187

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

2 _______________________________________________________

SUGAR CANE GROWERS COOPERATIVE )

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

WEDGEWORTH FARMS, INC., )

4 Petitioners, )

vs. ) DOAH CASE

5 SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3038

DISTRICT, an agency of the State )

6 of Florida; et al., )

Respondents. )

7 _______________________________________)

)

8 FLORIDA SUGAR CANE LEAGUE, INC.; )

UNITED STATES SUGAR CORPORATION; )

9 and NEW HOPE SOUTH, INC., )

Petitioners, )

10 vs. ) DOAH CASE

SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3039

11 DISTRICT, an agency of the State )

of Florida; et al., )

12 Respondents. )

_______________________________________)

13 )

FLORIDA FRUIT and VEGETABLE )

14 ASSOCIATION; LEWIS POPE FARMS; )

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

15 and HUNDLEY FARMS, INC., )

Petitioners, )

16 vs. ) DOAH CASE

SOUTH FLORIDA WATER MANAGEMENT ) NO. 92-3040

17 DISTRICT, an agency of the State )

of Florida; et al., )

18 Respondents. )

_______________________________________________________

Deposition of LOUIS A. TOTH, Volume III

20 (Day 2)

21 Taken before Criss D. Bertling, Court Reporter

and Notary Public in and for the State of Florida to

22 large, pursuant to notice of taking deposition filed

by the Petitioners in the above action.

23 - - - - -

Tuesday October 27, 1992

24 319 Clematis Street, Suite 500

West Palm Beach, Florida 33401

25 9:29 a.m. to 12:27 p.m.

- - - - -

188

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 Two South Biscayne Boulevard

Miami, Florida 33131

By: MARK T. KOBELINSKI, ESQUIRE

ON BEHALF OF THE RESPONDENT SFWMD:

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

10 3301 Gun Club Road

West Palm Beach, Florida 33406

By: RUTH CLEMENTS, ESQUIRE

ON BEHALF OF THE INTERVENOR UNITED STATES OF AMERICA:

DEPARTMENT OF JUSTICE

15 155 South Miami Avenue, Suite 627

Miami, Florida 33130-1693

By: ROBERT A. ROSENBERG, ESQUIRE

- - - - -

19 E X H I B I T S

- - - - -

EXHIBIT NO: DESCRIPTION: PG. MARKED:

21 ___________ _____________________________ ___________

22 Toth Depo #9 Bates #0722114 207

"Toth's 1982-1983 Data"

Toth Depo #10 Bates #0199032 207

24 Technical Publication 88-6 Summary

25 Toth Depo #11 Bates #0224264 209

1-14-88 Letter, Gunderson to Toth

189

1 - - - - -

EXHIBITS - CONTINUED

2 - - - - -

3 EXHIBIT NO: DESCRIPTION: PG. MARKED:

___________ _____________________________ ___________

Toth Depo #12 Bates #0104118-0104129 218

5 1-11-88 Memo, VanArman to Dist.

6 Toth Depo #13 Bates #0188325-0188331 219

Memorandum, Rhoads to WCA/ENP

7 SWIM Planning Committee

8 Toth Depo #14 Bates #0188283-0188292 220

12-9-88 Memo, Branscome to Dist. List

Toth Depo #15 Bates #0104015-0104024 221

10 "SFWMD ISSUES" - Meeting 12/12/88

11 Toth Depo #16 Bates #0116446-0116451 222

8/24/89 Distribution List(s)

Toth Depo #17 Bates #0407427-0407434 224

13 "Water Quality Impacts on Macrophytes

of the Water Conservation Areas"

Toth Depo #18 Bates #0124338-0124347 227

15 WCA/ENP SWIM Plan Status Report 12/88

16 Toth Depo #19 4/12/85 Program No. 8640 229

Summary

Toth Depo #20 Bates #0958603-0958608 231

18 Memorandum, Maceina to

Disttribution List 3/20/90

Toth Depo #21 Bates #0008276-0008277 232

20 11/15/85 Program No. 0201

Summary

Toth Depo #22 Bates #0026069-0026104 241

22 Memo, Toth to Davis, 4/7/87 re LOTAC

23 Toth Depo #23 Bates #0474102-0474106 244

N.Urban, Tech.Pub./or Memo

24 Preliminary 4/90

190

1 ~1B&dDP R O C E E D I N G S~1B&d@

2 MR. KOBELINSKI: Let's go back on the

3 record.

4 Good morning, Mr. Toth. I would remind you

5 that you are still under oath and we are going

6 to continue with the deposition that we started

7 yesterday.

8 - - - - -

9 EXAMINATION (CONTINUED)

10 - - - - -

11 BY MR. KOBELINSKI:

12 Q. I had, if you don't mind, a few

13 housekeeping matters that, in going through my notes

14 yesterday, I wanted to make sure we had covered

15 everything.

16 With regard to Toth Exhibit No. 1, which is

17 your resume, I believe you had mentioned that these

18 publications that are listed on this exhibit were the

19 publications that you had either completed or

20 published to date. Are there additional papers you

21 are currently working on that either are not complete

22 or have not yet been published that are not included

23 on this exhibit?

24 A. Yes.

25 Q. And could you tell me about those, please?

191

1 A. There is a book chapter for the new edition

2 of a book called "Rehabilitating Damaged Ecosystems."

3 Q. And who is authoring or editing or

4 producing that?

5 A. The editor is John Cairns.

6 Q. Is that "Rehabilitation of Damaged

7 Ecosystems"?

8 A. Yes.

9 Q. And I'm sorry, could you repeat the name

10 again?

11 A. Of the book or the --

12 Q. The Editor.

13 A. John Cairns, C-A-I-R-N-S.

14 Q. And what chapter are you working on, sir?

15 A. A chapter on the Kissimmee River

16 restoration program.

17 Q. And have you completed that chapter?

18 A. A draft has been completed and sent to the

19 editor.

20 Q. When is the book scheduled to be published?

21 A. The last correspondence I had with him

22 concerning the tentative publication date would be

23 '93, I believe, sometime in '93. But that was real

24 tentative.

25 Q. Is Mr. Cairns -- is that right?

192

1 A. Cairns.

2 Q. Is Mr. Cairns in any way connected with the

3 State of Florida or any of its agencies?

4 A. No.

5 Q. Where is he located?

6 A. Virginia Polytechnic Institute.

7 Q. Is Mr. Cairns a former professor of yours

8 or otherwise connected with your degree from Virginia

9 Polytech?

10 A. No. I never had any course work under him.

11 Q. Are you aware of any other chapters of the

12 book related to Florida or South Florida?

13 A. No.

14 Q. You are not?

15 A. No.

16 Q. Any other publications or papers that you

17 are working on at this time?

18 A. No.

19 Q. So that would, between those that are

20 listed on Toth Exhibit No. 1 and this one you just

21 mentioned here, cover basically all the papers that

22 you have written that are published or unpublished at

23 this time; is that correct?

24 A. Yes, to the best of my knowledge, yes.

25 Q. What generally does your chapter on the

193

1 Kissimmee River restoration cover?

2 A. It's on the principles and guidelines of

3 river floodplain ecosystem restoration, using the

4 Kissimmee River as a case study.

5 Q. Does any of your portion of that chapter

6 that you are working on deal with the nutrient load

7 or nutrient percentage of the Kissimmee River, either

8 from the --

9 A. There is reference to nutrient loads or

10 concentrations in the Kissimmee River system, yes.

11 Q. Does your chapter at all deal with the

12 impact of restoration upon those nutrient loads or

13 nutrient concentrations?

14 A. Yes, to some extent.

15 Q. What exactly, how does it deal with that?

16 A. By citations I discussed the nutrient

17 removal capabilities of the Kissimmee marshes.

18 Q. Have you done any studies of the nutrient

19 removal capabilities of the Kissimmee marshes?

20 A. No.

21 Q. Is this the reference you make in the

22 chapter to other work on that?

23 A. Yes.

24 Q. And whose work is that?

25 A. Several other authors. One is Davis.

194

1 Goldstein. Federico. I believe that's the list of

2 authors cited.

3 Q. What are the types of marsh plants that

4 were analyzed as far as for nutrient uptake,

5 basically, in the Kissimmee marshes?

6 A. The types of marsh plants? The most

7 relevant study dealt with the broad leaf marsh

8 community.

9 Q. What is the most relevant study?

10 A. Davis.

11 MR. ROSENBERG: Would you ask what Davis'

12 first name is for me?

13 BY MR. KOBELINSKI:

14 Q. What is Mr. Davis' first name?

15 A. Steve.

16 MR. ROSENBERG: Okay.

17 BY MR. KOBELINSKI:

18 Q. You mentioned broad leaf marsh plants or

19 vegetation; is that correct?

20 A. Yes.

21 Q. What falls into that category, what were

22 the primary plants?

23 MS. CLEMENTS: I'm going to make a general

24 objection here, going into the detail area of

25 the Kissimmee River. This is not relevant to

195

1 the SWIM plan challenge.

2 It's a total different ecosystem than what

3 we're dealing with in the Everglades Protection

4 Area. And I'll just have a generalized

5 objection to any questions concerning the

6 Kissimmee River.

7 You can go ahead and answer.

8 THE WITNESS: Could you repeat that,

9 please?

10 BY MR. KOBELINSKI:

11 Q. I'll restate it or repeat it. What are the

12 broad leaf marsh plants that Mr. Davis --

13 A. The plant species constituting the broad

14 leaf marsh in the valley are Sagittaria lancifolia.

15 Q. Commonly known as?

16 A. I don't remember the common name for

17 Sagittaria; commonly referred to as Sagittaria.

18 Q. Anything else?

19 A. Pontederia cordata.

20 Q. Does that have a common name?

21 A. Pickrelweed.

22 Q. Anything else?

23 A. Typically two other grass species: panicum

24 hemitomon, or maiden cane, and sometimes another

25 grass species, cut grass or leersia alexandra.

196

1 Q. Do sawgrass or cattail play any type of

2 prominent role in the Kissimmee marsh nutrient

3 uptake?

4 A. No.

5 Q. Did Mr. Davis' study that you are referring

6 to include any of the nutrient uptake capacities of

7 either sawgrass or cattail?

8 A. No.

9 Q. Is this a published study that you are

10 referring to by Mr. Davis?

11 A. Yes, it was a South Florida Water

12 Management District Technical Publication.

13 Q. When was this one published?

14 A. I believe it was in 1982, within that

15 general time frame.

16 Q. This was not the 1988 study, for instance,

17 that he did on the Everglades WCA 2A?

18 A. No.

19 Q. And is it Mr. or Dr. Goldstein?

20 A. It's Mr.

21 Q. What is his first name?

22 A. Al.

23 Q. And did Mr. Goldstein's study include any

24 nutrient uptake capacity of either sawgrass or

25 cattail?

197

1 A. I don't believe so, to the best of my

2 knowledge.

3 Q. Was it limited to the Kissimmee marsh

4 vegetation?

5 A. No. Actually, Goldstein's studies dealt

6 with nutrient retention in upland systems, both

7 upland marsh systems as well as upland terrestrial

8 systems.

9 Q. When you say upland, what do you mean by

10 that?

11 A. Well, I guess that's a bad word to use in

12 this case. Nutrient retention outside the Kissimmee

13 floodplain.

14 Q. I just want to know when you say outside

15 are you saying, basically, anywhere? In an Illinois

16 marsh? Are you talking about a geographical area?

17 A. No, within the Kissimmee basin but outside

18 the historic floodplain.

19 Q. When was that published?

20 A. There were several citations. One was that

21 included in the Kissimmee River Restoration Symposium

22 which was published in '90, those proceedings were

23 published in '90, a previous publication. I don't

24 remember the exact year, 1980, maybe.

25 Q. And Mr. Federico's paper that you are

198

1 referring to?

2 A. Yes.

3 Q. Which one is that?

4 A. The Chandler slough paper.

5 Q. Was that a District publication?

6 A. Yes, it is.

7 Q. When was that published?

8 A. Again, I don't remember the exact year.

9 Q. Approximately, if you recall. In the '90s,

10 in the '80s?

11 A. In the '80s.

12 Q. And did Mr. Federico's study include any

13 type of nutrient uptake capacity of either sawgrass

14 or cattail?

15 A. I don't believe so.

16 Q. References you made to any of these

17 studies, Davis, Goldstein or Federico, were not

18 references, then, made to the nutrient uptake

19 capacity of sawgrass or cattail or an Everglades

20 marsh?

21 A. No.

22 Q. Are you aware of any current District

23 studies on cattail or sawgrass nutrient uptake

24 capacity?

25 A. No, I am not aware of any. I'm no longer

199

1 in that loop.

2 Q. Are you aware of any general cattail or

3 sawgrass studies being undertaken right now by the

4 District?

5 A. No, I can't say that I am.

6 Q. Are you aware of any cattail or sawgrass

7 studies currently being conducted by the federal

8 government or any agency of the federal government?

9 A. No.

10 Q. Are you aware of any studies currently

11 being conducted in WCA 1 or the Loxahatchee Wildlife

12 Refuge?

13 A. Any studies in general currently being

14 conducted?

15 Q. Any studies in general currently being

16 conducted by the District.

17 A. No.

18 Q. Or by the federal government or any of its

19 agencies or departments?

20 A. No.

21 Q. Are you familiar at all with Ron

22 Hofstetter's transpiration project?

23 A. No.

24 Q. Are you familiar with Mr. Davis' 1988 paper

25 concerning WCA 2A?

200

1 A. Can you be more specific? Can you give me

2 the title or show me the paper?

3 Q. I draw your attention to Exhibit 8, which

4 was previously marked yesterday, page 24, on

5 literature cited by you in this publication.

6 I'm referring to the paper referenced in

7 the bottom lefthand corner, "Davis S.M. 1988,

8 Sawgrass and Cattail Production in Relation to

9 Nutrient Supply in the Everglades." Are you familiar

10 with that paper?

11 A. Yes, I believe I looked at it. Obviously.

12 I cited it.

13 Q. Did you do any type of internal review or

14 provide comments to Mr. Davis on that paper prior to

15 its publication?

16 A. I'm not sure. I recall reviewing a paper

17 by Mr. Davis dealing with this general subject. I'm

18 not sure if it was this paper in particular or

19 another paper that may or may not have been published

20 since that time. I do recall reviewing a paper by

21 Mr. Davis dealing with this subject but I can't say

22 for sure it was this paper.

23 Q. I would draw your attention, sir, to the

24 paper directly above that that's referenced there:

25 "Davis, S.M. 1984, Cattail Leaf Production Mortality

201

1 and Nutrient Flux in Water Conservation Area 2A." Is

2 that perhaps the paper you are referring to or is it

3 a different paper than that?

4 A. No, it was a different paper than that one.

5 Q. So the paper you were referring to would be

6 either 1988 or some subsequent?

7 A. That's correct.

8 Q. Did you provide written comments of your

9 view on it?

10 A. I provided written comments on the

11 manuscript itself. I don't recall providing any

12 separate document with comments.

13 Q. Did you retain a copy of the manuscript

14 with your comments?

15 A. I don't believe so. If I did, it would

16 have been in the files that I provided to you.

17 Q. Do you recall what the topic of the paper

18 was or manuscript was that you reviewed?

19 A. I recall it contrasting sawgrass and

20 cattail production and/or nutrient dynamics in

21 relation to nutrient supply.

22 Q. Drawing your attention, sir, to Exhibit 8,

23 and turning to page 13 of that document. In the

24 paragraph that starts, the first full paragraph that

25 starts with "Estimates of cumulative leaf

202

1 biomass...."

2 A. Yes.

3 Q. You have a calculation there. The

4 remainder of that paragraph, the final sentence

5 states:

6 "Model predictions of leaf biomass

7 production were within the range of more direct

8 measurements of cumulative above ground production at

9 other sites in WCA 2A (Davis, 1984, Figure 8B),

10 particularly if Davis' data points are shifted

11 several increments to the right to account for small

12 leaves that were not included in his measurements

13 (Davis, personal communication)."

14 Could you tell me the substance, if you

15 recall, of the Davis personal communication that is

16 referred to in that sentence?

17 A. What do you mean by substance?

18 Q. I mean, what was it that Mr. Davis provided

19 to you that was not included in his paper that you

20 refer to?

21 A. Okay. At the time when I was developing

22 this model and these estimates of cumulative lifetime

23 leaf production, I was looking for some verification

24 or validation of the estimates provided by my model.

25 And being aware of Mr. Davis' work in that

203

1 regard, we discussed, or I compared my model

2 estimates to his data. And it occurred to me or I

3 asked Mr. Davis if his estimates, or if his

4 measurements or if his accounting for the number of

5 leaves produced by the plant took into account the

6 small scale leaves that are produced early in the

7 life history of the plant.

8 And he indicated to me that no, his

9 estimates did not. Or his measurements did not.

10 They were not estimates; they were actually direct

11 measurements of the leaves produced during the

12 plants' lifetime.

13 And the reason for that is the way

14 Mr. Davis, Mr. Davis' study was being conducted is he

15 was tagging individual sawgrass leaves with a plant

16 tag. It was not physically possible to fit one of

17 those tags on one of these leaves.

18 These small leaves that I was referring to

19 are leaves of this size (indicating).

20 Q. For the record, indicate --

21 A. Maybe less than an inch.

22 Q. Thank you. You make reference to Figure 8B

23 in that sentence, which I believe is found on page 14

24 of Exhibit 8, which, as I understand it -- correct me

25 if I'm wrong -- includes data from six Davis sites;

204

1 is that correct?

2 A. That's correct.

3 Q. Is this data, to your knowledge, from the

4 '84 paper or would this be subsequent to the '84

5 paper?

6 A. I'm not sure that the data presented in, or

7 the way the data was presented in Davis' '84 paper,

8 that I could have taken it from the paper and

9 produced it, put it on this graph. But, rather, I

10 seem to recall having to go back to Davis' actual

11 unpublished data, the data that he collected, to

12 produce these data points.

13 Now, that -- I think that's the way I

14 recall producing those data points.

15 But, in any case, the '84 citation that is

16 given there is the study and the paper that dealt

17 with this, these estimates of cumulative leaf

18 production (indicating).

19 Q. Given the adjustment that you made to

20 account for the small leaves that were not included

21 in Mr. Davis' measurements, did the leaf production

22 at the North Levee Site and the South Levee Site

23 correspond with the leaf production at the six Davis

24 sites?

25 A. I believe, as I indicated in the manuscript --

205

1 (Pause.)

2 There seems to be fairly good agreement

3 between my model estimates and one of Davis' sites in

4 particular, if you do the shifting of the data as I

5 indicated should be done.

6 Q. Which site would that be?

7 A. That would be Davis site #6.

8 Q. So as I understand it, then, leaf

9 production at the north levee site, the south levee

10 site and site #6 was generally the same?

11 A. They appear to be comparable if my

12 estimates, if my model estimates are correct.

13 Q. And your model estimates are based upon

14 your study --

15 A. Yes.

16 Q. -- of the leaf production at the north

17 levee site and the south levee site?

18 A. Yes.

19 Q. With regard to the cattail at the south

20 levee site, I believe your testimony yesterday was

21 that it would experience drawdowns of the water below

22 the ground surface level during some portion of the

23 year, typically?

24 A. I believe the data shows that, yes.

25 Q. Are you familiar whether or not there is a

206

1 surge in phosphorus concentration in the water when

2 there is reflooding of that area after a drawdown?

3 A. No, I'm not aware of any surge in

4 phosphorus concentration after reflooding.

5 Q. When the water level is drawn down below

6 the ground surface, soil surface at the south levee

7 site, would that result in any type of oxidation of

8 the soil?

9 A. It could, yes.

10 Q. Would that result in a release of

11 phosphorus from the soil?

12 A. I don't believe that I'm qualified to talk

13 about soil nutrient dynamics. I don't feel like I

14 have that type of background to really answer that

15 question.

16 Q. The dynamics of whether or not there is a

17 phosphorus release after a drawdown and exposure of

18 the substrate to the surface, was that included or

19 that area included at all in your study relating to

20 cattails?

21 A. No, sir.

22 Q. Drawing your attention just briefly again

23 to page 13 -- 14, excuse me, the one you were on.

24 A. Okay.

25 Q. Did any of Davis' other sites match up with

207

1 the south levee site or the north levee site?

2 A. Some of the other sites at certain stages

3 in the plant's life, particularly at earlier stages

4 in the plant's life history, appear to match the data

5 predictions of my model.

6 Q. Which sites would those be?

7 A. That would include site 1, it would include

8 site 3, site 4. There doesn't appear to be any data

9 from site 2 to say one way or another at the early

10 life history or growth stages.

11 Q. If you did not take into account the small

12 leaves that Mr. Davis did not include in his study or

13 data collection, would you have the same

14 corresponding matches or correlation?

15 A. Well, there are some sites that overlap

16 with the model estimates, but I think that would be

17 an invalid comparison.

18 MR. KOBELINSKI: Would you please mark this

19 as the next exhibit?

20 (Thereupon, Exhibit No. 9 was

21 marked for identification.)

22 BY MR. KOBELINSKI:

23 Q. Turning your attention, sir, to what's been

24 marked as Toth Exhibit No. 9, have you ever seen this

25 document before, sir?

208

1 A. No.

2 Q. You then did not prepare this document?

3 A. With all those typos in there? No way.

4 (Laughter.)

5 No, I did not.

6 MR. KOBELINSKI: Would you please mark this

7 as the next exhibit?

8 (Thereupon, Exhibit No. 10 was

9 marked for identification.)

10 BY MR. KOBELINSKI:

11 Q. Drawing your attention, sir, to what's been

12 marked as Toth Exhibit No. 10, have you ever seen

13 this document before?

14 A. I could have. I don't recall. It

15 certainly doesn't stick out in my mind as something

16 that I have seen before.

17 Q. While keeping Exhibit 10 in front of you, I

18 draw your attention, then, to Toth Exhibit No. 3 that

19 was marked at yesterday's, during yesterday's

20 session. My recollection of your testimony was that

21 you had not seen that before; is that correct?

22 A. I didn't recall seeing that document

23 before, no.

24 Q. Exhibit 3 and Exhibit 10 appear to have a

25 very similar format. Is this a type of summary that

209

1 the District puts together with regard to papers in

2 progress? Is this some sort of a progress report

3 that's normally put together?

4 A. It appears to me to be a sort of one-page

5 summary of the technical publications that I

6 produced. For what purpose, I really don't know.

7 But this, that's what it appears to be.

8 Q. These were not given to you for your review

9 and approval, then; is that correct?

10 A. I don't recall that, no.

11 Q. You may have seen 10, to the best of your

12 recollection, and 3 you have not seen before?

13 A. I don't recall seeing that before, no.

14 Q. Is there anything inaccurate in either of

15 those exhibits?

16 A. Yes.

17 MR. KOBELINSKI: Would you please mark this

18 as Exhibit 11?

19 (Thereupon, Exhibit No. 11 was

20 marked for identification.)

21 BY MR. KOBELINSKI:

22 Q. How would I go about finding out who does

23 these summaries at the District; is there a means of

24 doing so, to the best of your knowledge?

25 A. I would suggest the place to start would be

210

1 staff responsible for the, sort of the mechanics of

2 the production of these technical publications.

3 Q. Just so I understand your testimony -- a

4 few moments ago when you said yes, was that yes, that

5 summary agrees with what is in your paper or yes,

6 there are differences?

7 THE WITNESS: What was the question?

8 (Thereupon, a portion of the

9 record was read by the reporter.)

10 A. The answer on that question is yes.

11 BY MR. KOBELINSKI:

12 Q. What is inaccurate, sir? Perhaps starting

13 with Toth Exhibit No. 3.

14 A. Well, I did not see the purpose of the

15 study being what's stated there.

16 Q. The purpose of the study in Toth Exhibit

17 No. 3 states: "To evaluate effects of alternate

18 environmental conditions such as backpumping and

19 increased usage of Water Conservation Areas for water

20 storage on Everglades plant communities."

21 How does that differ from the study you did

22 which was published as Technical Publication 87-6,

23 which is also Exhibit No. 4 to this, 5, to this

24 deposition?

25 A. Well, the specific purpose of my study was

211

1 to evaluate the nutrient storage potential of

2 belowground plant tissues of sawgrass and cattail.

3 Now, to the extent to which that affects

4 the purpose as given, that's variable.

5 Q. Just so I understand, from the description

6 you just gave as to the purpose, didn't your study

7 include the nutrient storage capacity of the

8 belowground portions of cattail and sawgrass as

9 impacted by hydrological factors?

10 A. Yes.

11 Q. Is there anything else inaccurate with

12 regard to Toth Exhibit No. 3, the summary?

13 A. I don't recall stating that nutrient

14 storage capabilities of aboveground components of

15 sawgrass are greatly affected by hydrologic regimes.

16 Q. That was not a finding of your study?

17 A. I don't recall that being a finding of my

18 study, no.

19 (Thereupon, there was a pause in

20 the proceedings.)

21 Q. Did your study, however, show the nutrient

22 uptake or the nutrient concentrations of aboveground

23 portions of sawgrass and cattail, given the different

24 hydrological factors at the south levee site and

25 north levee site?

212

1 A. My study did examine nutrient

2 concentrations in aboveground plant tissues, yes.

3 The second conclusion and recommendation

4 states in both water level regimes nutrient uptake

5 and retention by belowground sawgrass tissues of

6 minor importance compared to nutrient influx

7 associated with aboveground production and

8 decomposition of plant litter on the soil surface.

9 In other words, "influx" should be "flux."

10 If I recall, that's the way I stated it.

11 (Pause.)

12 The rest of it looks okay. It may not have

13 been exactly the way I stated things but I would

14 agree with it.

15 Q. Okay. Drawing your attention, then, sir,

16 to Toth Exhibit No. 10.

17 (Thereupon, there was a pause in

18 the proceedings.)

19 A. Okay, what's the question?

20 Q. The same question. Do you agree with the

21 summary or is there anything wrong with that summary

22 of Technical Publication 88-6, which I believe is

23 marked as Exhibit 8 to this deposition?

24 A. The only thing that appears to be wrong,

25 and I guess I would have to verify this, is the study

213

1 period. I believe I had another sampling date in

2 there other than the four given.

3 (Pause.)

4 Yes, there was a fifth sampling period.

5 Q. When was that fifth sampling period?

6 A. January-February 1985.

7 Q. Other than that, Exhibit 10 agrees with or

8 is it an accurate summary of your paper?

9 A. It appears to generally agree with the

10 results and conclusions of my paper, yes.

11 Q. Showing you, sir, now, what has been marked

12 as Toth Exhibit No. 11, I would ask whether or not

13 you have ever seen this document before?

14 For the record, it's a letter dated

15 January 14, 1988 from Mr. Lance Gunderson of the

16 United States Department of Interior, National Park

17 Service, to Mr. Toth.

18 A. Yes, I've seen this.

19 Q. Yesterday we discussed the internal review

20 of your papers dealing with sawgrass and cattail.

21 Was there also an external review of those papers

22 prior to their publication?

23 A. Definitely of the cattail publication. And

24 I can tell you for sure on the sawgrass publication

25 if I refer to the acknowledgements.

214

1 (Pause.)

2 Yes, there was.

3 Q. And with regard to the sawgrass, as long as

4 you have that exhibit out, who did you submit the

5 paper to for an external review?

6 A. L. Gunderson, Lance Gunderson and Ron

7 Hofstetter.

8 Q. And Mr. Gunderson, I believe, is as we just

9 stated or stated a few moments ago, is with the

10 National Park Service. And Mr. Hofstetter?

11 A. University of Miami.

12 Q. Is that Dr. Hofstetter?

13 A. Yes.

14 Q. What is he, his area of, or his specialty?

15 A. Plant ecology work in the Everglades.

16 Q. With regard to Technical Publication 87-6,

17 the study on sawgrass, do you recall at all -- I'm

18 sorry. Before I ask that question.

19 The testimony you just gave, was this with

20 regard to the cattail study or the sawgrass study?

21 A. That was the sawgrass study.

22 Q. Do you recall what Mr. Gunderson's comments

23 were on the draft of the sawgrass study?

24 A. No, I do not.

25 Q. Do you recall -- is that Dr. Hofstetter?

215

1 A. Yes.

2 Q. Do you recall what Dr. Hofstetter's

3 comments were with regard to the sawgrass study?

4 A. The only thing that sticks out is a

5 terminology suggestion regarding the morphology of

6 the plant. And I had originally termed the stock

7 portion of the plant a root stock. And he felt like

8 that was not an accurate term to be used for this

9 particular plant species, and I made the correction.

10 There may or may not have been other

11 comments but I don't recall what those were.

12 Q. To the best of your knowledge, did you

13 incorporate whatever comments or recommended changes

14 that Mr. Gunderson and Dr. Hofstetter made in the

15 final draft of the sawgrass study, Publication Number

16 87-6?

17 A. I incorporated comments that I thought were

18 relevant and/or made modifications according to their

19 comments. And that was sort of the author's

20 discretion there.

21 Q. Do you recall discussing with either

22 Mr. Gunderson the sawgrass report prior to its

23 publication?

24 A. I recall calling him and asking him to

25 provide a review of the document. I don't recall any

216

1 subsequent discussion with him on the manuscript.

2 Q. Do you recall discussing with

3 Dr. Hofstetter the review of the sawgrass study?

4 A. No, I do not.

5 Q. Do you recall whether Mr. Gunderson

6 disagreed with the results of the sawgrass study?

7 A. No, I do not.

8 Q. Do you recall whether he agreed with them?

9 A. No.

10 Q. With regard to Dr. Hofstetter, do you

11 recall whether he disagreed with the results or

12 recommendations of the sawgrass study?

13 A. I believe he agreed with them.

14 Q. Turning your attention, then, to the

15 cattail study, Technical Publication 88-6, also

16 marked as Exhibit 8 to this deposition, who, if

17 anyone, provided outside review of this paper?

18 A. Mr. Gunderson and Dr. Hofstetter.

19 Q. With regard to Mr. Hofstetter, drawing your

20 attention to Toth Exhibit No. 11 -- Exhibit No. 11 is

21 a letter from Mr. Gunderson to you -- does that

22 contain a portion of his comments with regard to the

23 review of the sawgrass study -- excuse me -- cattail --

24 A. Repeat that. I'm sorry. I lost you.

25 Q. Does this letter, Exhibit No. 11, contain a

217

1 portion of his review or comments on the cattail

2 study?

3 A. Yes.

4 Q. In addition to this, did he provide you

5 with any other comments on the study?

6 A. Not that I recall.

7 Q. Could you review the first paragraph of the

8 letter?

9 A. Okay.

10 (Pause.)

11 Q. Having reviewed that, do you recall whether

12 or not he provided you with any additional comments

13 on the study?

14 A. Yes, it appears he provided comments on the

15 manuscript itself.

16 Q. Do you recall whether those comments

17 differed to any great extent with the comments that

18 are made on Exhibit No. 11?

19 A. I don't recall.

20 Q. Do you recall discussing with Mr. Gunderson

21 the cattail study?

22 A. No, I do not.

23 Q. Did you make any revisions or changes to

24 the cattail study in response to any comments made by

25 Mr. Gunderson?

218

1 A. I'm sure I did. I don't recall what those

2 were.

3 Q. With regard to Dr. Hofstetter, do you

4 recall discussing with him the cattail study?

5 A. No.

6 Q. Do you recall whether or not he provided

7 any comments to you on the cattail study?

8 A. Yes. He must have or I wouldn't have

9 acknowledged him.

10 Q. Do you recall what those comments were?

11 A. No, I do not.

12 Q. Do you recall making any revisions or

13 changes to the cattail study as a result of the

14 comments made by Dr. Hofstetter?

15 A. I don't recall.

16 MR. KOBELINSKI: Would you please mark this

17 as Exhibit 12?

18 (Thereupon, Exhibit No. 12 was

19 marked for identification.)

20 BY MR. KOBELINSKI:

21 Q. Showing you, sir, what's been marked as

22 Toth Exhibit No. 12. It's a memorandum from Joel

23 VanArman to a distribution list, dated January 11,

24 1988, the second page of which contains the

25 distribution list, which I believe you will find your

219

1 name on, approximately three-fourths of the way down.

2 The document runs from Bates numbers

3 0104118 through 0104129. And I ask you to take a

4 look at this document and tell me whether or not you

5 have ever seen this document.

6 MR. KOBELINSKI: This is a lengthy

7 document. Why don't we take a quick restroom

8 break?

9 (Thereupon, a recess was taken.)

10 MR. KOBELINSKI: Back on the record.

11 BY MR. KOBELINSKI:

12 Q. Mr. Toth, have you had the opportunity to

13 review what's been marked as Exhibit No. 12 to your

14 deposition?

15 A. Yes.

16 Q. Have you ever seen this document before?

17 A. I don't recall seeing this document. My

18 name is on the distribution list, so it might have

19 been delivered to me. I certainly don't remember

20 reviewing it in any detail at all.

21 Q. Were you at some point a part of the

22 WCA/ENP SWIM Planning Committee?

23 A. No.

24 MR. KOBELINSKI: Would you mark this as 13?

220

1 (Thereupon, Exhibit No. 13 was

2 marked for identification.)

3 BY MR. KOBELINSKI:

4 Q. And for the moment, sir, drawing your

5 attention to the first page of this memo which is

6 addressed to "WCA/ENP SWIM Planning Committee,"

7 particularly with regard to the list contained

8 thereafter. About half the way down your name is

9 listed.

10 Does this help refresh your recollection as

11 to whether or not you were part of that committee?

12 A. I do not recall participating in this

13 committee.

14 Q. And drawing your attention to the second

15 page of Exhibit 13 which, for the record, is a

16 November 29, 1988 memo from Pete Rhoads to WCA/ENP

17 SWIM Planning Committee, a list of names, bearing

18 Bates numbers 0188325 through 0188331.

19 On the second page of that document,

20 0188326, entitled "Proposed Strategy Planning Team."

21 And I would draw your attention, sir, to

22 approximately half way down that list. It says

23 Mr. Al Toth.

24 Were you ever part of a proposed strategy

25 planning team with regard to the Everglades SWIM

221

1 Planning Committee?

2 A. I did not participate in a proposed

3 strategy planning team.

4 MR. KOBELINSKI: Would you please mark this

5 as Exhibit 14?

6 (Thereupon, Exhibit No. 14 was

7 marked for identification.)

8 BY MR. KOBELINSKI:

9 Q. Drawing your attention, sir, to what's been

10 marked as Toth Exhibit No. 14. This is a memorandum

11 dated December 9, 1988, from Jocelyn Branscome to the

12 WCA/ENP SWIM Planning Committee. The memorandum goes

13 from Bates number 0188283 through 0188292.

14 I would ask you, sir, to review this

15 document and tell me whether or not you received

16 this, or you have ever seen this document before?

17 A. I don't recall seeing or reading this

18 document.

19 Q. I would draw your attention to pages

20 0188285 through 0188292. Those then are not your

21 handwritten notes that are contained on those pages?

22 A. No, sir.

23 MR. KOBELINSKI: Please mark this as

24 Exhibit No. 15.

222

1 (Thereupon, Exhibit No. 15 was

2 marked for identification.)

3 BY MR. KOBELINSKI:

4 Q. Drawing your attention, sir, to what's been

5 marked as Toth Exhibit No. 15, which is entitled at

6 the top "SFWMD Issues, WCA/ENP SWIM Planning

7 Committee Meeting 12/12/88." It goes from Bates

8 numbers 0104015 through 0104024.

9 I ask you, sir, to take a look through this

10 document and see whether or not, tell me whether or

11 not you have ever seen this document before?

12 A. No, I don't recall seeing this document.

13 Q. The handwritten notes or interlineations

14 that are contained throughout the document are not

15 yours?

16 A. No, sir.

17 MR. KOBELINSKI: Would you please mark this

18 as Exhibit 16?

19 (Thereupon, Exhibit No. 16 was

20 marked for identification.)

21 BY MR. KOBELINSKI:

22 Q. Drawing your attention, sir, to what's been

23 marked as Toth Exhibit No. 16, a document entitled

24 "General Everglades SWIM Distribution List

25 (Internal)", Revised 8/24/89, bearing Bates numbers

223

1 0116446 through 0116451. I ask you, sir, to look

2 through this document and tell me whether or not you

3 have ever seen this before.

4 A. I don't recall seeing this document.

5 Q. Do you recall participating at all as a

6 member of the WCA/ENP SWIM Planning Committee in any

7 meetings or planning efforts with regard to the

8 Everglades SWIM planning?

9 A. No.

10 Q. The current version or any prior version?

11 A. No.

12 Q. Have you ever drafted or assisted in the

13 preparation of any portions of the current SWIM plan

14 that is at issue in these proceedings?

15 A. Not to my knowledge.

16 Q. Have you ever drafted or participated in

17 the preparation of any portion of any prior SWIM plan

18 during the years 1987 through 1992?

19 A. Well, I don't know how to answer this

20 question. I recall being asked by my division

21 director a number of years back to review some

22 existing literature dealing with the impacts of

23 nutrient inflows to the Water Conservation Areas.

24 And it was my understanding at that time

25 that that came about as a request from the Planning

224

1 Department and was a request in relation to the early

2 development of the SWIM plan.

3 Q. Do you recall approximately what year that

4 was?

5 A. Somewhere in the mid, somewhere in the

6 '80s. I can't say for sure.

7 Q. Other than the literature review that you

8 referenced there -- is that correct, you referred to

9 that as a literature review?

10 A. Yes.

11 Q. Did you ever participate in any other

12 drafting or planning efforts with regard to either

13 this version or any other prior version of the SWIM

14 plan?

15 A. Not to my knowledge.

16 MR. KOBELINSKI: Would you please mark this

17 as Exhibit 17?

18 (Thereupon, Exhibit No. 17 was

19 marked for identification.)

20 BY MR. KOBELINSKI:

21 Q. Showing you, sir, what's been marked as

22 Toth Exhibit No. 17, I ask you to look through this

23 document and tell me whether or not you have ever

24 seen this document before.

25 For the record, the document is entitled

225

1 "Water Quality Impacts on Macrophytes of the Water

2 Conservation Areas." Bearing Bates numbers 0407427

3 through 0407434.

4 A. Yes.

5 Q. Did you prepare this document?

6 A. Yes.

7 Q. Is this the literature review that you

8 referred to a few moments ago?

9 A. Yes.

10 Q. Does this document assist you in

11 determining approximately when you prepared this

12 literature review?

13 A. It would appear it would have had to have

14 been after 1988, or during or after 1988, based upon

15 the citations.

16 Q. Drawing your attention, sir, to the last

17 three pages of that document which is Toth Exhibit

18 No. 17, is this an earlier draft of the first five

19 pages of the document?

20 A. I wouldn't exactly call it a draft, but it

21 is the early stages of that same document, yes.

22 Q. The first five pages, then, Bates numbers

23 0407427 through 0407431, is a later product?

24 A. Using the information contained in those

25 three pages.

226

1 Q. The last three pages?

2 A. Yes.

3 Q. Are the first five pages of Toth Exhibit

4 No. 17 the final draft or the final product with

5 regard to the literature review you referenced?

6 A. I believe so.

7 Q. Are you aware whether or not this review

8 was ever used in any portion of a draft of the

9 Everglades SWIM plan?

10 A. No, I'm not.

11 Q. Are you aware how this review was used, if

12 at all?

13 A. No.

14 Q. Do you know who -- who did you turn this in

15 to?

16 A. My division director at that time, Walt

17 Dineen.

18 Q. Do you know what Mr. Dineen did with it?

19 A. I don't know.

20 Q. Do you have any idea how this was

21 ultimately used, if at all?

22 A. I don't know.

23 Q. Did you cite to your own publications in

24 this?

25 A. No.

227

1 Q. Is there a reason why you did not cite some

2 of that?

3 A. My publications did not deal with water

4 quality impacts on macrophytes of Water Conservation

5 Areas.

6 Q. Were you asked to do any additional

7 studies, for instance, dealing with hydrologic

8 impacts on macrophytes in Water Conservation Areas?

9 A. No, I was not.

10 Q. Other than this report, Toth Exhibit

11 No. 17, do you recall doing anything else assisting

12 in the preparation of or authoring any other portion

13 of a prior Everglades SWIM plan -- this one or a

14 prior one -- or, as with this document, preparing

15 anything that may have ultimately been used in one of

16 the prior drafts?

17 A. No.

18 MR. KOBELINSKI: Would you please mark this

19 as Exhibit 18?

20 (Thereupon, Exhibit No. 18 was

21 marked for identification.)

22 BY MR. KOBELINSKI:

23 Q. Showing you, sir, what's been marked as

24 Toth Exhibit No. 18, I would ask you, sir, to review

25 this document and tell me whether or not you have

228

1 seen this document before.

2 For the record, the first page of this

3 document is entitled "WCA/ENP SWIM Plan/Report

4 December 1988", bearing Bates numbers 124338 through

5 124347.

6 And my question to you, sir, is this

7 document appears to be a compilation or includes more

8 than one document. Have you ever seen this document

9 before?

10 A. I have not seen, none of it except for the

11 last page.

12 Q. And that would be 0124347?

13 A. That's correct.

14 MS. CLEMENTS: Off the record.

15 (Thereupon, a discussion was had

16 off the record.)

17 MR. KOBELINSKI: Back on the record.

18 BY MR. KOBELINSKI:

19 Q. Mr. Toth, you mentioned you have seen

20 0124347, which also bears page number 38. Have you

21 seen this particular page before in the context of or

22 as part of another document which included the other

23 portions of this exhibit?

24 A. No, I have not.

25 Q. Do you have any idea as to why this page

229

1 would have been included with these other pages that

2 are contained in Toth Exhibit No. 18 as one document

3 or as a portion of one document?

4 A. No, I do not.

5 Q. With regard to the page you have seen,

6 Bates number 0124347. As I understand, this is a

7 memo from you with regard to the Kissimmee River

8 Demonstration Project; is that correct?

9 A. It's a memo from Kent Loftin, myself and

10 Jayantha Obeysekekra and Pete Scarlatos regarding the

11 subject.

12 Q. Since the other portions of this exhibit,

13 for the most part, reference the WCA/ENP SWIM Plan,

14 to your knowledge, was the Kissimmee River

15 Demonstration Project ever considered a part of the

16 WCA/ENP SWIM Plan?

17 A. No.

18 MR. KOBELINSKI: Let's take five minutes.

19 (Thereupon, a recess was taken.)

20 MR. KOBELINSKI: Let's go back on the

21 record.

22 BY MR. KOBELINSKI:

23 Q. Mr. Toth, drawing your attention once again

24 for a moment to Toth Exhibit No. 17. I would just

25 like to confirm that with regard to this document,

230

1 "Water Quality Impacts on Macrophytes on the Water

2 Conservation Areas", you did not do any data

3 collection or testing yourself, did you?

4 A. No.

5 Q. This was, as you just merely described

6 before, a mere compilation?

7 A. That's correct.

8 MR. KOBELINSKI: Let's mark this as

9 Exhibit 19.

10 (Thereupon, Exhibit No. 19 was

11 marked for identification.)

12 BY MR. KOBELINSKI:

13 Q. Mr. Toth, showing you what's been marked as

14 Toth Exhibit No. 19, it's a one-page document dated

15 April 12, 1985, regarding program number 8640,

16 "Program Name: Mineral Cycles and Ecological

17 Interrelations in WCA-2A."

18 I ask you to take a look at this document

19 and tell me whether or not you have ever seen this

20 before.

21 A. Yes.

22 Q. Is this memo at all in relation to, does it

23 have any relation to your cattail and sawgrass

24 studies?

25 A. Yes.

231

1 Q. And I draw your attention back to Toth

2 Exhibit No. 2. How does program number 8640 relate

3 to program number 3208?

4 A. 3208 is the subsequent fiscal year version

5 of program 8640.

6 Q. The program itself didn't change, just the

7 number; is that correct?

8 A. In general terms the program did not

9 change. Now, I, without seeing the full description

10 of the program document describing what was in

11 program 8640 versus 3208 -- the general program did

12 not change, no.

13 Q. More particularly, with regard to the

14 sawgrass study and the cattail study that you

15 conducted, did any aspect of that study change as a

16 result of a change from program number 3208 to

17 program number 8640?

18 A. No.

19 MR. KOBELINSKI: Would you please mark this

20 as Exhibit 20?

21 (Thereupon, Exhibit No. 20 was

22 marked for identification.)

23 BY MR. KOBELINSKI:

24 Q. Showing you, sir, what's been marked as

25 Toth Exhibit No. 20, which is a memorandum from

232

1 Michael Maceina to Distribution List, dated March 20,

2 1990, regarding "Analysis of Water Quality and

3 Hydrologic Data from Water Conservation Area 2A,"

4 bearing Bates numbers 0958603 through 0958608.

5 I would ask you, sir, whether or not you

6 have ever seen this document before?

7 A. Yes.

8 Q. What is this document?

9 A. This is a memorandum from Mike Maceina to

10 the distribution list concerning a data analysis that

11 he was asked to conduct regarding water quality and

12 hydrologic data in Water Conservation Area 2A.

13 Q. Did you participate in Mr. Maceina's

14 analysis?

15 A. I didn't participate in the analysis, no.

16 Q. Did you conduct any type of a review of his

17 findings?

18 A. No.

19 Q. Just so I understand, you never provided

20 any comments to him or a review as referred to in the

21 past as to this paper?

22 A. No, I read it, that's all.

23 Q. Just one of the memos you received?

24 A. Yes.

25 MR. KOBELINSKI: Off the record.

233

1 (Thereupon, a discussion was had

2 off the record.)

3 MR. KOBELINSKI: Back on the record.

4 BY MR. KOBELINSKI:

5 Q. Mr. Toth, if I recall from your testimony,

6 you became involved in the Kissimmee River

7 Restoration Project in the summer of 1984; is that

8 correct?

9 A. Yes.

10 MR. KOBELINSKI: Would you mark this as

11 Exhibit 21?

12 (Thereupon, Exhibit No. 21 was

13 marked for identification.)

14 BY MR. KOBELINSKI:

15 Q. Drawing your attention, sir, to what's been

16 marked as Toth Exhibit No. 21, which is, for the

17 record, a document regarding program number 0201,

18 dated November 15, 1985, a program named "Kissimmee

19 River Demonstration Project Environmental

20 Monitoring," bearing Bates 0008276 through 0008277.

21 MS. CLEMENTS: Off the record.

22 (Thereupon, a discussion was had

23 off the record.)

24 BY MR. KOBELINSKI:

25 Q. The question, sir, is have you ever seen

234

1 this document before?

2 A. Yes.

3 MS. CLEMENTS: I'm going to make a general

4 objection as to the Kissimmee River Restoration

5 Project. It's not relevant to the SWIM plan

6 challenge, as they are two different ecosystems.

7 The objection will stand all the way

8 through any Kissimmee River questioning.

9 BY MR. KOBELINSKI:

10 Q. What is program number 0201?

11 A. It is the environmental monitoring program

12 associated with the Kissimmee River Demonstration

13 Project.

14 Q. Were you the program manager of that

15 program?

16 A. Yes.

17 Q. When did you become the program manager?

18 A. I don't recall. I don't recall.

19 Q. Do you know if you were the program manager

20 in 1984 when you first started working on the

21 Kissimmee River Restoration Project?

22 A. I don't know if I was officially the

23 program manager at that time, no.

24 Q. Drawing your attention, sir, to the first

25 paragraph of this document, I believe the third

235

1 sentence states:

2 "This program will evaluate the effects of

3 hydrological changes associated with the

4 demonstration project on benthic invertebrate

5 community structure in river oxbows and vegetation

6 composition, macroinvertebrate production, and fish

7 utilization in the floodplain."

8 Does that description cover the

9 environmental monitoring that was being conducted

10 that you were program manager of?

11 A. Yes.

12 Q. Generally, if you could tell me, what was

13 the purpose of the Kissimmee River Demonstration

14 Project?

15 A. To determine the feasibility of restoration

16 of the lost river resource values and to evaluate the

17 last remaining technical requests regarding the

18 recommended restoration alternative.

19 MR. KOBELINSKI: Read that back, please.

20 (Thereupon, a portion of the

21 record was read by the reporter.)

22 BY MR. KOBELINSKI:

23 Q. And how was that done?

24 A. It was done through a combination of field

25 monitoring studies of the components of the project

236

1 and through modeling studies of, both physical and

2 mathematical modeling studies of the hydrology of the

3 system.

4 Q. Could you briefly give me a history, very

5 briefly, the history of the Kissimmee River and how

6 it came about to be channelized so we can put what

7 you're talking about in context?

8 A. Kissimmee River channelization was the

9 result of a federally authorized flood control

10 project for central Florida.

11 Channelization occurred in the '60s,

12 approximately between 1962 and 1971. The

13 channelization occurred in association with

14 regulation of the upper Kissimmee Lakes. The primary

15 purpose of the channelization in that upper lakes

16 regulation was to provide flood control for the

17 developing region around the upper Kissimmee Lakes.

18 Q. You say channelization. Are we talking

19 about an actual straightening of the river occurred?

20 A. Channelization in this case refers to the

21 excavation of a canal through the Kissimmee River

22 valley.

23 Q. Were there any structures in between the

24 Kissimmee, Lake Kissimmee and Lake Okeechobee?

25 A. Yes, six water control structures were

237

1 constructed along the canal site.

2 Q. What impact did the channelization

3 generally have upon the Kissimmee River and the

4 surrounding marsh lands?

5 THE WITNESS: Repeat the question, please.

6 (Thereupon, a portion of the

7 record was read by the reporter.)

8 A. Channelization of the Kissimmee River had a

9 number of documented impacts on the river and

10 floodplain resources, including: Drainage of

11 wetlands; impacts to the functionality of the

12 remaining floodplain wetlands; impacts on water

13 utilization of the floodplain ecosystem; impacts of

14 wading bird utilization of the river floodplain

15 ecosystem; impacts on river fish communities; impacts

16 on river benthic invertebrate communities; impacts on

17 the physical habitat structure of the remnant river

18 channel.

19 And, in general terms, replaced an

20 interacting river floodplain ecosystem with a series

21 of reservoirs of considerably reduced environmental

22 values.

23 Q. With regard to the Kissimmee River

24 Demonstration Project, did it involve a physical

25 alteration of the channelized Kissimmee River for

238

1 purposes of determining impacts of restoration?

2 A. There were physical components of the

3 demonstration project that were intended to evaluate

4 the effects of various restoration measures.

5 Q. What were those physical aspects?

6 A. Construction of three weirs across the C-38

7 canal. The construction of a flow-through marsh and

8 impounded marsh in the northern portion of the

9 floodplain. The modification of the S-65B water

10 control structures to allow for increasing the water

11 elevations within the pool B impoundment.

12 The installation of baffle blocks below the

13 S-65B structure to accommodate, or to prevent erosion

14 below that structure associated with discharge

15 through the structure.

16 The installation of culvert leading from

17 the, a remnant section of river channel, leading from

18 that remnant section of river channel into an

19 impoundment known as the Avon Park or Air Force

20 bombing range marsh.

21 The degradation of a small berm or levee

22 that had originally been constructed adjacent to a

23 river channel adjacent, at the lower portion of

24 pool B.

25 The construction of an overflow weir

239

1 blocking a remnant river channel from C-38.

2 I believe that's all.

3 Q. What's a weir?

4 A. The weirs used during the Kissimmee River

5 Demonstration -- there were two types of weirs, two

6 types of structures constructed in the demonstration

7 project that were termed weirs.

8 The weirs that were constructed in C-38

9 were sheet pile structures, dam-like structures

10 across the canal, that functioned to divert water

11 from the canal into an adjacent section of remnant

12 river channel whenever there was water being

13 discharged through the canal system.

14 The other weir that was constructed, the

15 other type of weir that was constructed during the

16 demonstration project was the overflow weir. And

17 that structure was also made of sheet pile metal, but

18 had a different function. This function was to block

19 the connection between the remnant river channel and

20 C-38.

21 Q. What was the purpose of construction of the

22 marsh you referred to?

23 A. The flow-through marsh?

24 Q. Yes.

25 A. The purpose of the flow-through marsh was

240

1 to evaluate the potential for restoring biological

2 resources and functional values of a drained

3 floodplain, a drained section of floodplain.

4 This was a, one of the several recommended

5 restoration measures that had been developed in, or

6 presented in 1984.

7 Q. Could you just generally tell me the types

8 of environmental monitoring or studies you did with

9 regard to the project?

10 A. In the floodplain, I evaluated effects of

11 the reflooding of drain floodplain on plant

12 communities. I evaluated the effects of

13 manipulations in water levels on plant communities

14 within, within the remaining impounded portions of

15 the floodplain.

16 I evaluated the effects of those same

17 hydrologic manipulations on invertebrate,

18 macroinvertebrate production within the floodplain.

19 I evaluated the effects of water level

20 manipulations on fish utilization and densities

21 within an impounded section of floodplain.

22 I evaluated the effects of the

23 reintroduction of flow on benthic invertebrate

24 communities in remnant river channels.

25 I evaluated the effects of reintroduction

241

1 of flow on bottom sediment characteristics in remnant

2 river channels.

3 I monitored dissolved oxygen regimes in

4 C-38 remnant river channels during the course of the

5 demonstration project.

6 I believe that summarizes the scope of my

7 studies.

8 Q. When you say C-38, you are referring to the

9 channelized Kissimmee River; is that correct?

10 A. C-38 is the canal that was constructed

11 through the valley.

12 Q. In your testimony a few moments ago you

13 stated a number of -- you used the terms "I

14 conducted" and "I monitored." Were you, as a program

15 manager, merely overseeing this work or did you do

16 the work that you just described?

17 A. I did the work.

18 Q. Other than the hydrological studies that

19 you just referenced to the difference in flow, did

20 you do any nutrient impact studies?

21 A. No.

22 Q. Did you have someone working for you that

23 was doing nutrient impact studies?

24 A. No.

25 Q. To your knowledge, was anyone doing

242

1 nutrient impact studies with regard to the Kissimmee

2 River Demonstration Project?

3 A. Can you define what you mean by "nutrient

4 impact studies"?

5 Q. Was anyone doing any kind of nutrient

6 uptake analysis with regard to the Kissimmee River

7 Demonstration Project?

8 A. No.

9 Q. As I understand it, then, the studies that

10 were being conducted were restricted to merely the

11 restoration of flows and/or hydrologic factors upon

12 the various flora and fauna you referred to?

13 A. The reintroduction of flows. I wouldn't

14 call it restoration of flows.

15 MR. KOBELINSKI: Would you mark this as

16 Exhibit 22?

17 (Thereupon, Exhibit No. 22 was

18 marked for identification.)

19 BY MR. KOBELINSKI:

20 Q. I show you, sir, what's marked as Toth

21 Exhibit No. 22. It's a memorandum from yourself to

22 Steve Davis dated April 7, 1987, bearing Bates

23 numbers 0026069 through 0026104.

24 I would like you to take a look at this

25 document and tell me whether or not you have ever

243

1 seen this document before, sir?

2 A. Yes.

3 Q. Were you the author of this memorandum?

4 A. Yes.

5 Q. What was the purpose of this memorandum?

6 A. The purpose of this memorandum was to

7 provide recommendations regarding floodplain and

8 Kissimmee River tributary water shed enhancement

9 activities that would enhance the biological

10 productivity and fish and wildlife values of those

11 areas.

12 Q. Is this a report as to a study that was

13 conducted?

14 A. No.

15 Q. With regard to the first paragraph on the

16 first page there under "General", you discussed two

17 premises. Were those premises based upon any type of

18 field work or studies you had conducted?

19 A. No.

20 Q. Did you create or come up with those

21 premises?

22 A. Yes.

23 Q. How did you come up with those premises?

24 A. Based upon the literature.

25 Q. Given that response, were these premises

244

1 based upon literature search that you conducted?

2 A. I wouldn't say there was an extensive

3 literature search conducted but rather my knowledge

4 of the scientific literature on this subject.

5 Q. Were you ever involved in LOTAC 1 or

6 LOTAC 2?

7 A. No. Let me clarify that. Unless this made

8 me involved in LOTAC 1 or 2. And I don't know.

9 Q. Other than with regard to Exhibit 22, were

10 you ever involved in LOTAC 1 or 2?

11 A. No.

12 Q. Are you aware of whether or not Mr. Davis

13 used these recommendations with regard to LOTAC?

14 A. Mr. Davis presented these recommendations

15 as part of the documents he was asked to produce

16 regarding some LOTAC initiative.

17 Q. Produce to whom?

18 A. I believe this came about from a request

19 from the executive office.

20 Q. Produced then to the executive office?

21 A. Yes.

22 Q. Do you know whether or not this was used

23 with regard to LOTAC?

24 A. No, I do not.

25 Q. Do you know whether or not Mr. Davis

245

1 incorporated this in anything that was ultimately

2 used in LOTAC?

3 A. No. No, I do not.

4 Q. Do you know whether or not he incorporated

5 this with regard to any other type of report?

6 A. Other than the one I just described, no.

7 Q. Was that a particular report name or just a

8 compilation Mr. Davis was putting together?

9 A. Just a compilation.

10 Q. Did you provide any other additional

11 portions of that compilation?

12 A. No.

13 MR. KOBELINSKI: Would you please mark this

14 as Exhibit 23?

15 (Thereupon, Exhibit No. 23 was

16 marked for identification.)

17 BY MR. KOBELINSKI:

18 Q. Drawing your attention, sir, to what's been

19 marked as Toth Exhibit No. 23. I ask you, sir, to

20 look through this document and tell me whether or not

21 you have ever seen it before.

22 It's a document marked "Preliminary - Not

23 for Distribution, Draft for Internal Review, Cattail

24 Expansion In Response To Nutrient Loading", by Nancy

25 H. Urban, April 1990, bearing Bates numbers 0474102

246

1 through 0474106.

2 (Thereupon, a discussion was had

3 off the record.)

4 BY MR. KOBELINSKI:

5 Q. Have you ever seen this before, sir?

6 A. Yes.

7 Q. What is this document?

8 A. This is a draft of a report regarding a

9 study that Nancy Urban was conducting on cattail

10 expansion in Water Conservation Area 2A.

11 Q. Did you assist in any way in the study of

12 Miss Urban's in Water Conservation Area 2A?

13 A. No.

14 Q. Did you provide a review of her report?

15 A. I provided a review of this draft of, of

16 this draft.

17 Q. Are those your, the handwritten notes that

18 are contained throughout the document, are those your

19 handwritten notes?

20 A. Yes.

21 Q. For the purpose of the record, due to the

22 copy quality, could you go through and read for us

23 your comments? Because in some situations I could

24 not interpret them.

25 A. All of them?

247

1 Q. Well, why don't we start with the first

2 page. I think we can quickly go through and catch

3 them as they are.

4 A. Okay.

5 Q. Go ahead, with regard to the first page,

6 sir.

7 A. "Nancy, if you like, I would be glad to

8 discuss the comments that I made. Two areas concern

9 me. One, your use of statistics in relating cattail

10 densities to nutrients. I am not sure what you did

11 and maybe a clarification would satisfy my concern.

12 "The other problem area was your discussion

13 of cattail outcompeting" -- with the word

14 outcompeting underlined -- "sawgrass. I don't think

15 I see any evidence of this. See my comments. I made

16 some editorial suggestions also. Lou."

17 Q. Turning to the second page. With regard to

18 the comment in the upper righthand corner, could you

19 go ahead and tell us what that comment is?

20 A. "S-7 inputs are not relevant to your study.

21 Redo and report only S-10 and rainfall inputs."

22 Q. That's rainfall?

23 A. Yes.

24 Q. Turning to the next following page and

25 drawing your attention to the comment that is on the

248

1 lefthand side, the first comment there starting with

2 "what."

3 A. That reads: "What about '89? You need to

4 somehow indicate how statistics were used."

5 Q. What about the comment directly below that

6 starts with: "I don't see any..."

7 A. "I don't see any response. Densities are

8 same as '86."

9 Q. With regard to the comment that's on the

10 righthand side, righthand column, says something

11 '87-88; what is that?

12 A. "But '87-88 was wet."

13 Q. Thank you. And the column directly below

14 that?

15 A. "I'm not sure this ANDOVA is the

16 appropriate test to use if you're going to look at

17 year-to-year changes."

18 Q. With regard to the one directly below that,

19 "This relationship, if there is one, seems to be more

20 asymptomatic...."

21 A. Asymptotic.

22 Q. Asymptotic. What does it say below that?

23 A. "...than linear."

24 Q. "An asymptotic function may be more

25 appropriate."

249

1 A. That's correct.

2 Q. And what does it say below that?

3 A. Well, part of this was not reproduced but

4 it says: "It also makes more sense" -- and I think

5 that probably says "ecologically."

6 Q. With regard to the bottom comment there, I

7 think it says: "Was 3.5 ('87-88) included in

8 this...." What is that word there?

9 A. "Correlation."

10 Q. Correlation. Okay. With regard to the

11 following page, is there a portion of the note in the

12 lefthand column that is missing?

13 A. Yeah, there appears to be at least one line

14 on top missing.

15 Q. Do you recall what that line was?

16 A. No, I do not.

17 Q. Do you know whether you have a better copy

18 of this page in your files?

19 A. If I do, it would have been within the

20 files that I supplied to you.

21 Q. Okay. If you could check your files and if

22 you have a better copy, if you could just photocopy

23 it or have a photocopy sent to us I would appreciate

24 it.

25 With regard to the note below that, on the

250

1 lefthand side.

2 A. The lefthand portion of that comment is

3 missing.

4 Q. Are you able to tell what the comment is?

5 A. No, I can't. I can tell you the words that

6 are there, some of the words that are there, but I

7 can't see the --

8 Q. What are the words that are there?

9 A. The first word, I don't know what that is,

10 I don't know what the second one is.

11 The next reads, bottom of previous page, I

12 believe.

13 Q. Was there also a note in the upper

14 righthand corner of this -- drawing your attention to

15 the first page of this document.

16 A. Yes.

17 Q. Is that a note that you made?

18 A. No.

19 Q. Do you recall what that, who made that

20 note?

21 A. Yes. It's a note from Nancy asking me to

22 review the document.

23 Q. Did you review any subsequent draft of this

24 document?

25 A. No, I did not.

251

1 Q. Did you provide any additional comments to

2 Miss Urban with regard to this document?

3 A. I believe we discussed my comments

4 subsequent to my giving her this, these handwritten

5 notes.

6 Q. With regard to the initial comment on the

7 first page of this document, where you state "Your

8 use of statistics in relating cattail densities to

9 nutrients, I'm not sure what you did and maybe a

10 clarification would satisfy my concern." What was

11 your concern with with regard to relating cattail

12 densities to nutrients?

13 MS. CLEMENTS: I don't think that's what it

14 says there. It says the use of statistics in

15 relating cattail densities to nutrients.

16 MR. KOBELINSKI: Okay. Did I misstate what

17 it said?

18 MS. CLEMENTS: I think you stated what was

19 his concern about relating cattail densities to

20 nutrients. It was the use of the statistic.

21 MR. KOBELINSKI: I'm sorry.

22 BY MR. KOBELINSKI:

23 Q. What was your concern with regard to the

24 use, with regard to Miss Urban's use of statistics in

25 relating cattail densities to nutrients?

252

1 A. Well, my concern was over the statistics

2 that were used. I don't recall what the concern is.

3 If I were to read through the document I probably

4 could describe to you what the concern is or was.

5 Q. If you could take a quick review of the

6 document.

7 (Thereupon, there was a pause in

8 the proceedings.)

9 THE WITNESS: Back on the record.

10 MR. KOBELINSKI: Let's go back on the

11 record.

12 A. This document is incomplete. All the pages

13 to this draft are not here. However, in reviewing

14 this, I think what I meant by that first general

15 comment and my concern about the use of statistics is

16 that I didn't understand what statistics were used or

17 how she was using statistics in the comparisons.

18 Many times she, throughout the text, she

19 would refer to "significant differences" or

20 "significantly higher", and it wasn't clear to me as

21 to what statistics were used and how she was using

22 the statistics.

23 And the comment basically was to provide a

24 better, a clarification of her use of statistics.

25 Q. Do you recall what portions of this

253

1 document are missing?

2 A. Well, they are, the beginning of the

3 document is missing, I believe. This, I don't think

4 this is the first page of the document right here

5 (indicating).

6 Q. What you're actually referring to is the

7 second page of the exhibit?

8 A. That's right.

9 Q. Bearing Bates number 0474103?

10 A. That's right. I don't believe that is the

11 first page of the document.

12 A. There is at least one page missing between

13 Bates number 0747104 and 0747105. And I can't say

14 how many other pages were or were not missing. But

15 there is at least some pages missing from the

16 document.

17 Q. Do you know whether you have a complete

18 copy of this document?

19 A. I don't know. If I do, it's within my

20 files that I have supplied to you.

21 Q. If you could check to see if there is any

22 additional copy.

23 With regard to the second listed concern

24 you have there, I'm referring to the first page,

25 where it states: "The other problem area was your

254

1 discussion of cattail outcompeting sawgrass. I don't

2 think I see any evidence of this. See my comments."

3 What did you mean by that statement?

4 A. The comments, that comment reflects the

5 fact that this study was not a study of competition

6 between these two species. To do that type of study

7 would have required a different sampling design than

8 the one that was employed in this study. You can

9 infer competition from some of the data provided in

10 this study or in this manuscript, but it's not a

11 direct measurement of competition.

12 Q. And by that, are you referring to the

13 comment in the righthand margin on Bates 0474105,

14 which states: "This does not show cattails

15 outcompeting sawgrass or that cattail can increase at

16 these nutrient levels"?

17 A. Yes.

18 Q. What difference in the testing format would

19 you have to do to determine whether or not sawgrass

20 outcompetes, cattail outcompetes sawgrass?

21 A. You would have to establish an experimental

22 design in which you had cattail and sawgrass growing

23 together, cattail growing alone, and sawgrass growing

24 alone.

25 That type of experimental design with some

255

1 treatment applied to it would be one way of measuring

2 competition between these two species, at least one

3 type of competition between these two species.

4 Q. To your knowledge, did Miss Urban's study

5 take into consideration whether there were other

6 factors impacting the expansion of either cattail or

7 sawgrass?

8 A. Other factors other than what?

9 Q. Other than nutrients.

10 A. Well, there is reference to fire and there

11 is reference to a vine growth that appeared to have

12 some impact on the results. Those are at least two

13 other factors that were evaluated in this manuscript.

14 Q. Are you aware whether or not Miss Urban

15 took into consideration changes in hydrologic factors

16 which may have impacted either cattail growth or

17 sawgrass growth?

18 A. I don't recall. And again, since this is

19 not a full, complete manuscript, I can't completely

20 review it and say one way or another. But I don't

21 recall.

22 Q. Given the studies that you have done on

23 cattail in Water Conservation Area 2A, would you need

24 to somehow either take into consideration hydrologic

25 factors or impacts upon the plants in doing a study

256

1 on nutrient cattail expansion in response to nutrient

2 loading, or would you need to somehow select a site

3 where those hydrologic factors would not impact

4 either the cattail or the sawgrass?

5 A. Would you repeat the question, please?

6 Q. I'll withdraw it.

7 Would selection of a site for the purpose

8 of this study similar to your South Levee Cattail

9 site have impacted on the results of this study?

10 MS. CLEMENTS: Objection; speculation.

11 THE WITNESS: What was the question?

12 (Thereupon, a portion of the

13 record was read by the reporter.)

14 MS. CLEMENTS: Renew my objection.

15 MR. KOBELINSKI: Let me withdraw the

16 question.

17 BY MR. KOBELINSKI:

18 Q. Your prior study as to both cattail and

19 sawgrass, in your prior testimony you stated that

20 hydrologic factors impacted the growth

21 characteristics of sawgrass; is that correct?

22 A. Yes.

23 Q. In conducting a study as to cattail

24 expansion in response to nutrient loading, would you

25 have to then take into consideration hydrologic

257

1 factors in determining whether or not cattail

2 expansion is in response to nutrient loading or other

3 factors?

4 MS. CLEMENTS: Objection; speculation.

5 THE WITNESS: I would say that a good

6 experimental design would take into account

7 hydrologic factors.

8 BY MR. KOBELINSKI:

9 Q. Are you aware whether or not Miss Urban

10 took into account hydrologic factors in her study?

11 A. I'm not aware of that.

12 Q. Did you review her report with that factor

13 in consideration?

14 MS. CLEMENTS: What factor in

15 consideration?

16 BY MR. KOBELINSKI:

17 Q. Hydrologic factors.

18 A. No, I reviewed her report in the context of

19 the study, of the scope of the study as it was

20 designed.

21 Q. Are you aware of the characteristics of the

22 sampling sites that Miss Urban used?

23 MS. CLEMENTS: I think he previously stated

24 that part of the paper is missing, and that

25 part, apparently, has a listing of the sampling

258

1 sites on it.

2 BY MR. KOBELINSKI:

3 Q. My question as to whether or not you're

4 aware of the sampling sites still stands.

5 A. To the best of my recollection, I have

6 physically been at some of the sites that Miss Urban

7 used in this study. Not during the course of time in

8 which she conducted the study but I have been at

9 those locations in the past.

10 Q. Were they located in Water Conservation

11 Area 2A?

12 A. Yes.

13 Q. Were there any located outside of Water

14 Conservation Area 2A?

15 A. Not that I recall.

16 Q. Which sites, or approximately where in

17 Water Conservation Area 2A do you recall visiting

18 sites that she had used in the study?

19 A. Well, I know I've been to the 217 gauge, so --

20 I think that's referred to as 217. She refers to

21 sites B and D. And I suspect that I have been to one

22 or both of those sites in the past.

23 Q. Do you recall where they are located?

24 A. Which sites? The 217 gauge site?

25 Q. B and D.

259

1 A. Oh, B and D. Approximate location, yes.

2 Q. And where is that approximate location?

3 A. In the, somewhere south of my North Levee

4 Sawgrass and Cattail site; in between that and the

5 site, the 217 gauge. Other than that, I couldn't put

6 a more precise location on that.

7 Q. Is that B or D you're just referring to?

8 A. I believe both of those were in that

9 general area.

10 Q. Are you aware whether or not the hydrologic

11 features at sites B and D are the same as those at

12 sites at the 217 gauge?

13 A. No, I'm not.

14 Q. Are you familiar with any of the other

15 sites as to what their hydrologic features were?

16 A. No.

17 MR. KOBELINSKI: Let me quickly go through

18 my notes.

19 (Pause.)

20 BY MR. KOBELINSKI:

21 Q. Mr. Toth, to your knowledge, did Miss Urban

22 use either your South Levee site or your North Levee

23 cattail site for purposes of her study?

24 A. No.

25 MR. KOBELINSKI: I would ask if you would

260

1 review your files to see if you have a more

2 complete copy (indicating).

3 MS. CLEMENTS: We'll look through and see

4 what we have.

5 MR. KOBELINSKI: Okay. I have no

6 additional questions at this time. If you do

7 locate another copy, I would want to take a look

8 at it. I don't really anticipate I would have

9 any additional questions, but if I do, they

10 would be a minimum.

11 But I have no additional questions at this

12 time.

13 MS. CLEMENTS: We're going to go ahead and

14 read on that.

15 MR. ROSENBERG: I do have a question or

16 two. What's Exhibit 4 and what's Exhibit 8? I

17 don't seem to have them.

18 MS. CLEMENTS: They are the Technical

19 Publications.

20 MR. ROSENBERG: Okay. I have 8.

21 MR. KOBELINSKI: 4 is the early draft of

22 the cattail.

23 MR. ROSENBERG: All right. Here it is. I

24 have no questions.

25 (Deposition concluded at 12:27 p.m.)

261

1 ~1B&dDC E R T I F I C A T E ~1B&d@

The State of Florida )

3 County of Palm Beach. )

I, Criss D. Bertling, Court Reporter and

5 Notary Public, State of Florida at large, do hereby

certify that LOUIS A. TOTH was by me first duly sworn

6 to testify the whole truth; that I was authorized to

and did report said deposition in stenotype; and that

7 the foregoing pages, being Volume III, numbered from

187 to 261, inclusive, are a true and correct

8 transcription of my shorthand notes of said

deposition.

I further certify that the said deposition

10 was taken at the time and place hereinabove set forth

and that the taking of said deposition was commenced

11 and completed as hereinabove set out.

12 I further certify that I am not attorney or

counsel of any of the parties, nor am I a relative or

13 employee of any attorney or counsel or party

connected with the action, nor am I financially

14 interested in the action.

15 The foregoing certification of this

transcript does not apply to any reproduction of the

16 same by any means unless under the direct control

and/or direction of the certifying reporter.

In witness whereof I have hereunto set my

18 hand and seal this 30th day of October, 1992.

_______________________________

21 Criss D. Bertling

Notary Public, State of Florida

22 at large. My commission expires

June 30, 1995

262

1 ~1B&dDC E R T I F I C A T E ~1B&d@

4 The State of Florida, )

5 County of Palm Beach. )

8 I hereby certify that I have read the

9 foregoing deposition by me given, and that the

10 statements contained therein are true and correct to

11 the best of my knowledge and belief.

13 Dated this ____ day of ______________, 1992.

18 _________________________

19 LOUIS A. TOTH

263

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23 I hereby make the above changes to the transcript of my depo-

sition, Volumes I, II and III, taken October 26-27, 1992.

______________________________

25 DATE:__________________ LOUIS A. TOTH

264

265