275
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
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. )
- - - - - - - - - - - - - - - - - - x
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
100 S.E. 2nd Street
19 Miami, Florida
March 9, 1994
20 12:56 p.m. - 5:45 p.m.
21 DEPOSITION OF MICHAEL SOUKUP
22 Taken before THOMAS R. NEUMANN, Registered
Professional Reporter and Notary Public in and for
23 the State of Florida at Large, pursuant to Notice of
Taking Deposition filed in the above cause.
24 - - - - - - -
276
1 APPEARANCES
2 ON BEHALF OF THE RESPONDENT-INTERVENOR
UNITED STATES OF AMERICA
3
SUSAN HILL PONZOLI, ESQ.
4 ASSISTANT U.S. ATTORNEY
99 N.E. 4th Street
5 Miami, Florida 33132
6 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE
LEAGUE, INC., UNITED STATES SUGAR CORP., and
7 NEW SOUTH HOPE, INC.
8 EARL, BLANK, KAVANAUGH & STOTTS P.A.
One Biscayne Tower, Suite 3636
9 Two South Biscayne Boulevard
Miami, Florida 33131
10 BY: MARK T. KOBELINSKI, ESQ.
11
ALSO PRESENT: COURTNEY HACKNEY
12 MICHAEL ZIMMERMAN
13
INDEX
14 Witness Direct Cross Redirect Recross
MICHAEL SOUKUP
15 By Mr. Kobelinski: 277
16
17
277
1 Thereupon --
2 MICHAEL SOUKUP
3 was called as a witness and, having been first duly
4 sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. KOBELINSKI:
7 Q. Good afternoon, Dr. Soukup.
8 A. Good afternoon.
9 Q. I guess we can put on the record, Susan,
10 I'm going to shoot for finishing today. When we get
11 closer to five, maybe if we can go a little bit --
12 MS. PONZOLI: We will be happy to go late
13 today so we can finish.
14 BY MR. KOBELINSKI:
15 Q. Dr. Soukup, we left off yesterday --
16 according to my notes, essentially I was wrapping up
17 your opinions with regard to cultural eutrophication,
18 and I have really reviewed with you the impacts of
19 cultural eutrophication to the Park.
20 We have discussed also to a certain degree
21 how those impacts differ or are similar in other
22 areas of the EPA.
23 Briefly I looked through my notes, but I
24 recall you said something about the Holyland earlier.
25 I wasn't sure, are you going to be giving opinions
278
1 with regards to the Holyland and nutrient impacts in
2 the Holyland?
3 A. No. I think my earlier reference was to
4 the fact I wasn't sure you were including that in the
5 EPA, and that I wasn't familiar -- I hadn't had a
6 great deal of contact with the issue in the Holyland.
7 Q. Just before we move on, I would like to
8 confirm that. Other than discussing the impacts of
9 cultural eutrophication caused by nutrients from the
10 12 structures and/or others going into the Park, will
11 you be giving any additional opinions with regard to
12 that subject area, cultural eutrophication with
13 regards to the Park?
14 MS. PONZOLI: Limited by the S-12?
15 MR. KOBELINSKI: I'm saying with regard to
16 the Park itself. I don't want to try to limit
17 it in any way to the S-12 or anything. I want
18 to make sure I covered all bases before I moved
19 on to STAs and remedies.
20 THE WITNESS: As far as I know, that is the
21 general topic.
22 BY MR. KOBELINSKI:
23 Q. We have gone through, for instance, your
24 opinions as to periphyton microbial macrophytes.
25 I want to make sure there are not additional areas I
279
1 have missed where you will be offering additional
2 opinions as to impacts of cultural eutrophication.
3 A. I can't think of any off hand.
4 Q. I would now broaden that to the Everglades
5 Protection Area as a whole. Again, we have also
6 explored that. I have asked whether or not you have
7 any additional areas you are going to cover with
8 regard to nutrient impacts to the Everglades
9 Protection Areas as a whole.
10 A. None that come to mind.
11 Q. Moving then to your other area of
12 testimony, which is the remedies within the SWIM
13 Plan, we handled that briefly earlier and I would
14 like to explore that perhaps in a little bit more
15 detail now with regard to the remedies.
16 What remedies of the SWIM Plan do you
17 intend to address in your expert testimony?
18 A. My impression is that my testimony will be
19 in the general area of the adequacy of the remedy as
20 outlined in the SWIM Plan for protection of the Park
21 and as a general approach to reducing the impacts of
22 cultural eutrophication to the EPA.
23 Q. Is the remedy you are referring to the
24 treatment areas --
25 A. Yes.
280
1 Q. -- which I'll refer to as STAs?
2 A. Yes, the STAs and reduction of BMPs.
3 Q. With regard to BMPs, do you intend to
4 provide any expert opinion as to the effectiveness of
5 the BMPs currently in use or proposed and
6 contemplated by the SWIM Plan?
7 A. No.
8 Q. Do you intend to provide any testimony as
9 to the percentage of reduction anticipated or that
10 can be reached by the BMPs?
11 A. Only in the most general terms of what we
12 have heard in front of the SAGE committee. I don't
13 know if that's going to come up.
14 But my only opinions have been formed as a
15 member of the SAGE committee and the TOC and
16 attending presentations by the groups and things like
17 that in general terms.
18 Q. Other than your sitting in on the SAGE and
19 TOC and these presentations you referred to, have you
20 done research into Best Management Practices?
21 A. No.
22 Q. Have you in the past had any experience
23 with BMP or Best Management Practices for agriculture
24 or sugar?
25 A. No.
281
1 Q. With regard to the STA program, then, is it
2 your opinion that the STAs are the best means of
3 reducing phosphorous for the Everglades Protection
4 Area?
5 MS. PONZOLI: Object to form. I'm always
6 more comfortable if he gives you the answer
7 rather than you giving him the answer. That's
8 my objection to the form.
9 THE WITNESS: Could you repeat the
10 question?
11 MR. KOBELINSKI: Read it back.
12 (The question referred to was thereupon
13 read by the reporter as above recorded.)
14 THE WITNESS: Let me expand on that. A
15 combination of BMPs and STAs appeared after some
16 evaluation of the available alternatives,
17 appears to be the most practical and available
18 option for beginning to solve the problem.
19 BY MR. KOBELINSKI:
20 Q. Are you addressing the adequacy of STAs
21 specifically as that remedy impacts the Park, or is
22 your opinion directed more towards the entire
23 Everglades Protection Area?
24 A. We did the review of the options from the
25 framework of the EPA, including the Water
282
1 Conservation Areas.
2 Q. When you say "we," who is the "we" that you
3 are referring to?
4 A. I'm talking about those who were involved
5 in the early development of the settlement agreement
6 and in reviewing that plan as it was incorporated
7 into the SWIM Plan as a SAGE member looking -- as
8 part of the District's larger program of evaluating
9 alternatives, reviewing the information that was
10 provided to the SAGE members. That's the context of
11 the "we."
12 Q. Will you be providing any opinions as to
13 the settlement rate for phosphorous, the appropriate
14 settling rate for phosphorous?
15 A. Not to my knowledge.
16 Q. Will you be providing any opinions as to
17 the appropriate size of the STAs?
18 A. Not based on any technical work, only based
19 on the discussions that I have heard, my opinion
20 based on the discussions that have been presented to
21 SAGE, you know, the areas of the meetings and so
22 forth to the various arguments for the sizing.
23 Q. Have you done any research into the
24 question of the appropriate sizing of artificial
25 marshes for the removal of nutrients?
283
1 A. No.
2 Q. Will you be providing any testimony as to
3 the appropriateness of the locations for the STAs?
4 A. Not to my knowledge.
5 Q. Will you be providing any opinions as to
6 the types of plants or vegetations to be used within
7 the STAs?
8 A. Not to my knowledge.
9 MS. PONZOLI: Mr. Kobelinski, I don't want
10 to be unfair to you. We don't know what your
11 people are going to say, what you are going to
12 actually put on at trial. I think his answers
13 are all very fair and honest. But I do want you
14 to understand various federal witnesses may be
15 used in rebuttal to whatever is presented by
16 your witnesses at trial.
17 MR. KOBELINSKI: I understand what you are
18 saying, Counsel. I think that's probably true.
19 MS. PONZOLI: It's true of you, also. It's
20 sort of hard --
21 MR. KOBELINSKI: What I would like to do,
22 I'll go back over the areas which I just went
23 into and see if he has done research in those
24 areas, if he does any research because he is,
25 for instance, being called upon for a particular
284
1 area, as we will do with you, I would appreciate
2 you contacting us so we can explore that.
3 MS. PONZOLI: Certainly.
4 BY MR. KOBELINSKI:
5 Q. With regard to these technical aspects, the
6 sizing, type of vegetation, location, have you done
7 any research as to the appropriate -- those technical
8 aspects of the STAs?
9 A. No.
10 MR. KOBELINSKI: Bearing that objection in
11 mind, Counsel, as I said, I think it has to be a
12 reciprocal process for all. If the witness'
13 expert area changes to the extent he does start
14 doing research in that area, we would request
15 the opportunity to question him further.
16 BY MR. KOBELINSKI:
17 Q. With regard to the alternatives that you
18 have considered in the two different time periods
19 that you mentioned, one being as part of the
20 settlement negotiations and the other being as part
21 of your membership on SAGE, actually we could handle
22 it one at a time.
23 What were the alternatives that you
24 considered when determining the STAs were the
25 appropriate remedy and included them within the
285
1 settlement agreement?
2 A. As I recall, the district had done some
3 preliminary work on evaluating alternatives and, of
4 course, it had designed the ENR project. The
5 meetings and period when we have discussed
6 alternatives, much of it was based on the use of
7 water management areas I believe they were called at
8 that time. I think we have gone through several
9 different acronyms.
10 But there was discussion of other
11 alternatives and discussion generally led by the
12 District based on some of the things that they had
13 looked at. It was the general consensus that the
14 nutrient management area approach would be the most
15 feasible in terms of cost and effectiveness.
16 Q. Have you ever reviewed any of the
17 District's documentation on the water management
18 areas, WMAs?
19 A. I have reviewed portions of their work on
20 the ENR. They had an ENR project, designed a review
21 committee. I only sat in on one of their meetings.
22 They had a large panel of people who produced a
23 report and did some evaluations.
24 At one point, no, I have not really spent
25 much time on the early information that they had on
286
1 water management areas which I believe they started
2 to design in the early '80s.
3 Q. Do you recall whether or not the water
4 management areas were designed solely for nutrient
5 removal purposes?
6 A. I believe there were some perceived benefit
7 related to distribution, hooking them up with
8 distribution canals and increasing sheet flow early
9 on. I don't remember any other details of that.
10 There is also some minor role considered
11 for them in terms of modulating flow over time. They
12 don't have an awful lot of storage capacity as the
13 general designs evolved, but there was some thought
14 that they would have a modulating effect on run off
15 events hydrologically.
16 Q. With regard to a combination of the sheet
17 flow aspects and the modulation of flows, was that
18 one of the primary purposes of the water management
19 areas?
20 A. My understanding has been that they have
21 always been considered as ways of reducing nutrients.
22 Q. Do you know whether or not --
23 A. Primarily.
24 Q. Primarily, okay.
25 Do you know whether or not the hydrologic
287
1 aspects, sheet flow and modification of water
2 distribution timing, was a coequal primary purposes
3 of the water management areas?
4 A. My understanding was that it was not
5 co-equal. That the water management areas were being
6 designed primarily to address the nutrient problem.
7 Q. Do you recall the approximate size of the
8 water management areas as far as acreages?
9 A. At what step, what period?
10 Q. At the period you were considering them,
11 when you first were looking at that alternative as a
12 part of the settlement negotiations.
13 A. I believe that there were a number of
14 different estimates that were current at different
15 times in the evolution of these water management
16 areas. I believe the earlier sizing calculations
17 were based on an uptake rate produced by Steve Davis.
18 I think 1.67 grams per meter square per year.
19 I believe that rate that he defined in his
20 '91 paper was used when I first started attending
21 meetings that discussed the water management area
22 size question.
23 Q. Do you recall whether the locations of the
24 water management areas were in the same approximate
25 location the STAs are currently scheduled for in the
288
1 SWIM Plan?
2 A. Well, let me answer that and reflect back
3 on your questions in that there was an ongoing
4 shaping and sizing of the entire remedy during the
5 settlement negotiations process, and there have been
6 several other changes in the STAs promoted at
7 different times since then. So at any point in time
8 the answer to your question might be a little
9 different.
10 But generally the approach has been to find
11 the best engineering means of correcting the large
12 flows, especially those impinging on Loxahatchee, and
13 trying to find the most efficient way of collecting
14 and treating those flows to an interim step or at
15 least a technologically feasible step within a short
16 period of time. So that the actual placement has
17 bounced around a bit.
18 Q. Are the STAs as currently designed or
19 placed in the SWIM Plan, will they result in a
20 enhancement of sheet flow in any portions of the
21 Everglades Protection Area?
22 A. I don't believe that that is provided for
23 in the initial plan. That's in the SWIM Plan, if I
24 remember correctly.
25 Q. Is that the hydrological alternative that
289
1 you considered back in the period where you were
2 considering alternative treatment technologies for
3 the settlement negotiations?
4 A. I'm sorry, I didn't hear the first part.
5 Q. Is the addressing of the re-establishment
6 of the sheet flow one of the items that you
7 considered when you were addressing alternatives for
8 nutrient removal while negotiating the settlement
9 agreement?
10 A. It was thought to be an ancillary benefit
11 to the construction of STAs. But the discussions
12 that I was present at that were to resolve the
13 nutrient problem didn't dwell on that aspect. That
14 was thought to be part of the restoration of water
15 quantity, which was felt to be another, of course,
16 important issue.
17 And the design of flow structures at the
18 end of those STAs were thought to be feasible, but
19 they weren't part of the initial considerations of
20 achieving the target that we generally felt was
21 feasible -- that's a 80% reduction by 1997, which was
22 the original date, July of 1997, reduction of
23 phosphorus tonnage going into the EPA.
24 Q. Other than the WMAs, what other
25 alternatives did you consider at the time when you
290
1 were negotiating or participating in the settlement
2 negotiations of the federal suit?
3 A. I only remember some general talk of the
4 range of options that included chemical
5 precipitation. I believe there was some talk about
6 deep well injection and a number of the known
7 technologies.
8 But there wasn't, as I mentioned earlier, a
9 great deal of discussion other than from the District
10 which had done some work initially on alternative
11 technologies.
12 Q. Do you recall why chemical precipitation
13 was not selected as the alternative choice?
14 A. It was generally felt in the early series
15 of talks that the overall costs, if calculated for
16 the volume of water or the range of volumes of water
17 that had to be treated, that cost would not in the
18 final analysis be competitive with STAs.
19 Q. With regard to deep well injection, do you
20 recall why it was not used as an alternative that was
21 selected?
22 A. My impression was that it was not capable
23 of handling the size of the range of flows that one
24 has to treat coming out of the EAA, and that the cost
25 to achieve deep well injection of those hundreds of
291
1 thousands of acre feet would be prohibitive and there
2 might be environmental concerns, as well, with that
3 method on that scale.
4 Q. Was ASR ever considered as an alternative
5 at this point during the settlement negotiations?
6 A. I don't believe we spent any time on it.
7 The districts may have spent some time on it.
8 Q. Were there any additional alternatives
9 other than those we just discussed that were
10 considered during the settlement negotiation phase?
11 A. I don't recall any.
12 Q. At the time that this consideration of
13 alternatives took place, were there actually
14 assessments as to the overall costs? For instance,
15 chemical precipitation?
16 A. I don't know if there were any detail costs
17 involved. All of that information was provided to
18 the extent that it was provided, was from the Water
19 Management District. I don't recall any detailed
20 cost estimates, although those were generated later
21 during the process that was set up with SAGE to look
22 at alternatives.
23 Q. Ultimately during the settlement
24 negotiations then STAs were selected as the best
25 available alternative for removing nutrients with
292
1 regard to the EPA; is that correct?
2 A. Correct.
3 Q. Moving, then, to the next step where
4 alternatives were considered, would this be during
5 your period as a member for SAGE?
6 A. It's my understanding that the District
7 committed itself to looking at alternatives, and that
8 part of the reason for the assembly of the SAGE
9 committee was to review alternative technologies and
10 the general approach that was the combination of
11 STAs.
12 Q. Has the Park ever conducted any research as
13 to the alternatives for nutrient removal?
14 A. Not to my knowledge.
15 Q. During the settlement negotiations did
16 discussions as to other sources of water, were those
17 considered as possible alternatives to nutrient
18 removal or cleaning water from the EAA?
19 MS. PONZOLI: Excuse me, I don't understand
20 the question.
21 THE WITNESS: I'm not sure I do, either.
22 BY MR. KOBELINSKI:
23 Q. Well, for instance, with regard to deep
24 well injection, was it discussed that if there was
25 deep well injection of the EAA water, that due to
293
1 water supply demands both for the Park and the urban
2 areas, additional water would need to be made up from
3 another source. Was that ever considered?
4 A. The idea that deep well injection or a
5 process that would use water or not recovered water,
6 I don't believe we reviewed that impact, because the
7 idea of achieving that level would produce a large
8 volume impact.
9 I think, as far as I know, that wasn't
10 discussed, if that answers your question. Maybe you
11 should try the question again.
12 Q. When considering deep well injection, was
13 there ever a discussion similar to the BMP to make up
14 water -- was there discussion as to whether or not by
15 necessity there would be necessity to make up the
16 water that was being injected into a deep well?
17 A. I don't know of any discussions on that
18 level because I believe the method wasn't felt to be
19 practicable in achieving it, so the impact derived
20 from it, I don't believe I ever heard a discussion of
21 the make up order.
22 My recollection of the assessment of deep
23 well injection was that it didn't go so far as that
24 particular impact.
25 Q. Are you familiar with the water budgets for
294
1 the Water Conservation Areas set forth in the SWIM
2 Plan?
3 A. I'm sure I have read them at some point,
4 but I'm not able to recollect them in any detail.
5 Q. Are you just generally familiar that the
6 SWIM Plan estimates that ET is equal to or greater
7 than the rainfall within the Water Conservation
8 Areas?
9 A. I have heard that. I remember reading
10 that. I believe it was the SWIM Plan.
11 Q. Given that the Park -- and I don't have my
12 notes from yesterday, but I believe you stated that
13 on average the Park is receiving approximately
14 400,000 acre feet, was that the correct figure -- we
15 discussed the question yesterday -- currently?
16 A. I believe that was the general ballpark.
17 Q. As a ballpark, the Park is currently
18 receiving in the ballpark of 400,000 acre feet and
19 the current projections for the restoration of flows
20 for the modified water delivery are in the ballpark
21 of 500,000 to one million acre feet.
22 Is the Park dependent upon water from
23 sources other than the WCA's?
24 A. The Park as I understand it gets much of
25 its water is from precipitations, and then inflow
295
1 from upstream makes up the rest. Those numbers that
2 we were talking about are what used to flow across
3 the entry plain into the Park. I guess I lost the
4 rest of the question.
5 Q. My question was, given the SWIM Plan shows
6 that the ET and Water Conservation Areas meet or
7 exceed the rainfall within the Water Conservation
8 Areas, as such they do not have or create excess
9 water for delivery to the Park, is the Park dependent
10 upon outside sources for its water supply?
11 A. It's dependent directly upon water coming
12 through the conservation areas and canal water that's
13 delivered from Lake Okeechobee.
14 Q. To what extent historically has the canal
15 water delivered from Lake Okeechobee been sufficient
16 to satisfy the Park needs?
17 A. I believe it hasn't been sufficient.
18 Q. Is the Park then dependent upon the water
19 that has historically been discharged from EAA to
20 meet a portion of its water supply needs?
21 MS. PONZOLI: Object to the form.
22 THE WITNESS: I believe the export of water
23 from the EAA has made up a portion of the water
24 that has been delivered to the Park.
25 BY MR. KOBELINSKI:
296
1 Q. Is water supply for the Park and the urban
2 areas one of the factors driving the need to deliver
3 water into the Water Conservation Areas, be it from
4 EAA or Lake Okeechobee?
5 A. I believe there has been a role for the --
6 role established for the Water Conservation Areas in
7 providing water for the urban water supply
8 replenishment and for deliveries to the Park, in that
9 apparent priority.
10 Q. Again, while the Water Conservation Areas
11 are designed as reservoirs, according to the SWIM
12 Plan they do not produce -- they are not a net water
13 provider in the system that currently exists today;
14 is that correct?
15 A. I probably should indicate that I am not
16 certain that that calculation that ET is equal to
17 rainfall certainly doesn't happen, in my mind, every
18 year.
19 If you are talking about long-term average,
20 the ET values for the Everglades are not very well
21 documented. There has been a lot of work, but it
22 really hasn't panned out yet in terms of what the ET
23 is for the different communities in the Everglades.
24 Those are rough approximations.
25 I'm certain in some years there are net
297
1 exports from the Water Conservation Areas by rainfall
2 falling in those areas, other years not.
3 So I think the premise of your question may
4 or may not be totally accurate.
5 Q. Has the Park conducted any ET experiments
6 or studies of its own?
7 A. It has done some work through Lance
8 Gunderson who is now still, I think, at the
9 University of Florida. It's my understanding that he
10 is still working on the evaluation and write up of
11 the data that has been collected.
12 There may also be work in progress by the
13 Water Management District under contract, but I don't
14 know the details.
15 Q. Has the Park ever done a water budget for
16 the lands of the Park itself?
17 A. Water budget in terms of rainfall?
18 Q. And ET.
19 A. In ET, overall gross input/output kind of
20 budgets?
21 Q. Yes.
22 A. I believe it has. I don't know the details
23 of it.
24 Q. Do you recall whether or not it is a --
25 overall ET exceeds or is less than rainfall based
298
1 upon the study that the Park has done for the Park?
2 A. I don't know how that calculation, if it
3 were done -- which I'm sure someone has done it,
4 probably many hydrologists have done it -- I'm not
5 familiar how it turned out.
6 Q. With regard to your activity at SAGE, other
7 than your consideration of alternatives in your role
8 as a member of SAGE, have you considered alternatives
9 to STAs in any other format other than the one during
10 the settlement negotiation of the federal suit and,
11 number two, your participation as a member in SAGE?
12 A. There has been some discussion of
13 alternatives in the recent talks that occurred within
14 the last year with industry representatives and
15 environment representatives.
16 Q. These are mediation talks?
17 A. Mediation talks.
18 Q. What are the alternatives that SAGE
19 considers to STAs?
20 A. They considered I think a fairly broad
21 range of alternatives. I believe most all of them
22 that were brought up by any interested group, the
23 ones that we spent most time on were chemical
24 precipitation. We spent some time on the algal turf
25 scrubber. We spent some time on a number of others.
299
1 I believe there was a routing plan put
2 forward by Jim Knoll called the Knoll plan, and there
3 were a number of combinations of alternatives put
4 together by the industry, agricultural industry. I
5 believe Flosun had a plan or perhaps at that time it
6 was the Florida Sugar Cane League had one plan, and
7 there may have been two versions of that plan which
8 included things such as limestone lining of canals
9 and various number of other approaches to reduce
10 phosphorus. Pumping PNP's were a large part of the
11 industry proposals.
12 Q. With regard to your participation in SAGE,
13 after considering those alternatives, what was
14 determined to be the best alternative for nutrient
15 removal of the EPA?
16 A. It was the general opinion of the SAGE
17 committee that for the application intended within
18 the first phase of the clean up program that STAs
19 were the most feasible technology.
20 Q. What were the driving factors in the
21 application for the first phase that were considered?
22 A. The driving factors in the determination
23 that that was the best approach?
24 Q. Yes. You said with regard to the -- for
25 the first phase STAs were the most feasible. What
300
1 were the factors of the first phase that made STAs
2 the most feasible?
3 A. The fact that it was easily demonstrated
4 that wetland treatment systems were common and
5 functioning at levels around 50 parts per billion.
6 That was one factor.
7 The fact that there would be little
8 question of marsh suitability for the effluent, that
9 was a question brought up about the ionic composition
10 of chemically treated water. And the general cost, I
11 think, was thought by many people to be competitive
12 with chemical treatment at the outflow concentrations
13 in the 50 parts per billion range.
14 Q. Anything else?
15 A. I think those were the primary factors.
16 Q. Do you have an opinion as to why STAs are a
17 preferable treatment as compared to the alternatives
18 that SAGE considered?
19 A. I think those are pretty much my opinions
20 based on what I have seen. I think that is a good
21 approach and one that is doable if the design,
22 construction and execution of the program is done
23 effectively.
24 Q. What is the basis for your opinion there?
25 What are your sources of information?
301
1 A. Just the documents that were provided to
2 SAGE members and those were documents that were
3 primarily provided by either the Water Management
4 District as a result of their contracts, notably with
5 Burns and McDonnell and Brown and Caldwell, based on
6 my conversations and discussions with Bob Kadlec,
7 based on my review of the materials provided by those
8 who proposed and reviewed the alternatives presented
9 to SAGE.
10 Q. You mentioned Burns, McDonnell and Brown
11 and Caldwell. Did either of these have the
12 assignment of comparing the alternatives for nutrient
13 removal?
14 A. The contract to Brown and Caldwell was
15 targeted for that purpose.
16 Q. Did you discuss the alternatives with
17 Curtis Richardson?
18 A. Directly, I don't believe I did.
19 MS. PONZOLI: Can we go off the record?
20 MR. KOBELINSKI: Sure.
21 (Discussion off the record.)
22 BY MR. KOBELINSKI:
23 Q. What background do you have --
24 A. Let me answer that question a little more
25 broadly. I had a number of discussions with
302
1 Dr. Richardson, but I don't recall ever talking in
2 any detail about alternatives.
3 Dr. Richardson did make a presentation to
4 SAGE based on some of his information pertinent to
5 STA.
6 Q. What background, Doctor, have you had in
7 the design or efficacy of artificial marshes in
8 nutrient removal?
9 A. I have really only general awareness of the
10 technology in a general sense. I have attended a
11 couple of conferences over the years. I have really
12 not had any direct experience either in constructing
13 or designing.
14 Q. Have you ever studied or done any research
15 into how the dynamics of how artificial marshes
16 remove nutrients?
17 A. Any research into the dynamics? No.
18 Q. Are you and your opinions with regard to
19 the appropriateness of the remedy dependent, then,
20 upon the material you have reviewed both as a member
21 of SAGE and the presentations therein and also the
22 discussions you have mentioned with Dr. Kadlec?
23 A. Also in other discussions with Bill Walker
24 and discussions provided during the settlement talks
25 by Chip Swindell, who was a consultant brought in by
303
1 the Water Management District during the settlement
2 talks.
3 Those are the people that I have talked to
4 about the general use and utility of those, plus some
5 DEP people or, at that point, DER people.
6 Q. Do you recall whether or not the Brown and
7 Caldwell report came to the same conclusion, that
8 STAs were the most appropriate remedy for nutrient
9 removal for the Everglades Protection Area?
10 A. My recollection is that they felt that
11 chemical precipitation was a more cost effective
12 technology for this application.
13 Q. With regard to the factors that you have
14 considered for STAs, is it your understanding that
15 chemical precipitation or treatment would work at
16 levels of 50 parts per billion or be able to achieve
17 those levels?
18 A. Would chemical precipitation be able to
19 achieve those levels?
20 Q. Yes.
21 A. I believe that they will achieve lower
22 levels than that.
23 But there is also some question one of the
24 factors which might hinder their application would be
25 the need for treating certain volume to a very low
304
1 level, and then bypassing during many events water
2 untreated, which I believe would have a long-term
3 continuing impact on the system.
4 So that the designs that I saw that were
5 presented to SAGE were designs that were touted to be
6 cost effective. And when one looked into the cost,
7 that problem that of bypassing of untreated water on
8 many occasions, plus my own opinion that there was a
9 lot of uncertainty in their cost figures, those
10 aspects indicated to me that while the technology
11 could certainly treat the 50 parts per billion,
12 perhaps there may be a viable technology for lower
13 levels, that technology had drawbacks. Even though
14 it could treat the 50 parts per billion, it might not
15 be the technology of choice in this application.
16 Q. Are there uncertainties as to whether the
17 STAs currently designed will be able to achieve 50
18 parts per billion?
19 A. The outflow is designed to achieve 50 parts
20 per billion on a long-term average, and there is some
21 uncertainty built into that.
22 There is some potential for the STA design
23 to achieve lower than 50 parts per billion. There is
24 a fair amount of information on similar wetlands
25 operating and that information, to my mind, indicates
305
1 that it is with a reasonable image of expectation.
2 Q. Are there any information from wetlands
3 anywhere near the size of the STAs contemplated by
4 the SWIM Plan?
5 A. There are, I don't think, any installations
6 of such systems on this scale. I believe the ENR
7 project is the biggest to date of this kind of
8 project. The systems that are functioning at this
9 time are on a smaller scale.
10 Q. The ENR project has not had sufficient time
11 to yield any type of results or design criteria, has
12 it?
13 MS. PONZOLI: Object to the form.
14 THE WITNESS: The ENR, as I understand it,
15 is operating as of this year.
16 I guess the permit has been granted and --
17 the permit is being granted, so it would be
18 operational this year. It's operation and its
19 performance has not been evaluated, no.
20 BY MR. KOBELINSKI:
21 Q. Although the ENR would be the largest
22 project of an artificial marsh to date, it itself is
23 just a fraction of what the total size of the STAs
24 would be. Is that accurate?
25 A. I believe it's 3700 acres. I believe it's
306
1 a tenth.
2 Q. Are there any artificial wetlands that you
3 are aware of that handle the same volume of water
4 that the STAs are intended to treat?
5 A. You mean relative to size?
6 Q. I'm talking about just any artificial
7 wetlands that are handling the same volume of water
8 that will be treated by the STAs?
9 A. Well, obviously not. If this is the
10 biggest system handling the amount of water that it's
11 designed to handle, this will be the biggest system.
12 No, there is no system handling the same volume now.
13 Q. Under the SWIM and DER permit, do you know
14 what I'm referring to? I guess it's now DEP, the
15 permit associated with the SWIM Plan, is it
16 contemplated there would be bypass water around the
17 STAs?
18 A. For the ENR permits?
19 Q. For the STAs.
20 A. No. The bypass would occur only under
21 extreme events outside a period of record. I believe
22 it's a ten year period of record based on the
23 monitoring in the Everglades.
24 For that period of record which had the
25 extreme conditions for those conditions for that
307
1 range of conditions, there would be no bypass.
2 Q. Are there any uncertainties about the cost
3 of the STAs?
4 MS. PONZOLI: Object to the form.
5 THE WITNESS: I believe there are
6 reasonable estimates available for land
7 acquisition and for construction and for pumps
8 and those kind of engineering things.
9 I believe there are probably poorer
10 estimates for the annual operation of the STAs
11 that obviously those could be refined. But that
12 would be a question that Galen Miller should
13 answer.
14 But I think the estimates that we have had
15 over time have not changed that much. There has
16 been some change in cost estimates both up and
17 down for the technology. I'm not at all sure
18 they were not reasonable estimates.
19 BY MR. KOBELINSKI:
20 Q. You had stated that in your opinion there
21 were uncertainties as to the cost of chemical
22 precipitation or chemical treatment.
23 Are there greater cost uncertainties
24 related to the STAs?
25 A. I don't believe so. I believe if one
308
1 examines the Brown and Caldwell report, which
2 attempts to estimate the costs of both technologies,
3 I believe if you look at it closely, you will find
4 that there are some major inequities how the two
5 systems were examined. Because there is an awful
6 large amount of research money included, for
7 instance, in the STA budget and a very large
8 operational budget, including operators and personnel
9 for chemical treatment, there is a very lean and
10 favorable estimate of what that system would cost in
11 annual operation.
12 I believe those costs have recently been
13 revised upwards. I believe they are becoming very,
14 very close in the overall costs.
15 An additional factor that wasn't considered
16 was A, the life span of the project, both projects.
17 If the capital invested or available in the land was
18 not considered in the STA assessment, then that of
19 course -- since STAs are land intensive that, of
20 course, is a big factor in assessing the overall
21 relative cost of the two technologies.
22 Q. Is there a life span -- projected life span
23 for the STAs?
24 A. Yes, there was a projected life span. I
25 can't remember -- 20, 25 or 50 years.
309
1 Q. You had stated that according to Dr. Walker
2 the STAs were projected to achieve a long-term
3 average of 50 parts per billion. What is your
4 understanding of what the long term is?
5 A. Long-term average, 50 parts per billion.
6 What is the long-term?
7 Q. Right.
8 A. I don't remember how he has produced an
9 evaluation of what the probables are for the
10 discharge. I don't know what basis, whether it was a
11 five-year running average. I don't know what basis
12 that is.
13 Q. Just to make sure that you understand my
14 question, again, the term "long-term average" is
15 used. My question is really just what is the
16 long-term that is used to determine 50 parts per
17 billion average? What is that? How many years is
18 long-term average?
19 MS. PONZOLI: I think it has been asked and
20 answered.
21 THE WITNESS: I have read his most recent
22 report. I can't remember the basis. We have
23 often been using five-year running averages to
24 monitor canal discharges and things like that.
25 I don't remember what he uses to set up a
310
1 compliance test to determine what the expected
2 and probable outflow for the STAs will be. And
3 it's a statistical test to determine when that
4 is or is not achieved, but I don't remember the
5 details of it. I read it a few weeks ago. I
6 don't remember the basis that he used -- that he
7 proposed.
8 It hasn't been accepted by all parties. I
9 think it has been proposed, but I can't remember
10 the test as he perceived it.
11 BY MR. KOBELINSKI:
12 Q. Is 26 years, to the best of your
13 recollection, the long-term that is used in the
14 long-term average of 50 parts per billion?
15 A. My understanding, and I would have to refer
16 you to him, my understanding is that is not the
17 long-term. That's too long a time for the
18 calculation of whether or not they are producing 50
19 parts per billion.
20 My impression was -- and again I don't
21 remember the test that he proposed, but it was
22 certainly more immediate than that.
23 Q. If 26 years is the long-term figure for the
24 long-term average of 50 parts per billion, would that
25 have an impact upon your opinion as to whether STAs
311
1 are the most appropriate remedy for removing
2 nutrients from the Everglades Protection Area?
3 MS. PONZOLI: Object to the form.
4 THE WITNESS: My expectation of STA
5 performance is that after the initial start up,
6 I don't know, after I believe a couple of years
7 for sediment equalization and vegetation
8 establishment and the normal uptake processes
9 establishment, then the test for performance
10 would begin. And within three years we would be
11 testing statistically the performance of the
12 STAs against their stated goal of 50 parts per
13 billion on that expectation, I believe.
14 MS. PONZOLI: I believe you gentlemen are
15 talking about different issues.
16 BY MR. KOBELINSKI:
17 Q. Will you be providing any opinions as to
18 the period of time necessary for the soils to reach
19 equilibrium, the vegetation to establish -- in other
20 words, the period of time to which the STAs will
21 start to function as a nutrient removal project?
22 A. No.
23 Q. If the STAs are designed to achieve a
24 long-term average of 50 parts per billion and the
25 long-term is actually 26 years, how appropriate is it
312
1 to anticipate that the STAs will be reaching that 50
2 parts per billion within the first five years?
3 MS. PONZOLI: Object to the form.
4 THE WITNESS: I guess I don't accept your
5 premise that's the way they are expected to
6 produce.
7 If it is as you indicated, if the
8 expectation was for the long-term average of 26
9 years, then obviously you have given a lot of
10 latitude for higher performance early or later.
11 Long-term average of 50 parts per billion, if it
12 were delayed, I think would be a problem. But
13 then obviously if it performed much lower than
14 that in the future with long-term average, I'm
15 not certain it still would be acceptable.
16 I believe the intent is to achieve that
17 load reduction within a very short frame of time
18 that the STAs have to start up. And after
19 enough time to statistically evaluate their
20 performance, that they will be performing sort
21 of long before -- midway through 26 years.
22 BY MR. KOBELINSKI:
23 Q. Is it your understanding that the STAs were
24 designed to achieve a long-term average of 50 parts
25 per billion, just leaving the term "long term"
313
1 undefined at this point in time?
2 A. Correct.
3 Q. The term "long-term average, 50 parts per
4 billion" is based upon Dr. Walker's report; is that
5 correct?
6 A. Yes.
7 Q. And the uncertainty or analysis or the
8 uncertainty with regard to whether or not they
9 achieved 50 parts per billion was based upon this
10 long-term average, is that accurate?
11 MS. PONZOLI: Object to the form.
12 THE WITNESS: Repeat that again.
13 BY MR. KOBELINSKI:
14 Q. We were talking earlier about the
15 certainties and uncertainties about the various
16 alternatives to achieving a reduction of phosphorus
17 to 50 parts per billion.
18 Was there a determination that the STAs had
19 a certain uncertainty of achieving a long-term
20 average of 50 parts per billion?
21 A. My understanding was there was an
22 expectation that after initial start up they would be
23 producing in the area of 50 parts per billion
24 constantly over the life span of the project varying
25 year to year, but achieving the 50 part per billion
314
1 level early in their performance.
2 Q. On what do you base your opinion that the
3 STAs will perform -- achieve reductions to 50 parts
4 per billion in the early period of their performance?
5 A. As I indicated earlier, there is a very
6 large database on wetland performance in the U.S. and
7 many have produced databases that have been evaluated
8 primarily by Dr. Kadlec and his expectations that the
9 performance of areas -- a couple of Florida systems,
10 for instance, indicate that they should perform
11 within a short start up time.
12 I believe his estimate given to the
13 mediation group was that the start up time for the
14 system was a little over two years, maybe three
15 years.
16 Q. Is it anticipated that STAs will have any
17 impact upon water deliveries to the Park?
18 A. As I understand it, the impact from
19 increased ET are small, five or six percent. I think
20 the outflow from the EAA might be enhanced to the
21 level of five or six percent. They are -- of course,
22 if combined with the spread of canals below and the
23 achievement of sheet flow, as was contemplated in the
24 mediation talks, there could be some positive
25 benefits for the water conservation in terms of
315
1 replacing sheet flow to certain areas.
2 By and large I don't believe the impact was
3 so very -- I believe the estimate was five or six
4 percent enhancement over I think what's happened to
5 the water now.
6 Q. The STAs as currently designed do not
7 provide for restoration of sheet flow?
8 MS. PONZOLI: Object to the form.
9 MR. KOBELINSKI: I'll withdraw that.
10 BY MR. KOBELINSKI:
11 Q. Under the SWIM Plan adopted by the
12 distribution of the STAs, it does not provide for
13 restoration of sheet flow to the WCAs, do they?
14 A. I haven't read the SWIM Plan for a couple
15 of years. I have been involved in looking at the
16 more recent configurations of the STAs and those
17 outflows by other system. I couldn't tell you for
18 sure whether or not the SWIM Plan -- I know it does
19 address other issues than nutrients. I don't
20 remember whether or not it had determination of sheet
21 flow.
22 Q. To the extent that the current SWIM Plan
23 does not provide for the restoration of sheet flow to
24 the WCAs, would movement or a reconfiguration of the
25 STAs to provide for that aspect be an improvement
316
1 over the existing plan?
2 MS. PONZOLI: Object to the form. I think
3 you have probably stepped over the line. I
4 don't believe the hearing officer said you could
5 say whether one plan was better or worse than
6 another.
7 MR. KOBELINSKI: I don't recall mentioning
8 two plans, Counsel.
9 MS. PONZOLI: I think that is the clear
10 implication of your question.
11 THE WITNESS: If you can read back the
12 question, could you ask it again?
13 MR. KOBELINSKI: Sure.
14 MS. PONZOLI: Read it back. You want me to
15 object again to the next --
16 MR. KOBELINSKI: Go ahead and read it back.
17 (The question referred to was thereupon
18 read by the reporter as above recorded.)
19 MS. PONZOLI: I have an additional
20 objection. I don't believe it has been
21 established by this witness that they don't
22 provide -- are you asking him to assume that
23 there is no provision for any sheet flow or
24 restoration?
25 MR. KOBELINSKI: Oh, I wouldn't want this
317
1 witness to assume.
2 MS. PONZOLI: Well, I mean --
3 MR. KOBELINSKI: It's all right.
4 BY MR. KOBELINSKI:
5 Q. Dr. Soukup, I'm showing you a copy of the
6 SWIM Plan and appendices and supporting information.
7 If you could review that and provide --
8 MS. PONZOLI: You want him to review the
9 entire SWIM Plan as we sit here, Mr. Kobelinski?
10 I think that's unreasonable.
11 He answered your prior question. He didn't
12 recall whether this document provided -- I think
13 that's accurate, whether it provided for sheet
14 flow.
15 And so I think to ask him to review the
16 entire document is an unreasonably request.
17 If Dr. Soukup can do that in a quick
18 fashion and answer you, I have no problem with
19 it. But if it's going to require him going
20 through the entire SWIM Plan, I think that's an
21 unreasonable request.
22 MR. KOBELINSKI: I don't think it requires
23 the entire SWIM Plan.
24 MS. PONZOLI: Why did you hand him the
25 entire SWIM Plan?
318
1 MR. KOBELINSKI: I don't want to have
2 another objection I didn't provide the complete
3 document.
4 THE WITNESS: I think I can answer the
5 question at least to a certain degree.
6 BY MR. KOBELINSKI:
7 Q. Okay.
8 A. There are a number of different volumes and
9 appendices. I'm not sure if the system of
10 hydroperiods benefits canal improvements that the
11 District has been contemplating for some time.
12 I don't see them in the section that I
13 would assume that they would be in. If they are in
14 other sections, I don't know in terms of your
15 question of whether or not spreader systems to
16 discharge flows over areas, say, 3A on a Browder
17 front would be preferable.
18 I believe that would be a useful part of a
19 larger effort that will probably hopefully be
20 undertaken in the near future to address many of the
21 hydroperiod impacts in the Everglades.
22 Q. Well, given your consideration of various
23 alternatives, would it be appropriate at this point
24 in time prior to the STAs being constructed to design
25 the STAs in such a manner that hydroperiod aspects
319
1 can be addressed prior to their being built and
2 having to be reconfigured?
3 A. I don't believe that the provision for
4 hydroperiod or sheet flow distribution is necessary
5 or in any way has to be done at the same time as the
6 STAs are constructed.
7 There are, when clean water is available, I
8 think a number of options for providing that water in
9 a broad front. I think that it would be useful and
10 advantageous to the environment to go that direction
11 as soon as the water is clean enough to be introduced
12 into areas that are not impacted as yet by large
13 flows of nutrient clear water.
14 Q. On what do you base the opinion that
15 designing subsequent -- designing after the STAs are
16 constructed, as currently contemplated by the plan
17 for the restoration of sheet flow, would be as cost
18 effective and as effective in restoring sheet flow as
19 doing so at this point in time, prior to the
20 construction of the STAs themselves?
21 MS. PONZOLI: I don't believe you
22 summarized his prior answer appropriately,
23 Mr. Kobelinski. You are giving your answer and
24 then adding a question to the end of it.
25 I don't think -- maybe I have been sitting
320
1 in this deposition for three days and I'm
2 beginning to zone out, but I don't remember the
3 "cost effective" in the prior series of
4 questions.
5 MR. KOBELINSKI: Go ahead, Doctor.
6 MS. PONZOLI: You don't have to answer the
7 question if it's not your answer. You need to
8 realize he has framed the question as your
9 answer.
10 MR. KOBELINSKI: Are you instructing the
11 witness not to answer?
12 MS. PONZOLI: I counted two, three times
13 that you did it in a deposition. I haven't done
14 it once, Mr. Kobelinski.
15 I'm very clear in what I say. And when I
16 say, "Dr. Soukup, don't answer," this record
17 will reflect it, Mr. Reporter.
18 MR. KOBELINSKI: You said many times you
19 don't have to answer.
20 MS. PONZOLI: Read back the question.
21 MR. KOBELINSKI: Is there a distinction
22 between the two? I'm trying to figure it out.
23 MS. PONZOLI: Would you read back the
24 question, please.
321
1 (The question referred to was thereupon
2 read by the reporter as above recorded.)
3 THE WITNESS: I'm not sure I'm giving the
4 same emphasis you are as to cost efficiency.
5 I'm just trying to indicate that the
6 provision of clean water for that spreading was
7 my primary concern. There may be some costs
8 involved that might be additional. Those are
9 engineering questions.
10 My impression is that the projects that
11 have been talked about by the district for
12 spreading water are largely canal improvements
13 and canal construction projects that would occur
14 below the STAs.
15 And while there may be some additional
16 costs, I couldn't tell you whether or not they
17 were significant or not.
18 BY MR. KOBELINSKI:
19 Q. Would it be appropriate for restoration of
20 the ecosystem to design the STAs to provide for
21 restoration of sheet flow to the WCAs?
22 MS. PONZOLI: Object to the form.
23 THE WITNESS: I don't believe it's
24 necessarily a part of the resolution of the
25 water quality issue.
322
1 I would certainly advocate that when the
2 water quality is appropriately clean, that the
3 re-establishment of sheet flow in the Water
4 Conservation Areas would be a high environmental
5 priority.
6 BY MR. KOBELINSKI:
7 Q. The STAs are supposed to make the water
8 appropriately clean; is that correct?
9 A. The STAs are designed to be a significant
10 first step in that provision of water that is
11 appropriately clean.
12 Q. Would it be appropriate, then, to design
13 the STAs to not only achieve the appropriate
14 cleanliness of the water but also to provide for
15 restoration of sheet flow to the WCAs?
16 MS. PONZOLI: Object to the form.
17 MR. KOBELINSKI: Normal ecosystem
18 restoration? It has been asked and answered,
19 Counsel.
20 THE WITNESS: I would say there are lots of
21 factors that would go into that decision, and
22 those are factors that are part of a larger
23 effort and were not considered part of the water
24 quality obligation of the state to achieve.
25 BY MR. KOBELINSKI:
323
1 Q. When you say that was not part of the water
2 quality obligation of the state to achieve, are you
3 referring to the considerations in
4 the settlement agreement of the federal lawsuit?
5 A. I was thinking of the regulatory authority
6 and obligation that the state has.
7 Q. Is there a particular statute you are
8 referring to?
9 A. Well, the provision of state waters and is
10 that suitable for the appropriate water quality
11 classification for that body of water. Class three,
12 for instance.
13 Q. Are you familiar with the Marjorie Stillman
14 Douglas Act?
15 A. Yes.
16 Q. Is that the act by which the Everglades
17 SWIM Plan was adopted along with the SWIM act?
18 MS. PONZOLI: Object to the form. I think
19 that's a legal question, Counselor,
20 inappropriate for this.
21 THE WITNESS: I couldn't tell you how they
22 interact. I'm not sure of the legal connection.
23 MS. PONZOLI: Can we take a break,
24 Mr. Kobelinski?
25 MR. KOBELINSKI: Sure.
324
1 (Thereupon, a brief recess was taken,
2 after which the following proceedings
3 were had:)
4 BY MR. KOBELINSKI:
5 Q. Dr. Soukup, is it your opinion that the
6 STAs will achieve reductions of nutrients to 50 parts
7 per billion by the fifth year of their operation?
8 A. I believe that it's within the design
9 characteristics that an explanation of the
10 approximation of that level is reasonable.
11 Q. Approximation of that level is reasonable --
12 I didn't quite hear what you said.
13 MS. PONZOLI: You heard.
14 MR. KOBELINSKI: That's what you said?
15 THE WITNESS: Yes.
16 BY MR. KOBELINSKI:
17 Q. Do you mean that's a possibility that they
18 will achieve?
19 A. That's a reasonable expectation, from what
20 I understand the design intended.
21 Q. Do you know at what point in time
22 compliance with 50 parts per billion will be tested,
23 at what point in time that's going to start?
24 A. We have proposed -- Bill Walker has
25 proposed a methodology for evaluating compliance, and
325
1 that was the document I told you that I had seen
2 several weeks ago but I haven't looked at it since
3 then.
4 I don't remember the exact terms of the
5 test, but there is a discussion of the expectation of
6 their performance.
7 Q. On what do you base your opinion that there
8 is a reasonable probability to achieve 50 parts per
9 billion, or the STAs will achieve 50 parts per
10 billion by the five-years of operation?
11 A. My discussions with Bob Kadlec and Bill
12 Walker -- but probably Bob Kadlec, who has a fair
13 amount of experience, direct experience with the
14 systems.
15 Q. Have you done any research with regard to
16 the period of time necessary for the STAs to achieve
17 50 parts per billion?
18 A. No.
19 Q. Other than the work you reviewed by Brown
20 and Caldwell, any other presentations to SAGE, have
21 you done any research as to the general cost
22 comparison between the alternatives considered to
23 STAs?
24 A. No.
25 Q. Do you have an opinion as to whether or not
326
1 the chemical precipitation of the water being
2 discharged from the EAA would result in an issue of
3 marsh suitability of that water?
4 MS. PONZOLI: Did you understand the
5 question?
6 THE WITNESS: Could you repeat it?
7 BY MR. KOBELINSKI:
8 Q. Let me make it simpler. Under chemical
9 treatment or chemical precipitation, are those the
10 same interchangeably used terms or am I using an
11 inappropriate term by saying chemical treatment?
12 A. I believe there are two slightly different
13 variations on chemical treatment. One of them I
14 believe is called chemical filtration, and I believe
15 the other one has been termed by various parties
16 chemical precipitation. Chemical treatment is the
17 general approach.
18 It depends on what you do with the
19 coagulated materials, how you remove the flocculent
20 from the treated water. There are several different
21 options that they get, different terms applied to
22 them.
23 Q. Which approach have you considered as an
24 alternative to STAs?
25 A. We heard, I believe, proponents of both at
327
1 SAGE and in the various other meetings that -- where
2 these have been discussed. I can't remember which
3 party. I believe Flosun Company had Champion for
4 some period of time. I believe it was chemical
5 filtration. And I believe other groups had talked
6 about another approach for actually separating out
7 the coagulated materials.
8 I believe the co-op was also talking about
9 using the marsh as an ecoreactor for removing the
10 flocculent material. But I never heard a
11 presentation from them, although apparently they were
12 at some point considering making a presentation on it
13 after seeing that presentation.
14 Q. Do you have an opinion as to whether or not
15 the water that has been subjected to chemical
16 treatment, using both methodologies you just
17 described or either of them, would be marsh suitable
18 for the EPA marshes?
19 A. I believe there are legitimate questions
20 about the ionic composition of that water after it
21 has been separated or the flocculent materials have
22 been separated out from that water.
23 I believe there to be some detail
24 consideration about whether or not that new ionic
25 balance that would result from those coagulation
328
1 processes is compatible with the requirement that
2 there be no imbalance to fauna and flora.
3 Q. Have you done any research or
4 experimentation as to whether or not the marsh water
5 or water subject to chemical treatment would be marsh
6 suitable?
7 A. No.
8 Q. On what do you base your opinion that there
9 is a issue as to whether or not the water subjected
10 to chemical treatment would be marsh suitable?
11 A. My general understanding that the character
12 of a water shed produces a certain character of fauna
13 and flora in it. That the overall long-term
14 character of water, whether it be a hard water system
15 or soft water system or different variations within
16 those general categories, when you start to change
17 the ionic balance and concentration or relative
18 constituent in the water column that, in my opinion,
19 determines the types of fauna and flora in that water
20 shed.
21 When you start to make changes there is
22 some reason to look closely at whether or not the
23 changes will be sufficient to alter the naturally
24 occurring microorganisms and on up.
25 Q. Are you aware of any studies that have
329
1 addressed the issue of whether chemically treated
2 waters are suitable for wetland marshes, fresh water
3 wetland marshes?
4 A. No.
5 Q. Will you be providing expert opinion at the
6 final hearing as to whether or not the water
7 subjected to chemical treatment would be suitable for
8 the Everglades marshes?
9 A. I do not expect to based on my
10 understanding.
11 MS. PONZOLI: Counsel, to be fair, I don't
12 think he would offer any more than he is giving
13 you here. If he did --
14 MR. KOBELINSKI: I'm sorry, I really don't
15 understand what you said.
16 MS. PONZOLI: I'm saying he might offer at
17 trial what he has answered your questions at
18 this time. I'm saying no more than that. He
19 has given you the sum and substance, but I don't
20 want you to think he won't be available to
21 answer the same questions. Were I to put that
22 question to him at trial, he gives me
23 essentially the same answer. I don't want you
24 saying you said he wasn't going to say this.
25 MR. KOBELINSKI: Well, under the same -- if
330
1 he starts doing research or reviewing additional
2 materials on this matter, then we would want to
3 have an opportunity to discuss it further with
4 him.
5 MS. PONZOLI: Absolutely.
6 BY MR. KOBELINSKI:
7 Q. Just a final question on that, so I can
8 understand what you believe to be the major factors
9 impacting your determination that SDA is a more
10 appropriate remedy than chemical treatment.
11 If the marsh readiness issue was resolved
12 such that the waters were deemed to be appropriate or
13 ready for the Everglades marshes, would your opinion
14 as to the STAs being the preferable remedy remain the
15 same?
16 A. I think that they would still be the issue.
17 And I think largely the remaining issue would be the
18 relative cost and the other environmental concerns,
19 if there are any, with the sludge, containment, that
20 kind of thing.
21 I guess my opinion has been that chemical
22 precipitation, if it were not subjected to the larger
23 bypass difficulty and the ionic composition
24 difficulty and what I suspect are financial
25 deficiencies in terms of their overall costs, once
331
1 you re-estimate the entire cost and compare it, I
2 think treatment may not be as competitive, actually,
3 as STAs.
4 Those are the factors, those three factors
5 are the ones that undermine my endorsement of STA.
6 Q. Do you have an opinion as to whether the
7 STAs would be the appropriate means of achieving
8 long-term phosphorous reduction goals for the
9 Everglades Protection Area?
10 A. My opinion is that that probable level of
11 outflow would be more difficult to achieve in the STA
12 design based on what we know at this point.
13 I believe the opportunity to do research in
14 the ENR and in the early constructed STAs, I think
15 they will have to be phased in the early ones. If
16 you study the operation and do research on the
17 optimization of STAs, that may tell you whether or
18 not you will be able to achieve lower levels.
19 It would in my mind not be demonstrable
20 that lower levels can be achieved based on the
21 database that exists presently, which leads one to
22 consider for the longer term levels those solutions
23 to those issues on chemical treatment or some
24 combination of chemical treatment and STAs or other
25 technologies if they become available.
332
1 Q. Dr. Soukup, have you been involved at all
2 in addressing the problems associated with Florida
3 Bay?
4 A. To some extent as research director I was
5 involved after I arrived in '89 for a period of a
6 couple of years, yes.
7 Q. Are the current ecological or environmental
8 problems occurring in Florida Bay the result of
9 excessive nutrients delivered from the Water
10 Conservation Areas?
11 A. I'm of the opinion that the problems are
12 not related.
13 Q. What is the primary problem, then, in your
14 opinion caused in Florida Bay?
15 A. I see Florida Bay as a system that suffers
16 from some human induced problems and possibly showing
17 some natural changes. And my general assessment is
18 the reduction of fresh water flowing into Florida Bay
19 from the eastern panhandle region at the Taylor
20 Slough water shed is generally the most serious human
21 induced problem.
22 Q. Will the modified water delivery, GDM,
23 address that problem of the water deliveries to
24 Florida Bay?
25 A. I think to a small extent it will have some
333
1 impact. I think the larger amounts of water which
2 will eventually be required to restore the Shark
3 Slough system will have some impact on Florida Bay.
4 I believe the Taylor Slough water shed restoration
5 project, which is also ongoing, will have perhaps
6 more significant effects on Florida Bay, more direct
7 effects.
8 Q. When was it that you formally ceased your
9 responsibility as director of research for the
10 Everglades National Park?
11 A. January of '93, I believe.
12 Q. I realize there was an area I never really
13 asked you about yesterday, but you are currently --
14 what is your position?
15 A. I'm the director of the South Florida/
16 Caribbean field unit of the National Biological
17 Survey. Do you want the rest of it? It goes on.
18 Q. Feel free.
19 A. At Florida International University and the
20 University of Miami.
21 Q. To what extent does your position of
22 director of this field unit entail your continued
23 involvement in the Everglades?
24 A. In the Everglades restoration --
25 Q. Movement, project.
334
1 A. The role of that field unit will be in
2 providing basic research on the Everglades system
3 from a larger perspective, a regional perspective,
4 while still collecting information that is useful
5 such as monitoring information useful to managers of
6 the land management units for the entire Department
7 of Interior.
8 Q. This field unit, has it started conducting
9 any type of testing or monitoring within the
10 Everglades?
11 A. The field unit really has just been formed
12 by the establishment of the National Biological
13 Survey as a new agency of the Department of Interior.
14 That became formal in October of '93, and
15 we have yet to receive a budget for the fiscal year
16 '94 which began in October of '93. So we have not
17 initiated any formal studies yet.
18 Q. Are you conducting any informal studies
19 yet?
20 A. No. My time seems not to stretch much
21 beyond the duties associated with beginning to set up
22 staff and initiate the unit plus the duties of TOC --
23 and assistance that I provide to the Park on the
24 lawsuit issue, obviously.
25 Q. You have referred to at various times
335
1 throughout this deposition to both the Duke wetland
2 annual report and I think it was '92, the one you
3 referred to?
4 A. I believe it was April of '93, if I'm not
5 mistaken. I believe there is a fall of '92 version
6 that was modified and released and an April '93
7 version I believe. There is another version
8 apparently in draft form but not available yet.
9 Q. And I believe you also referred to some of
10 the work that Curtis Richardson and the Duke wetlands
11 center has conducted.
12 Are you familiar with his -- the fertilizer
13 study that Curtis Richardson or the Duke wetlands
14 study is conducting in Water Conservation Area 2B?
15 A. I have heard his presentation in front of
16 TOC, and I believe I have read the section in one of
17 the earlier reports, the early ones.
18 I believe he made some modification to the
19 early design, which I am not certain that I
20 understand or have seen or understood what quite he
21 has done. I believe he is going to be invited back
22 to update the TOC on the progress at some point. I
23 believe that's the general sense of recent meetings
24 that we had, and his report has been requested but
25 apparently not available now.
336
1 Q. Do you have or will you have any opinions
2 at trial as to the appropriateness of the
3 methodologies Curtis has used in the fertilizer
4 study?
5 A. I don't know if I will be -- I don't know
6 the context of what will be presented. I don't know
7 what presentations or results have come from that
8 study. I don't know. I wasn't sure that would be
9 part of your presentation or presentation of the
10 industry.
11 I have seen his approach and I may be asked
12 to provide something on it.
13 Q. Have you reviewed the methodology used in
14 that fertilizer study?
15 A. I have not spent any time on it since his
16 last presentation.
17 Q. As of his last presentation, had you
18 reviewed the methodology used in the fertilizer
19 study?
20 A. I didn't review the report that was
21 available before that presentation, correct.
22 Q. Did that report that you reviewed provide a
23 description of methodology used in the fertilizer
24 study?
25 A. Yes, it did.
337
1 Q. Do you know what the purpose of the study
2 was for?
3 A. I believe it's to establish the response of
4 the system to the levels of nutrients applied in his
5 apparatus.
6 Q. Do you have an opinion as to whether or not
7 the methodology used in that study was appropriate
8 for that purpose?
9 A. My opinion is that there are some potential
10 problems with the design, from what I have seen.
11 Q. What are the potential problems with design
12 of the fertilizer study?
13 A. If I recall, the early experimental design
14 was to add rather high levels of nutrients to his
15 experimental channels. I believe he supervised that
16 design and has approached the evaluation of levels,
17 different levels of nutrients along gradients so that
18 he could look at the impacts of -- lower than his
19 original applications further down his gradients.
20 I have not seen the presentation of any of
21 those results and I'm interested in looking at that
22 when they are available.
23 Q. I have a suspicion that we are talking
24 about two different experiments. I would refer your
25 attention to the fertilizer study that -- or what I'm
338
1 referring to as the fertilizer study that has been
2 conducted in 2B as opposed to the dosing study.
3 A. I was thinking of the dosing study.
4 MR. KOBELINSKI: I thought so.
5 MS. PONZOLI: I thought so, too.
6 BY MR. KOBELINSKI:
7 Q. Drawing your attention to the dosing study --
8 MS. PONZOLI: Do you have a document you
9 could show him, Mr. Kobelinski?
10 MR. KOBELINSKI: Actually I have -- I do
11 have a copy of the annual report here. I don't
12 know if there is really a need to do so. I am
13 trying to get an understanding of what the
14 witness' thoughts are on it.
15 If the need arises or if at any time you
16 would like to see --
17 MS. PONZOLI: I guess since the applicable
18 names of the various studies Dr. Richardson has
19 done are confusing --
20 THE WITNESS: Maybe I can go ahead -- maybe
21 I can answer your question a little bit because
22 I haven't spent any time on the fertilizer
23 experiments.
24 I have only looked at the dosing, and the
25 most recent review time spent with that document
339
1 of April '93 was on his discussion of the
2 gradient studies that he was doing in 2A.
3 BY MR. KOBELINSKI:
4 Q. Given what you just said, you would not
5 have any opinions one way or the other with regard to
6 the fertilizer study in 2B?
7 MS. PONZOLI: Object to the form.
8 THE WITNESS: I haven't spent any time on
9 it to speak of at this point.
10 BY MR. KOBELINSKI:
11 Q. Well, let's take care of the information.
12 Do you have an opinion with regard to Curtis
13 Richardson's fertilizer study which is being
14 conducted in 2B?
15 A. No, I haven't at this point.
16 Q. Let's shift our attention to the dosing
17 study.
18 So we don't rehash a fair amount, as I
19 understand it you have looked at some Duke wetlands
20 report with regard to the dosing study and also have
21 with regards to the participation in TOC have heard
22 Curtis Richardson give a presentation on that
23 particular study; correct?
24 A. Yes.
25 Q. You had started to provide me with your
340
1 opinions as to possible design problems with that
2 dosing study, and one of which was that the early
3 design, as you understood, was to add high levels to
4 the channels of the dosing studies, high levels of
5 nutrients?
6 A. Up to 75 parts per billion, for instance.
7 Q. Has that problem, to the best of your
8 knowledge, been rectified?
9 A. I'm not certain. I know there was an
10 attempt to rectify it, but I haven't looked at it in
11 terms of whether or not it seems to have cured or
12 addressed the problem that he detected.
13 His next presentation and some of the
14 results of his ability to detect gradients and so
15 forth will be of interest.
16 Q. Are there additional design problems that
17 you have identified with regard to the dosing study?
18 A. I'm concerned a bit about the length of his
19 channels. I believe they are ten meters in length.
20 The closed in nature of his channels may be a
21 hydraulics problem.
22 The site selection process, I haven't seen
23 any evidence that indicates that these were pristine
24 marshes or background level marshes. From his report
25 there seems to be some question. He may have more
341
1 information. I don't know.
2 Q. With regard to the question of whether or
3 not the site selected was a background or pristine
4 site, is your concern there that you have not seen
5 information on it or the information you have seen
6 indicates that it may not be a pristine or background
7 site?
8 A. I don't recall seeing any phosphorous for
9 the sediments, for instance. The language used in
10 the report was, although these levels are higher than
11 expected background, they are pristine sites. There
12 is some question there about exactly what the
13 condition of the marsh is there.
14 Q. Have you ever been out to the dosing site?
15 A. I have flown over it once.
16 Q. With regard to your concern about the
17 closed in nature of the channels, how would that be a
18 design problem for the experiment?
19 A. I'm not sure it is, but it seems entirely
20 possible that the hydrology of a closed system
21 subject on one side, not totally closed but open on
22 one end, that might interfere with gradients. We
23 will have to see the establishment of gradients.
24 Q. Have you seen any data to date that would
25 justify that being a concern?
342
1 A. I haven't really seen -- I think his
2 presentation last time was largely on the initiation
3 of the experiment in early operational things. I
4 believe he now has enough data to look at the
5 preliminary results.
6 Q. You also raised a concern as to the length
7 of the channels. You mentioned 10 meters. Is that
8 too short or too long?
9 A. It would seem short to establish a real
10 definitive set of gradient steps for sampling. Ten
11 meters would seem to be perhaps too short a channel
12 to obtain that kind of resolution.
13 Q. Is that another issue that the data will
14 bear out either one way or the other?
15 A. I would think so.
16 Q. Are there any other problems that you have
17 identified with regard to the design of the dosing
18 study?
19 A. The use of a sump well in the -- as a
20 source of water for application of nutrients would
21 seem to be a possible problem.
22 Q. In what manner?
23 A. I think you would have to demonstrate that
24 in that order was equivalent sheet flow.
25 Q. Is that a question of how the water is
343
1 flowing through the channels?
2 A. No. A question of whether or not it's
3 directly comparable in an ionic composition situation
4 and chemical attributes.
5 Q. Are there any other design problems you
6 have identified?
7 A. Those are the ones that come to mind.
8 Q. Are there any other studies done by
9 Dr. Richardson that you are familiar with?
10 A. In the Everglades?
11 Q. In the Everglades.
12 A. Let me think. I'm aware of invertebrate
13 work that is done with Dr. Rader, I believe. I'm
14 reasonably certain. I read a number of things as
15 they came out.
16 Q. With regard to the invertebrate work that
17 Dr. Richardson did with Russ Rader, do you believe --
18 do you have an opinion as to whether or not the
19 methodology for that invertebrate work was
20 appropriate?
21 A. I haven't looked at it recently, but I
22 recall there may be some questions of, I believe, the
23 sweep samples. There might be some questions as to
24 the quantifiable nature of the sample.
25 I don't remember the details, but I believe
344
1 there is in my mind some questions as to how samples
2 were taken.
3 Q. Do you recall what that study -- the
4 results of that study were?
5 A. In general terms I recall the results and
6 the conclusions.
7 Q. What was your recollection of the results
8 and conclusions?
9 A. I believe they concluded that the
10 enrichment process was a beneficial subsidy to the
11 environment, to the invertebrate community.
12 Q. Do you disagree with that conclusion?
13 A. Yes.
14 Q. Is there a problem with the study that
15 causes a disagreement with that conclusion?
16 MS. PONZOLI: Asked and answered, Counsel.
17 THE WITNESS: There may be sampling
18 difficulties, but my impression is it's more in
19 the interpretation of the results.
20 BY MR. KOBELINSKI:
21 Q. That's my next question. Is it more an
22 issue of interpretation of the results collected from
23 the study?
24 A. Results?
25 Q. The results of the study.
345
1 A. Say that one more time.
2 Q. Let me just back it up and start from step
3 one.
4 Have you reviewed the results of that
5 study, the data collected?
6 A. I looked at the results of the data as they
7 were presented in the papers published.
8 Q. Did you draw a different conclusion from
9 your view of the data?
10 A. Yes.
11 Q. What was your conclusion?
12 A. My conclusion was that there were changes
13 in the invertebrate community and that the
14 interpretation that that was a positive benefit to
15 the community was inappropriate.
16 If that's a sentence -- could you read back
17 my answer?
18 (The answer referred to was thereupon
19 read by the reporter as above recorded.)
20 BY MR. KOBELINSKI:
21 Q. Does this get back to our discussion
22 yesterday of your opinion that merely determining
23 that there is not a decrease in diversity or
24 abundance is an insufficient means of determining
25 whether or not there is negative impact to an
346
1 ecosystem?
2 A. You have to say that again.
3 Q. I'm trying to skip going over prior
4 testimony. I believe yesterday you had -- in
5 discussing the impact of microinvertebrates, I
6 believe you expressed an opinion generally that you
7 need to look at more than just whether or not there
8 is an overall increase in diversity and abundance,
9 but rather look at the specific species that are
10 there in the natural system and what has occurred to
11 those.
12 Is that generally what you had voiced
13 yesterday?
14 A. That's part of the problem. I believe that
15 enrichment can be shown under some circumstances to
16 increase diversity. Certainly it can be shown -- and
17 I think this was part of their argument, that this
18 introduction of nutrients to the Everglades was a
19 beneficial subsidy, was based on some of the animals
20 being more numerous or having faster growth rates and
21 that sort of thing.
22 My understanding of the nature of the
23 Everglades system is that the Everglades system may
24 not benefit from that kind of an enhancement, in
25 quotation marks, by introduction of excess nutrients --
347
1 certainly if it is to remain characteristic of an
2 Everglades habitat.
3 Q. Would the change in macroinvertebrates that
4 you have just described that can occur with nutrient
5 enrichment have a negative impact upon the higher
6 vertebrate species?
7 MS. PONZOLI: Object to the form.
8 THE WITNESS: I would say that that is
9 highly likely, and that some of the work in that
10 report that we just talked about in the April
11 '93 report gives me some indication that the
12 changes that they have observed in the nutrient
13 enriched versus the unenriched background sites
14 suggested to me that the invertebrate community
15 has undergone significant changes and has been
16 demonstrated by their data.
17 BY MR. KOBELINSKI:
18 Q. Are you aware of any studies which you have
19 looked at whether or not changes in the invertebrate
20 communities in the Everglades resulting from nutrient
21 enrichment have had an impact on fish or other higher
22 vertebrates?
23 A. There is that tadpole study that we talked
24 about. There are indications in that report that we
25 are talking about that studies have done dietary
348
1 assessments of higher vertebrates like wading birds
2 and species such as the fresh water shrimp or
3 significant elements of the diet of certain wading
4 birds.
5 And there are probably under studies --
6 Bill Loftus has done invertebrate work in the Park on
7 the food web relationships, and the modification of
8 those invertebrate communities insofar as they
9 represent food sources for the food chain or the food
10 web, certainly changes in that community can impact
11 the higher trophic levels.
12 Q. Are you relying upon Jim Loftus --
13 A. Bill Loftus.
14 Q. Are you relying upon the studies you just
15 mentioned of Bill Loftus?
16 A. Only in the general sense of that work, I
17 believe, work he did with Lance Gunderson, work
18 that's been available for some time in depicting
19 general food web relationships.
20 Q. Did that work that Bill Loftus do actually
21 study the changes and impacts of vertebrates in
22 nutrient enriched areas?
23 A. No, this was fundamental work on the
24 Everglades food web in the Everglades National Park
25 central slough areas.
349
1 Q. Has the nutrient enrichment in the EPA had
2 an impact upon wading birds?
3 MS. PONZOLI: Object to the form.
4 THE WITNESS: I have heard various people
5 suggest that the areas dominated by cattails are
6 less frequently used for foraging and nesting
7 than other bird activities.
8 So that the extent to which nutrients
9 change vegetative communities and those
10 vegetative communities are less suitable for the
11 native Everglades vertebrate populations, then
12 that would be an impact.
13 BY MR. KOBELINSKI:
14 Q. Do you have an idea as to what the
15 approximate reduction of the wading bird community is
16 from the pre 1880 or pre drainage Everglades to
17 today?
18 A. The number used for the Everglades National
19 Park populations is approximately 90% reduction.
20 That number, I don't think, is hard and fast, but
21 it's an approximation. That's fairly widely used.
22 Q. Do you have an opinion as to what portion
23 of that approximate 90% reduction has been caused by
24 nutrient enrichment in the EPA?
25 A. The reduction of wading bird numbers in the
350
1 Park that is due to the effects of nutrient influx, I
2 believe, is very small, perhaps insignificant at this
3 point, unless there is some minor, minor, minor
4 impact due to less habitat available in the Water
5 Conservation Areas.
6 But I believe that the total impact area in
7 relation to the larger area would be certainly a
8 small effect.
9 Q. Dr. Soukup, do you have an understanding as
10 to what the range of phosphorous content in the
11 rainfall is for Everglades National Park?
12 A. My understanding stems from my familiarity
13 with the analysis done on the data taken at the
14 research center at that site we talked about earlier.
15 Q. What is your understanding of the range of
16 phosphorus concentration in the rain water that falls
17 upon Everglades National Park?
18 A. Well, there are two components, wet fall
19 and dry fall, and that database suggests that the wet
20 fall is quite low -- somewhere I believe between five
21 and 14 would be a reasonable range -- and that the
22 total wet plus dry volume weighted level would be in
23 the low 20's, somewhere perhaps up to 30 range, up in
24 there.
25 Q. Will you be offering opinions as to the
351
1 current levels of phosphorous in the wet and dry fall
2 within Everglades National Park?
3 A. I don't know if I will be specifically
4 asked to do that. There are other sources of
5 rainfall data for the Park, as you probably know
6 this. There are some long-term USGS data for the 40
7 mile bend area that I'm aware of and some other
8 fragments of data here and there.
9 Those methods were quite different and the
10 technology and methodology for analyzing the sample
11 is quite different, so that database is quite
12 different.
13 Q. Which is the more accurate, in your
14 opinion?
15 A. In my opinion, the more recent park data,
16 which is part of the larger management district,
17 collection network, that is a much better database in
18 terms of analytical methods, collection methods and
19 generally qualitative data.
20 Q. How long is the method you believe that's
21 more appropriate or the better method, how long has
22 that been operating?
23 A. I believe the methods were standardized, I
24 believe, starting in the late '70s is when the method
25 started becoming more appropriately controlled.
352
1 Q. That's when that testing started occurring
2 in the Park under the methodology you believe is more
3 accurate?
4 A. I believe the Park's installation was
5 somewhat later than that, early '80s. I believe the
6 database goes back to then, I believe.
7 Q. Dr. Soukup, were you involved in
8 establishing the long-term phosphorous
9 concentrations -- the short term and long-term
10 phosphorus concentrations for Everglades National
11 Park?
12 A. As they appear in --
13 Q. The settlement agreement and then as they
14 appear in the SWIM Plan.
15 A. Yes.
16 Q. What was your involvement with that?
17 A. I was representing the Park in the matters
18 related to the litigation in the federal lawsuit.
19 There was an interest in settling out of -- before
20 the trial, and that resulted in a series of meetings
21 with members of the technical staff of the Water
22 Management District and Florida DER at that time.
23 I was the Park's representative to those
24 meetings that were of a technical nature.
25 Q. How were the long-term -- how were the
353
1 phosphorous limits for the Park established?
2 A. Phosphorous limits for the Park were
3 established from analysis of the data provided by
4 that long-term monitoring network set up by the Water
5 Management District.
6 The data for the S-12 structures and S-333
7 were evaluated as to the long-term trends in that
8 database, the OFW period of records and the various
9 factors that might be responsible for the variation
10 in that data set.
11 Those analyses were done largely by Bill
12 Walker and the statisticians from the other agencies,
13 notably the water management district and I believe,
14 to some extent, DER.
15 Q. Are those long-term numbers or calculations
16 reflected in the SWIM Plan?
17 A. The results of those?
18 Q. Yes.
19 A. Yes.
20 Q. Where would we locate those, where would we
21 find those in the SWIM Plan?
22 A. In the SWIM Plan I believe they are
23 identified as the long-term limits for the refuge in
24 the Park.
25 Q. Is that Appendix E or a different place in
354
1 there, do you recall?
2 A. I don't know where that would be. I would
3 imagine that would be probably in all three.
4 Appendix E has the figures.
5 Q. Why don't we flip to that. Does that have
6 the numbers itself? I was looking at it the other
7 day.
8 A. I believe the numbers are in there.
9 MS. PONZOLI: Which page are you on?
10 MR. KOBELINSKI: I'm on E.
11 MS. PONZOLI: E what?
12 MR. KOBELINSKI: E-12.
13 BY MR. KOBELINSKI:
14 Q. Does Appendix E to the SWIM Plan reflect
15 the methodology used to establish the phosphorous
16 limits for the Everglades National Park?
17 A. I believe so.
18 Q. Where would we turn to in that appendix for
19 that determination?
20 A. What particular page?
21 Q. Yes. I mean, this is both park and the
22 refuge. I want to make the record clear, that's all.
23 A. I believe that it starts on page E-2 --
24 actually on E-1 and goes through the results on
25 page 1 based on calculations from that database, and
355
1 then results of the OFW base line year is on page 1,
2 and then the rationale is given on the following
3 pages for the interim limits, which are given on E-7
4 in graphic form.
5 The long-term limits for Shark River Slough
6 on page E-9 and limits for Taylor Slough on E-13, and
7 then picks up on page E-16 discussing the derivation
8 of phosphorous limits for Loxahatchee.
9 Q. Okay. You were not involved in the
10 derivation of phosphorous limits for Loxahatchee,
11 were you?
12 A. Well, the group that met looked at both
13 sets of limits. So I was involved to the extent that
14 I had some participation in that group as it derived
15 those two sets of limits.
16 Q. What is the interim limit for the
17 phosphorous concentrations for waters discharging
18 through the S-12s?
19 A. That is a variable limit, if I remember
20 correctly. For the interim limits, it ranged from
21 nine to 14 parts per billion, dependent upon the
22 nature of the water year. Drier years generally in
23 the database had that higher range and wetter years
24 in the database reflected the lower phosphorous
25 concentration.
356
1 Q. Was any data used from interior marsh
2 stations or water quality for establishing the
3 limits?
4 A. The interior marsh stations were evaluated
5 as part of the process for understanding the
6 background levels of the natural system and used as a
7 general touch tone on what the normal levels for
8 interior marshes should be, could be.
9 Q. Who did the evaluation of the interior
10 marsh stations and data?
11 A. All of the data were evaluated by the
12 statisticians that we brought in for that purpose.
13 The same data set was available to all of
14 the statisticians and they all worked on them at
15 different times in the process.
16 Q. Would those statisticians include
17 Dr. Walker?
18 A. Dr. Walker was one. Dr. Robson was
19 another. Dr. Shih, was another that was involved. I
20 believe the District had one or two others coming in
21 at different times.
22 Q. Who made the final determination as to what
23 the interim limit, the range, the internal limit
24 would be?
25 A. Who made the final determination?
357
1 Q. The range of nine to 14 parts per billion,
2 what the range would be for the S-12s?
3 A. That was a general group decision based on
4 the information provided by the statisticians to the
5 technical people present throughout the process.
6 Q.