109 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038 9 ASSOCIATION, LEWIS POPE FARMS, 92-3039 W.E. SCHLECHTER & SONS, INC., and 92-3040 10 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF THOMAS M. SWIHART 24 February 3, 1993 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 110 1 2 DEPOSITION OF THOMAS M. SWIHART 3 Taken in the above-styled cause, pursuant to 4 notice, at the Department of Environmental Regulation, 2600 5 Blair Stone Road, Tallahassee, Florida, on February 3, 6 1993, commencing at 1:30 p.m. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 111 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms, 3 Inc.: 4 William H. Green, Esq. Gary Perko, Esq. 5 Hopping Boyd Green and Sams 123 South Calhoun Street 6 Tallahassee, FL 32301 7 On behalf of the Petitioners Florida Sugar Cane League, Inc., United States Sugar Corporation and New Hope 8 South, Inc.: 9 William L. Hyde, Esq. Peeples, Earl & Blank 10 215 South Monroe Street Suite 350 11 Tallahassee, FL 32301 12 On behalf of the Intervenor United States of America: 13 Cathy Stark, Esq. Assistant U.S. Attorney 14 155 South Miami Avenue, Suite 600 Miami, FL 33102 15 On behalf of the Intervenor Department of Environmental 16 Regulation: 17 Keith Hetrick, Esq. Donna LaPlant, Esq. 18 Assistant General Counsel State of Florida 19 Department of Environmental Regulation Twin Towers Office Building 20 2600 Blair Stone Road Tallahassee, FL 32399-2400 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 112 1 INDEX TO WITNESS 2 THOMAS M. SWIHART Page 3 Examination (continued) by Mr. Hyde 114 4 5 6 7 INDEX TO EXHIBITS 8 No. Marked 9 5 114 10 6 146 11 7 194 12 8 197 13 9 202 14 10 202 15 11 205 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 113 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of THOMAS M. SWIHART was taken 5 by agreement for the purpose of discovery, for use as 6 evidence, and for such other purposes as may be permitted 7 by the Florida Rules of Civil Procedure and other 8 applicable law; 9 THAT all objections, except as to the form of the 10 question, are reserved until the trial of this cause; and 11 THAT by agreement of the witness and all parties, 12 reading and signing of the deposition was not waived. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 114 1 D E P O S I T I O N 2 Whereupon, 3 THOMAS M. SWIHART 4 was recalled as a witness, having been previously duly 5 sworn to speak the truth, the whole truth, and nothing but 6 the truth, was examined and testified as follows: 7 MR. HYDE: Let's go ahead and label this as 8 Exhibit 5. 9 (Whereupon, Exhibit No. 5 was marked for 10 identification.) 11 EXAMINATION (continued) 12 BY MR. HYDE: 13 Q Mr. Swihart, would you identify what has been 14 labeled Exhibit 5? 15 A This is a summary of my travel log to south 16 Florida in 1991 and 1992. 17 Q Are the dates that are reflected on Exhibit 5 the 18 dates on which your technical team convened? 19 A In 1991, right. 20 Q What are the 1992 dates? 21 A 1992 are miscellaneous other trips. I wasn't sure 22 if you would be interested in those or not. 23 Q We will get to those in a minute. 24 How did you go about reconstructing these dates? 25 A I couldn't find my calendar for 1991. I did go A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 115 1 through my travel voucher file, and this is the record of 2 the travel that I have. 3 Q The first date I see here is March 7, to Miami. 4 Is that the date that you flew down there, because Exhibit 5 2 indicates a March 8 meeting date? 6 A I frankly don't know, but these are all separated 7 by a few days, at least, I think, so that is probably the 8 day I flew down. 9 Q Since you have reconstructed this record, do you 10 recall better just what occurred on the -- at these given 11 meeting dates, what subject matters were being discussed, 12 what presentations were being made and the like? 13 MR. HETRICK: Objection. Bill, if you -- again, 14 if we go through now, we have dates, and you can go 15 through who was present at the meetings. 16 MR. HYDE: I asked him generally whether that 17 helps him better remember what occurred at what 18 meetings. 19 MR. HETRICK: But I think, again -- and the 20 distinction I am trying to make is whether any 21 attorneys were present and in what context, since we 22 have specific meeting by meeting. I don't mind you 23 asking your questions if you will lay that predicate. 24 THE WITNESS: Can I answer? 25 MR. HETRICK: Yes, you can answer. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 116 1 THE WITNESS: No. 2 BY MR. HYDE: 3 Q So none of these -- none of these dates have 4 jogged your memory as to specific discussions or 5 presentations that may have been made on that date? 6 A No. I think I can remember generally the progress 7 of the discussions and tell you maybe approximately when 8 something was discussed, but no, having the dates don't 9 bump my memory. 10 Q I would like for you to relate for me, if you 11 will, the progress of those discussions. Were there 12 certain types of discussions or certain subject matters 13 that were discussed earlier on as opposed to later on? 14 A Yes. 15 Q What were the subject matters discussed earlier? 16 A I believe early on a lot of time was spent talking 17 about what is meant by water quality standards, what was 18 meant by violations of water quality standards, and what 19 were the available data on water quality. 20 Q Were you the person who made the presentations as 21 to what the water quality standards were? 22 A I think I did more of that discussion than anyone 23 else, but certainly Richard Harvey and Frank Nearhoof also 24 contributed and are very knowledgeable about water quality 25 standards. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 117 1 Q Who are the persons that were involved in the 2 discussion as to whether there were violations of water 3 quality standards? 4 A I think that was principally the representatives 5 of the federal government early on. 6 Q Can you be more specific as to whom you are 7 referring to? 8 A It would have been Dan Scheidt, Mike Soukup, Mark 9 Maffei and possibly Bill Walker, if he was in the earliest 10 meetings. 11 Q Did these federal representatives identify 12 specific areas as having water quality violations? 13 A Yes. 14 Q Where did they possibly get information that there 15 were existing water quality violations in the Everglades? 16 MS. STARK: I have a standing objection to this 17 line of questioning. 18 THE WITNESS: The first series of questions 19 focused on Everglades National Park, so that was the 20 initial area of special focus. 21 BY MR. HYDE: 22 Q Did one of these federal representatives postulate 23 that there were violations of state water quality standards 24 in the Park? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 118 1 Q Who was that person or persons? 2 A I would say it would be Mike Soukup, Dan Scheidt 3 and William Walker; possibly also Ron Jones if he was 4 present at those early meetings. 5 Q What water quality standards were allegedly being 6 violated? 7 A I recall there were statements of multiple 8 violations, OFW baseline as well as Class III standards. 9 Q Can you be more specific as to the Class III 10 standards? 11 A Nuisance species, imbalance of flora and fauna are 12 the ones I recall now. 13 Q When you refer to imbalance, are you referring to 14 the narrative nutrient rule? 15 A Yes. 16 Q Did any of these federal representatives present 17 any evidence as to -- to support their contention that 18 these rules were being violated? 19 A Yes. 20 Q What was that evidence? 21 A Well, there were multiple violations discussed and 22 different evidence for different violations. 23 Q Remember we are discussing particularly alleged 24 violations in the Park now. 25 A In the Park, right. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 119 1 Q All right. 2 A A substantial amount of time was spent early on in 3 assembling and evaluating available data to try to jointly 4 assess if there were violations, and at that point, a lot 5 of discussions focused upon whether water quality for the 6 OFW baseline year had been violated, and that might have 7 been the first focus of direct investigation. 8 Q What evidence did they present as to or to 9 substantiate their beliefs that there was violation of the 10 baseline OFW standard? 11 A Examining whether water quality concentrations of 12 phosphorus were higher now than they were during the OFW 13 baseline year. 14 Q What did their evidence demonstrate? 15 A Their evidence demonstrated that the concentration 16 of phosphorus was higher now than it was during the 17 baseline year. 18 Q What was the baseline year? 19 A March 1, 1978, and March 1, 1979. 20 Q How was the baseline year determined? 21 A It is defined in the rule, 17-4. 22 Q I didn't ask a good question. How did the federal 23 representatives establish what the baseline conditions were 24 during that 1978 to 1979 period? 25 A We sought out all of the available information on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 120 1 water quality conditions during that period, and tried to 2 evaluate that data. The principal data set was that 3 collected by the South Florida Water Management District 4 during that period. 5 Q Can you be more specific as to what that water 6 management district data was? 7 A It was data collected principally at the S-12 8 structures at the northern end of the Park. 9 Q So you were just looking at what the phosphorus 10 concentrations were in that data over a period of time 11 since 1978, '79? 12 A We were looking principally at phosphorus at that 13 point in the discussions. 14 Q Which federal representatives were responsible for 15 pulling this data together, if you know? 16 A If I could divide that into steps, I would say we 17 jointly tried to determine what was the available data, 18 what data sets could be assessed. The principal person, 19 the most active person in trying to make statistical sense 20 of the data at first was Dr. Walker. 21 Q What did Dr. Walker do? 22 A Dr. Walker sought to determine any trends in the 23 data and sought to extract meaning from all of the 24 assemblage of data. 25 Q What conclusion did he reach as a result of his A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 121 1 efforts? 2 A It was his conclusion that there had been an 3 increase in trend in phosphorus since the OFW baseline 4 year. 5 Q What did Dr. Walker do other than just look at the 6 water quality data that the district had been collecting 7 since 1978, '79? 8 MS. STARK: Object to the form of the question. 9 BY MR. HYDE: 10 Q Let me explain to you my problem here, and it is 11 fairly simple. If you are postulating that an increase in 12 phosphorus concentrations is a violation of the OFW 13 baseline condition, and it seems to me that would be a 14 fairly simple thing to do, you would look at what the 15 concentrations were in 1978, '79, and then you would look 16 at what they are now, and then the difference would be the 17 alleged violation. Is that a fair summary of what Dr. 18 Walker was doing? 19 A I think that is a brief summary of what was done. 20 Q Is that what Dr. Walker was doing? 21 A That is what Dr. Walker did, but I have to add, in 22 consultation with other people. The same analysis was done 23 different ways by other people, including Dr. Robeson and 24 Frank Nearhoof. 25 Q What additional analysis did Dr. Walker have to do A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 122 1 other than just simply pulling together that data and 2 showing the trend as evidenced by the data? 3 MS. STARK: Object to the form of the question. 4 MR. GREEN: Basis. 5 MS. STARK: It assumes facts not in evidence. 6 MR. HYDE: You may answer. 7 THE WITNESS: It was necessary to handle the data 8 in a statistically valid manner. The data was not 9 monotonically increasing through the whole period, and 10 one had to be sure that what one concluded about 11 differences between baseline year and current 12 conditions was statistically significant. 13 BY MR. HYDE: 14 Q What did Dr. Walker do to ensure that the data 15 that had been generated was statistically valid? 16 A Dr. Walker -- I meant to say Mr. Walker, I think, 17 Bill Walker I believe sought to determine that the data was 18 normally distributed, concluded that it was by statistical 19 tests, and sought to do a regression equation on that trend 20 which he detected, and then calculated confidence intervals 21 on either side of that trend. 22 Q What do you mean when you say normally distributed 23 data? 24 A Data that has a bell-shaped curve. 25 Q Can you be a little more specific? What is meant A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 123 1 by the data having a bell-shaped curve? 2 A A bell-shaped curve is one way to show that data 3 that has a distribution such that you use certain 4 statistical techniques that rely upon a normal 5 distribution, that there be a median close to a mode, you 6 have followed a Gompertz curve exponentially. 7 Q What did you mean by a regression analysis? 8 A It is an attempt to determine a relationship, 9 although not necessarily a causation, between two 10 variables, two or more variables, and the two variables 11 examined at one point under discussion were time and 12 phosphorus concentration. 13 Q How far back did this progression analysis go? 14 A I believe it went back as far as there were data, 15 which I think was 1977. 16 Q You used the terminology, "confidence trend." 17 What did you mean by that? 18 A I think I might have said confidence interval. 19 Q Interval. Okay. 20 A Although the analysis concluded there was a 21 relationship between time and phosphorus concentrations, it 22 wasn't a perfect one-to-one straight line relationship, so 23 there was some variability in the data set, and the 24 confidence interval expressed those intervals on either 25 side of the calculated line which you were a certain level A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 124 1 of percentage confident that you were within the calculated 2 range. 3 I will try to say that again. He calculated a 90 4 percent confidence interval about the regression line. 5 Q What else did Bill Walker do to account for the 6 variability in the data besides this confidence -- the 7 establishment of these confidence intervals? 8 A As I recall, he attempted to see if there were 9 other variables that also had a relationship to phosphorus 10 concentrations. I believe he attempted to see if season of 11 the year showed a relationship with phosphorus 12 concentrations, and I believe he tried other variables also 13 to see if they had a relationship with phosphorus 14 concentrations. 15 He also attempted to determine if flow showed a 16 relationship with phosphorus concentrations. 17 Q Did he -- what conclusions did he reach regarding 18 the possible relationship with flow? 19 A He found that there was a relationship with flow. 20 Q Do you know what the basis was for that 21 conclusion? 22 A They were the results of the statistical analysis 23 performed by him and by others. 24 Q Well, what was that relationship between flow and 25 phosphorus? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 125 1 A That concentration did vary with flow. 2 Q Would that be the same as saying the more flow 3 there was, the more phosphorus? 4 A I am trying to remember if it was increasing flow, 5 increasing phosphorus or the reverse, but it is in the SWIM 6 Plan and elsewhere. 7 Q What other conclusions did Dr. Walker's analysis 8 reach? In other words, were there any other relationships 9 besides this one between flow and phosphorus and time and 10 phosphorus? 11 A I don't recall any others. 12 Q What was the relationship with time, if you have 13 not already discussed it? 14 A That phosphorus concentrations had increased since 15 1979. 16 Q What was done by Walker to assure that the data 17 upon which he relied were, in fact, reliable or was 18 reliable data? 19 A The team, as I said, sought to inventory all of 20 the available sources of data and agreed upon a data set, 21 and then Bill Walker did the best he could to interpret 22 that data. 23 Q How did the team go about determining what that 24 data set should be? 25 A The water management district and DER and USGS, as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 126 1 I recall, were really the only significant repositories of 2 data. 3 Q Well, what was done with those several 4 repositories of data to ensure that they were, in fact, 5 reliable sources of data? 6 A The size of the data set, the QA/QC performed on 7 the data were evaluated. 8 Q Why was the size of the data set important to 9 making that deliberation? 10 A Because a very small data set would be unlikely to 11 have statistical significance over that length of time. 12 Q Why -- what quality assurance, quality control 13 procedures were relevant to this determination? 14 A Well, to rely upon the data, one wanted to be sure 15 that QA/QC procedures were followed. 16 Q Were they, in fact, followed? 17 A We concluded that they were. 18 Q How did you go about concluding that they were? 19 A The water management district has had a QA and QC 20 plan extending back for many years at their agency, and we 21 evaluated their QA/QC procedures to see if the data 22 resulting from that set of processes was reliable. 23 Q Are you aware of the QA/QC procedures for testing 24 of extremely low concentrations of phosphorus? 25 A I am somewhat aware of that. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 127 1 Q Do you know whether those QA/QC procedures require 2 any additional steps be taken for phosphorus concentrations 3 that are at or below 10 parts per billion? 4 MR. HETRICK: I object to the form of the 5 question. 6 BY MR. HYDE: 7 Q Let me ask the question this way. What steps, if 8 any, did the water management district, in collecting this 9 phosphorus concentration data, take in order to ensure that 10 the -- their data was reliable as to the very low 11 concentrations of phosphorus? 12 A Whatever their procedures were, and I don't know 13 if I could answer more than that. 14 Q Well, did -- 15 A I myself did not review their procedures. 16 Q Do you know whether the QA/QC procedures they used 17 were uniform for all types of phosphorus concentrations, 18 that is, from types ranging from very low to higher forms, 19 10 parts per billion versus 100 parts per billion? 20 A I do not. 21 Q Are you familiar with any proposed QA/QC 22 procedures that Dr. Wetzel has proposed or has set forth 23 for testing ultra-low concentrations of phosphorus? 24 A I have read a little bit about them in the 25 Everglades research plans, I believe. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 128 1 Q Are you familiar with them other than just having 2 read about them very much? 3 A No, I am not very familiar with them. 4 Q You don't know what kind of extra steps he 5 suggests for ultra-low concentrations of phosphorus? 6 A No, I do not. 7 Q Did the technical team conclude or agree with Dr. 8 or Mr. Walker's analysis that there was an increasing trend 9 over time in phosphorus concentrations? 10 A Yes. 11 Q Did they likewise agree with his postulated 12 relationship between flow and phosphorus? 13 A Yes. 14 Q Did the technical team conclude as a result of 15 Walker's work that the OFW standard was being violated in 16 the Park? 17 A I want to clarify a little bit there. It wasn't 18 just Walker's work, it was evaluated and assessed by 19 others. 20 Q Let me ask the question, did the technical team 21 conclude that the OFW rule was being violated in the Park? 22 A Yes. 23 Q What were the bases for that conclusion besides 24 Walker's work? 25 A When I say -- again, I don't want to characterize A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 129 1 it as Walker's work, and I will not characterize it that 2 way, but the results of the analysis were that water 3 quality concentrations of phosphorus were higher since 1979 4 than the OFW baseline year would have it. 5 Q Was there anyone besides Walker who did any 6 analysis to support that conclusion? 7 A I can say that Dr. Robeson did, and I can say that 8 Frank Nearhoof did. 9 Q Were they looking at the same data sets? 10 A The exact same data set. 11 Q Were Robeson and Nearhoof, in effect, just redoing 12 Dr. or Mr. Walker's analysis to confirm that he did it 13 correctly? 14 A No. I believe they were performing an 15 independent analysis of the data. 16 Q Did they use some different analytical technique 17 in arriving at those conclusions? 18 A I believe they did. 19 Q What did Robeson do that was different from Dr. 20 Walker's analysis? 21 A Dr. Robeson and Dr. Walker are both Ph.D. 22 statisticians, and I am not, and I can't summarize for you 23 very well at this late date exactly what were their 24 disagreements, but they had extended discussions on the 25 proper way to handle the data. Frank Nearhoof participated A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 130 1 in those and also a water management district statistician, 2 George Shih, S-h-i-h, also participated on discussions on 3 the best way to handle the data, Dr. Shih. 4 Q Do you recall what the significant differences 5 were between Dr. Robeson's and Dr. Walker's analyses? 6 A I think they differed more on the methods they 7 thought appropriate for the data at first than on the 8 results. 9 Q How did their methods disagree, or how were they 10 different? 11 A I cannot recall very distinctly for you. 12 Q Do you have a general understanding as to how they 13 differed? 14 A Only the most general understanding. 15 Q What is that? 16 A I think there was a disagreement about the exact 17 regression technique that should be used at first. 18 Q Okay. Did they ultimately reach some consensus as 19 to which was the appropriate regression technique that was 20 to be employed? 21 A I believe they did. 22 Q Was it Dr. Walker or Dr. Robeson's? 23 A I can't characterize for the final agreed-upon 24 method which fraction of responsibility was borne between 25 the two of them. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 131 1 Q I believe you stated a few minutes ago that the 2 technical team concluded on the basis of these analyses 3 that the OFW standard was being violated? 4 A Yes. 5 Q How does one -- what is the standard method the 6 Department employs for determining whether the OFW standard 7 is being violated? What is the operative test, if you 8 know? 9 A It would be that contained in the rule. 10 Q Which rule are you referring to? 11 A 17-302 and 17-4. 12 Q Do you regard the OFW rule as not -- as mandating 13 a no-degradation test? 14 A No. 15 Q What is the standard that the OFW rule sets forth 16 for determining whether there is, in fact, a violation of 17 the OFW criteria existing as of the date of the 18 designation? 19 A I would have to look at the rule to be most 20 helpful. 21 Q You can do that if you would like. 22 A Would you reask your question? 23 Q What is the operative test that the Department 24 employs to determine whether there is a violation of the 25 Department's OFW water quality standard? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 132 1 MR. HETRICK: Are you referring to a specific 2 portion of the rule or the rule in general? 3 BY MR. HYDE: 4 Q Isn't the operative test that there be no 5 significant degradation? 6 A I am looking at 17-4.242. 7 Q Okay. 8 A Paragraph (2), Standards Applying to Outstanding 9 Florida Waters, so I guess all of that section would be the 10 operative said test. 11 Q The paragraph (2)(a) reads, "No Department permit 12 or water quality certification shall be issued for any 13 proposed activity or discharge within an Outstanding 14 Florida Water or which significantly degrades, either alone 15 or in combination with other stationary installations, any 16 Outstanding Florida Waters, unless the applicant 17 affirmatively demonstrates that," and then there is a list 18 of factors beneath that. 19 Would you agree then that the operative test is 20 not a non-degradation standard but a no-significant- 21 degradation standard? 22 A I can only read from the rule like you did, which 23 says, "or any activity or discharge within an OFW or which 24 significantly degrades." 25 Q Did the technical team -- let me start over A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 133 1 again. 2 The phraseology of this rule speaks to proposed 3 activity or discharge, correct? 4 A Yes. 5 Q Aren't the discharges that are occurring through 6 the water control structures, for example, the S-12 7 structures, existing discharges? 8 A They exist. 9 Q Then how does this rule apply to them if they are 10 existing discharges? 11 A I believe this would contemplate a permit in that 12 sense, a proposed activity or discharge. 13 Q So you are saying that the language, "proposed 14 activity or discharge," refers not to the activity or 15 discharge but to the proposed permit for that activity or 16 discharge? 17 A I think so. 18 Q How did the technical team determine that the 19 facts available to them regarding these increasing 20 phosphorus trends in the Park were somehow evidence of a 21 violation of this standard? 22 A I think we pay attention to that provision, but 23 also the other parts of 17-1.2.2, including the part we 24 discussed before lunch in (2)(c) that defines existing 25 ambient water quality. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 134 1 Q Did the technical team conclude that these 2 discharges through the S-12 structures were significantly 3 degrading the waters of the Park? 4 A I don't know that we reached a conclusion on that. 5 Q Well, if you didn't reach a conclusion as to 6 whether they were significantly degrading the waters of the 7 Park, how did you conclude that there was a violation of 8 the rule? 9 A We concluded that it was lowering the water 10 quality in the Park. 11 Q Does the mere lowering of the water quality 12 demonstrate or is it equated with the notion that the water 13 is being significantly degraded? 14 Let me rephrase that. 15 Does the mere lowering of water quality constitute 16 a violation of the OFW standard? 17 A It can. 18 Q You said that it can, which seems to imply that it 19 might not. Is that correct? 20 A In my view, yes. 21 Q Can you differentiate or can you explain to me how 22 the mere lowering of water quality can constitute a 23 violation in certain circumstances but not in others? 24 A In OFWs, ambient water quality is protected 25 against any lowering from a direct discharge, but protected A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 135 1 against significant degradation from an indirect discharge. 2 Q So if there is a direct discharge, there can be no 3 lowering, period? 4 A No. There are certain exceptions in the rule, but 5 as a simplification, there is a distinction between direct 6 discharges and indirect discharges. 7 Q What do you consider the discharges from the S-12 8 structures to be? Are they direct or indirect discharges? 9 A I understand them to be direct discharges. 10 Q So you would say, in fact, that since they are 11 direct discharges, there can be no lowering of the ambient 12 water quality existing as of the date of the designation of 13 the OFW? 14 A With the qualifications I mentioned a moment ago. 15 Q What are those qualifications? 16 A They are contained, I think, in 17-4.242. For 17 example, in (2)(b), there is an allowance for limited 18 activity for discharges to allow for enhanced public use or 19 to maintain facilities, and there is also in 17-4.242(1), 20 rather, two allowances for blowdown discharges. There is 21 also allowances in (2)(d) for existing activities and 22 discharges, and (e), for activities exempted from permit 23 programs, and (f), there is language applying to navigation 24 projects in the Apalachicola River. 25 Q Did subsection (2)(d) refer to dredge and fill A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 136 1 activities? 2 A Well, it says dredge or fill activity or any 3 discharge. 4 Q Let's back up to 17-4.242. I am not sure I have 5 the right sections here. (2)(b), as in boy, that begins 6 with the phrase, "The Department recognizes," et cetera, 7 are you where I am? 8 A Yes. 9 Q Part of that phrase says that, "It may be 10 necessary to permit limited activities or discharges in 11 OFWs to allow for or enhance public use or to maintain 12 facilities that existed prior to the effective date of the 13 Outstanding Florida Water designation." Would you agree 14 that the S-12 structures fit that definition? 15 A I don't think there is a definition in that 16 section. 17 Q Well, would you agree that the S-12 structures 18 were facilities that existed prior to the effective date of 19 the Outstanding Florida Water designation for the 20 Everglades National Park? 21 A Yes. 22 Q So these discharge structures would then be 23 potentially eligible for this, the application in the 24 provisions of this portion of the rule? 25 A I think an argument could be made that they are A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 137 1 potentially eligible. I don't believe that this section 2 was meant for that type of discharge facility. 3 Q Why not? 4 A It has the special language for different types of 5 facilities. One thing is to allow for or enhance public 6 use, and as I understand, that was meant for things like 7 boat ramps, to allow for or enhance public use in an 8 Outstanding Florida Water. 9 Q I didn't say that it was eligible for that aspect 10 of it, just for the other provision. It says, "or to 11 maintain facilities that existed prior to the effective 12 date." 13 A And I was going to go on. In the second clause 14 there, it says, "or to maintain facilities existing prior 15 to the effective date of the Outstanding Florida Water 16 designation." As I understand it, that language is meant 17 to address a case where the facility, itself, requires 18 maintenance, as in maintenance dredging, not in the sense 19 of maintaining the discharge of the facility. 20 Q What is the basis for that understanding? It 21 doesn't appear on the face of the rule. 22 A It seems clear to me. 23 Q Well, would that be your basis for concluding that 24 this provision in the rule does not provide an out for the 25 S-12 structures? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 138 1 A I don't think that this provision was meant to 2 apply to things like the S-12 structures. It says, "The 3 Department recognizes it may be necessary to permit limited 4 activities or discharges," and the S-12 structures are 5 pretty big facilities. I don't think they fit within what 6 we mean by limited activities or discharges. 7 Q The way I understand your interpretation of this 8 rule as a hold-in, is that any direct discharge to an OFW 9 is essentially prohibited, any new discharge, unless it 10 happens to fall within these, one of these exceptions like 11 for blowdowns or for facilities that allow or enhance 12 public use or to maintain those facilities, and the other 13 provisions in (d), (e) and (f) of that same rule, is that 14 correct? 15 A There are some other exceptions also I think you 16 considered there. There is a temporary, here during 17 construction, exception, nor does the rule apply to 18 discharges that receive general permits. 19 Q Would you agree that the S-12 contribution level 20 during that baseline year would be grandfathered under the 21 rule? 22 A I don't think I can say. 23 Q Why not? 24 A I don't think the Department has made a 25 determination on that. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 139 1 Q I would like to call your attention to provision, 2 subsection (1)(b) of the rule, where again the language is 3 used of "a proposed discharge." 4 Doesn't the use of the word "proposed" imply a new 5 discharge as opposed to one that is already existing? 6 A No, I don't think I would agree with that. What 7 the permit applicant is proposing is to receive a permit 8 from DER for a discharge. It wouldn't be sufficient to say 9 I am already discharging and, therefore, I am entitled to a 10 permit. 11 Q Well, why didn't the rule say, then, in 12 determining whether a proposed permit for a discharge. 13 MS. STARK: Object to the form of the question. 14 MR. HETRICK: I object to the form of the 15 question, too. 16 BY MR. HYDE: 17 Q Wouldn't that be a more clear statement of the 18 intent that you believe the rule has? 19 A I don't know if your phrasing would be clearer, 20 but I think the current phrasing is also clear. 21 Q I guess your bottom line is it is the permit we 22 are talking about here as opposed to the discharge being 23 proposed? 24 A The discharge is being proposed. 25 Q Well, I don't wish to be argumentative, and I will A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 140 1 not pursue this much further, but I am trying to understand 2 the distinction between the rule language of the proposed 3 discharge and how that manages to encompass an existing 4 discharge such as that which occurs through the S-12 5 structures. They don't seem to fit to me. 6 A I don't think I can give you a different answer 7 than I did before. 8 Q Just to wrap up this line of questioning, was it 9 the technical team's conclusion that this increase in 10 phosphorus concentrations constituted a violation of the 11 OFW standard for the Park? 12 A I don't recall the technical team reaching some 13 formal statement along those lines. I think there was more 14 an integrated discussion of the OFW requirements and Class 15 III requirements and the Douglas Act requirements. 16 Q Well, do you have an opinion as to whether that 17 increasing phosphorus trend that was noted by Walker, among 18 others, constitutes a violation of the OFW standard in the 19 area of the Park south of the S-12 structures? 20 A I think it is. 21 Q I believe you said that the technical team also 22 looked to whether there were violations of the narrative 23 nutrient standard in the Park? 24 A Yes. 25 Q What was done in that regard? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 141 1 A There was review of the available information on 2 nutrient impacts in the Park. 3 Q By whom? 4 A By various members of the teams. 5 Q Can you be more specific? 6 A I think that Frank Nearhoof, I think that Dan 7 Scheidt, Ron Jones, Mike Soukup, perhaps Tony Federico were 8 very much involved in that discussion. 9 Q What factors or data did they look to in analyzing 10 this issue of possible violation of the narrative nutrient 11 standard? 12 A I think that is well summarized in the paper which 13 Frank Nearhoof was the principal author of that describes 14 water quality standards violations in the Park and the 15 Refuge. 16 Q Well, do you recall what those factors were or 17 what biological or other changes he was looking at to reach 18 a conclusion? 19 A I can try to recall. Really, Frank did a better 20 job in summarizing that than I could summarize from memory 21 for you. 22 Q Well, did he look to cattail populations south of 23 the S-12 structures? 24 A I believe that was looked at. 25 Q What about benthic macroinvertebrates? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 142 1 A I don't recall if that was looked at. 2 Q Soil concentrations of phosphorus? 3 A I believe that was looked at. 4 Q Dissolved oxygen concentrations? 5 A I don't recall if that was looked at. I shouldn't 6 say that. I am sure it was looked at. I don't recall what 7 conclusions were reached on dissolved oxygen. 8 Q But you basically -- I guess what you are saying 9 is you would defer to what Frank Nearhoof said in that 10 regard in his report? 11 A It is not Frank's report, it is the Department 12 report that I reviewed, and I accept the conclusions in 13 that report. 14 Q Are you relying upon Mr. Nearhoof's work, or did 15 you go back and independently analyze the data or the tests 16 upon which he was basing his opinion? 17 A Primarily relying upon his assessment of the 18 literature, as well as the other people that participated 19 in writing that report. 20 Q Were those the same factors that were utilized by 21 the technical team to determine or to analyze whether there 22 was a violation of the nuisance species standard? 23 MS. STARK: Object to the form of the question. I 24 don't know what you are referring to as "those." 25 THE WITNESS: When you said "same factors," I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 143 1 don't quite understand that myself. 2 BY MR. HYDE: 3 Q The factors being cattails, soil phosphorus, 4 dissolved oxygen, were those the things that you also -- 5 that the technical team looked at in determining whether 6 there was a violation? 7 A I think there was an overlap of the data set, but 8 the violation or problem with dissolved oxygen was not a 9 nuisance species problem primarily. 10 Q Since we are discussing these two rules, the 11 narrative nutrient rule and the nuisance species rule, 12 let's just go ahead and look at this specifically. I 13 believe that the nutrient rule is 17-302.560(27). That 14 rule reads, "Nutrients," hyphen -- 15 A I don't have that. 16 Q Excuse me. .560(27). 17 MR. HETRICK: Here it is. 18 THE WITNESS: Yes. 19 BY MR. HYDE: 20 Q Are we on the same page there? 21 A Yes. 22 Q That rule reads, "Nutrients - In no case shall 23 nutrient concentrations of a body of water be altered so as 24 to cause an imbalance in natural populations of aquatic 25 flora and fauna." A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 144 1 A "Or fauna." 2 Q "Or fauna," excuse me. 3 What do you understand the phrase, quote, "body of 4 water," end quote, to mean within the context of that 5 rule? 6 A I think it would mean a portion or the entirety of 7 a water course. 8 Q Let me ask the question this way. If, for 9 example, you had an area in a water body, let's say one 10 square meter, with a very dense cattail stand that was 11 caused by nutrients, would you conclude that that one 12 square meter of cattails constitutes a violation of the 13 narrative nutrient standard? 14 A Yes. 15 Q There is no geographical component to the rule? 16 A There is a geographical component to what the 17 Department pays attention to on how serious a violation it 18 is. With your assumption that nutrients caused an 19 imbalance of a square meter, I would call it an imbalance 20 in that square meter. 21 Q Doesn't the rule really require the Department to 22 look at an entire body of water? 23 A Could you tell me what you mean by "an entire body 24 of water"? 25 Q If you were correct in that supposition about the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 145 1 one square meter being evidence of a violation, shouldn't 2 the rule read something like, in "No case shall nutrient 3 concentrations of a body of water or a portion of a body of 4 water be altered so as to cause," et cetera? 5 A No, I wouldn't agree with that. 6 Q Why? 7 A Because I think it makes more sense to interpret 8 the phrase "body of water" as including as advisable 9 portions of body of water. 10 Q But the rule doesn't use that limitation, portions 11 of a body of water, does it? 12 A I am sorry, could you reask that? 13 Q I don't need to reask it. I think it is obvious 14 what the rule says and doesn't say. 15 Is there a geographical component that the 16 Department looks at in determining whether there is a 17 violation of the narrative nutrient rule? 18 A I think so. 19 Q How does or in what respect does it consider that 20 there is a geographic component to the rule? 21 A I think it is one factor in determining whether a 22 violation has occurred or not. 23 Q What other factors might be employed by the 24 Department? 25 A I think the extent of the imbalance, its duration, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 146 1 magnitude. 2 Q Well, if, for example, there was one square 3 meter -- 4 A Could you hold on for a second? 5 Q Sure. 6 A I am trying to find something in the rule here. 7 Go ahead. 8 Q Do you equate -- let me ask the question this 9 way. How do you define the term "imbalance" in the rule? 10 A I would like again to rely upon the Department 11 analysis of water quality standards in determining 12 violation of the nutrient criteria. The Frank Nearhoof 13 paper does a better job of defining that after receiving 14 Department review than I could probably do right now. 15 Q I would like to show you what has been labeled as 16 Exhibit 6. 17 (Whereupon, Exhibit No. 6 was marked for 18 identification.) 19 BY MR. HYDE: 20 Q Would you identify that document for me? 21 A It is headed with a date, June 27, 1991, 22 "Richard," and it is a note that I wrote to Richard on that 23 date, Richard Harvey. 24 Q I would like to take you through this note or 25 memorandum or whatever you want to call it. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 147 1 Calling your attention to the first two sentences 2 which read, "I have some problems with the latest proposed 3 definition of `imbalance.' The basic problem is that the 4 draft definition purports to be based on Class III criteria 5 but misuses them," can you explain what you meant by that 6 statement? 7 A I can try. As I recall, there was a draft of a 8 settlement agreement that Richard Harvey asked for me to 9 comment upon one morning, and he was, I think, was going to 10 a meeting and I was unable to go, so that morning I wrote 11 this up, so this is comments upon some draft of something 12 that Richard had. 13 Q Okay. 14 A The statement that it purports to be based on 15 Class III criteria I think was based on some language that 16 interpreted the narrative nutrient criteria in a way that I 17 disagreed with. 18 Q Was Mr. Harvey's document that he was utilizing or 19 which he had submitted to you a draft of the settlement 20 agreement that existed as of that date? 21 A As near as I can recollect, that is what I think 22 this was a comment memo on. 23 Q So this was probably referring to a draft that 24 existed just prior to June 27, 1991? 25 A Probably so. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 148 1 Q Was that criticism subsequently addressed in the 2 settlement agreement process? 3 A I believe it was. 4 Q Do you recall how it was addressed to your 5 satisfaction? 6 A I would have to look at the settlement agreement 7 and the SWIM Plan to answer that. 8 Q Now on numbered paragraph 1 you state, "The term 9 `imbalance' is very hard to define." Do you continue to 10 subscribe to that view? 11 A No. 12 Q Why not? 13 A I think I would take out the word "very." 14 Q It is hard to define, so you agree that the term 15 "imbalance" is hard to define? 16 A Yes. 17 Q Do you think it has been adequately defined for 18 purposes of the Everglades SWIM Plan? 19 A Yes, I do. 20 Q What definition of imbalance were you relying upon 21 in saying that? 22 A The discussion in the Frank Nearhoof paper and the 23 discussion in the settlement agreement. 24 Q Do those two discussions differ from each other? 25 A I think that the DER analysis, parenthesis, the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 149 1 Frank Nearhoof paper, parenthesis, expands upon the 2 discussion in the settlement agreement but is not in 3 conflict with it. 4 Q I would like to call your attention to numbered 5 paragraph 4 which reads, "Imbalance is apparently not the 6 same --" 7 A Could I interrupt you? 8 Q Sure. 9 A On number 1 here, I don't know if you kind of go 10 back to that or not, but the second sentence, which says, 11 "I don't think, for example," that Water Facilities relies 12 much on the concept of imbalance, I have learned since I 13 wrote this note to Richard that I was wrong on that; that, 14 in fact, they do use imbalance determinations. 15 Q What is your understanding now as to how they use 16 imbalance in determining or issuing water facilities 17 permits? 18 A That they do with some regularity use imbalance 19 determinations in deciding upon permit issuances. 20 Q Is this for discharges like sewage treatment 21 plants, is that what you are referring to? 22 A Those are the ones I am most familiar with, yes. 23 Q Do you know how they do it? 24 A I think they pretty much follow the same method 25 set out in the Frank Nearhoof paper. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 150 1 Q Do they employ any other tests that might be 2 specific to a particular type of discharge, for example, on 3 a sewage treatment plant outfall? 4 A Any different tests from what? 5 Q Than those specified by Mr. Nearhoof. Not 6 specified, articulated. 7 A I would have to look at Frank Nearhoof's paper and 8 the water facility assessment to give you an answer to 9 that. 10 Q Let's go to paragraph 4, which reads, "Imbalance 11 is apparently not the same as change. The term `change' 12 could have been used easily but was not. Therefore, 13 presumably, some change can occur without being an 14 `imbalance.'" Do you agree with that proposition, still? 15 A I think that may be true, and I think that is 16 consistent with the Department's view in the Frank Nearhoof 17 paper, but I have not had a chance to discuss with Frank 18 Nearhoof, Landon Ross and the other people in the 19 Department who interpret this rule much more often than I 20 do. 21 Q Let's go back to the example you utilized earlier. 22 Let's say you have a 1,000-acre lake and one square meter 23 of that lake is a dense cattail stand. How would that one 24 square meter of cattails within that 1,000 acre lake be 25 indicative of an imbalance? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 151 1 A Well, I think you would mean it to be a 2 nutrient-induced imbalance? 3 Q Well -- 4 A Could I have a clarification on that? 5 Q Let's just say that that one square meter was 6 right at the outfall of a stormwater pond or something like 7 that, and it was the result of nutrients flowing through 8 that stormwater outfall. How would that one square meter 9 be indicative of an imbalance in that body of water? 10 A It can be an imbalance in that one square meter. 11 Q How is it indicative of an imbalance in the body 12 of water, not just the one square meter? 13 A I think it would depend on the factual 14 circumstances of that particular body of water. 15 Q Well, give me an example of how the factual 16 circumstances of a body of water might affect that 17 determination. 18 A I think that is all set out in the Nearhoof 19 paper. It has a pretty comprehensive list of all of the 20 factors that the Department needs in making determinations. 21 Q Well, let me go on now to numbered paragraph 5, 22 which reads, "In principle, there could be large changes in 23 populations due to nutrient additions that do not produce 24 an `imbalance.' `Good' changes cannot cause imbalance, 25 `bad' changes do." A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 152 1 Do you continue to agree with that proposition? 2 A I think in principle I agree with that 3 proposition. I think now there would be few cases, maybe 4 no cases where we could expect large changes in populations 5 or population structure that would not also be an 6 imbalance. 7 Q Would you agree that natural populations of flora 8 and fauna in water bodies can shift radically for a variety 9 of different reasons? 10 A I would agree that they can shift a lot, many 11 reasons. 12 Q By orders of magnitude? 13 A Even orders of magnitude. 14 Q That is not necessarily a bad thing, is it? 15 A I think your question was based on the 16 presupposition of natural changes, and I would agree that 17 natural changes in communities are not bad. Is that 18 responsive to your question? 19 Q In part. You recognize that changes in 20 populations can occur? 21 A Yes. 22 Q But you make the differentiation between there 23 being natural changes as opposed to man- or nutrient- 24 induced changes? 25 A That is one distinction, yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 153 1 Q How do you qualitatively say one is good and the 2 other is bad? 3 A I don't think I said one is good and one is bad. 4 I guess I would refer to 17-302.560 that prohibits nutrient 5 changes that cause an imbalance. 6 Q .560? 7 A (27). 8 Q (27). So the changes have to be reflective of an 9 imbalance in that water body, is that correct? 10 A An imbalance in natural populations of aquatic 11 flora or fauna. 12 Q Your next numbered paragraph 6, you stated, "The 13 definition of the term nuisance species in 17-302.200 seems 14 to me to be close to what is meant by an imbalance. The 15 key point of that definition is that the species, in some 16 way, prevent, or unreasonably interfere with, the 17 designated use of the waters." 18 Do you continue to agree with that proposition, 19 that for there to be an imbalance there must be some 20 prevention or unreasonable interference with the designated 21 use of the waters? 22 A I don't agree with that, and I don't think that is 23 what I meant to say in this note to Richard, either. This 24 was a thinking piece I put together for Richard. My actual 25 words here were that definition of nuisance species seems A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 154 1 to me to be close to what is meant by an imbalance, and 2 then I added some thoughts along that line. 3 Q Okay. 4 A I think I believe now it is not as close as I 5 thought it was in June of 1991. 6 Q So you disagree with the following sentence which 7 states, "Thus, the nuisance species must not only be 8 present, but must be causing unacceptable degradation"? 9 A No. I think that is a paraphrase of the nuisance 10 species restriction. I don't disagree with that 11 statement. I disagree with the nuisance species concept 12 being very close to the imbalance concept. 13 Q Why did you change your mind in that regard? 14 A I have learned some things since then. 15 Q Such as? 16 A How the Department actually interprets the 17 imbalance criteria. 18 Q Who apprised you of that information? 19 A It was people like Landon Ross, Russ Frydenborg, 20 Frank Nearhoof and Doug Gilbert, I believe. 21 Q Were you ever advised by anyone with the 22 Department that the notions that you discussed in this 23 memorandum were inconsistent with the Department's position 24 in the Everglades SWIM Plan proceedings? 25 MR. HETRICK: Object to the form of the question. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 155 1 What positions? 2 BY MR. HYDE: 3 Q I didn't say, positions, I said -- well, I said 4 whether the notions expressed in this memorandum were 5 inconsistent with the position being maintained by the 6 Department in this proceeding. 7 A Well, there are many notions in this thinking 8 piece I put together for Richard, and I guess I inferred 9 from later discussions and, in fact, in the terms of the 10 settlement agreement, that not everything I dreamed up here 11 was agreed with by everybody. 12 Q Do you agree with the proposition set forth in the 13 next sentence, "A change is not a nuisance simply because 14 it is a change. It must be a change that makes a 15 meaningful difference"? 16 A Yes, I think I still accept that as being an 17 accurate paraphrase of the definition of nuisance species, 18 17-302.200. 19 Q But you don't think it applies to the narrative 20 nutrient rule? 21 A I think it sheds some light on the narrative 22 nutrient rule, but I don't think it is as close an analogy 23 today as I thought was in June of 1991. 24 Q On the next page, numbered paragraph 7, you state, 25 "If any change, of any magnitude is regarded as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 156 1 significant, we are then in the world of OFWs or ONRWs, not 2 Class III criteria." 3 Do you agree or disagree with that proposition 4 now? 5 A I don't write nearly as clearly as I think I do 6 sometimes. I am trying to figure out what I meant by 7 that. I think I agree with that. 8 Q Let me ask you this follow-up question, then. Do 9 you regard any change of any magnitude as being violative 10 of the narrative nutrient rule? 11 A I don't think it is necessarily a violation, but 12 it could very well be that quite small changes would be a 13 violation. 14 Q Numbered paragraph 8, you state, "In the draft 15 definition, there is no definition of the term `nutrient- 16 induced replacement of native periphyton algal species.' 17 Does this mean within an area of one square meter? One 18 square kilometer? The Refuge or Park? These are not 19 rhetorical questions. To me, the right answer is that 20 `replacement' is `imbalance' if it occurs on a scale large 21 enough to be a `nuisance species' and `unreasonably 22 interferes with the designated use.'" 23 Do you now agree or disagree with that statement? 24 A Which statement? 25 Q The entirety of it. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 157 1 A I think that I don't like some of that statement. 2 Q What? 3 A I do think that scale is still a factor in making 4 an imbalance determination, but I don't think I much like 5 the analogy, nuisance species, anymore. 6 Q So you no longer believe that imbalance needs to 7 occur on a scale which unreasonably interferes with the 8 designated use? 9 A Right. 10 Q I would like to call your attention to numbered 11 paragraph 12. "There may also be a confusion between an 12 `indicator' and the thing, itself. An indicator, as I 13 understand it, is used to show a possible relationship 14 between variables. For example, coliform bacteria are an 15 indicator of human sewage pollution. However, high 16 coliform bacteria counts are not the same as human sewage 17 pollution. Frequently, the two are not related at all. 18 The same distinction should be kept clear in the meaning of 19 `imbalance.'" 20 What were you addressing here? 21 A I am trying to remember myself, and there must 22 have been something in that draft I looked at that talked 23 about indicators. My comments are something about the 24 usage of the indicator. 25 Q Were you concerned there that Mr. Nearhoof or A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 158 1 someone else might be dropping or drawing a causal 2 relationship between nutrients on the one hand and the 3 existence of some indicator, whether it is periphyton or 4 cattails, on the other end that wasn't appropriate? 5 A I cannot say very certainly, but I think perhaps 6 that whole section should be taken as expressing some 7 caution about the use of indicators, and if an indicator is 8 used, it should be the right indicator. 9 Q Do you regard a correlation as being the same 10 thing as demonstrating a cause and effect relationship? 11 A No. 12 Q In the next unnumbered paragraph, you venture the 13 notion that the term you are referring to, definition of 14 imbalance in natural populations of flora and fauna, does 15 require site-specific research conducted over several 16 years. 17 Do you continue to agree that the term does, in 18 fact, require such site-specific research over several 19 years? 20 A The SWIM Plan does lay out a program of site- 21 specific use that you would go to. 22 Q Do you think that that research has been 23 adequately done to this point? 24 A I have not reviewed the research component very 25 thoroughly at all. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 159 1 Q Well, do you -- 2 A But there are people in DER who have reviewed it 3 carefully. 4 Q Do you have an opinion as to whether the research 5 that has been done to date is adequate to demonstrate that 6 there is an imbalance occurring in, for example, Everglades 7 National Park? 8 A I rely upon the Nearhoof paper which I would 9 properly call, quote, "Nutrient-Induced Impacts and Water 10 Quality Violations in the Florida Everglades." 11 Q Well, the Department's answers to our 12 interrogatories indicated that you would be testifying that 13 state water quality standards are not being met in the 14 Everglades. Will you be venturing any opinions in that 15 regard, or will you just be relying on what Mr. Nearhoof 16 said? 17 A I probably rely upon what Mr. Nearhoof said for 18 some components of the Everglades for some parameters. I 19 think you asked a broader, a rather broad question. 20 Q Could you identify for me which standards you will 21 be relying primarily on Mr. Nearhoof's literature search 22 and which standards you will be relying upon other 23 information? 24 A I think I feel most comfortable giving an opinion 25 upon OFW requirements, and less comfortable about some A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 160 1 other criteria. 2 Q Will you be venturing an opinion as to whether 3 there are violations of the dissolved oxygen standard? 4 A Forgive me here, but my natural temptation is to 5 say if I answer it, you will ask and I will answer it. 6 That is not quite the question you are asking? 7 Q No. 8 A I didn't understand the question. 9 Q Will you be offering an opinion in a final hearing 10 in this matter that there are violations of the dissolved 11 oxygen criteria in the Everglades Protection Area? 12 A I believe there are violations of the dissolved 13 oxygen criteria in the Everglades. 14 Q Will you be so testifying at a final hearing? 15 A I have not been advised by counsel on that 16 specific narrow question. I feel unable to answer. 17 Q We have a problem here. 18 MR. HETRICK: You were on the right track with the 19 principles. Whether or not he is going to testify or 20 not, I don't know if we will offer him on that point or 21 not. It depends on how our strategy pans out, but we 22 are fully able to explore his opinions and how the 23 water quality standards apply in the Everglades, or you 24 can ask him the questions you just asked him on 25 dissolved oxygen, but whether or not he will testify on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 161 1 a given point, I don't think anyone -- 2 MR. HYDE: All I can say is it is probably going 3 to make the deposition a lot longer. If he is going to 4 tell me he is not testifying on dissolved oxygen, I am 5 not going to be duly concerned with that. 6 MR. HETRICK: Right. 7 MR. HYDE: If, on the other hand, he is, I am 8 going to inquire more extensively into that, and I 9 would say that about any subject matter of his 10 testimony, any potential matter, so if there is a 11 possibility that any and all of these things might be 12 discussed in his testimony at hearing, then I am going 13 to have to make a lot of inquiry into a lot of 14 different areas in the hopes that I have covered 15 everything. 16 MR. HETRICK: All right. I would start with 17 dissolved oxygen and work your way down the list and 18 see if he has an opinion with respect to that. 19 BY MR. HYDE: 20 Q Mr. Swihart, where in the Everglades Protection 21 Area specifically are there violations of the water quality 22 criteria for dissolved oxygen? 23 A There are violations in the Loxahatchee National 24 Wildlife Refuge, for example. 25 Q Where else? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 162 1 A I believe there are violations in the other water 2 conservation areas. 3 Q Can you be more specific? 4 A I believe there are violations in Water 5 Conservation Area 2 and 3. 6 Q Which portions of 2? 7 A I would have to review the reports to be more 8 specific. 9 Q Which reports? 10 A I am thinking of the state water quality 11 assessment in particular. 12 Q That is the document that you referred to at the 13 beginning of your deposition this morning, the one that is 14 done every two years? 15 A Yes. 16 Q That is what you would be looking to? 17 A Primarily. 18 MR. GREEN: Excuse me, to save time for the 19 record, did we ever decide, can we get copies of those 20 and talk about them while we are here in the next two 21 or three days? It might have time later if it is 22 convenient for you. 23 MR. HETRICK: Are they readily available, I don't 24 know. I assume we produced them. I have not 25 personally seen them myself, but if we have not, can we A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 163 1 go back and look and see -- 2 THE WITNESS: The 1992 is available and out of the 3 print shop. The only question would be whether there 4 are still available copies of the 1990, but Joe Hand 5 would be the person to ask. 6 MR. HETRICK: Can you ask him about that? 7 MR. GREEN: If it is convenient for you, if we 8 could maybe get the last five or something, you 9 probably have a library somewhere. 10 THE WITNESS: Someone -- Joe told me a few weeks 11 ago that he was supplying old copies to someone. It 12 wasn't to you? 13 MR. GREEN: It is possible. 14 MR. HYDE: I have not seen them, let's put it that 15 way. 16 MR. GREEN: I don't recall seeing it. We may have 17 it somewhere. 18 THE WITNESS: Now, you have asked for the last 19 five. 20 MR. GREEN: Yes, if it is every two years, the 21 last 10 years' worth, if they are available without a 22 lot of trouble. I apologize for interrupting, I know 23 it would save some time. 24 MR. HYDE: Do you want to take a short break now? 25 (Brief recess.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 164 1 MR. HETRICK: Let's go on the record. I want to 2 make a statement. 3 MR. HYDE: All right. 4 MR. HETRICK: We had left off, I guess, talking 5 about -- and I want you to facilitate this deposition 6 as much as possible, his opinions versus what he will 7 testify to. 8 As to strategy, I am not sure either side has 9 completely formulated that. I think I would state this 10 on the record, that if he adds to whatever his opinions 11 are or changes the scope of his opinions that he may 12 have, assuming that they are significant, into the 13 future, we will, you can have a right to explore those 14 additions in the form of an additional deposition. I 15 think that is the assumption that we are all operating 16 under. 17 MR. HYDE: I presume you will notify us about 18 those changes in opinions. 19 MR. HETRICK: Yes. Beyond that, I think that we 20 have him listed here for interpreting primarily basic 21 rules, applications and interpretation of rules and -- 22 in the Everglades, but also his opinion that state 23 water quality standards are not being met that are 24 violations in the Everglades, and as to what water 25 quality standards are being violated, all I can say is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 165 1 ask your questions again and go down the list for, you 2 know, antidegradation, OFW violations, dissolved 3 oxygen, any form of nutrient or numeric or site- 4 specific violations. Ask your questions. 5 That is the best I can do. I can't really narrow 6 it much more than that. Is that a fair understanding? 7 MR. GREEN: Sure. 8 BY MR. HYDE: 9 Q Okay. Mr. Swihart, I would like to -- 10 MR. HETRICK: Excuse me, one other thing, too. 11 Whether or not he has an opinion on that, you are 12 entitled to explore that, too. 13 BY MR. HYDE: 14 Q Okay. Mr. Swihart, I would like to back up for a 15 moment. I have been jumping around for a bit. I wanted to 16 get back to the meetings of the technical team that we were 17 discussing some time ago. I believe you testified that the 18 earlier meetings were essentially focused on whether there 19 were violations in the Park, is that correct? 20 A No, I don't believe that is correct. I think that 21 the early meetings were focused on figuring out what we 22 were trying to do and gathering and assessing available 23 information. 24 Q Was the aim of that effort to ascertain whether 25 there were, in fact, violations of various water quality A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 166 1 standards in the Park? 2 A I think that was one aim of the meetings. 3 Q What were the other aims, then? 4 A I just stated it; to try to figure out what it was 5 we were trying to do and to assess the available 6 information. 7 Q Well, could you explain in a little more detail 8 that general notion of "what we were supposed to do"? 9 A I can try. There was a charge, I believe, of the 10 technical team, which was rather brief. This group of 11 people had to expand upon that brief charge and to find 12 their mission. 13 Q Who made that charge to the technical team? 14 A I think I am referring there to what was called a 15 statement in principles. 16 Q Do you know who prepared that document? 17 A No, I do not. 18 Q Did that statement of principles form sort of the 19 operative guidelines for your technical team 20 deliberations? 21 A Yes. 22 Q Was it ever explained to you who authored that 23 document or agreed to it? 24 A It may have been, but I cannot recall exactly. 25 Q Do you know -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 167 1 A I believe it was a joint product of the state and 2 federal parties. 3 Q Do you know specifically who authored that 4 document among the various parties? For example, was it 5 the agency counsel or was it other persons in the agencies? 6 A I don't know. 7 Q Who do you think would be the repository to such 8 information? 9 A I think that Richard Harvey would know, and I 10 think that Don Thompson and Secretary Browner would know. 11 Q Once you got that statement of principles, what 12 did you, by that, I mean what did the technical team do 13 with it? 14 A We read it and sought to implement it. 15 Q How did you go about implementing the statement of 16 principles? 17 A Well, there was a period of floundering, I guess I 18 would say, before we settled down to serious work. We did 19 spend some time discussing what was our mission, and there 20 were some pre-free ranging discussions before we focused on 21 individual tasks. 22 Q How long did this period of floundering last? Was 23 it several meetings, was it just a first meeting? 24 A About February 3rd, 1993; I guess you could say 25 two or three meetings. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 168 1 Q At the conclusion of those two or three meetings, 2 did you develop some sort of consensus that as a group that 3 allowed you to move forward with specific projects? 4 A Yes. 5 Q What was that consensus? 6 A Well, partly there was a formation of a group 7 dynamic. Most of the parties had never worked closely with 8 each other before. There was a period of getting to know 9 each other, and there was also then a definition of what 10 our tasks were. I discussed that one of those tasks was 11 assessing the available data and figuring out how we would 12 evaluate it. 13 From that, I guess I would say that one of the 14 tasks was assessing the data to determine the extent of any 15 water quality standards violations. 16 Q We discussed earlier the exercise that the group 17 went through in looking at water quality data for 18 Everglades National Park and determining whether that water 19 quality data constituted a violation of any water quality 20 standards. 21 Was a similar exercise employed for the 22 Loxahatchee National Wildlife Refuge? 23 A Yes. 24 Q Can you describe in general terms how you went 25 about that process? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 169 1 A Yes. One might characterize the work as, firstly, 2 defining the role of the group, secondly, assessing overall 3 data, thirdly, working on the Park and then working on the 4 Refuge. I characterize that because of the experience in 5 working on the Park shed some light on what we do at the 6 Refuge. 7 Q How did your prior work on the Park benefit, if 8 you will, the subsequent effort to study the Refuge? 9 A There had already been an assessment of the 10 available data in the Everglades area, done in connection 11 with the Park exercise, and there had been a methodology 12 developed for the Park that we talked about this morning 13 relating phosphorus concentrations to time and to flow, and 14 we sought to see if a similar process could be used for the 15 Refuge. 16 Q What did you ultimately determine in that regard? 17 A That an analogous process was appropriate for the 18 Refuge. 19 Q Did you -- you said it was an analogous process, 20 which implies to me that it wasn't the same process. How 21 do the two differ? 22 A There were -- there are different systems 23 separated geographically with different water quality 24 problems. That is reflected in the settlement agreement 25 and the SWIM Plan. One difference is that the relationship A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 170 1 between phosphorus and flow became a relationship between 2 phosphorus and stage in the Refuge. Another difference was 3 the water quality monitoring stations that were the 4 operational definition of water quality. In the Park we 5 talked about the S-12 structures; in the Refuge, there were 6 water quality monitoring stations distributed within the 7 Refuge. 8 Q Are there any other salient differences? 9 A I don't recall any others. 10 Q How did the phosphorus and stage relationship for 11 the Refuge come about? 12 A Again, by examining the data and seeing if there 13 were associations between various physical variables, I 14 believe their efforts to relate phosphorus in the Refuge to 15 time, flow, season, and the strongest relationship was 16 found to exist with stage. 17 Q What do you mean by "stage"? 18 A Elevation of the water. 19 Q What was that relationship found to be? 20 A I believe it was the higher the stage the lower 21 the phosphorus concentration, as an approximation. 22 Q What, in your opinion, if you have an opinion, is 23 responsible for that? 24 A That is one of the subjects of research in the 25 Everglades SWIM Plan, and I don't think that the technical A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 171 1 team investigated that question a whole lot. 2 I don't have any firm opinion on the exact cause. 3 I can speculate. It could have been that low stages allow 4 an opportunity for the most phosphorus-laden discharge 5 water from the EAA to dominate the remaining water. There 6 could be some physical process that releases phosphorus to 7 sediments at different rates, depending on the duration of 8 inundation. 9 Q But the bottom line of that analysis was that the 10 higher the stages were, the lower the phosphorus was? 11 A I think that is right. Again, like with the Park, 12 I can never keep straight which way that relationship ran, 13 but I think it was the higher the stage the lower the 14 phosphorus. 15 Q Were you speaking about phosphorus concentrations 16 or phosphorus loading? 17 A Phosphorus concentrations in the water. 18 Q I believe you said there was a second factor that 19 made the Refuge different from the Park that relates to the 20 stations, the water quality monitoring stations? 21 A Yes. 22 Q What is the significance of that difference? 23 A Well, let me start by saying it seemed a more 24 appropriate measure of water quality to use his interior 25 stations than in the Park. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 172 1 Q In the Park you used the S-12 structures and data 2 collected for those points, correct? 3 A Yes. 4 Q Why didn't you use the data collected at the S-5A 5 structure, for example? 6 A I recollect one difference between the Park and 7 the Refuge. There was much less data in the Park, within 8 the boundaries of the Park, than there was within the 9 boundaries of the Refuge. The data set for the S-12 10 structures was more extensive, extending over a longer 11 period and collected by a common collecting agency, than 12 was the case in the Park. 13 In the Refuge, there was a very large data set 14 within the Refuge. 15 Q That data set was reflected in those, what, 14, 16 16 monitoring stations that you are referring to? 17 A Yes. 18 Q Were there other characteristics of the Refuge 19 that made the use of those stations more appropriate or 20 necessary? I guess I am not asking the question -- let me 21 ask it this way. 22 Did the fact of the perimeter canal have any 23 impact upon that determination? 24 A I think it did. The perimeter canal contained 25 water quality characteristics different than from the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 173 1 generality of the Refuge. 2 Q What is your understanding of the flow 3 characteristics within the Refuge? 4 A That it receives atmospheric precipitation, that 5 it has pump discharges, that it is an approximation, has a 6 higher elevation in the center of the Refuge than around 7 the perimeter, the flow is generally north to south. 8 Q Is it your understanding that the discharges from 9 the structures into the Refuge primarily stay within the 10 perimeter canal and then are ultimately discharged into 11 Water Conservation Area 2A? 12 A I don't think I would say that. I think it would 13 depend upon antecedent conditions. It would depend on how 14 high the water is in the Refuge. There are different 15 degrees at different times. 16 Q How did these two differences, that is, the stage 17 and the water sampling stations, enter into the technical 18 team's deliberations on the Refuge? 19 A I think I said that the primary difference that 20 occurs to me was the quality of the data set, that the data 21 set was, seemed more appropriate for the Refuge to use the 22 interior monitoring stations than in the Park, because in 23 the absence of an interior monitoring network, the choice 24 was made to use the S-12 data. 25 Q Well, once you decided to utilize the interior A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 174 1 data from these water quality monitoring stations -- that I 2 presume were operated by the District, is that correct? 3 A Yes. 4 Q What did you do with that data? 5 A Examined it. 6 Q Okay. 7 A Again, trying to make sense of data as best we 8 could, including statistical analysis. 9 Q Was that statistical analysis employed to some 10 specific end? 11 A Yes. It was to determine if there were any 12 relationships between other variables that could be related 13 to the water quality measurements. 14 Q Was the technical team able to establish any such 15 relationships? 16 A I think we did discuss that, that -- it was the 17 conclusion that there was a relationship between stage and 18 phosphorus and time and phosphorus. 19 Q There was a relationship between stage and 20 phosphorus and time and phosphorus? 21 A Yes. 22 Q I think I understand the stage. What is the 23 correlation between time and phosphorus? 24 A That there had been an increasing trend in 25 phosphorus concentrations in the Refuge over time. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 175 1 Q How did the technical team determine that? 2 A By a statistical analysis analogous to that used 3 for the Park. 4 Q Was that statistical analysis employed by Bill 5 Walker, or was it some other person that was involved in 6 that? 7 A I believe it was several people, including Bill 8 Walker, the same people we talked about with the Park, 9 namely, Bill Walker, Dr. Robeson and Frank Nearhoof were 10 the principal people. 11 Q Was there a unanimity in the approaches of 12 Robeson, Walker and Nearhoof? 13 A At the end, I believe there was. 14 Q Did they differ in their analyses at least at the 15 beginning? 16 A I don't recall. 17 Q Did these gentlemen employ different regression 18 techniques in their analyses regarding the Refuge than they 19 did for the Park? 20 A I simply don't recall. 21 Q Well, take me through the process by which you 22 established these two relationships between phosphorus and 23 stage on the one hand and phosphorus and time on the 24 other. 25 A Well, it is the -- as I said, we spent a great A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 176 1 deal of time on the Park, and throughout we learned 2 something about the things that had been driving water 3 quality conditions, at least for phosphorus, in the Park 4 and then moved to the Refuge. We had discussions, 5 preliminary discussions, again, I guess I would say 6 floundering, before we settled down. 7 There was a viewpoint expressed by Mark Maffei 8 that a different method should be used for the Refuge. Dr. 9 Maffei thought that we should define ambient water quality 10 simply by the existing data for the Refuge collected during 11 the baseline year, and we spent a lot of time talking about 12 whether that was an appropriate interpretation of the OFW 13 rule or not. 14 Q What did you all ultimately conclude in that 15 regard? 16 A The DER view was that was too limited a view of 17 the available data and not the most appropriate 18 interpretation of the OFW rule. 19 Q Why did you regard it as being too limited a view? 20 A I would have to refer to the rule again, 17-4.242. 21 Q Please. 22 A I am looking at 17-4.242(2)(c), which defines 23 existing ambient water quality. 24 Q Yes, okay. 25 A And we sought to interpret what was meant by that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 177 1 whole definition, and it was the DER view that the 2 definition of ambient water quality should take into 3 account interior variability, and not necessarily be 4 limited solely to data collected during the year preceding 5 the date of the OFW designation. Dr. Maffei thought that 6 we should consider data collected during the year preceding 7 the date of designation. 8 Q What did you understand to be the basis for Dr. 9 Maffei's opinion in that regard? Why was he so insistent 10 on that one way of looking at it? 11 A You would have to ask him, but he strongly 12 believed that was a better interpretation of the rule. 13 Q Why did you think looking at interior variability 14 was a more appropriate thing to do for the Refuge? 15 A It was consistent with previous DER practice. It 16 was consistent with what we tentatively decided was 17 appropriate for the Park and seemed to be consistent with 18 the rule. 19 If you look at that subsection (2)(c), there is a 20 sentence in the middle there that says, "It," meaning 21 existing ambient water quality, "shall include daily, 22 seasonal, and other cyclic fluctuations." There was a DER 23 view that required us to consider interior variability. 24 Q Could you explain to me the concept of interior 25 variability? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 178 1 A I can try. Water quality in a particular body of 2 water can vary year to year, even aside from the effects of 3 pollution. Perhaps a drought or perhaps a flood will 4 affect water quality a lot, even without differences in 5 loadings of pollutants, and we wanted to be able to take 6 account of that and define what we meant by existing 7 ambient water quality. 8 Q How did the data from this interior variability 9 analysis differ from Dr. Maffei's notion of the -- or the 10 data that would have been available for the year prior to 11 the date of the designation? 12 A As I recollect, the baseline year water quality, 13 at least for phosphorus, was better than the average water 14 quality year. 15 Q I am not sure I understood. 16 A Concentrations of phosphorus during the year 17 preceding March 1, 1979, were lower than average in the 18 Refuge. 19 Q Than the interior variability analysis would 20 yield? 21 A Yes. 22 Q How different were they? Do you recall? 23 A I don't recall exactly. 24 Q Once you determined -- by "you" I mean the 25 technical team -- determined to utilize this data for which A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 179 1 you had employed an interior variability analysis, what did 2 you do with that? What was your next step? 3 A Well, the first step was to decide upon the 4 principle that we would consider all of the data base and 5 all of the data we had available to us and not restrict 6 ourself to that single year. 7 Q Okay. 8 A Having done that, we sought again to determine if 9 there was any trend or physical variables that appeared to 10 be driving water quality data. 11 Q What did you conclude as a result of that 12 analysis? 13 A That there was an increasing trend in phosphorus, 14 and combined with that there seemed to be evidence that 15 there was a relationship between concentration in 16 phosphorus in the water quality and stage, might be 17 concentrations in the water column and stage. 18 Q As I understand your previous answers, I believe 19 you are saying that this analysis of interior variability 20 in effect yielded you your standard, your OFW year of 21 designation of water quality data, is that correct? 22 A I didn't mean to say that the variability was the 23 standard. I think I meant to say that once you take an 24 account of variability you define ambient water quality. 25 Q It measured the yardstick against it to measure A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 180 1 subsequent changes, did it not? 2 A It allowed you to assess the underlying 3 variability in the data and also allowed you to determine 4 in the future whether measurements exceeded the expected 5 bounds of measurements or not. 6 Q Did it postulate, for lack of a better term, a 7 range of phosphorus that one might expect? 8 A Yes. 9 Q And then you would go from that, and you would 10 look at subsequent years and employ the same methodology 11 and see what the range was for that year? 12 A Yes. 13 Q Did that comparison of later years to the base 14 year result in the conclusion that phosphorus 15 concentrations in that range were increasing over time? 16 A Yes. 17 Q Who was responsible for making that mathematical, 18 if you will, calculation? 19 A I will call it a statistical calculation, but I 20 believe it was principally Dr. Robeson, Dr. Walker and 21 Frank Nearhoof. 22 Q When you determined the base year ambient water 23 quality or ambient range of water quality, did you attempt 24 to factor out of that calculation discharges into the 25 Refuge that preexisted the date of designation? Do you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 181 1 understand my question? 2 A No, I don't. 3 Q Did you attempt to back out of the ambient water 4 quality for the Refuge whatever phosphorus loading was 5 caused by existing discharges that predated the date of 6 designation, such as through the S-5A structure? 7 A I think that we found that there were certain 8 stations in the interior of the Refuge furthest from the 9 perimeter canals, the highest phosphorus concentrations, it 10 appeared probably to represent as close to natural water 11 quality as we could find to date. 12 Q I wanted to make sure I understood that statement 13 real quickly. 14 You are saying that the perimeter canals had the 15 highest phosphorus concentrations in the areas furthest 16 away, in the perimeter canals, and the center of the marsh, 17 so to speak, had the lower concentrations? 18 A Yes. That is a generalization, yes. 19 Q Okay. 20 A The stations with the lowest amount of phosphorus 21 were probably less affected by pollution and probably most 22 closely represented natural conditions. 23 Q What is the significance of that determination? 24 A Well, it is interesting, for one thing, but I 25 think the significance of it is that the interim limits, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 182 1 used the knowledge about the 14 or 16 stations and the 2 knowledge about the three stations in defining what we 3 meant by interim and long-term concentration limits. 4 Q I would like for you to describe for me in more 5 detail how the technical team established a relationship 6 between phosphorus and water stages within the Refuge. Can 7 you take me through that analysis step by step? 8 A Approximately, although I didn't perform the work 9 myself, it was performed by those people I mentioned, but 10 there was an effort to model the system a number of 11 different ways, to see if, in fact, there were any 12 relationship between any independent variable and 13 phosphorus concentrations, and apparently the strongest 14 relationship is found between phosphorus concentrations and 15 stage. 16 I think there was an attempt to see if other 17 variants might also be statistically significant. The most 18 statistically significant variable was stage. 19 Q How did you determine that? Did you just take 20 measurements of what the phosphorus was at given stages 21 over a period of time? 22 A The data set ran back, I believe, to 1977 in the 23 Refuge at those 14 or 16 stations. I believe it was a 24 semi-monthly or monthly data at those stations. 25 Q Do each and every one of those stations measure A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 183 1 the stage as well as water quality? 2 A I believe they have been surveyed over the years, 3 and the stage is calculated at each station from some 4 reference station elsewhere in the Refuge. 5 Q How does one extrapolate the stage at a given 6 monitoring station from wherever the main staff gauge is? 7 A I imagine it has been surveyed. The elevation at 8 station 13 is 12 feet, you will be able to estimate the 9 stage at that station by knowing the stage of water at your 10 reference station, wherever that is. 11 Q Is there an automatic relationship there such that 12 if it is, do you know if it is one height at one stage or