DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
________________________________________________________
SUGAR CANE GROWERS COOPERATIVE )
of FLORIDA; ROTH FARMS, INC.; and, )
WEDGEWORTH FARMS, INC., )
Petitioners, )
vs. ) DOAH CASE
SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3038
DISTRICT, an agency of the State )
of Florida; et al., )
Respondents. )
_______________________________________)
)
FLORIDA SUGAR CANE LEAGUE, INC.; )
UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
Petitioners, )
vs. ) DOAH CASE
SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3039
DISTRICT, an agency of the State )
of Florida; et al., )
Respondents. )
_______________________________________)
)
FLORIDA FRUIT and VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
Petitioners, )
vs. ) DOAH CASE
SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3040
DISTRICT, an agency of the State )
of Florida; et al., )
Respondents. )
________________________________________________________
DEPOSITION OF LOUIS TOTH, VOLUME I
(Day 1, Morning Session)
Taken before Criss D. Bertling, Court Reporter
and Notary Public in and for the State of Florida at
large, pursuant to notice of taking deposition filed by
the Petitioners in the above action.
- - - - -
Monday, October 26, 1992
319 Clematis Street, Suite 500
West Palm Beach, Florida 33401
9:35 a.m. to 11:55 a.m.
- - - - -
2
1 APPEARANCES:
2 ON BEHALF OF THE PETITIONERS Florida Sugar
Cane League, Inc., United State Sugar Corp.,
3 and New South Hope, Inc.:
4 PEEPLES, EARL & BLANK, P.A.
One Biscayne Tower, Suite 3636
5 Miami, Florida 33131
By: MARK T. KOBELINSKI, ESQUIRE
6
ON BEHALF OF THE RESPONDENT SFWMD:
7
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
8 3301 Gun Club Road
West Palm Beach, Florida 33406
9 By: RUTH CLEMENTS, ESQUIRE
10 ON BEHALF OF THE INTERVENOR UNITED STATES OF AMERICA:
11 DEPARTMENT OF JUSTICE
155 South Miami Avenue, Suite 627
12 Miami, Florida 33130-1693
By: THOMAS A.W. FITZGERALD, ESQUIRE
13
- - - - -
14 I N D E X
- - - - -
15
EXAMINATION BY MR. KOBELINSKI PAGE 3
16
- - - - -
17 E X H I B I T S
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18
EXHIBIT NO: DESCRIPTION: PG. MARKED:
19 ____________ _________________________ ___________
Toth Depo #1 Louis A. Toth Resume 5
20
Toth Depo #2 Bates # 0008290-00008291 60
21 Program 3208 Description
22 Toth Depo #3 Bates # 0199037 65
Technical Publication 87-6
23
Toth Depo #4 Bates # 0079637-0079685 67
24 Technical Publication #86-
25 Toth Depo #5 Bates # 0234429-0234467 69
Technical Publication #87-6
3
1 - - - - -
2 ~1B&dDP R O C E E D I N G S~1B&d@
3 - - - - -
4 THEREUPON,
5 LOUIS A. TOTH,
6 being by the undersigned notary public first duly
7 sworn, was examined and testified as follows:
8 THE WITNESS: I do.
9 - - - - -
10 EXAMINATION
11 - - - - -
12 BY MR. KOBELINSKI:
13 Q. Will you please state your name and
14 address, for the record, sir?
15 A. Louis Toth. 13836 44th Place North, Royal
16 Palm Beach.
17 Q. Mr. Toth, my name is Mark Kobelinski. I am
18 with the firm of Peeples, Earl and Blank. I
19 represent a number of petitioners in the Everglades
20 SWIM Plan challenge proceedings, New Hope South,
21 U.S. Sugar, the Florida Sugar Cane League.
22 Have you ever been deposed before?
23 A. No. Not really.
24 Q. A deposition is, at a scene such as this,
25 is merely a means for parties to a proceedings, in
4
1 this case an administrative proceeding, to get the
2 opportunity to ask questions of individuals, people
3 with knowledge as to the facts and issues involved in
4 the challenge. In this case the SWIM challenge.
5 I'll be asking you a series of questions.
6 If you could just go ahead and tell me what you know,
7 to the best of your knowledge.
8 If at any point in time you don't
9 understand a question, please just tell me; I'll
10 attempt to rephrase it.
11 Don't assume anything. If you feel
12 compelled to assume, please let us know. If you
13 don't know an answer say, "I don't know." That's
14 sufficient.
15 If you don't remember say, "I don't
16 remember." That's also a sufficient answer. All
17 right?
18 A. Sure.
19 Q. To start, we would like to get a little bit
20 of your educational background, if you would start
21 perhaps with your undergraduate.
22 A. Okay, I've got a resume here, you can use
23 that (indicating).
24 But I have a degree in fisheries and
25 wildlife from Virginia Tech, Master's Degree in
5
1 Biological Sciences from Northern Illinois
2 University.
3 Q. If you don't mind, is this a copy that we
4 can go ahead and attach as an exhibit?
5 A. Sure.
6 MR. KOBELINSKI: Since Mr. Toth brought
7 this, I obviously don't have copies, so we'll
8 work off of this one and mark that as Exhibit
9 No. 1.
10 (Thereupon, Exhibit No. 1 was
11 marked for identification.)
12 BY MR. KOBELINSKI:
13 Q. Mr. Toth, I'm showing you what's been
14 marked as Deposition Exhibit Toth No. 1, and I
15 believe this is a resume you just brought to me. Is
16 this a current copy of your resume?
17 A. Yes.
18 Q. And this covers, just quickly glancing
19 through it, education, awards, publications and
20 professional experience. Is that through today's
21 date?
22 A. Yes.
23 Q. Now, you stated a few moments ago that you
24 had a Bachelor of Science in Fisheries and Wildlife
25 Management from Virginia Polytechnic Institute and
6
1 State University?
2 A. That's correct.
3 Q. What was your basic area of concentration
4 within that?
5 A. Fisheries.
6 Q. A degree in fisheries and wildlife
7 management, what basically is that degree or program
8 about?
9 A. The program at that university is primarily
10 oriented towards management of fish and/or wildlife
11 resources. But it was an undergraduate degree,
12 therefore, you know, you get basic biological course
13 work plus all the other course work that's required
14 for a degree. And with some degree of specialized
15 course work in fisheries and/or wildlife biology as
16 electives.
17 Q. And what did you primarily concentrate your
18 electives in?
19 A. Well, all, most of my electives were in
20 biology. And as much as possible in fish, fish
21 ecology.
22 Q. Upon obtaining that degree did you proceed
23 immediately to Northern Illinois University or did
24 you also work?
25 A. No, I proceeded immediately.
7
1 Q. Were you working at all during your
2 undergraduate degree?
3 A. Summers, part-time jobs here and there,
4 yes.
5 Q. Anything in the field related to your
6 degree of fisheries and wildlife management?
7 A. No.
8 Q. Your degree is a Master's in Biological
9 Science from Northern Illinois University. Could you
10 tell me a little bit about that program?
11 A. Yes, Northern, at the time that I was
12 there, offered one degree program in biology called
13 Biological Sciences. And you had the opportunity to,
14 of course, do specialized course work and research in
15 your individual area of interest.
16 And my focus was on stream ecology,
17 specifically stream fish ecology.
18 Q. When you refer to stream fish ecology, what
19 exactly does that entail? Is that rivers, is that
20 some particular small type of stream? Could you
21 describe a little more specifically what that is.
22 A. Small streams in the midwest, very small
23 streams draining agricultural lands.
24 Q. And the agricultural lands you mentioned
25 are again in the midwest?
8
1 A. Yes. The primary, my primary area of work
2 was in a small stream in northern Illinois, the very
3 northern end of the state.
4 Q. Did you have a Master's thesis or paper?
5 A. Yes.
6 Q. What was the title of that paper?
7 A. Dealt with resource partitioning between
8 two species of darters, which are stream fishes.
9 Q. And is that the publication that is
10 referenced on Toth Exhibit No. 1 as the first
11 publication under the caption "Publications"?
12 A. Yes, it is.
13 Q. You mentioned a few moments ago that you
14 had studied streams in agricultural areas. Were you
15 studying impacts of land use of the agricultural area
16 on those streams?
17 A. Not in that particular study.
18 Q. You are referring to that particular study
19 we just mentioned here?
20 A. Yes.
21 Q. What about during other portions of your
22 degree?
23 A. No.
24 Q. All right. I would like to now walk you
25 through the publications you have listed here on Toth
9
1 Exhibit No. 1. And I would ask before we start that,
2 do you have any additional publications that you are
3 the author or co-author of that are not on this
4 particular resume?
5 A. None that have been published to date, no.
6 Q. With regard to the second publication you
7 have here is with J.R. Karr, O.T. Gorman and
8 D.R. Dudley. And I believe it is referenced as the
9 "Environmental Impact of Land Use on Water Quality,
10 Final Report on the Black Creek Project." What was
11 that paper regarding?
12 A. That was a data analysis study that I
13 conducted while I was at the University of Illinois
14 working at the University of Illinois. And the
15 purpose of that analysis was to look at the stream
16 fish communities that were found in a channelized
17 stream. And the focus of the particular paper was on
18 the stability of that fish community over time. Over
19 a seven-year period or so.
20 Q. Where was the channelized stream that you
21 are referring to?
22 A. It was in Indiana.
23 Q. And do you recall the name of it?
24 A. Black Creek.
25 Q. What portion of the study did you work on?
10
1 A. I did the data, I did data analysis. Most
2 of the information that I looked at had already been
3 collected, data had already been collected.
4 I was hired, basically, to look at that
5 data to see if there was anything there worth
6 publishing, if there was any information that should
7 be put out to the scientific community. And I had a
8 major hand in writing the paper.
9 Q. What were the general conclusions you
10 reached with regard to that paper?
11 A. To the best of my recollection, and this is
12 a while back, the stream fish communities, the fish
13 communities within that particular stream were highly
14 unstable. They were subject to very dramatic
15 population fluctuations over the course of that time.
16 Q. And did you study or analyze what were the
17 causes of the instability in the fish communities?
18 A. Yes. I believe some of the conclusions
19 were that there were a number of causes, one of which
20 was the physical habitat characteristics of the
21 stream that had resulted from channelization of the
22 stream.
23 Other sources of impacts and causes of that
24 instability were sedimentation and natural factors
25 such as climatic fluctuations.
11
1 Q. Do you know why Black Creek was
2 channelized, was there a purpose for doing so?
3 A. It was channelized for drainage purposes
4 through the ag lands.
5 Q. This was in an ag area?
6 A. Yes.
7 Q. Do you know who did the channelization?
8 A. No.
9 Q. Do you know whether or not it was a
10 government authority or whether it was a private?
11 A. I don't know for sure.
12 Q. How long had the stream been channelized at
13 the point that you came into the project, or better
14 yet, as of 1981 when this paper was published?
15 A. I don't know the number of years. My
16 recollection is that it was channelized more than
17 once.
18 Q. Did the paper draw any conclusions as to
19 the impact of agricultural runoff upon the fish
20 community?
21 A. What do you mean by agricultural runoff?
22 Q. I believe you said that this was a drainage
23 stream, channelized drainage stream in an
24 agricultural area?
25 A. Uh-huh.
12
1 Q. Okay. Did it then drain or have waters
2 flowing from agricultural land added to it?
3 A. Yes, it did.
4 Q. Did those waters impact the fish community
5 at all?
6 A. The quality of the waters, is that what
7 you're getting at?
8 Q. In any form.
9 A. Well, I indicated that the sedimentation
10 did appear to have an impact on the stability of
11 those fish communities. So in that sense, the
12 sediment load associated with the runoff impacted the
13 fish communities.
14 Q. And what type of ag land was this?
15 A. It was corn and soybean, I believe.
16 Primarily.
17 Q. Did you study to determine whether or not
18 the agricultural water caused or created the
19 sedimentation?
20 A. Did I study that specifically? No.
21 Q. Did the study itself --
22 A. Yes, the study itself addressed that.
23 There were a number -- the study was a sort of multi-
24 disciplinary effort. So there were a large number of
25 studies conducted under the umbrella of this Black
13
1 Creek project.
2 Q. You draw upon, then, the conclusions with
3 regard to sedimentation and your determinations with
4 regard to impacts upon the fish community?
5 A. Yes.
6 Q. The four or three names listed here -- I
7 don't know, is that a Mr. or Mrs. Karr?
8 A. Mister.
9 Q. And Mr. or Ms. Gorman?
10 A. Ms.
11 Q. And Mr. or Ms. Dudley?
12 A. Mister.
13 Q. Are those the other three principal
14 authors?
15 A. Yes.
16 Q. And were they, was this project basically
17 divided into four different areas, or how did the
18 responsibilities fall out between the four of you?
19 A. Dr. Karr was the, you might call him,
20 project manager, I guess. He was the professor who
21 received the funding to conduct this work.
22 Ms. Gorman was a technician at the
23 University of Illinois. Mr. Dudley was, had also
24 worked with Dr. Karr on this project, but Mr. Dudley,
25 I believe, was an employee of the State of Indiana,
14
1 within their, what would be the equivalent of their
2 Environmental Protection Agency, their state agency.
3 Q. Since this mentions the United States
4 Environmental Protection Agency, was this a paper
5 that was sponsored by them or a study sponsored by
6 them?
7 A. The study was funded by the USEPA.
8 Q. It also mentions here on Deposition Exhibit
9 No. 1 that this is Phase II. Was there a Phase I to
10 this project?
11 A. Yes, there was.
12 Q. Were you involved in it?
13 A. No.
14 Q. Did you base any of your conclusions upon
15 the Phase I of this study?
16 A. I cannot recall. We talked about some of
17 the data that I used in interpretation of this data
18 might have come from Phase I, but I don't recall
19 where exactly that information came from at this
20 point.
21 Q. Did the study come to any conclusions or
22 recommendations as to means by which the instability
23 of the fish community could be rectified?
24 A. I don't recall if there were any specific
25 conclusions or recommendations given in this
15
1 publication.
2 Q. Did you yourself draw any conclusions or
3 recommendations?
4 A. Yes.
5 Q. Do you recall what they were?
6 A. Well, since the physical habitat
7 characteristics of the stream appeared to be a major
8 factor in the instability of those communities, it
9 was my professional judgment that stability of stream
10 communities can be improved with more natural
11 physical habitat characteristics.
12 Q. When you state channelizing, you're also
13 talking about the physical habitat, exactly what was
14 done to channelize the stream?
15 A. The stream was straightened.
16 Q. Okay.
17 A. A meandering stream was straightened.
18 Q. Okay. Did it have, was it channelized with
19 concrete or poured concrete?
20 A. No concrete. Just a canal was dug through
21 the meandering river channel causing all of the flow
22 of the water to occur through this channelized canal.
23 Q. Diverting it from its prior, you mentioned
24 meandering path?
25 A. Meandering course, that's correct. Well,
16
1 the canal actually replaced the meandering river
2 channel. Again, we're talking about a very small
3 stream here.
4 Q. Did that have any impact upon the flows?
5 A. The temporal flow characteristics, yes.
6 Q. And was that one of the normal causes of
7 the impact upon a fish community?
8 A. Yes. I believe it was.
9 Q. Drawing your attention then, sir, to the
10 second, excuse me, the third publication on your
11 resume, which is "Environmental Impact of Land Use on
12 Water Quality. Final Report on the Black Creek
13 Project. Phase II." How was this particular, how
14 this is publication different than the one we were
15 just discussing?
16 A. This one looked at specifically one species
17 of fish that was found in the stream that underwent
18 some very, some particularly dramatic fluctuations
19 over the course of the time that data was collected.
20 And at one point early in the study the
21 fish had a fairly large population size. Near the
22 end of the study the population numbers had been
23 reduced and the population appeared to be in danger
24 of extirpation.
25 Q. Extirpation, does that mean they would no
17
1 longer be in that particular stream?
2 A. That's correct.
3 Q. And with regard to this particular fish --
4 believe we're referring to a silver jaw minnow; is
5 that correct?
6 A. That's correct.
7 Q. Were the general causes and conclusions
8 that you reached in the prior publication we were
9 just discussing a moment ago basically the same for
10 this fish?
11 A. Yes.
12 Q. Were there any differences?
13 A. The only difference being that the previous
14 publication dealt with the fish community as a whole,
15 and different species are affected, sometimes
16 affected by different environmental factors.
17 In this particular species, based upon the
18 existing knowledge of the biology of this species, we
19 were able to sort of narrow down, you know, what
20 factors were contributing to its population decline.
21 Q. And what were those factors that you were
22 able to narrow down?
23 A. The physical habitat characteristics,
24 particularly substrate characteristics. The
25 sedimentation interfered with the spawning habitat of
18
1 this species. There was also evidence indicating
2 that it was influenced by climatic conditions --
3 extremely harsh winters, for example -- and other
4 evidence indicated that, indicating it was influenced
5 by the temperature regime within that stream that was
6 also associated with channelization.
7 Q. You mentioned climatic conditions and harsh
8 winters. Did the channelization have any impact upon
9 how the winters impacted the species, this species?
10 A. No. No. The climatic conditions were
11 particularly relevant for this species because the
12 stream is at the northern end of this species
13 distribution, therefore it is marginal at that point.
14 Q. And the temperature regime of the stream
15 you mentioned, how did the channelization impact the
16 temperature regime?
17 A. The clearing of riparian vegetation, the
18 shading adjacent on the stream banks affected summer
19 temperatures by causing summer temperatures to be
20 higher than they would be under natural conditions
21 with natural riparian vegetation overhanging the
22 stream.
23 Q. Did it have any impact during the winter
24 months?
25 A. Did the channelization?
19
1 Q. Uh-huh.
2 A. No. Not to my recollection.
3 Q. How did channelization impact the
4 sedimentation on the bottom of the stream?
5 A. The clearing of near stream vegetation
6 eliminates the filtration capability of that system.
7 In other words, if there is no vegetation available
8 to filter out any sediment loads associated with the
9 adjacent land uses, that sediment load has direct
10 access to the stream channel and, therefore, that's
11 the cause of sedimentation.
12 Q. What is the type of sediment load that was
13 coming off the adjacent land uses; did the study come
14 to any conclusion on that?
15 A. The physical characteristics of the
16 sediment?
17 Q. Yes. Please.
18 A. Very fine silts.
19 Q. The fourth publication you have listed here
20 is a 1982 publication with, again, Dr. Dudley,
21 Dr. Karr and Mr. Gorman. And how does this
22 particular publication relate to, if at all, with the
23 prior two we have just been discussing?
24 A. This one took the data and information that
25 was contained in the previous report and put it in a
20
1 form that was published in a peer review journal.
2 Q. And you mentioned a previous report. Are
3 you referring to the one on the silver jaw minnow or
4 the initial study?
5 A. The one just immediate, the one on the
6 silver jaw minnow.
7 Q. Were any differences in conclusions or
8 studies done with regard to this particular
9 publication?
10 A. No.
11 Q. The next publication on your list is 1983
12 entitled: "Habitat Preservation for Midwest Stream
13 Fishes: Principles and Guidelines." Again, it
14 mentions the United States Environmental Protection
15 Agency. Could you tell us what was this publication
16 regarding?
17 A. That was an EPA-sponsored study that was,
18 in which Dr. Karr was the principal investigator, and
19 was given the task of developing and recommending
20 physical guidelines for preserving midwestern fish
21 communities.
22 Q. And are we again referring to stream fish
23 communities?
24 A. Yes.
25 Q. When you say midwest, approximately what
21
1 area are you talking about?
2 A. Ohio, Indiana, Illinois, that general
3 region.
4 Q. Did this paper publication deal with marsh
5 communities at all?
6 A. There was some reference to information
7 from, that had been collected in marsh communities,
8 but the focus really did not deal with marsh
9 communities, no. This study was primarily a
10 literature review.
11 Q. What were your responsibilities with regard
12 to this study?
13 A. To review the literature and synthesize the
14 literature.
15 Q. Were you a principal author of this
16 publication?
17 A. Yes.
18 Q. Did you yourself come to any conclusions or
19 recommendations with regard to the guidelines?
20 A. There were a number of conclusions and
21 recommendations included within this report. I
22 certainly don't recall all of those, but we did
23 develop a number of physical habitat guidelines that
24 we recommended.
25 Q. With regard to this report, there is a
22
1 G.D. Garman mentioned, is that a Mr. or Ms. ?
2 A. Ms.
3 Q. What were Ms. Garman's responsibilities
4 with regard to this?
5 A. She was a technician who also assisted in
6 the project.
7 Q. Assisted you with regard to your literature
8 review?
9 A. Yes, yes. At the time she was an
10 undergraduate student, so her responsibilities were
11 very limited.
12 Q. What were Dr. Karr's responsibilities with
13 regard to this publication?
14 A. Overseeing the project activities,
15 supervisory assistance in the development of the
16 manuscript, coordination with the EPA.
17 Q. Was he also a principal author, did he help
18 write this?
19 A. Yes.
20 Q. Did you have any contact with the EPA?
21 A. Did I have any specific contact with the
22 EPA?
23 Q. Uh-huh, yes.
24 A. No, I did not.
25 Q. With regard to the prior publications we
23
1 discussed related to the Black Creek Project, which
2 were also sponsored by the United States
3 Environmental Protection Agency, did you have any
4 contact with anyone from the EPA with regard to those
5 particular projects or publications?
6 A. No.
7 Q. Next publication on Toth Exhibit No. 1 is a
8 1984 publication with yourself and an I.J. Schlosser;
9 is that correct?
10 A. Uh-huh.
11 Q. Could you tell us a little bit about this
12 publication?
13 A. That was a publication, a journal
14 publication that incorporated the results of my
15 Master's thesis research and other research on these
16 species that was conducted by Dr. Schlosser while he
17 was a graduate student at the University of Illinois.
18 Q. You mentioned these species; what species
19 are you referring to?
20 A. The rainbow and fantail darters.
21 Q. And when did -- Mr. Schlosser, was it?
22 A. Uh-huh.
23 Q. Receive his Master's in relation to the
24 timing of yours?
25 A. He was working on his PhD at the time we
24
1 were writing that publication. And I don't know for
2 sure, but I believe his degree was given in about
3 1981.
4 Q. Drawing your attention to the next
5 publication that is referred to on Toth Exhibit
6 No. 1, which is again by Dr. Karr, yourself and I
7 believe it was Mr. Dudley; is that correct?
8 A. That's correct.
9 Q. "Fish Communities of Midwestern Rivers:
10 History of Degradation", what was that publication
11 about, sir?
12 A. That was an analysis of the historical data
13 on the fish communities of the Illinois River. And
14 it addresses the sources of degradation to those fish
15 communities.
16 Q. What were the primary sources of
17 degradation of the Illinois River referred to in that
18 study?
19 A. Man-induced impacts such as channelization,
20 clearing of riparian vegetation, drainage, industrial
21 pollution, as well as domestic pollution.
22 Q. Were there any agricultural impacts upon
23 that river?
24 A. Yes.
25 Q. Was that also covered in that particular
25
1 study?
2 A. Yes.
3 Q. What were your responsibilities with regard
4 to that publication and study?
5 A. Most of my work on that paper was in the
6 review of the initial draft manuscript and the
7 subsequent development of that manuscript to the
8 point where it was a publishable manuscript.
9 Most of that, the writing of the paper was
10 done by Dr. Karr.
11 Q. Were you involved in the study itself on
12 the manuscript?
13 A. Just on the data analysis. He had done
14 most of the data analysis. I was, I contributed to
15 that to I would call a minor extent. But I was
16 involved in the analysis and writing of the paper.
17 Q. And your data analysis was related to the
18 fish communities, would that be correct?
19 A. Yes, yes.
20 Q. And what portion of the Illinois River was
21 channelized?
22 A. I believe all of the Illinois River is
23 channelized as well as the tributary systems.
24 Q. That was true at the time of your study, or
25 this study?
26
1 A. Yes, that was mostly, it was an account, it
2 was an historical account of the system, how it was
3 impacted over time. And the time period probably
4 extended from the beginning of the century to that
5 date, to the best of my recollection.
6 Q. Do you know who did the channelization of
7 that river?
8 A. I don't recall. It was -- I don't recall.
9 Q. What were the agricultural impacts you
10 refer to?
11 A. Similar impacts as the previous study.
12 Sedimentation, the disruption, the physical
13 alteration of the habitat, clearing of vegetation,
14 drainage of the tributary wetlands.
15 Q. Now, was the channelization responsible for
16 the drainage or was that an agricultural activity?
17 A. The, well, the wetlands were channelized as
18 a result of an agricultural activity. So the
19 channelization was an agricultural activity,
20 basically.
21 Q. Are you saying that the drainage of the
22 wetlands was for the purpose of agricultural --
23 A. Yes.
24 Q. -- use of the land?
25 A. Yes.
27
1 Q. And do you know approximately when that was
2 done?
3 A. Sometime between the turn of the century
4 and 1985. I can't recall exactly, no. I'm sure it's
5 documented in that particular paper.
6 Q. Drawing your attention to the next report,
7 which is Toth 1987, "Effects of Hydrologic Regimes on
8 Lifetime Production and Nutrient Dynamics of
9 Sawgrass." That's a South Florida Water Management
10 District Technical Publication #87-6.
11 We will be going into that a little more
12 heavily, but if you could briefly tell us what that
13 publication is regarding?
14 A. That was a study I was asked to do, hired
15 to do, that was geared towards evaluating the
16 nutrient storage potential of belowground plant
17 tissues, belowground tissues of sawgrass, and how
18 that nutrient storage potential was affected by
19 hydrologic factors.
20 Q. And the next publication on that list is
21 Toth 1988, "Effective Hydrological Regimes on
22 Lifetime Production and Nutrient Dynamics of
23 Cattail." South Florida Water Management District
24 Technical Publication #88-6. And if you could just
25 give a brief summary as to what that publication was.
28
1 A. That study had the same objective only this
2 time looking at cattail; again, to look at the
3 nutrient storage potential of belowground tissues of
4 cattail and how that potential was affected by
5 hydrologic conditions.
6 Q. Drawing your attention, sir, then, to the
7 next publication contained on Toth Exhibit No. 1,
8 1989, "Kissimmee River Channelization: Environmental
9 Impacts and Restoration Criteria." If you could tell
10 me about that document, publication.
11 A. That was a paper presented at the
12 International Association for Hydraulic Research
13 Congress. And the focus of that was the, dealt with
14 the documented impacts of channelization of the
15 Kissimmee, the impacts on the river resources, and
16 how that information was used to develop restoration
17 criteria. And the paper and the presentation
18 outlined what the restoration criteria were.
19 Q. And who did you do this study on behalf of?
20 A. On behalf of? Explain what you mean by "on
21 behalf of."
22 Q. Were you hired to do this study or did you
23 just do it on your own?
24 A. It was part of a project that I was working
25 on at that time, the Kissimmee River restoration
29
1 effort.
2 Q. With whom were you working on that project?
3 A. Well, there were a number of people who
4 were working on that effort at that particular time.
5 Within my division I had assistants from
6 technicians. There were also engineering staff
7 within the District who were working on that area.
8 Q. Let me rephrase my prior question. Was
9 this work that you were doing on behalf of or with
10 the South Florida Water Management District?
11 A. It was a District-sponsored program, yes.
12 Q. What were your responsibilities with regard
13 to the study or program?
14 A. Well, those changed over time, but
15 initially my initial responsibilities with the
16 restoration effort were to evaluate the environmental
17 responses to the Kissimmee River Demonstration
18 Project. And my responsibilities gradually expanded
19 to include involvement in the evaluation of
20 restoration alternatives and in the planning
21 associated with the development of a restoration
22 plan.
23 Q. All right. Drawing your attention to the
24 next publication referenced on Toth Exhibit No. 1,
25 which is 1990, "Kissimmee River Restoration:
30
1 Alternative Plan Evaluation and Preliminary Design
2 Report." And it lists the South Florida Water
3 Management District. What was this publication
4 regarding, sir?
5 A. That was a document that presented the
6 results of our analyses that evaluated a range of
7 restoration alternatives from a number of respects,
8 and the results of those analyses which led to the
9 recommended restoration.
10 Q. Was that document published anywhere?
11 A. It's a District publication.
12 Q. Drawing your attention then to the next
13 publication, which is Toth 1990, "Impacts of
14 Channelization on the Kissimmee River Ecosystem."
15 And this is with regard to proceedings of the
16 Kissimmee River Restoration Symposium, October 1988.
17 What was that publication regarding, sir?
18 A. That was a review of the literature dealing
19 with the impacts of channelization on the natural
20 resources of the river.
21 Q. Was that paper presented?
22 A. That was presented at the Kissimmee River
23 Restoration Symposium.
24 Q. Who sponsored that symposium?
25 A. There were multiple sponsors. The Water
31
1 Management District was one, and there were a number
2 of other sponsors. I don't recall exactly, but it's
3 documented.
4 Q. Drawing your attention, then, sir, to the
5 next publication referenced in Toth Exhibit No. 1,
6 which is Toth 1990, "An Ecosystem Approach to
7 Kissimmee River Restoration." Again, it makes
8 reference to the Kissimmee River Restoration
9 Symposium of 1988. What was that document related
10 to?
11 A. That was a paper that outlined the, an
12 approach to restoring the broad array of resources
13 that were impacted by the channelization.
14 Q. I'm sorry, did you say resources impacted
15 by restoration --
16 A. No. Channelization.
17 Q. -- or channelization?
18 A. Channelization, correct.
19 Q. The next publication referenced in this
20 exhibit is Toth 1991, "Environmental Responses to the
21 Kissimmee River Demonstration Project." South
22 Florida Water Management District Technical
23 Publication 91-2. And what is that publication
24 regarding?
25 A. That paper presents the results of the
32
1 environmental monitoring that I conducted of the
2 demonstration project.
3 Q. And the next to the last publication
4 referenced is a 1992 publication entitled, "Flow
5 Regulation and Restoration of Florida's Kissimmee
6 River. Regulated Rivers, in press." What is that
7 publication regarding, sir?
8 A. That paper outlines the need for
9 re-establishing historical or more natural inflow
10 characteristics from the Kissimmee headwater lakes in
11 order to accomplish restoration of the lower
12 Kissimmee River.
13 Q. And has that been published, sir?
14 A. It's in press; should be out by the end of
15 this year.
16 Q. And there are three other individuals
17 listed with regard to this publication. Could you go
18 ahead and identify who they are.
19 A. J.T.B. Obeysekera, who is a District
20 engineer who worked on the upper basin or the
21 Kissimmee headwater lakes modifications or suggested
22 modifications to the schedule.
23 Bill Perkins, who at the time, I believe,
24 was the equivalent of a technician, who also worked
25 on the same thing. And Kent Loftin, who was the
33
1 project manager of the restoration program.
2 Q. And what were your responsibilities with
3 regard to this particular paper?
4 A. To present the, the ecological basis of the
5 need for the re-regulation of the upper basin, to
6 analyze the expected biological effects of the
7 re-regulation. And I wrote the paper.
8 Q. And the last publication referenced on Toth
9 Exhibit No. 1 is Toth in-press, "The Ecological Basis
10 of the Kissimmee River Restoration Plan. Florida
11 Scientist." What is that publication, sir?
12 A. That is a review of all of the
13 environmental studies that were done in the Kissimmee
14 basin, specifically the lower Kissimmee basin,
15 through history and how that information has
16 contributed to the development of the restoration
17 plan.
18 Q. Is this in the nature of a literature
19 review then?
20 A. It was a literature review. It also
21 incorporated the data that was collected during the
22 demonstration project that was outlined in the
23 previous tech pub. And the use of that information
24 in the development of the restoration plan. It also
25 dealt with the environmental analysis of the
34
1 alternative restoration plans.
2 Q. And that is in press. When will that be
3 published?
4 A. I don't know. I don't have a publication
5 date on that yet. Either the end of this year or
6 next year.
7 Q. End of '92 or beginning of '93?
8 A. That's right.
9 Q. Now, if I recall correctly, you received
10 your Master's in Biological Sciences in 1978; is that
11 correct sir?
12 A. That's correct.
13 Q. If you could take me from that point
14 through today's date with your work experience.
15 A. When I left Northern Illinois I went to the
16 University of Illinois where I took some course work,
17 graduate level course work. But was primarily, I
18 primarily worked with Dr. Karr on two projects that
19 he received funding from the EPA to work on.
20 So I spent that three years at the
21 University of Illinois working on those projects.
22 From there I was offered and accepted a
23 position with the Florida Department of Environmental
24 Regulation in which I was responsible for evaluating
25 dredge and fill applications, permit applications.
35
1 Q. If could I slow you down for a moment and
2 take this a little bit more piecemeal. Let me go
3 back just for a moment before we start this.
4 You had mentioned you had taken some course
5 work at the University of Illinois during your period
6 of work with Dr. Karr?
7 A. Uh-huh.
8 Q. What was that course work related to?
9 A. It's one year -- let's see, I took a course
10 in animal behavior. What else did I take?
11 (Pause.)
12 Advanced statistics. That's all I
13 remember.
14 Q. Those two courses, were those
15 undergraduate, Master's or Doctorate level courses?
16 A. Those were graduate level courses, so they
17 were post-Master's. At the time I had received my
18 Master's Degree.
19 Q. Is there any other additional educational
20 courses that you have taken subsequent to that
21 period?
22 A. No.
23 Q. Have you done any continuing education
24 seminars?
25 A. No.
36
1 Q. Going back, then, sir, to your work with
2 Dr. Karr, were you employed by the University of
3 Illinois?
4 A. Yes.
5 Q. And how was it that you moved from the
6 University of Illinois down to south Florida?
7 A. I applied for various jobs with the Florida
8 Department of Environmental Regulation and was
9 offered a position in West Palm Beach.
10 Q. Were you originally from Florida?
11 A. No.
12 Q. Is there a reason you were looking down
13 here in Florida?
14 A. Yes.
15 Q. And that was?
16 MS. CLEMENTS: Objection; relevancy.
17 MR. KOBELINSKI: I can't know the relevancy
18 until he tells me why he was looking for a job
19 with the Florida DER.
20 MS. CLEMENTS: I really don't see the
21 relevancy to this, as to why he leaves Illinois
22 and comes to Florida.
23 But you can go ahead and answer it.
24 THE WITNESS: Could you ask the question
25 again, please?
37
1 BY MR. KOBELINSKI:
2 Q. Why were you looking for jobs with the
3 Florida DER?
4 A. Well, I wasn't looking for a job
5 specifically with the DER, but the DER did offer a
6 position in the environmental field of which I had
7 training, so I saw it as an opportunity to continue
8 my environmental career. I wanted to move to Florida
9 for the, sort of the weather and all the other
10 niceties.
11 Q. That's a valid reason. When did you start
12 with the Florida DER?
13 A. October of 1981.
14 Q. And what was your initial position with the
15 DER?
16 A. Oh, let's see, I think it was called an
17 Environmental Specialist.
18 Q. And what were your duties as an
19 Environmental Specialist?
20 A. To review dredge and fill permit
21 applications from an environmental perspective.
22 Q. Were these permit applications for a
23 specific area in Florida?
24 A. Yes. Dade, Broward and Palm Beach County.
25 Q. And how long were you involved in the
38
1 reviewing of dredge and fill permit applications?
2 A. Approximately nine months.
3 Q. Did your title or position change during
4 this period of time?
5 A. No.
6 Q. Was the dredge and fill permit applications
7 related to any one type of industry?
8 A. No.
9 Q. Did you review dredge and fill permit
10 applications with regard to agricultural activities?
11 A. No, not that I recall. No.
12 Q. And what was your next position?
13 A. I was offered a position with South Florida
14 Water Management District as a, at the time we were
15 called Environmentalists. Which was a research
16 position.
17 Q. And approximately when was that that you
18 started with the District?
19 A. July of '82.
20 Q. And what were your duties once you start
21 with the District in July of '82?
22 A. I was hired to conduct the sawgrass study
23 that we initially, we talked about a little bit ago.
24 Nutrient storage potential of belowground plant
25 tissues.
39
1 Q. You stated you were hired to conduct the
2 sawgrass study. Was that actually part of your
3 interview or your interview-in-process with the
4 District, was that study actually mentioned?
5 A. The nature of that study was mentioned,
6 yes. I was -- the position -- they were recruiting
7 for someone who would conduct that type of study,
8 that type of research study.
9 Q. What were the qualifications they were
10 looking for in that position?
11 A. You'll have to ask the person who hired me.
12 I don't know what they were looking for. Obviously,
13 I met those qualifications.
14 Q. How did you find out about the position?
15 A. It was a job that was posted within the
16 building that I worked. At the time the DER was
17 housed under the same building as the Water
18 Management District was.
19 Q. Did the posting of the job refer to any
20 type of qualifications necessary for applicants?
21 A. I'm sure it did, yes.
22 Q. Do you recall what those were?
23 A. I don't know.
24 Q. After conducting the study on sawgrass,
25 what was your next -- was that primarily your job
40
1 when you first joined the District?
2 A. Yes.
3 Q. Did you have any other responsibilities?
4 A. No. I was initially hired to design and
5 implement this study.
6 Q. And how long did that take?
7 A. The field work for the sawgrass study took
8 one year.
9 Q. Through approximately July of 1983?
10 A. No. There was a, there was a period from
11 July of '82 to, I believe I initiated that study in
12 the fall of that year. So that initial summer was
13 involved with, I was involved with the planning of
14 the study.
15 Q. When was testing then completed for the
16 sawgrass study?
17 A. When was it completed?
18 Q. Yes.
19 A. One year later. So I believe that would
20 have been the fall of 1983.
21 Q. Approximately August, September?
22 A. I think it was September.
23 MR. KOBELINSKI: Let's take a quick break.
24 (Recess taken.)
25 MR. KOBELINSKI: Let's go back on the
41
1 record.
2 BY MR. KOBELINSKI:
3 Q. Mr. Toth, you mentioned that when you were
4 hired by the District it was in relation to
5 conducting the sawgrass study. Was this a part-time
6 or a full-time position that you were hired for? And
7 by that I don't mean part-time in number of hours a
8 day but was it a long-term commitment or was it just
9 you were hired for one particular study and that
10 would be the end of your career with the District, at
11 least as contemplated at the time you were hired?
12 A. No, this was a full-time position.
13 Q. When we left off it was approximately the
14 fall of 1983 when the testing or field work for the
15 sawgrass had taken place. What were your
16 responsibilities after that period?
17 A. To analyze that information and develop it
18 into a technical publication.
19 Q. And approximately how long did that take?
20 A. I don't recall.
21 Q. Were you working full-time on that
22 analyzing the data and developing the publication on
23 the sawgrass study?
24 A. The way I remember it, I was doing that
25 data analysis and then at the same time initiated a
42
1 similar study on cattail.
2 Q. And now, I assume we're still talking about
3 the fall of 1983 and going into 1984?
4 A. That's correct.
5 Q. Did you have any additional
6 responsibilities other than with regard to the
7 sawgrass project and the commencement of the cattail
8 project?
9 A. No.
10 Q. Taking us then through 1984, then, what
11 generally were your responsibilities during 1984?
12 A. I believe that was the year in which I
13 initiated the cattail study. And, to the best of my
14 recollection, that started in the, in January of or
15 February of '84, and occurred for one year from that
16 point.
17 Also during that year I became involved
18 with the Kissimmee River Demonstration Project
19 environmental monitoring.
20 Q. When did you become involved with the
21 Kissimmee River Restoration Project?
22 A. Summer of 1984.
23 Q. And what were your responsibilities with
24 regard to the Kissimmee River Restoration Project?
25 A. Conduct environmental research,
43
1 demonstration project components, dealing with
2 demonstration project components.
3 Q. Were there specific components that you
4 were responsible for or just all of the components of
5 restoration project?
6 A. I was responsible for conducting the
7 environmental studies that were intended to evaluate
8 the effects of the physical components of the
9 project.
10 Q. And commencing in the summer of 1984,
11 approximately how much of your time was devoted to
12 the Kissimmee River Restoration Project?
13 A. At that point, approximately 25 percent of
14 my time.
15 Q. Do I understand you correctly that the
16 remaining 75 percent was devoted towards the sawgrass
17 and cattail studies?
18 A. That's correct.
19 Q. Had your position or title changed at any
20 time during 1983 or 1984?
21 A. Yes. I was given a promotion.
22 Q. When was that?
23 A. I don't remember the specific date.
24 Q. Since you just mentioned 1983, 1984, do you
25 recall what year it was?
44
1 A. I believe it was '84.
2 Q. What was your promotion to?
3 A. To an Environmentalist II.
4 Q. Could you very briefly explain to me the
5 different levels you have at the District, or you had
6 as of 1984, and where exactly Environmentalist II
7 would fit at that time?
8 A. Environmentalist I was an entry level
9 position. Environmentalist II was a higher level
10 position that required more experience.
11 Q. Above that were there any levels?
12 A. Yes. At the time there were
13 Environmentalist III and IV.
14 Q. Was the difference between
15 Environmentalist II and III, again, just a matter of
16 experience?
17 A. It was my understanding that, yes, that was
18 the difference.
19 Q. Was that likewise the difference between
20 Environmentalist III and IV?
21 A. I believe so.
22 Q. Okay. Were there any specific educational
23 requirements between the different levels?
24 A. Not that I recall.
25 Q. You mentioned when you started in 1982 that
45
1 you were started as an Environmentalist. Was that
2 Environmentalist I?
3 A. That would have been Environmentalist I,
4 yes.
5 Q. Did your promotion to level
6 Environmentalist II result in any additional duties
7 or responsibilities?
8 A. Yes.
9 Q. And what were they?
10 A. Kissimmee River Demonstration Project.
11 Q. That was a direct result of the promotion?
12 A. It was more like, it was more like I took
13 on the additional responsibilities, and that was seen
14 as reason for promotion.
15 Q. The Kissimmee River Restoration Project
16 preceded, then, the promotion?
17 A. You know, I don't remember the exact date
18 in which I was promoted. I think I remember that I
19 was promoted after getting involved with the
20 demonstration project.
21 Q. That takes us into 1985. What were your
22 duties during 1985?
23 A. I was still working on -- whew! -- on the
24 data analysis of, I believe I was still working on
25 the sawgrass publication. I was more involved with
46
1 the Kissimmee River Demonstration Project
2 environmental monitoring.
3 Q. Were you also involved in the cattail
4 publication at this point?
5 A. This was 1985? I believe that field work
6 for that study concluded at the beginning of 1985.
7 Q. After the field work for the cattail
8 publication concluded was there any additional work
9 done on that project?
10 A. Yes.
11 Q. What was that?
12 A. Data analysis and the writing of the
13 publication.
14 Q. Did that occur, or any portion of that
15 occur during 1985?
16 A. I don't recall.
17 Q. And if you could just generally or roughly,
18 as we did for during the latter part of 1984, give me
19 percentagewise how much of your time was devoted to
20 the Kissimmee River restoration?
21 A. During what year?
22 Q. 1985.
23 A. 75 percent.
24 Q. And what portion of your time was devoted
25 to the sawgrass publication during 1985?
47
1 A. 20 -- 20 percent.
2 Q. What portion of your time was devoted to
3 the cattail publication?
4 A. Five percent.
5 Q. If I'm not mistaken, that adds up to a
6 hundred percent.
7 A. I hope so.
8 Q. Next question is did you have any
9 additional responsibility other than the Kissimmee
10 River Demonstration Project, the cattail publication
11 or the sawgrass publication in 1985?
12 A. No.
13 Q. Did you receive any additional promotions
14 during that year?
15 A. No.
16 Q. That brings us into 1986. What were your
17 duties and responsibilities during that year, sir?
18 A. Kissimmee River Demonstration Project
19 and -- can I look at this (indicating)?
20 Q. Yes.
21 A. What year did I write that publication? I
22 was still writing the sawgrass paper and I don't
23 believe I was doing anything on the cattail
24 information at that point.
25 Q. Again, just giving rough percentages of
48
1 your time as we did for the prior years, how much of
2 your time was devoted towards the Kissimmee River
3 restoration?
4 A. 80 percent.
5 Q. The sawgrass publication?
6 A. 20.
7 Q. And did you have any other additional
8 responsibilities other than the sawgrass publication
9 and the Kissimmee restoration during 1986?
10 A. No.
11 Q. Had your responsibilities with regard to
12 the Kissimmee River Restoration Project changed at
13 all from the prior two years?
14 A. Just more active field work, more field
15 studies.
16 Q. More time was devoted towards it?
17 A. Yes, more time.
18 Q. As opposed to a change in the type of work
19 you were doing or position you were in?
20 A. Right, right.
21 Q. Following on to 1987, what were your
22 responsibilities during that year sir?
23 A. Kissimmee River Demonstration Project,
24 completion of the sawgrass publication, data analysis
25 for the cattail publication.
49
1 Q. As we did for prior years, if you could
2 just roughly give a percentage of your time that was
3 devoted to those different projects during the year.
4 A. 80 percent Kissimmee River, 15 percent
5 cattail, five percent sawgrass.
6 Q. Did you have any other additional
7 responsibilities other than those three projects?
8 A. No.
9 Q. Did you receive any promotions at all
10 during that year?
11 A. No, I don't believe so.
12 Q. Had your responsibilities with regard to
13 the Kissimmee River restoration changed in any
14 manner?
15 A. No.
16 Q. And your responsibilities during 1988?
17 A. The Kissimmee River Restoration Project.
18 Q. Same three projects, sir?
19 A. By that time the sawgrass paper had been
20 published, therefore it was just the Kissimmee River
21 Restoration Project and the cattail study.
22 Q. Do you recall what phase the cattail study
23 was in at this point?
24 A. This was in 1987 we're talking about or
25 '88.
50
1 Q. '88.
2 A. '88, okay. It was nearly complete, the
3 draft had already been produced, I believe.
4 Q. And what portion or proportion of your time
5 was devoted towards the Kissimmee River Restoration
6 Project?
7 A. 95 percent.
8 Q. And towards the cattail study?
9 A. Five percent.
10 Q. Did you have any additional duties and
11 responsibilities during the 1988 year period?
12 A. No.
13 Q. Had your responsibilities with regard to
14 the Kissimmee River Restoration Project changed at
15 all from the preceding years?
16 A. They expanded.
17 Q. And what did they expand into, what were
18 your additional responsibilities then?
19 A. More involvement in the evaluation of the
20 restoration alternatives and development of
21 restoration criteria.
22 MR. KOBELINSKI: Would you read his answer,
23 please?
24 (Thereupon, a portion of the
25 record was read by the reporter.)
51
1 BY MR. KOBELINSKI:
2 Q. Did you receive any promotions or did your
3 position change at all during 1988?
4 A. I don't recall.
5 Q. Drawing your attention, sir, to 1989, what
6 were your responsibilities during that year?
7 A. Kissimmee River Restoration Project.
8 Q. Any additional duties?
9 A. No.
10 Q. As I understand it, then, that was a
11 hundred percent of your time?
12 A. Yes.
13 Q. Did your responsibilities with regard to
14 the Kissimmee River Restoration Project change from
15 1988 to 1989?
16 A. No.
17 Q. Did you receive any promotions or have any
18 change in position during 1989?
19 A. Not that I recall.
20 Q. 1990; what were your responsibilities, sir?
21 A. Kissimmee River Restoration Project.
22 Q. Any additional duties or responsibilities?
23 A. No. In 1990?
24 Q. Yes, sir.
25 A. No.
52
1 Q. That took up, then, 100 percent of your
2 time; is that correct?
3 A. Yes.
4 Q. Was there any change in your
5 responsibilities with regard to the project from 1989
6 to 1990?
7 A. No.
8 Q. And did you have any type of change of
9 position or promotion during that year?
10 A. No. I keep answering no to this question.
11 But the nature, the name of my position title changed
12 somewhere along the line and I can't recall what year
13 it was.
14 Q. What did your position or title change
15 from?
16 A. Way back when I was an Environmentalist II
17 we were changed to, the position title was changed to
18 Environmental Scientist, I believe. And then at some
19 point my position title was changed to Senior
20 Environmental Scientist.
21 Q. Is that your current title?
22 A. Yes.
23 Q. Could you give me the present or current
24 breakdown of the different positions at the District,
25 very briefly?
53
1 A. Within my division?
2 Q. Yes, within your division is fine.
3 A. Senior Environmental Scientist, Staff
4 Environmental Scientist, and Environmental Scientist.
5 Q. Would the Environmental Scientist then be
6 the entry level position?
7 A. Yes.
8 Q. Are there any positions above Senior
9 Environmental Scientist?
10 A. Supervising Professional.
11 Q. Above that, sir?
12 A. Division Director.
13 Q. Above that?
14 A. Department Director.
15 Q. And what is the title of your department?
16 A. Division of Kissimmee and Okeechobee
17 Systems Research.
18 Q. Is that the same department you were in
19 since 1982 when you were hired by the District?
20 A. The department name has changed over the
21 years but it's the same department, yes.
22 Q. In 1982 what was the department name?
23 A. It was called the Planning Department in
24 1982.
25 MR. KOBELINSKI: Could you read back the
54
1 last question and answer?
2 (Thereupon, a portion of the
3 record was read by the reporter.)
4 BY MR. KOBELINSKI:
5 Q. When did the name of the department change
6 from Planning Department?
7 A. To the current name?
8 Q. Were there any other --
9 A. Yes, there was an interim name, and I don't
10 recall what that name was nor the exact year when
11 that occurred.
12 Q. Does your Division of Kissimmee and
13 Okeechobee Systems Research have any responsibilities
14 with regard to the Everglades Protection Area?
15 A. No.
16 Q. Do you know what the Everglades Protection
17 Area is when I make reference to that term?
18 A. Yes.
19 Q. Did the Planning Department back in 1982
20 have any responsibilities with regard to the
21 Everglades Protection Area?
22 A. Yes.
23 Q. When did the department's responsibilities
24 with regard to the Everglades Protection Area change?
25 MR. FITZGERALD: Object to the form of the
55
1 question. There was no Everglades Protection
2 Area at that time. That's strictly a -- I mean,
3 I understand that he sees the definition, but --
4 BY MR. KOBELINSKI:
5 Q. Okay. When I use the term Everglades
6 Protection Area I'm referring to the area as that
7 term is defined in the SWIM plan that is at issue in
8 these proceedings.
9 A. Could you describe that to me to make sure
10 that I know exactly what we're talking about here.
11 Q. Okay. Well, for the sake of my question,
12 just as a simplistic -- for the sake of my question
13 I'll refer to the Water Conservation Areas,
14 Everglades National Park, and to the extent there are
15 areas outside WCA-1 that are part of the refuge, that
16 would also be included.
17 Using that for a definition just for this
18 question, did the Planning Department in 1982 have
19 any responsibilities with regard to that area?
20 A. Yes.
21 Q. What were those responsibilities?
22 A. Conducting environmental research.
23 Q. Did there come a time that the Planning
24 Department no longer had responsibilities for doing
25 environmental research for that area?
56
1 A. That the Planning Department did?
2 Q. Whether it was called by that name or by
3 its current name or the interim name that you cannot
4 recall.
5 A. Okay. So we're talking about my, the
6 department that I'm currently in, correct?
7 Q. That's correct. Well, before you answer
8 that. Have you changed departments other than having
9 your department's name change?
10 A. No, I have not changed departments.
11 Q. I'm referring, then, to the department you
12 have worked for since 1982.
13 A. No, no, it has not changed.
14 Q. Now, has that department, when did its
15 responsibilities with regard to environmental
16 research for the area I defined a few moments ago
17 change?
18 A. I don't know that it ever changed. The
19 department that I am in still does environmental
20 research in what you're referring to as the
21 Everglades Protection Area. Is that the term you
22 used?
23 Q. Yes. Let me go back to a prior question,
24 then. Perhaps I just misunderstood your testimony.
25 Does the Division of Kissimmee and
57
1 Okeechobee Systems Research have any responsibility
2 for doing environmental research for the Everglades
3 Protection Area as that term is defined in the SWIM
4 plan?
5 A. No.
6 MS. CLEMENTS: I think what you're talking
7 about is a department and division; there are
8 two separate entities, okay?
9 MR. FITZGERALD: It appears when they split
10 the title they took away some of the
11 responsibilities. But the responsibilities of
12 the division in '82 that Mr. Toth was with have
13 never changed. They took away something else.
14 BY MR. KOBELINSKI:
15 Q. Is there still a Planning Department?
16 A. There is a Planning Department, yes.
17 Q. Now, is the Division of Kissimmee and
18 Okeechobee Systems Research part of the Planning
19 Department?
20 A. No.
21 Q. What are the responsibilities of the
22 Division of Kissimmee and Okeechobee Systems
23 Research?
24 A. To conduct research in the Kissimmee and
25 Okeechobee ecosystems. That's it.
58
1 Q. And what were the responsibilities of the
2 Planning Department as it existed in 1982?
3 MS. CLEMENTS: As to what, as to the EPA?
4 BY MR. KOBELINSKI:
5 Q. No. As to what were its responsibilities
6 within the District, what was it responsible for, the
7 Planning Department?
8 A. To the best of my recollection, it was
9 primarily a research department at that time. Other
10 types of activities would have been, you know, just
11 evaluation type activities.
12 Q. Okay. Did it have responsibility for any
13 particular area within the District?
14 A. The entire District.
15 Q. When was the Division of Kissimmee and
16 Okeechobee Systems Research created?
17 A. 1991, I believe. Either the end of 1991 or
18 early part of 1992.
19 Q. Is that division part of another, is it
20 underneath a department title also or is that a
21 division under a department?
22 A. It's a division in the Research Department.
23 Q. What are the other divisions within the
24 Research Department?
25 A. The Division of Everglades Research and
59
1 there is a Division of Research Appraisal.
2 Q. When did the Division of Everglades
3 Research --
4 A. At the same time the Division of Kissimmee
5 and Okeechobee Systems Research was created.
6 Q. The Division of the Everglades Research was
7 also created at that time?
8 A. Yes.
9 Q. Have you ever worked for the Division of
10 Everglades Research?
11 A. No.
12 Q. We had left off at 1990. I would draw your
13 attention, then, to 1991 and ask what your
14 responsibilities were during that year.
15 A. Kissimmee River Restoration Project.
16 Q. 100 percent of your time was devoted
17 towards that project?
18 A. Some minor percentage was associated with a
19 Nicodemus slough environmental monitoring -- maybe
20 one percent.
21 Q. What were your responsibilities with regard
22 to that?
23 A. Permit compliance monitoring.
24 Q. And had your responsibilities with regard
25 to the Kissimmee River Restoration Project changed at
60
1 all from the preceding year, 1990?
2 A. No.
3 Q. Had you received any promotions or change
4 of position during the year of 1991?
5 A. No.
6 Q. That brings us to this year. What have
7 your responsibilities been thus far this year?
8 A. Kissimmee River Restoration Project.
9 Q. Does that comprise 100 percent of your --
10 A. Yes.
11 Q. Have your responsibilities changed with
12 regard to the Kissimmee River Restoration Project
13 from 1991?
14 A. No.
15 MR. KOBELINSKI: Would you mark this as
16 Exhibit 2, please?
17 (Thereupon, Exhibit No. 2 was
18 marked for identification.)
19 BY MR. KOBELINSKI:
20 Q. Showing you, sir, what's been marked as
21 Toth Deposition Exhibit No. 2, which is a two-page
22 document dated November 15, 1985. In the upper
23 right-hand corner it references "Program No. 3208."
24 I ask you, sir, whether or not you have ever seen
25 this document or a copy of this document before?
61
1 A. Pardon me?
2 Q. Have you ever seen this document before?
3 A. Yes.
4 Q. What is program number 3208?
5 A. This is the program, is the description of
6 the research program that was conducted in Water
7 Conservation Area 2A, of which I had a part.
8 Q. Is this program related at all to your
9 sawgrass project that you made reference to?
10 A. Yes.
11 Q. How is it related to the sawgrass project?
12 A. This is the program under which the
13 sawgrass study was conducted.
14 Q. When you say it is the program under which
15 the study was conducted, just so I understand, is the
16 program itself a study or is the study just one
17 portion of this particular program?
18 A. My study was just one portion of this
19 particular program.
20 Q. And what was the purpose of the program
21 itself, 3208?
22 A. To look at the nutrient uptake capability
23 and storage capability of sawgrass and cattail, and
24 to provide an understanding of the functions of these
25 communities in the Water Conservation Area.
62
1 Q. When did this program commence?
2 A. I don't recall.
3 Q. When you started with the District in July
4 of 1982 was this program already in progress?
5 A. There was a program, might not have had the
6 same name, but this basic program was already in
7 progress, yes.
8 Q. You have to excuse me because I don't know
9 the internal workings of the District. This program
10 number 3208, what is the purpose of a program number?
11 Is that just something that's always assigned by the
12 District?
13 A. Yes.
14 Q. Is that for means of determining funding or
15 what is the purpose of assigning that program number,
16 if you know?
17 MS. CLEMENTS: If you know.
18 A. It's just a simple way of referring to the
19 program rather than by title.
20 BY MR. KOBELINSKI:
21 Q. Does, for instance, the Kissimmee River
22 Restoration Project have a program number?
23 A. Yes.
24 Q. What is that program number?
25 A. 0208.
63
1 Q. Who assigns the program number?
2 A. I don't know.
3 Q. What portion of program number 3208,
4 "Mineral Cycles and Ecological Interrelationships in
5 WCA2A", were you responsible for?
6 A. The nutrient storage potential of
7 belowground tissues of sawgrass and cattail.
8 Q. Effectively, the two projects we have been
9 discussing over the years we were just talking about,
10 right?
11 A. That's correct.
12 Q. You were not responsible for the
13 aboveground nutrient uptake or cycling; is that
14 correct?
15 A. I did collect information on nutrient
16 storage in aboveground plant tissues, but my primary
17 goal was to look at belowground plant tissues.
18 Q. To your knowledge, has someone else worked
19 on the aboveground tissues and the nutrient cycling
20 of those tissues?
21 A. Yes.
22 Q. Who is that?
23 A. Steve Davis.
24 Q. In July of 1982, to your knowledge, what
25 all was, what were the different programs then,
64
1 excuse me, I have to say projects then in progress
2 related to program number 3208?
3 A. Well, there was my study that was in
4 planning stages when I was initially hired. To the
5 best of my recollection, Steve Davis had an ongoing
6 study that was looking at leaf aboveground plant
7 growth in Water Conservation Area 2A.
8 Q. Any other aspects of the program in
9 progress at that point?
10 A. None that I remember. No, none that I
11 remember.
12 Q. When you were hired in July of 1982 was the
13 cattail study also discussed with regard to your
14 responsibilities or was that added on?
15 A. No. It was discussed at that time.
16 Q. So it was projected to commence and/or be
17 completed after the sawgrass study was completed; is
18 that correct?
19 A. That's correct.
20 Q. Drawing your attention to Toth Exhibit
21 No. 2, Mr. Toth. If you would look at Toth Exhibit
22 No. 2, paragraph number 1. "Purpose." The last
23 sentence of that paragraph states:
24 "An additional sub-program evaluates the
25 succession of sawgrass communities to cattail under
65
1 the influence of nutrient enriched waters."
2 Was that portion of the program in progress
3 in 1982?
4 A. I don't believe so, no.
5 Q. Have you worked on that portion of the
6 program?
7 A. No.
8 Q. Other than the sawgrass project and the
9 cattail project, have you had any other
10 responsibilities with regard to program number 3208?
11 A. No, I have not.
12 MR. KOBELINSKI: Mark this, please, as
13 Exhibit 3.
14 (Thereupon, Exhibit No. 3 was
15 marked for identification.)
16 BY MR. KOBELINSKI:
17 Q. Showing you, sir, what's been marked as
18 Toth Exhibit No. 3, I ask you initially, sir, have
19 you ever seen this document before or any other copy
20 of it?
21 A. I don't ever remember seeing this document,
22 no.
23 Q. You did not prepare this document?
24 A. No, I did not.
25 Q. Do you know who did prepare the document?
66
1 A. No, I don't.
2 Q. We can set it aside then. Were there final
3 reports on the cattail and sawgrass project prepared
4 at the same time?
5 A. No.
6 Q. Which was prepared first?
7 A. Sawgrass.
8 Q. Do you recall approximately when that was
9 prepared?
10 A. The final reports?
11 Q. The final reports.
12 A. 1987 and 1988 were the dates that they were
13 published.
14 Q. Do you recall when you -- let's call it the
15 first draft -- prepared the first draft of these
16 documents for circulation?
17 A. Typically that would have been a year prior
18 to the actual publication date.
19 Q. And with regard to, I mean, this is as
20 background. When you draft a document, for instance,
21 with regard to the sawgrass project or the cattail
22 project, do you, prior to publishing the final, do
23 you circulate a draft for comment?
24 A. Yes.
25 Q. Was that practice followed with regard to
67
1 the sawgrass project?
2 A. Yes.
3 Q. And was it followed with regard to the
4 cattail project?
5 A. Yes.
6 Q. Do you recall approximately when the
7 sawgrass project draft was distributed for comment?
8 A. I don't recall the dates, no.
9 Q. And when we're talking about distributing
10 it for comment, that is distributing it internally
11 within the District; is that correct?
12 A. Yes.
13 Q. Do you recall whether or not the cattail
14 project paper was distributed internally, prior to
15 publication, for comment?
16 A. Yes.
17 Q. Do you recall approximately when that was?
18 A. No, but it's likely that it was 1987.
19 MR. KOBELINSKI: This we'll mark as number
20 4, Toth Deposition Exhibit 4.
21 (Thereupon, Exhibit No. 4 was
22 marked for identification.)
23 BY MR. KOBELINSKI:
24 Q. I'm showing you, sir, what's been marked as
25 Toth Exhibit No. 4 and I'm, just for housekeeping
68
1 purposes purely, just so we can perhaps proceed with
2 the deposition in a chronological manner -- I believe
3 you have stated, and the record clearly reflects,
4 that the cattail study publication was published
5 after the sawgrass.
6 Looking at Toth Exhibit No. 4, which is
7 entitled "Technical Publication #86-", "Effects of
8 Contrasting Hydrological Regimes on Lifetime
9 Production and Nutrient Dynamics of Cattail." Louis
10 A. Toth, November 1986.
11 Does this help refresh your recollection as
12 to when the cattail draft that was distributed for
13 review was prepared?
14 A. This looks like my first draft of the
15 cattail publication, yes.
16 Q. Do you recall, having now seen this, the
17 draft, at what stage, or is there a means for you to
18 determine at what stage, the sawgrass study was at?
19 A. To the best of my recollection, the
20 sawgrass study was published in 1987, I believe. So
21 it would appear from that that the sawgrass
22 publication was well on its way to being published.
23 Q. So is the best of your recollection, then,
24 it was at a more advanced stage than this document;
25 is that correct?
69
1 A. Absolutely.
2 Q. Although we'll have some questions about
3 this, if you could just set it aside for right now.
4 MR. KOBELINSKI: Off the record.
5 (Thereupon, a discussion was had
6 off the record.)
7 MR. KOBELINSKI: Going back on the record.
8 Let's mark this as, I believe, Exhibit 5.
9 (Thereupon, Exhibit No. 5 was
10 marked for identification.)
11 BY MR. KOBELINSKI:
12 Q. Showing you, sir, what's been marked as
13 Toth Exhibit No. 5, do you recognize this document?
14 A. Yes.
15 Q. What is that document, sir?
16 A. That is the technical publication resulting
17 from the sawgrass study that I conducted.
18 Q. This is the final draft, then, after
19 circulation of the preliminary drafts with comments;
20 is that correct?
21 A. That's correct.
22 Q. How was this study different from prior
23 studies of the District as to nutrient uptake?
24 A. It looked at belowground plant parts.
25 Q. Had, prior to this, the District looked at
70
1 belowground plant parts of sawgrass? I mean by that
2 their nutrient uptake capacity.
3 A. No, not to my knowledge.
4 Q. How did you go about planning this project
5 called Technical Publication 87-6?
6 A. Review of the existing literature that I
7 had at my disposal, and developed the research plan
8 accordingly.
9 Q. When you say research plan, is that
10 actually a document or some type of a draft that you
11 prepared?
12 A. I don't believe there was any research plan
13 associated with this particular publication. I don't
14 think it was ever really put down in great detail on
15 a piece of paper.
16 Q. Once you had developed that plan, did you
17 need or require any approval from anyone within your
18 department or the District in order to proceed with
19 the project?
20 A. Yes.
21 Q. And who was that?
22 A. It would have been my immediate supervisor
23 and division director at the time.
24 Q. Who was?
25 A. My immediate supervisor was Steve Davis and
71
1 the division director was Walt Dineen.
2 Q. This is back in 1982?
3 A. Yes.
4 Q. What position did Mr. Davis hold in 1982?
5 A. I believe he was Environmentalist III at
6 that time.
7 Q. And Mr. Dineen?
8 A. Division Director.
9 Q. For my own edification, would that be
10 correct to refer to them as Dr. Davis and Dr. Dineen,
11 or do they hold doctorates?
12 A. No, they don't.
13 Q. Okay. Did Mr. Davis assist in the
14 preparation of your plan for the sawgrass study?
15 A. He reviewed, he provided a review function.
16 A review function.
17 Q. With regard to the actual plan itself on
18 how you intended to go ahead and conduct this study,
19 did he have any input in that?
20 A. It was 99 percent of my doing.
21 Q. Okay. Were there any portions of a plan
22 that you had which you intended, of how you intended
23 to conduct the studies that were then subsequently
24 changed or altered by either Mr. Davis, Mr. Dineen or
25 anyone else in the District?
72
1 A. No.
2 Q. They followed basically what you
3 recommended?
4 A. Yes.
5 Q. Once you had the planning structure down
6 what was your next step in the project?
7 A. To conduct field studies.
8 Q. Did you personally conduct the field
9 studies?
10 A. Yes.
11 Q. Where were the field studies taken?
12 A. Water Conservation Area 2A.
13 Q. Any particular portion of the Water
14 Conservation Area?
15 A. Two sites, one at the northern portion of
16 Water Conservation Area 2A and the other at the
17 southern portion.
18 Q. Drawing your attention, sir, to page 3 of
19 Toth Exhibit No. 5. On that page is Figure 1(A) and
20 1(B). Does Figure 1(B) show the sampling study
21 areas?
22 A. Yes.
23 Q. Who selected those, the sites for the
24 studies?
25 A. I did in consultation with Steve Davis.
73
1 Q. Had those sites been used for any other
2 study that you are aware of?
3 A. No.
4 Q. Why did you select the NLS, which I believe
5 refers to North Levee Sawgrass; is that correct?
6 A. That's correct.
7 Q. Why did you select the North Levee Sawgrass
8 site the way you did?
9 A. The site selection of NLS was based upon
10 shallow water levels and accessibility to the area.
11 And it had accessibility to, an ease-of-access to a
12 sawgrass stand.
13 Q. Was it your purpose in selecting the NLS
14 site to specifically locate a shallow site that had a
15 shallow water hydroperiod?
16 A. Yes.
17 Q. Do you understand what I mean by
18 hydroperiod? Do you know, are you familiar with the
19 term?
20 A. I'm familiar with the term, yes.
21 Q. What does hydroperiod mean to you?
22 A. Hydroperiod refers to the depth of
23 inundation and the timing of inundation over a course
24 of a period of time.
25 Q. What were the characteristics of the North
74
1 Levee Site or Sawgrass that you were looking for in
2 making your selection?
3 A. Shallow water.
4 Q. Anything else?
5 A. Those were the hydrologic characteristics
6 we were looking for.
7 Q. When you say shallow water, are you
8 referring to any particular point in time during the
9 year or were you looking for an area that had shallow
10 water pretty much throughout the entire year?
11 A. Pretty much throughout the entire year.
12 Q. Does the site you selected for NLS have
13 that characteristic?
14 A. Yes.
15 Q. Were there any other additional sites that
16 you reviewed that had that characteristic, for
17 instance, that you may have rejected?
18 A. At the time I recall traveling that levee
19 and looking for sites in the north end of Water
20 Conservation Area 2A, looking for shallow water
21 sites, this one was ideal. Well, it was good in
22 terms of accessibility.
23 Q. Did Mr. Davis assist you in the inspection
24 to determine the sites?
25 A. Yes.
75
1 Q. He actually went out there with you?
2 A. Yes.
3 Q. Did he approve of the NLS site for your
4 purposes?
5 A. Yes.
6 Q. Were the sites for the sawgrass study
7 approximately the same sites for the subsequent
8 cattail study?
9 A. Yes.
10 Q. What were, for instance, the North Levee
11 Sawgrass site compared to the North Levee Cattail
12 site, approximately how far apart were they?
13 A. I don't remember exactly the distance, but
14 the cattail site was southeast of the sawgrass site.
15 And it could have been a distance of, I don't know, a
16 half mile maybe.
17 Q. You may have testified regarding this
18 before, but was the sawgrass testing being conducted
19 at the same time as the cattail testing, did they
20 overlap at all?
21 A. No, no.
22 Q. Cattail commenced after the sawgrass was
23 completed?
24 A. That's correct.
25 Q. Now, with regard to the South Levee
76
1 Sawgrass, what were the characteristics of that site?
2 A. Deep water; and, again, accessibility was a
3 consideration.
4 Q. Was it the nearness of the levee or the
5 approximate location of it with regard to the levee
6 there that made it accessible?
7 A. Actually was the canal along the levee.
8 Q. Is that true also of the North Levee
9 Sawgrass?
10 A. No.
11 Q. What made the North Levee Sawgrass
12 successful?
13 A. The levee.
14 Q. You referred to deep water characteristics
15 of the South Levee Sawgrass site. Was that -- again,
16 were you looking for a year-round, deep-water site?
17 A. I don't recall that I had any specific
18 consideration about the length of time that we were
19 looking, that I was looking for deep water.
20 Although, you know, I was looking for a deep-water
21 site that had deep water for a considerable period of
22 the year. In answer to your question.
23 Q. Did Mr. Davis assist you in the selection
24 of the South Levee Sawgrass site also?
25 A. Yes.
77
1 Q. He physically inspected that site with you
2 prior to making the selection?
3 A. Yes.
4 Q. And he approved of the site?
5 A. Yes. Let me go back there. He may not
6 have physically inspected that site at the time the
7 site was chosen. I don't recall. He may have or may
8 not have.
9 Q. Did you receive assistance from anyone else
10 in the selection of the site?
11 A. No.
12 Q. Prior to the study on the sawgrass, was
13 that the South Levee Sawgrass site, was it used for
14 any testing for any other project that you are aware
15 of?
16 A. No.
17 Q. Did you determine what the historic
18 conditions of those sites were?
19 A. No.
20 Q. Did the historic conditions have any impact
21 upon your study?
22 A. What do you mean by historic conditions?
23 Historic conditions in terms of what?
24 Q. I'm sorry, the vegetative --
25 A. The vegetation historic conditions. What
78
1 was the question again? Did the historic conditions
2 influence the selection of those sites, was that the
3 question?
4 Q. I'll withdraw that question and be a bit
5 more specific on the prior question --
6 A. Okay.
7 Q. -- in case you misunderstood. At any point
8 in time did you determine what the prior historic
9 vegetative conditions of the South Levee, excuse me,
10 the North Levee Sawgrass site were?
11 A. Observations made during the course of the
12 study gave some indication as to what some of the
13 historic conditions might have been like in that
14 area, yes.
15 Q. Other than the observations, did you do any
16 other type of research or make any determination as
17 to what the vegetative community was historically in
18 that area at the North Levee Sawgrass site?
19 A. No.
20 Q. What were your observations with regard to
21 the historical vegetative community in the North
22 Levee Sawgrass site?
23 A. The observations, presence of willow,
24 remnant willow stumps indicates that there were
25 willow in that area at some time in the past.
79
1 MR. KOBELINSKI: Off the record.
2 (Thereupon, a discussion was had
3 off the record.)
4 MR. KOBELINSKI: Well, why don't we take
5 the lunch break now and come back at 12:30?
6 MS. CLEMENTS: Fine. The earlier the
7 better.
8 MR. FITZGERALD: All right.
9 (Thereupon, a lunch recess was taken.)
10 ~1B&dDC E R T I F I C A T E ~1B&d@
11
The State of Florida )
12 County of Palm Beach. )
13
I, Criss D. Bertling, Court Reporter and
14 Notary Public, State of Florida at large, do hereby
certify that LOUIS A. TOTH was by me first duly sworn
15 to testify the whole truth; that I was authorized to
and did report said deposition in stenotype; and that
16 the foregoing pages, numbered from 1 to 79,
inclusive, are a true and correct transcription of my
17 shorthand notes of Volume I of said deposition.
18 I further certify that the said deposition
was taken at the time and place hereinabove set forth
19 and that the taking of said deposition was commenced
and completed as hereinabove set out.
20
I further certify that I am not attorney or
21 counsel of any of the parties, nor am I a relative or
employee of any attorney or counsel or party
22 connected with the action, nor am I financially
interested in the action.
23
The foregoing certification of this
24 transcript does not apply to any reproduction of the
same by any means unless under the direct control
25 and/or direction of the certifying reporter.
80
1 In witness whereof I have hereunto set my
2 hand and seal this 29th day of October, 1992.
3
4
5
6
7 _______________________________
8 Criss D. Bertling
9 Notary Public, State of Florida
10 at large. My commission expires
11 June 30, 1995
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