as well as these other communities, as well.

17 We find basically the same kinds of, in terms

18 of divisions, classes of benthic algae as we do with

19 the periphyton, as we do in the phytoplankton.

20 Q. What does that mean?

21 A. It means we see -- if we see blue-greens that

22 are periphyton, we see blue-greens that are

23 phytoplankton. We see blue-greens that are periphyton.

24 Some of them are paraphytic.

25 Q. Your attorney produced on your behalf a

1 feeding study in the Everglades, a draft. We are going

2 to mark this as an exhibit.

3 (The CV referred to previously was thereupon

4 marked Smart Exhibit 1 for Identification.)

5 (The document referred to was thereupon

6 marked Smart Exhibit 2 for Identification.)

7 BY MS. MISIAK:

8 Q. Were you commissioned to do this feeding

9 study in the Everglades Water Conservation Areas?

10 A. Yes.

11 Q. This was part of your job description, to

12 produce this study?

13 A. Yes.

14 Q. Did you have any help with this study?

15 A. Yes.

16 Q. Who helped you with that?

17 A. In the design of the study, Dr. John

18 R. Jones.

19 Do you want people who conducted it, as well?

20 Q. Yes.

21 A. A fellow named Jeff Collins did much of the

22 field work and the laboratory work, worked up all the

23 samples.

24 Q. Is that all?

25 A. Yes.

1 Q. What was the hypothesis when you started this

2 study?

3 A. The hypothesis was that the algae in the

4 Everglades can serve as a carbon source for herbivores.

5 Q. What significance is that? What significance

6 is that?

7 A. It means that it serves as a carbon source.

8 It means that the herbivores are eating the periphyton,

9 and they serve as a food source.

10 Q. What are herbivores?

11 A. Things that eat plants. Animals that eat

12 plants, not things. No aliens.

13 Q. In the introduction, it looks like, this is

14 an isotope study?

15 A. Yes.

16 Q. Of carbon and nitrogen. Those are the

17 isotopes?

18 A. Yes.

19 Q. And this first statement says, one of the

20 statements in here, "There is considerable uncertainty

21 in the evidence supporting a dominant role for vascular

22 plants in wetland food webs."

23 What vascular plants are you talking about

24 here?

25 A. Can I see that?

1 Q. Sure.

2 A. Okay.

3 MR. HYDE: Maybe we can provide him with a

4 copy of the study.

5 MS. MISIAK: Sure.

6 BY MS. MISIAK:

7 Q. It's on page 1, the second paragraph.

8 A. Okay. These are general statements that

9 other investigators have made, that we're summarizing.

10 The investigators are Bailey, 1989, and Ward,

11 1989, as indicated in the next sentence, and what their

12 papers and what they're talking about, basically says

13 that in the past, we have often thought that detritus

14 from vascular plants, in other words, the breakdown of

15 those plants, provides most of the food for organisms

16 in wetlands, and we are now reevaluating that, not to

17 say that it's not an important component, but we're

18 reevaluating to find out if there is evidence that

19 other sources, periphyton being one of them, are

20 important food sources for the ecosystem.

21 So, what we're talking about here and saying

22 that evidence supporting dominant role for vascular

23 plants, the vascular plants would mean, a very general

24 term of vascular plants, from any vascular plants --

25 they were very general in their assessment of the role

1 of the detritus.

2 Q. The very last sentence on page 1, and it goes

3 over to the top of page 2, "In addition, ecosystem

4 level comparisons of primary and secondary production

5 in wetlands, have indicated that algal production is

6 insufficient to sustain the secondary production of

7 aquatic animals."

8 Again, is this a general statement made by

9 other scientists?

10 A. Right. When you go through and finish that

11 sentence, there are a series of semicolons, and those

12 are, yes, the other scientists who are saying some of

13 the reasons why it was thought that detritus is the

14 primary food source, is that, just as you read, is that

15 ecosystem level comparisons of production, primary and

16 secondary, have indicated that it's insufficient, and

17 that's been the tenet that we have held in the past,

18 and that's what other researchers are saying, and what

19 I'm trying to do here is just to say that where we are

20 now, is the vascular plants are important, but we need

21 to also look at other potential sources, and these

22 other scientists are -- have been examining since 1985

23 or so, the hypothesis that algae and other autotrophs

24 can be an important part of the food chain in the

25 Everglades. And I think -- not in the Everglades, in

1 wetlands in general. In the Everglades, you know, as

2 an example of that.

3 I think that Joan Browder, or Dr. Browder, in

4 some recent things that I've read, indicates that

5 periphyton as well, is a good food source at times, for

6 animals.

7 Q. Can you describe the method, how you went

8 about this study?

9 A. Yes. We -- before I start, can I get a map,

10 which would be figure one in this study? Because it

11 has the locations, and that makes things much easier.

12 (Pause.)

13 A. The study -- we set up sample locations at

14 three locations throughout the Everglades. One, here

15 in WCA-2A, near the S-10 structures, and we have

16 labeled that station as 2A1-1. And that's consistent

17 with this study, and with this other study, as well.

18 MR. HYDE: Just for purposes of the record,

19 the other study being referred to is, "Periphyton

20 dynamics in the Water Conservation Areas."

21 A. So, we have that station near the S-10

22 structures, near the canal.

23 The second station here as designated 2A2-3,

24 is at the 217 location, at the interior of WCA-2A, and

25 again, that's consistent with the report just

1 mentioned.

2 The third location is station No. 3A4-5, that

3 is way down in the lower part of WCA-3A, and it is, I

4 believe, the C-5 station of South Florida. And it is

5 some -- I can't remember the exact distance, but it's

6 four to five kilometers interior of the canal system.

7 So, it is pretty much isolated way back in

8 the bottom of WCA-3A.

9 So, the three sites were at the lower part of

10 WCA-3, the middle of WCA-2A, and near the canal,

11 WCA-2-1.

12 We placed large plexiglass slides, large

13 numbers of them at each of these stations, in September

14 of 1992. I wanted to make sure I got the date correct.

15 And to do a preliminary study, to find out if we could

16 get the separation needed in the isotopic ratios in

17 order to make this useful.

18 So, we set out the plastic slides that were

19 roughed up, so the periphyton could live on them, at

20 those three sample locations. We then incubated them

21 for a period of five weeks, and retrieved those slides,

22 brought them back to the laboratory, and we dried them

23 at 60 degrees centigrade, we washed them with 10

24 percent hydrochloric acid, we ground them to pass a 600

25 micromesh screen, and then subjected them to the carbon

1 and nitrogen isotope analysis.

2 The analyses were conducted by Coastal

3 Science Labs, Incorporated, in Austin, Texas, and then

4 we reported the carbon and the nitrogen data relative

5 to their standards, and the standard for carbon is

6 Peedee belelemite, which is the limestone, which is the

7 carbon standard, and then to nitrogen in the air,

8 and -- and the data are in parts per thousand.

9 Q. It says, "Carbon data are believed accurate."

10 A. That's from Coastal Science's laboratory.

11 That's their accuracy measure.

12 Q. That's what they quoted to you guys?

13 A. Yes.

14 Q. Where does this Peedee come from? Who sets

15 that up as a standard?

16 A. That's the standard that's used by everybody

17 that conducts isotopic work, but I'm not sure who set

18 the standard, whether it was in the National Bureau of

19 Standards, or whether it's a convention used. I don't

20 know.

21 Q. How did you choose five weeks as your

22 incubation period?

23 A. We used five weeks, again going back to this

24 other study, where Mr. Swift, in 1978 and 1979, when he

25 did the study here at the Everglades, used, I think it

1 was 30 days, and we patterned ours after his work.

2 Q. You can go on and finish telling me about

3 your method, then.

4 A. So, after we finished the pilot study, we

5 needed to look to see if the differences in carbon were

6 sufficient to allow separation, and the difference in

7 the carbon ratios, and we looked at the data and said

8 it appears that that would work, and so then we went

9 out in November and collected macrophytes, periphyton,

10 fish, snails and assorted other critters that we could

11 catch, and analyzed them as well for carbon and

12 nitrogen.

13 Q. You talked about separating them out. You

14 did the pilot study to see if you could separate them

15 out.

16 What does that mean? Does that mean so you

17 could determine -- how would you know that the

18 carbon-nitrogen isotopes that you are measuring inside

19 of a plant that's been eaten, is the same carbon and

20 nitrogen that was on the periphyton, say, and not on

21 the vascular plant? How would you know what these

22 things are eating?

23 A. That's precisely why you have to have

24 separation in the carbon numbers.

25 Let's take, for example, the periphyton that

1 we found, and if I can just turn to a -- where's the

2 figure?

3 Q. It's not there?

4 A. The figures aren't here.

5 Q. I don't have them in mine, either.

6 THE WITNESS: That one does, at the back.

7 Can I borrow the figures, again?

8 MR. HYDE: Would it be a good idea to make

9 copies of that?

10 MS. MISIAK: Yes.

11 MR. HYDE: Since this is the marked exhibit,

12 I guess you want to have a complete one.

13 MS. MISIAK: I do want to have it complete.

14 MS. STARK: Does that one have the

15 literature?

16 THE WITNESS: Yes, it has that, plus the

17 appendix and the tables, but it does not have

18 figures.

19 Let me show you which ones it doesn't have.

20 It doesn't have those.

21 (Pause.)

22 A. Figure one from that report, if you look at

23 the Y axis, Delta carbon ranges from the top to minus

24 22, to minus 32 at the bottom, and that's the

25 difference in the isotopic ratios.

1 For periphyton, which is the first bar graph

2 that you see there, we have for all stations over the

3 study period -- we had, what's this, about a minus 30.8

4 or so as the mean carbon ratio.

5 If that ratio wasn't different from, let's

6 say, cattail, then we couldn't assess what the critters

7 were eating. That's pivotal to the whole study.

8 So, cattail has a negative of about 27, and

9 I'm reading this upside down, so they're close, and so,

10 if we found an organism that had an isotopic ratio of

11 about minus 31, we would conclude from that, that that

12 organism was eating periphyton, because an organism

13 cannot be more enriched than the food that it eats.

14 That's just the basic tenet of doing this isotopic

15 work.

16 So, if an organism were eating cattail, it

17 would have to have a carbon value that would be greater

18 than a minus 27. Let's say minus 26 or 25. But if

19 it's right around the value that the periphyton has,

20 then it indicates that they are consuming periphyton.

21 The upshot of the -- the theory behind all of

22 this, is basically very -- is not very difficult, I

23 don't think, and the reason I like it is it's very

24 simple, and that it -- that what an organism eats is

25 integrated over time. This just doesn't mean that this

1 organism has eaten something in the last 24 hours.

2 It's integrated over time of the life of the organism.

3 If it has a short life span -- so, what you are getting

4 is an integration over time of food that the critters

5 have consumed, and so, it provides, I think, a nice way

6 of looking at, if -- looking at the critters consuming,

7 you know -- what the critters are consuming.

8 Look at water lily, way up here. It's a

9 minus, about 23 Delta carbon. So, in order for a

10 critter to have eaten lots of water lily, it would have

11 to have a much more -- a less negative value. It would

12 have to have something like a minus 22 or 20 or 18.

13 If we look at the data -- and this is the

14 separation we were looking for. Did we get the

15 separation? And we did.

16 So, we went ahead and then collected

17 organisms so that we could then say, okay, where does

18 it -- what kind of food source does it look like these

19 critters are consuming?

20 Q. In the different types of periphyton, are

21 there different levels of Delta carbon? Like for

22 instance, say blue-green algae versus a filamentous

23 green algae?

24 A. I don't know. I don't know that.

25 Q. So, then what -- after you did your pilot

1 study and realized there was a separation, so you could

2 do that, then what?

3 A. We went out in November -- he would put

4 slides out again and collected as much material as we

5 could at these three stations.

6 In addition, we collected all kinds of

7 different critters, and on figure two, we list some of

8 the -- for station 2A1, we list some of the organisms

9 that we captured, in November, and that's apple snails,

10 shrimp, crayfish, flagfish, sailfin molly, killifish,

11 Gambusia, sunfish, bowfin, gar, as examples of the

12 different organisms that we collected at station 2A1.

13 Figure 3, likewise, has a list of organisms

14 that we collected in November, and then compared the

15 Delta carbons to those critters, and the same thing

16 here in figure four, which is -- indicates the

17 organisms that we collected at station 3A4-5.

18 Q. How long did this sampling and the study

19 continue?

20 A. I'm not sure. What do you mean, how long did

21 this study --

22 Q. For instance, is it seasonal? Would your

23 results have changed and been any different in November

24 than in July?

25 A. Okay. The first part of the question, first.

1 Did we do this more than one time?

2 Q. Right.

3 A. No. No. We did it at the end of the summer,

4 and would I find seasonal differences? One wouldn't

5 expect so, but I don't have the data to back that up.

6 I simply didn't do the study.

7 But, based on the fact that we have

8 integration, over time, of the carbon within an

9 organism, one wouldn't expect that to vary all that

10 much.

11 Q. Would light source have any effect on this

12 study? For instance, at the location of your three

13 different stations, was some large overgrowth, that the

14 organisms were not getting a lot of light, because the

15 macroinvertebrates covering --

16 A. Whatever --

17 Q. Herbivores or any kind of vascular plants

18 that would be covering the light sources? In other

19 words --

20 MR. HYDE: I think you mean "macrophytes"?

21 MS. MISIAK: Yes.

22 A. Go ahead.

23 Q. In other words, were there some type of

24 controls? Did we know -- this is just, I guess, just a

25 study simply limited to finding out where these

1 herbivores are getting their carbon?

2 A. That's it.

3 Q. That's it?

4 A. That's it.

5 Q. Just simply that?

6 A. Absolutely, that's it. And, of course, when

7 we find where they get their carbon, then they tell us

8 whether or not they're a food source, which is what

9 we're after.

10 Q. What was your conclusion to this study?

11 A. The conclusions are on page 12. The first

12 conclusion is that the carbon isotope analysis

13 indicated that the periphyton-Bladderwort assemblages

14 can be a carbon source for herbivores in the WCAs.

15 Q. What is a periphyton Bladderwort assemblage?

16 A. That's the periphyton living on the

17 Bladderwort, and in many of the instances we -- well,

18 let me back up a minute.

19 Based on the Delta carbon values, periphyton

20 and Bladderwort are very similar in their Delta carbon.

21 Okay? Number one.

22 Number two is that we found Bladderwort,

23 most -- in all instances that I can recall, encrusted

24 with the periphyton.

25 So, it's very difficult to separate out the

1 periphyton from the Bladderwort. And that's why I

2 called it a Bladderwort, or a periphyton-Bladderwort

3 assemblage. I can't separate the two.

4 Q. So, that assemblage, the

5 periphyton-Bladderwort, was what was eaten by the

6 herbivores?

7 A. Yes.

8 Q. That's the carbon source?

9 A. Yes, that's the carbon source.

10 Q. The combination was the carbon source?

11 A. Yes.

12 Q. Okay. How did you measure these Delta

13 carbons? How were they measured?

14 A. Coastal Science.

15 Q. That's when you -- you sent everything over

16 to Coastal Science?

17 A. Yes. They're in Texas. And they measured

18 them. I believe they measured them with mass

19 spectroscopy, but I'm not altogether sure about that.

20 That's why we sent them to them.

21 Q. Your second conclusion?

22 A. Macrophytes were not generally the carbon

23 source for the animals that we measured, because the

24 animals were more enriched than the macrophytes.

25 Carbon enrichment of about one part per

1 thousand. So, carbon enrichment of about one part per

2 thousand, occurs for each trophic level. Therefore, a

3 plant that is more enriched than an animal, is not a

4 carbon source for that animal.

5 Q. How did you measure the carbon sources from

6 the animals?

7 A. The same way we measured them for the plants.

8 We collected them, dried them, ground them up, and

9 shipped them to Texas for analysis.

10 Q. Then number three, "Calculated enrichment

11 factors for trophic levels assuming the

12 periphyton-Bladderwort assemblage provided carbon to

13 animals when measured."

14 What is an enrichment factor?

15 A. We just divided what we found in the critter,

16 and what we found in the Bladderwort-periphyton, to get

17 how much we had to -- if you start with a base of

18 periphyton-Bladderwort assemblage of zero, what's the

19 increase to the herbivore level, and then what's the

20 increase to the first -- or consumer, so we could get

21 those levels? How much are we increasing, if anything,

22 as we go up the food chain?

23 We found enrichment between periphyton and

24 herbivores was about 1.1 per periphyton, and omnivores

25 was about 2.5, and between periphyton and piscivores,

1 was 2.7.

2 Q. But the carbon in macrophytes was less in the

3 animals, the Delta carbon?

4 A. Less in the macrophytes than in the animals.

5 Q. Then, in your fourth -- paragraph number

6 four, you talk about nitrogen enrichment factors?

7 A. Right. Nitrogen enrichment factors were 3.6,

8 4.0 and 5.8, sorry for the misspellings, herbivores,

9 omnivores and piscivores, respectively.

10 What the literature tells us is that nitrogen

11 enrichment of about 3 parts per thousand would occur at

12 each trophic level.

13 So, between one trophic level and the next,

14 it should be three, and the next one would be an

15 additional three and three, and so on up the food line,

16 and we found for herbivores, again, assuming that

17 periphyton-Bladderwort were the carbon nitrogen source

18 here, that 3.6 was the average enrichment for the

19 herbivores, 4 for the omnivores, and 5.8 for the

20 piscivores.

21 Q. Did you measure the carbon-nitrogen -- not --

22 the Delta -- did you measure the nitrogen in

23 macrophytes? I mean, in summary No. 3, you say that

24 the Delta carbon was less in the macrophyte than in the

25 animal? What about the nitrogen in the macrophyte?

1 A. You use nitrogen differently than carbon.

2 You use nitrogen to look at trophic level and carbon to

3 look at food source.

4 In four here we are looking at nitrogen as

5 trophic level indicator, and carbon as source of food.

6 Q. What's "trophic level"?

7 A. Feeding level. Whether you are a producer,

8 consumer, and what level consumer you are.

9 Q. Was this approach good science, in your

10 opinion? This approach?

11 A. Yes.

12 Q. Why?

13 A. I think that it takes advantage of the --

14 what we know about isotopes, what we know about feeding

15 behavior, and it uses that information. It's

16 repeatable. It's -- it integrates over time. And I

17 think it provides a basis for at least suggesting that

18 the periphyton is a food source. And I, again, I think

19 that's very consistent with what we're seeing from

20 Browder's work, and her diagram in the latest -- I

21 can't remember the name of the book. The restoration

22 book that just came out, where she has a diagram of

23 both macrophytes and the periphyton, and showing that,

24 you know, at times they're both food sources, but

25 certainly periphyton is a food source.

1 Q. That's all the study measured, though, is the

2 food source, whether or not there's growth out there?

3 Biomass, is it biomass growth?

4 A. No. It measured the carbons, Delta carbon.

5 You know, that was the primary impetus, was to look at

6 carbon ratios.

7 Q. Let's go back to page 4 of the study. You're

8 talking there about the naturally occurring periphyton

9 community.

10 You identify some periphyton species.

11 A. Right.

12 Q. What are these? Are they blue-green? Are

13 they diatoms?

14 A. Schizothrix calciola is a blue-green algae,

15 identified by Swift and Nicholas and Browder, and

16 everybody that has done work in the Everglades, as a

17 blue-green algae that is indicative of low nutrient

18 concentrations. The second one is Stigeoclonium tenue,

19 and Stigeoclonium is a green algae, and it's somewhat

20 pollution tolerant.

21 Q. What does that mean?

22 A. That it can grow in enriched waters, waters

23 that are enriched with nutrients.

24 Q. Okay.

25 A. And then Scytonema hofmanii, a very small

1 quantity in 2A1, and that again is a blue-green, and

2 coupled with the Schizothrix calciola, are the two

3 blue-greens that are indicative of low nutrient waters.

4 In station 2A2-3, we found Schizothrix as

5 well.

6 Microcoleus lynbyaceous. Microcoleus is a

7 blue-green algae which is a very pollution tolerant

8 organism, and has been identified as so in the

9 Everglades. And we find diatoms. And Gomphospheria,

10 which I believe is a green algae. And at 3A4-5, we

11 find, again, Schizothrix calciola as a dominant

12 organism, and at all of these stations, Schizothrix was

13 the dominant organism.

14 We find Anabaena, which is a blue-green,

15 which is pollution tolerant, much like Microcoleus, and

16 then very minor amounts of Gomphospheria.

17 Q. So, you identified these specific species in

18 the periphyton community. When you did that

19 identification, did you check to see the different

20 levels of carbon in each species relative to the other?

21 A. No, you can't. There was no -- it's not

22 physically possible to separate those organisms in a

23 periphyton assemblage, at least not to my knowledge.

24 Perhaps there are ways of doing it, but I

25 have not seen those, and no, we didn't attempt to

1 separate them.

2 What we were trying to get at here was the

3 periphyton assemblage that's there, is it a food

4 source? In looking at the assemblage, that's the

5 approach that we took.

6 Q. In your opinion, these Schizothrix calciola,

7 those are an indicator of low nutrient waters?

8 A. Yes. And I'm relying here on the work that

9 Dave Swift did in '78, and into the early eighties, and

10 that Dr. Browder did as well, and that Patrick Gleason

11 did. All of those folks have identified that as a

12 blue-green algae that's a very -- is indicative of low

13 nutrient concentrations and is -- can I use the word,

14 in quotes, good guys?

15 Q. Okay. What about diatoms? What are they

16 indicative of?

17 A. They can be -- diatoms is a huge group of

18 critters. The diatoms can be -- there are some that

19 are good. If I can use the word in parentheses, again,

20 parenthetically, and there are some that live in very

21 eutrophic conditions. It depends on what diatom you

22 are looking at.

23 Q. Are the different species of diatoms very

24 easily identified?

25 A. Yes, sure.

1 Q. But you weren't looking at that in the

2 studies you did? You didn't go down to look at the

3 different species?

4 A. Yes, we did. In December and August.

5 However, we did this work in September through

6 November, and I don't have that data.

7 Q. The work done in December and August, were

8 they for the same study, and just not incorporated in

9 this?

10 A. No. They were for this other study, the

11 periphyton community dynamics. All the data that we

12 have for the study is included here.

13 Q. I guess this is why I was asking about light,

14 because I didn't understand this.

15 On page six, it says, "Cattail and sawgrass

16 detritus was obtained from shaded areas and failed to

17 minimize periphyton growth."

18 A. When we picked up cattail and sawgrass

19 detritus, but we didn't want to have it with a green

20 mat or blue-green mat on it. We wanted it to be as

21 pure as we could get it from the field, so when we

22 brought it back to the laboratory and looked at the

23 material, we didn't have to scrape off periphyton.

24 That's why we took it from the shaded area,

25 because there's less likelihood of significant

1 quantities in the shaded area.

2 Q. Then, it says, "Water quality parameters that

3 were monitored in representative bowls daily include:

4 Dissolved oxygen, temperature, pH and

5 conductivity/hardness."

6 What are those indicators of, each

7 individually? Why would you --

8 A. We also did a feeding study here, associated

9 with this, and organisms need to have a certain level

10 of dissolved oxygen to be healthy. They need to have a

11 good temperature range, pH and conductivity.

12 They need to have a decent environment in

13 which to grow. And when you culture organisms in the

14 laboratory, there's enough stress on them already,

15 taking them out, handling them and putting them in a

16 small bowl and all kinds of things, that we need to

17 maintain that water quality in as, quote-unquote, good

18 quality water as we possibly could. So, we monitored

19 those, as indicators of water quality.

20 Q. You're actually growing the animals, you're

21 culturing these animals in your laboratory, to do this

22 study?

23 A. No. There are two parts of the study. The

24 first part was the isotope study. Then we went out to

25 the same stations and collected slides of material,

1 brought them back to the laboratory, in water, and put

2 them in bowls, in the culture bowls, and then had

3 crayfish, snails and sailfin mollies, in the -- in

4 bowls, so that we could see if those critters were

5 actually eating the periphyton and could live. So,

6 that was the second part of the study.

7 Q. Is it possible that they were eating the

8 periphyton in your study, in the second part of your

9 study, only because there wasn't anything else to eat

10 and they wanted to live? What would you -- how do you

11 control that?

12 How do you know that when there's other

13 sources of carbon, say, out in the environment, in the

14 natural environment, in the Everglades, versus a

15 controlled situation in your laboratory, where their

16 only source of nutrient is the periphyton with the

17 carbon in it, that they weren't struggling to survive,

18 so they eat this carbon containing the periphyton,

19 versus out in the natural system?

20 A. I don't think it matters. If they're eating

21 the periphyton in the laboratory, they're eating it and

22 they're using it as a food source, and it can be used

23 as a food source.

24 Whether or not they exclusively use it in the

25 field, I can't begin to tell you based on that feeding

1 study.

2 However, based on the carbon isotope data, it

3 indicates that they are using it in the field, and I

4 think that perhaps if we put them under stress

5 conditions, it may be like the Everglades, in one

6 that's drying up, or under some other very stressful

7 condition.

8 So, I don't think -- I just don't think

9 that's a concern.

10 Q. So, is your implicit conclusion then

11 basically, because you can use these periphyton as food

12 sources, that everything is okay in the Everglades and

13 it doesn't matter what kind of periphyton are out

14 there?

15 A. No, that's not my implicit conclusion. My

16 conclusion is that periphyton can be a food source in

17 the Everglades, and that based on the data that we

18 have, they are a food source in the Everglades.

19 MS. MISIAK: Let's break for lunch. It's

20 1:00 o'clock.

21 (Thereupon, a lunch recess was taken

22 from 1:00 p.m. to 2:00 p.m., after which

23 the following proceedings were had:)

24 MS. MISIAK: This is what we're going to mark

25 as the exhibit. I guess this would be Exhibit 3,

1 "Periphyton community dynamics in Water

2 Conservation Areas, Everglades, Florida."

3 (The document referred to was thereupon

4 marked Smart Exhibit 3 for Identification.)

5 BY MS. MISIAK:

6 Q. Dr. Smart, are you the actual author of this?

7 Did you write this document?

8 A. There are two authors, two principal authors.

9 That's myself and Dr. Jack Jones, John R. Jones.

10 Q. John R. Jones?

11 A. Yes.

12 Q. I guess, let's see, let's start at the

13 summary.

14 A. Okay.

15 Q. Number one, would this statement be

16 considered your hypothesis to this study?

17 "Periphyton biomass nutrient content and

18 species composition in the Everglades Water

19 Conservation Areas were examined to determine

20 periphyton community response to environmental

21 gradients, vegetation, nutrient, water level."

22 A. No, that's not the hypothesis. The

23 hypotheses are on page 1 of that document, where it

24 says we had two working hypotheses, one relating a

25 species composition and one to growth.

1 Our working hypothesis was that differences

2 in periphyton species composition could be related to

3 differences in water levels, (hydroperiod), and our

4 second hypothesis was that periphyton growth, the

5 accrual of biomass, could be related to hydroperiod and

6 nutrients in the water column.

7 Those would be the two hypotheses that we

8 had. Number one here basically says what we did in

9 order to test those two hypotheses.

10 Q. And number two, it says, "Incubate for 35

11 days."

12 Did you again get that 35 day period of

13 incubation from Swift's study?

14 A. Yes. In fact, we patterned this study after

15 the work that Mr. Swift did, in his 1978-1979 work. We

16 added some stations and did -- but that was the pattern

17 that we followed.

18 Q. Were you kind of trying to duplicate Swift's

19 work?

20 A. Yes. Although not exactly duplicate. What

21 we wanted to do was to find out -- we did some things

22 differently, like in around a station, we had

23 substations.

24 I don't want to get lost in terminology here,

25 but the station, for example, would be the 2A1, which

1 is nearest the canal, S-10 area, and that we had

2 substations, one, two, three and four, each in a

3 different macrophyte stand, so that we could figure out

4 if the water chemistry, if the accrual, and if the

5 species compositions were different within those

6 substations.

7 So, that was different than his study, but as

8 a general rule of going out and looking at water

9 chemistry, and periphyton species and accrual, yes,

10 that's -- you know, we were patterning our work after

11 the work that Dave Swift did.

12 Q. These macrophyte stations, what is that?

13 A. Based on an area that we would go to, we

14 would look at the dominant vegetation as indicated in

15 table one of the report, and based on that dominant

16 vegetation, we would go ahead and put, or went ahead

17 and put a periphyton sampler into that area.

18 Q. How did you determine these were -- were you

19 trying to get different types of macrophytes?

20 A. We focused in each area on -- the dominant

21 macrophytes in most of the areas are sawgrass, cattail,

22 and the sloughs that are in those areas, as well, and

23 we also looked at -- I think we had two stations that

24 were wet prairies, as well, and those are, again,

25 identified in table one, that lists species abundance

1 for each of those macrophytes.

2 Q. Because this is kind of a strange

3 configuration, and the reason is because of your

4 substations? That's why this is a different --

5 A. May I --

6 Q. You can write on that one.

7 A. Why is it strange?

8 Q. Instead of being linear, it's not really a

9 linear configuration of stations. You've got all of

10 these little --

11 A. I wouldn't think that it needs to be linear

12 to be -- to not be strange, but I think that what we

13 have here is the 2A1 station being right here. Let me

14 just stop for a minute and get the table one out,

15 because I don't recall right off the top of my head

16 which one is cattail and which one is sawgrass.

17 Q. Okay.

18 A. If I had that, it would make more sense.

19 So, within this area, and we're looking here

20 near the S-10 structure, we were -- we did site

21 reconnaissance, "we," meaning Dr. Jones and myself.

22 We went out and said, "Okay, where's the

23 dominant stand of cattail," and we found the dominant

24 stand of cattail at 2A1-1 and hence, we put our station

25 there. We then went and said, "Where's the dominant

1 stand of sawgrass," and we went to 2A1-2 and located

2 the station there.

3 We then said, "Okay, let's look at a mix of

4 cattail and sawgrass that would be roughly 50/50, but

5 variable, to be certain," and we established that at

6 2A1-3, which is, you can see, is close to 2A1-2.

7 Then we went to a slough near that area, and

8 that's the station over here in the right-hand corner

9 of this inset, for station 2A1, and that's a maiden

10 cane hydrocolloidal slough.

11 So, station location is in the general

12 vicinity of the S-10 structures, in the general

13 vicinity of the canal, but located in a position so

14 that we had different macrophyte communities being

15 represented, so that we could take the different

16 samples from those stations.

17 We can go through each of the stations from

18 the table and the figure there, and point out which

19 ones are cattail and sawgrass.

20 I might add that your linearity question, I

21 assume, is coming from the fact that Mr. Swift did a

22 linear down, fairly near where we were, and we decided

23 that, you know, that we wanted to be -- base ours on

24 the macrophytes, so we could test whether or not

25 there's any difference in the macrophytes.

1 Q. In comparing your study to Swift's study, did

2 you take into consideration the changes that have

3 occurred in the ten years since Swift did his study?

4 Back in the '78-'79, you didn't have the drying out

5 periods that you have now.

6 A. That's right. The WCA-2A, back in that time

7 period, was basically water storage, so you had water

8 there all the time.

9 Yes, I think we did, and I think we took into

10 account the different variables of the water depth, the

11 drying out, the nutrient -- the vegetation nutrient

12 water level, and I think those -- by locating our

13 stations where we did, we took into account the

14 differences that were there.

15 Q. Let's look at your methods and let's go into

16 detail and tell me what your methods that you used were

17 for this study?

18 A. Where would you like me to start?

19 Q. What type of substrate was used for your

20 study?

21 A. Substrate for --

22 Q. For your periphyton.

23 A. Okay. We used -- page 4, middle paragraph,

24 where it says that samples were obtained by use of a

25 periphotometer constructed of a meter long piece of

1 PVC, and three four inch styrofoam floats. A three

2 inch PVC tee attached to each end of the periphotometer

3 could allow the unit to be placed on two PVC guideposts

4 and rise and fall with fluctuating water levels.

5 To that assembly we attached plastic

6 microscope slides, approximately 6.5 centimeters by 3

7 centimeters, and they were lightly buffed, sanded, read

8 that sanded, and attached to the barrel swivels, such

9 that the top of the slide was approximately one inch

10 below the water surface.

11 There should be a figure two in here, that is

12 a schematic, that just shows the -- what that looks

13 like. Not there? Okay.

14 MR. HYDE: Do you have it with yours? I'm

15 trying to see if it's a copier problem or what.

16 MS. STARK: I got mine when she got hers.

17 They all went through the fax machine together.

18 MR. HYDE: I just wonder, do you have the

19 document, the one that Dianne does not have?

20 A. It's just a hand-drawn sketch of the

21 periphotometer. So, if I might --

22 Q. Sure.

23 A. These are the PVC pipe, and these are

24 representative of the tees, and we put a piece of rebar

25 into the muck, and then put the PVC over the muck, and

1 then put this apparatus, just slid it right over the

2 top, and then these are basically net floats,

3 styrofoam, like you would use on some kind of a fish

4 net, and so it could rise and fall with the water

5 level. That's the way that we, you know -- that the

6 slides were obtained.

7 Q. They were left in this position for 35 days?

8 A. Yes. Yes. Let me hasten to add that if we

9 came back and the site had dried, we didn't take the

10 slides. We did not analyze them. We only analyzed

11 slides that we knew were in the water for 35 days, or

12 that we had no knowledge that they weren't in the water

13 for that time period.

14 Then around each of the periphotometers, we

15 cleared -- we took up another piece of PVC, a meter by

16 a meter, and laid it over the top of this, so you had a

17 corral enclosure, and if the PVC was sticking up, you

18 would have this corral enclosure, and that kept

19 floating material from being pushed into each of these.

20 So, you had a meter -- one meter by one meter

21 opening, so you could look at that.

22 Q. You placed these approximately one inch below

23 the water surface, but that one inch below the water

24 surface, would have changed during the 35 days

25 depending on the period?

1 A. No. The slides were suspended so that when

2 these floats were in the water, that they were one inch

3 below.

4 Q. So the notes should keep it relatively

5 constant?

6 A. Yes. That should --

7 Q. How, periodically, how often were you out

8 there, checking on the slides? I know just --

9 A. We put them out and picked them up. Put them

10 out and picked them up. Yes.

11 Q. Did you, yourself, put these out and pick

12 them up?

13 A. I did on four occasions. Other than that,

14 some other folks helped out. Would you --

15 Q. Yes. How many occasions, total, were there?

16 Do you know?

17 A. 12 sample periods.

18 Q. You took -- four you did.

19 A. Right.

20 Q. Who else?

21 A. Jeff Collins. He has a master's degree in

22 aquatic sciences. He was my primary field sampler, and

23 he was on every field trip.

24 Q. So, he went with you, and he -- whoever went

25 out there, he was also with them?

1 A. Right. He was my lead technician for the

2 project. And he had an assistant, if I wasn't there,

3 he had an assistant go with him, somebody he would work

4 with.

5 Do you need that?

6 Q. Yes.

7 A. That person was generally Clyde Owens, and

8 Clyde is a technician, and he went on about, I'm

9 guessing here, about 80 percent of the trips.

10 Q. In the cattail areas, did you have many

11 problems inserting this device because of the growth of

12 the cattails?

13 A. We had to cut a few cattails, yes. The same

14 with the sawgrass.

15 Q. So, after you placed these in the water, you

16 left them for 35 days and then you came back and you

17 got them?

18 A. Right.

19 Q. Well, first let me -- how did you get out to

20 each of these sites? I take it some of these sites are

21 pretty much into the interior of the Everglades and

22 it's pretty much overgrown?

23 A. Airboat, or a -- on occasion, in what we call

24 the 3A1 station, just off Miami Mud Canal, south of the

25 S-8 structure, with a -- the big wheel things. Swamp

1 buggy.

2 Q. I heard of that.

3 A. We contracted that out with an individual who

4 knew where everything was.

5 We located all the stations with GIS -- GPS,

6 Global Positioning System, so that we could come back

7 to them and find them, which is an endeavor, at times.

8 Q. Yes. To make sure you are going -- you knew

9 where you were going.

10 Is there a table in here that measured or

11 that took into consideration light filtering through to

12 these slides? In other words, in some of the more

13 overgrown areas there would have been --

14 A. No. We put the meter, PVC around it, so that

15 each station had a meter opening, and our thinking

16 there is that in cattail or dense stands of sawgrass,

17 the amount of light impinging in there is a very big

18 determinant, from the literature, a big determinant of

19 accrual and growth of algae. We've known that for 25

20 years.

21 So, we decided that we would put these rings

22 around it, so that we could compare the sites among

23 themselves.

24 Q. Then you would go -- you went back at the end

25 of the 35 days and you took each slide.

1 A. Right.

2 Q. What did you do with it at that point in

3 time?

4 A. We removed each slide, and we took three of

5 the slides for chlorophyll A, to determine biomass. We

6 took two to three replicates for total nitrogen, two to

7 three replicates for total phosphorus, and two to three

8 replicates for total carbon.

9 The reason we have two to three in there and

10 not a specific number is, we only had 12 slides, and to

11 do all of the things that we were going to do,

12 sometimes we used two for total nitrogen, sometimes we

13 used three, just depending, and we would vary it, and

14 we would always take three for chlorophyll, we would

15 always take three for IDs, and whatever was left we

16 would take and put them into whirlpacks and analyze the

17 material.

18 Q. What's a whirlpack bag?

19 A. It's a small plastic bag that's sterilized,

20 and it's about five or six centimeters wide by ten

21 centimeters deep, and they have a tie on the top of

22 them so you can slip something into them, wrap them up

23 and they're sealed, and you put liquid in them, and

24 it's a very convenient way of transporting materials in

25 the field, and in fact, we put 5 milliliters of ethanol

1 in the whirlpack bag, in the chlorophyll A, and we put

2 five -- hang on a minute -- and we put in formalin in

3 the slides that we were going to enumerate into those

4 bags.

5 Q. Why would you use ethanol at one point and

6 formalin for others, for certain ones?

7 A. Because ethanol is used for chlorophyll A for

8 the biomass analysis, and formalin is used for the

9 identification. Two separate processes.

10 Q. Ethanol is for chlorophyll A?

11 A. Yes.

12 Q. And formalin is used to ID --

13 A. For critter names, to determine what's there.

14 Q. In these whirlpack bags, did you put all the

15 slides? Did the slides ever overlap?

16 A. No. One slide per bag, always.

17 Q. Were there different amounts of light being

18 filtered to these slides, like in the sawgrass versus

19 in dense concentrations of sawgrass, versus dense

20 concentrations of cattails?

21 A. I didn't measure light attenuation within the

22 community, so I don't know. I don't know.

23 Q. Would the amount of light that gets -- that

24 would get to these slides, would that affect the amount

25 of chlorophyll A? Does light affect amounts of

1 chlorophyll A in periphytons?

2 A. Scientific literature tells us light is one

3 of the things that affects the amount of growth on the

4 slides, and that's why we put a meter ring around every

5 station, so that we could standardize as much as

6 possible, light getting to the station. That's why we

7 did that.

8 Now, were we a hundred percent accurate and

9 correct in that there was always the same amount of

10 light? I don't know. But we -- I think that we did

11 everything we could to make sure that, you know, that

12 we got -- we had an open -- the same opening for each

13 sample area.

14 The important thing here is that we compared

15 sample areas, so that we could compare sample station

16 2A1-1 to sample station 3A4-5, and that's important in

17 that you have the same methodologies at each of those

18 stations, and that's what we did. In a dense cattail,

19 near the 12 structures, we constructed the same

20 periphotometer setup that we did in the north 2A area.

21 Q. I guess I'm confused on what this meter is

22 that you are describing.

23 A. Around this periphotometer, which is a

24 meter -- this is one meter right here -- can I draw you

25 a picture?

1 Q. Sure.

2 A. I know you can't see this --

3 MS. MISIAK: You can put it on as part of an

4 exhibit.

5 A. If you are looking down from the

6 periphotometer, there's one of the PVC pipes, there's

7 one of the PVC pipes, and there is the meter. PVC, one

8 meter. We took PVC that was one meter -- I apologize

9 for my drawing, but -- you're looking down at it. And

10 this was a piece of PVC that was one meter, one meter,

11 one meter, and one meter, around there.

12 So that what we had is this opening of --

13 around the periphotometer, so we could at least have

14 that much opening for each of the stations, and you are

15 looking down on it. If you were to look down on it,

16 that's the way it would look.

17 Q. Would there be any shading over this, that

18 would affect that?

19 A. Well, sure. When the sun comes up in the

20 morning, and it goes down at night, you get shading,

21 and you are going to get shading when the wind blows

22 and the cattails are over it, and that's just one of

23 the things that -- you know, I can't control all of

24 that.

25 What I can do is try to make the sample areas

1 the same in