M....Bacchus Exhibit 1, Resume 4 Bacchus Exhibit 2, Article 4 Bacchus Exhibit 3, Hoeveler Ruling 114...

EXCERPT OF PROCEEDINGS

DIRECT TESTIMONY OF DR. SYDNEY BACCHUS

OFFICE OF THE HEARING EXAMINER

LEE COUNTY, FLORIDA

CASE NO: DCI-2006-00007

APPLICANT: ESTER0 GROUP IPD

Before Diana M . Parker, Chief Hearing Examiner,

in the above-styled action held at the Examiner's

Hearing Room, 1500 Monroe Street, Second Floor, Fort

Myers, Florida, on the 20th day of July, 2007.

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I N D E X PAGE

EXAMINATION (DR. SYDNEY BACCHUS) 7 BY MR. HART

VOIR DIRE EXAMINATION 13 BY MS. GRADY

VOIR DIRE EXAMINATION 4 1 BY MR. CICCARONE

DIRECT EXAMINATION (DR. SYDNEY BACCHUS) 4 7 BY MR. HART

E X H I B I T S

BACCHUS EXHIBITS - MARKED FOR IDENTIFICATION

Bacchus Exhibit 1, Resume 4

Bacchus Exhibit 2, Article 4

Bacchus Exhibit 3, Hoeveler Ruling 114

Bacchus Exhibit 5, Powerpoint Documents 134

JULY 20, 2007

(Thereupon, the following proceedings were had:

* * * * E X C E R P T * * + *

(Bacchus Exhibit 1, Resume - marked for

identification.)

(Bacchus Exhibit 2, Article - marked for

identification.)

MADAM HEARING EXAMINER: Let's go back on

the record.

Okay. We have finished up applicant's

presentation and we are going to take testimony

and evidence from Mr. Hart's witnesses due to

some time constraints on their part.

AND then after we finish with his

witnesses, we will take testimony from county

staff. If Mr. Hart's witnesses take most of the

afternoon, we will stop at some point to take

some public input.

Do I have anybody here who wishes to speak

before the close of the hearing today? One, two

three. Three people?

Okay. All right. Let's get started with

Mr. Hart's witnesses then.

MR. HART: Madam Hearing Examiner, I


appreciate the opportunity to put these witnesses

on out of order.

Our first witness is Dr. Sydney Bacchus.

Dr. Bacchus is an expert in hydroecology, plant

physiology and pathology, water chemistry, aerial

photo interpretation, and wetlands and aquatic

ecology. She's testified numerous times before

bodies such as this, before courts.

What I would like to do is ask Dr. Bacchus

to come up and then I'll ask her a few questions

which hopefully will qualify her.

MADAM HEARING EXAMINER: Okay. I got Kim

here, I got Lee here -- Sam Lee here. Okay.

MR. HART: The first thing I should

probably do is provide the hearing examiner and

staff with a copy of --

MADAM HEARING EXAMINER: That's all right,

it'll pick you up right there.

MR. HART: I'm going to provide you with a

copy of her CV.

MADAM HEARING EXAMINER: Okay.

MR. HART: The applicant's attorney already

has this.

MADAM HEARING EXAMINER: Thank you. Hang

on a second, I have to find my witness list - - my


exhibit list. It disappeared on me somewhere. I

got so many papers up here.

Here it is. Okay. The name.

THE COURT REPORTER: Thank you.

MADAM HEARING EXAMINER: Okay. Dr. Bacchus

is under oath; is that correct?

DR. BACCHUS: No, I have not been sworn in,

Your Honor.

MADAM HEARING EXAMINER: Okay. Raise your

right hand.

You solemnly swear or affirm the testimony

you're about to give today will be the truth, the

whole truth and nothing but the truth?

THE WITNESS: Yes, I do, Your Honor.

Thereupon,

DR. SYDNEY BACCHUS,

after having been first duly sworn, was examined and

testified as follows:

MADAM HEARING EXAMINER: Okay. State your

name, please, for the record.

THE WITNESS: My name is Sydney Bacchus,

that's S-Y-D-N-E-Y. B-A-C-C-H-U-S.

MADAM HEARING EXAMINER: All right.

DIRECT EXAMINATION (DR. SYDNEY BACCHUS)

BY MR. HART:


Q. Dr. Bacchus, have you completed graduate level

courses in hydrology?

A. Yes.

Q. In geochemistry?

A. Yes, I have.

Q. Water chemistry?

A. Yes.

Q. Ecology?

A. Yes.

Q. Plant pathology?

A. Yes.

Q. Plant physiology?

A. Yes.

Q. Remote sensing?

A. Yes.

Q. And those were all graduate level courses?

A. Yes. Yes, sir.

Q. What was the field of your doctoral program?

A. My field was hydroecology. It's a

multidisciplinary field. In this case it involved

hydrology, pathology, and ecology.

Q. Have you conducted scientific research in the

fields that you have mentioned having studied?

A. Yes, in all of those fields.

Q. Have you routinely reviewed and relied on


scientific publications and data in various fields of

expertise which you've just described?

A. Yes, in both my research and my publications.

Q. Okay. Have you testified in proceedings such as

this previously?

A. Yes, I have, on numerous times, extending back

to the late 1970s, both within agencies and after

leaving and returning for my doctoral degree outside of

agencies.

Q. Have you testified in court on the subjects

you'll be talking about here today?

A. Yes, both in state court and federal court.

Q. Have you received research grants to do the

scientific research that you've mentioned?

A. Yes, I have. I've received grants actually from

the State of Florida, as well as federal agencies

including the U.S. Geological Survey and the U.S.

Forest Service.

THE COURT REPORTER: I'm sorry, the U.S.?

THE WITNESS: U.S. Forest.

MADAM HEARING EXAMINER: Forest.

MR. HART: If it's all right, I'd like

to -- will that microphone pick her up okay?

MADAM HEARING EXAMINER: Yes.

THE WITNESS: I just need to remember to


face that direction. I'm sorry.

MR. HART: I just noticed that all of them

are sticking straight up.

MADAM HEARING EXAMINER: Yeah, that's --

they're not like this. That's omnidirectional.

You have to speak into that little sucker or it

doesn't pick you up. These are multidirectional.

I don't know what they call the word, you know, I

mean. But they hear all the way around, anyway.

MR. HART: The omni.

BY MR. HART:

Q. Dr. Bacchus, have you been published?

A. Yes. I have in excess of 30 peer reviewed

publications, scientific peer reviewed papers.

Q. And would you tell the hearing examiner the

areas that you intend to testify on today, the general

areas of scientific knowledge that you will be speaking

to?

A. I will be speaking primarily about the

environment -- excuse me, the environmental impacts,

specifically of mining and mining in the DRGR. And I

will also be speaking to some extent about water

quality issues.

MADAM HEARING EXAMINER: And that's water

quality in a mining situation.


THE WITNESS: Yes, in a mining situation.


THE WITNESS: And also with respect to the

general changes in the environment.


MR. HART: Madam Hearing Examiner, I would

like to tender Ms. Bacchus as an expert in the

fields of hydroecology, plant physiology and

pathology.

MS. GRADY: Could you be slower, please?

MADAM HEARING EXAMINER: Hydroecology.

MR. HART: Plant physiology and pathology,

water chemistry, aerial photo interpretation,

botany, and wetlands and aquatic ecology.

MADAM HEARING EXAMINER: Okay. I'm going

to have some questions on a couple of these.

All right. The plant physiology, the

aerial photograph interpretation and the botany,

where do they come in as far as, you know, your

expertise in these areas? You're being offered

as an expert in those areas. And in the

discussion that you had with your attorney, I

don't recall hearing anything regarding those

specific topics.

THE WITNESS: All right. I believe he


attempted to compress my background. It is

discussed in more detail in my CV, but basically

those aspects are related to the ability to make

assessments or determinations or to form opinions

about not only the condition of natural wetlands

and uplands, but also the cause of those

conditions.

They were fields that were part of my

Master's research and have been part of my

doctoral research, and formed an integral part of

research that led to various publications related

directly to what I will be testifying about

today.

MADAM HEARING EXAMINER: Okay. So you have

experience in those as it relates to a wetland, a

determination of conditions in a wetland and the

cause for those conditions in a wetland.

Do those -- does it extend beyond the

wetland area or is it all -- all of your

expertise or experience in just a wetland

setting?

THE WITNESS: No, Your Honor. The - - in

the types of wetlands that I specifically focused

on in my doctoral research, are depressional

wetlands and those depressional wetlands occurred

MARTINA REPORTING SERVICES ( 2 3 9 ) 344-6545

throughout the southeastern coastal plane. They

are characteristic of the entire southeastern

coastal plane.

And with respect to those wetlands, they

are closely associated with uplands communities

that surround them.

In fact, they characteristically during

historic high water times, they historically

flowed as sheet flow, not only through those

depressional wetlands, but across the surrounding

upland areas.

So those two community types, the community

types I will be discussing today in my testimony,

are intimately connected to those depressional

wetlands.

MADAM HEARING EXAMINER: Okay. Any

objection from the county attorney?

MS. COLLINS: No.

MADAM HEARING EXAMINER: Okay. Voir dire?

MS. GRADY: I have actually a number of

questions. I want to -- I guess what I ' m going

to say is I'm recognizing the compressed period

of time. There are fields here that I have never

even heard of having an expertise in or qualified

as an expert.


So, what I would suggest, so you have the

ability to hear, is I at least get some basic

information, like I would like to know the actual

list of litigation in state and federal court,

the case name, and then what you were qualified

as -- what expertise was qualified in those court

cases.

MADAM HEARING EXAMINER: Can we kind of

keep that to ten or under? I don't want to sit

here for three hours while --

VOIR DIRE EXAMINATION

BY MS. GRADY:

Q. Let's start with Florida.

A. Okay. Well, they were all in Florida, all of

the testimony.

Now, I'm sorry, I need to get you to repeat.

Are you only interested - - are you interested in

nonadministrative procedures or - -

Q. I'm starting right now with federal cases.

A. Okay.

Q. Then state court cases.

A. Okay.

Q. And then we can get into administrative.

But out of the areas you've requested to be

recognized as an expert, I would like you to list the


federal cases first and where the federal court found

you as an expert and in which area.

A. Okay. I'm sorry, I don't have the case number

committed to memory.

I can tell you I think who the parties were.

The first case that involved the U.S. Army Corps

of Engineers was in the jurisdiction that is in

Orlando. And I'm sorry, I don't know what the official

name of that federal jurisdiction is, but the court was

in Orlando.

And that case involved depressional wetlands

similar to these and surrounding uplands similar to

these in an area of Brevard county, Florida. There was

a coalition of citizens groups and environmental

groups. I don't recall the exact name of the

coalition, but I could possibly get that and submit it

later.

Q. Do you have the name of the permit applicant

that was most likely listed in the style of the case?

A. I don't believe the applicant was listed.

It was simply a suit. They were suing the Army

Corps of Engineers for failing to adhere to NEPA and

APA and Clean Water Act procedures.

Q. But you don't know the name of the coalition?

A. I don't recall the name of the coalition, but it


involved - - I believe it involved a local group of the

Florida Native Plant Society, it involved a local

Brevard County group, it involved an area that was

proposed for development.

This was not a mine situation. This was a

development in an area that was very environmentally

sensitive and designated as conservation lands. I

believe they were attempting to purchase large tracts

of that land. It was a big flow way. They wanted to

establish a greenway.

And I was accepted as an expert in the fields

that the counsel just read to Madam Hearing Examiner.

Q. Please list them. Please list which ones in

this case.

A. Okay, if I can refresh my memory, I'll just look

here so I don't miss them.

They were specifically hydroecology, plant

physiology and pathology, water chemistry, aerial photo

interpretation.

I don't recall if botany was relevant in that

case and they may have excluded that. And it was

wetlands and aquatic ecology.

. Was included.

A. Yes, it was -- wetlands and aquatic ecology was

included.


I'm trying to think of the counsel for that.

MADAM HEARING EXAMINER: Do you know the

approximate year? That might be even more

beneficial.

THE WITNESS: That year --

MADAM HEARING EXAMINER: The decade?

THE WITNESS: I'm trying to think, Your

Honor.

What I could do is I -- probably in my

computer, I have my laptop, and I think during a

break, if that would be sufficient, I can try to

go back to my computer and pull up the file and

that would allow me, I think, to give you both

the name of the group and the year that that case

happened.

MS. GRADY: Okay.

BY MS. GRADY:

Q. And are there some cases that you recall the

name of that you can provide, if there are any other

federal court cases?

A. Let me see. There was another federal court

case that was again a court case filed against the Army

Corps of Engineers. This one was filed by an

organization called Wetlands Alert.

And I -- and I've maybe also --


Q. That was your client, Wetlands Alert?

A. That was one of the parties. I was actually

hired by the attorney who was handling that case.

There were -- I believe there were two, that she

was representing two groups in that particular case.

And I'm trying to think of the other. It may

have been a group called Save Our State. I think their

website is S.O.S.

I can't recall, but I believe that those are the

two groups.

Q. What year was that?

A. That was I believe approximately 2002, I think.

And that was in the -- I think that may have been also

in Orlando's jurisdiction, I believe.

And that was a - - a challenge for the violation

of the Clean Water Act. And I don't know if that was

also eco violations. I don't recall that one.

And I'm trying to think of other federal cases.

Q. What were you accepted as in that case, as an

expert in what field?

A. Hydroecology.

No, I don't think that was the only one, but

that is the only one I recall for certain.

Q. Okay.

A. But there may -- since they may have also


included some of these, but hydroecology was the

primary one.

Q. Any other federal cases?

A. There may have been. I don't recall. There

haven't been any federal cases recently.

Q. Did these go to trial, each one of them?

A. The first one did and the second one was settled

before it went to trial.

Q. And you were accepted as an expert, even though

it did not go to trial?

A. That's what I was offered as an expert in.

Q. Offered, okay. My question was accepted.

A. That one did not go to trial.

Q. Okay. So you were not accepted as an expert

because it did not go to trial.

A. It did not go to trial, right.

Q. I really want to talk about where you were

accepted --

A. Okay.

Q. -- as an expert.

Any other federal cases?

A. There may have been others. I don't recall any

right offhand. There haven't been any recent ones.

Q. State court.

A. State court, there was -- the first one that I


recall was also out of Orlando and it was a case

involving a -- it was department -- I don't recall if

they were Department of Environmental Regulation at

that time or whether they had changed. It was about

the time they changed and became Department of

Environmental Protection.

But I think that one would have been about 1989,

I believe, or possibly '90. I think that was the first

state court one I was accepted as an expert in.

Q. And your client? The party to this litigation?

A. That was a -- it was a local group in -- out of

Orange County. And I'm trying to think of what their

name was. I don't know.

Generally the attorney contacts me and I don't

have that much communication directly with the

organization. I didn't for that case, so I'm trying to

recall what the -- their name was.

It was some wetlands group, but I don't recall

exactly what their name was. And it was a local group.

Q. And do you remember the judge in that case?

A. It was a male judge. I don't recall his name.

Q. Okay. And what were you accepted as, an expert

in what field?

A. As an expert in hydroecology. And I believe I

was also accepted as an expert in water chemistry and


aerial photo interpretation. I don't recall if botany

was really relevant, so we may not have proffered me as

an expert in botany.

And wetlands and aquatic ecology.

Q. And this did go to trial?

A. Yes, it did.

Q. And any other state cases?

A. There was another state case that was -- that

involved the Orlando or Orange County Expressway

Authority and I was representing them in that

particular case. That was against a private landowner.

Actually, I think the landowner had filed suit

against the expressway authority. And that one was

involving a large area of wetlands on his property that

he was contending had not been wetlands, but except

that the expressway authority had constructed a road

and diverted water on to his property and caused it to

turn from uplands into wetlands. And I was retained as

an expert to provide opinions as to whether that had

been a wetland prior to the construction of the road.

Q. What year was that?

A. That would have been in approximately '89.

Q. And the fields in which you were accepted as an

expert?

A. That one -- I'm sorry, that one also settled


right before I was supposed to testify, so I didn't

actually -- I wasn't actually presented in that case

because they settled.

Q. Okay. Any other state litigation?

A. Let's see. Yes, there was another case. This

one was in the panhandle. I do remember the -- the

individual's names. They're the TEATS, T-E-A-T-S. I

believe there was an S on the end.

And that case was in circuit court and it was in

Apalachacola, whatever district that is. That one was

against the City of Apalachacola. And the TEATS filed

suit against the City of Apalachacola. That involved

natural wetland and that also involved water quality,

as well as hydroperiod.

Q. And your client was?

A. The TEATS.

Q. And did that go to trial?

A. That went to a very long and painful and

drawn-out trial.

Q. And in what fields were you accepted as an

expert by the judge?

A. That one I was accepted as an expert in

hydroecology. I believe I was also accepted in that

one as plant physiology and pathology. I was accepted

as an expert in water chemistry and aerial photo


interpretation, and I believe also in wetlands and

aquatic ecology. So probably not -- I don't think

botany was relevant in that one.

Q. Any other state cases?

A. I don't recall any other state cases right now.

There may have been others, but I just don't recall.

Q. And any Chapter 120 administrative hearings?

A. Yes. One - - well, Chapter 120, yes, there have

been countless.

When I worked for the Department of

Environmental Regulation, before they became the

Department of Environmental Protection, and actually I

was the first person that they hired when the Warners

Henderson Wetlands Act was adopted, they created a new

program and to regulate wetlands in the State of

Florida, and I was the first technical expert that was

hired during that program.

I evaluated impacts to wetlands as an expert

throughout the entire State of Florida, but my

jurisdiction was primarily from the central part of the

state northward, although I did do projects in South

Florida.

And that position - - and actually prior to that

position, I was in another position in the agency.

Q. Actually we were talking about just giving me


the administrative hearing.

A. Right. That's what I was going to tell you.

The administrative hearing testimony occurred

before I was actually put in that position. And I was

the -- at that point in time I was the only wetlands

expert in the entire agency for the entire State of

Florida. So I was used in 120 hearings throughout the

State.

I believe the first one I testified in was

against the Florida Power & Light that was at I believe

Cedar --

MADAM HEARING EXAMINER: Cedar Key?

THE WITNESS: Cedar Key. I believe that

was in Cedar Key. I can't recall exactly. But I

believe that was in approximately 1978. That was

the first 120 hearing that I did.

BY MS. GRADY:

Q. And you were accepted as an expert in what at

that time in 1978?

A. Well, you know, that goes way back. I would

be -- I could tell you what I testified as an expert

in. I don't recall the exact titles that they

qualified me in, but I testified about those water

quality and wetlands and aquatic ecology.

Q. Does that predate your Ph.D.?


A. Yes, that predates my Ph.D.

I had - - at that point in time I had just

completed my Master's research and my Master's research

was on herbaceous wetlands --

Q. All right.

A. - - in Florida.

Q. Let's talk about administrative hearings once

you received your Ph.D.

A. Okay. Since I've received my Ph.D., I've done a

number of 120 hearings.

The one that I guess is most similar to this one

was in Putnam County. That was - - was on a proposed

land use change for a proposed mine in Putnam County.

MADAM HEARING EXAMINER: What kind of mine

now? Are we talking phosphate mine or --

THE WITNESS: No, that one was a sand mine.

MADAM HEARING EXAMINER: A sand mine, okay.

THE WITNESS: A sand mind.

And that one, the groups that were

challenging that, there was local Sierra group

which was the Suwanee St. Johns Sierra group.

And then there was a group called the West

Putnam -- I'm sorry, I can't remember exactly

what their title was, but they were a group of

legal residents, similar to the group here, who

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.

had formed a corporation and they were called the

West Putnam - - I can't remember exactly what,

but I can check on that and give you their exact

name, if that would help.

And that was a challenge against Florida

Rock sand mine, a sand mine proposed by Florida

Rock.

BY MS. GRADY:

Q. Was that against the county also?

A. Yes.

Q. And in what area - - what year was that?

A. That was -- I believe that was 2003. I think it

actually started in 2003. I don't recall whether the

hearing was 2003 or whether the hearing was 2005. The

hearing may have been actually in 2005.

Q. And that was before an administrative law judge?

A. Actually I think the commissioners heard that.

I believe, if I'm correct, the commissioners heard

that.

Q. Okay. And we were talking about Chapter 120

administrative hearings.

A. All right. Well, it was my understanding that

that was a 120 action, but maybe -- maybe I - -

Q. No.

A. - - didn't understand correctly.


MADAM HEARING EXAMINER: Or you might have

been using the 120 for their rules or procedure,

but --

THE WITNESS: Okay. All right.

MS. GRADY: So that was a county

commissioner hearing?

THE WITNESS: That was a - - the

commissioners doing that hearing.

BY MS. GRADY:

Q. Do you have any times where you were qualified

as an expert under Chapter 120 administrative hearing

by the Division of Administrative Hearings and

administrative law judge?

A. Yes, I have probably about 50 or 60 or maybe

more. Most of those were done while I was working for

the Department of Environmental Regulation.

Q. What about since you -- let's put it after your

Ph.D.

A. Okay. Let's see.

MADAM HEARING EXAMINER: Can I -- can I

hang on here a second or stop?

Now, Beverly, you're hitting hard on the

Ph.D., but I think if she's been qualified

pre-Ph.D., that that needs to be considered as

part of her experience and part of her expertise.


So I don't think - - you know, I mean --

MS. GRADY: Okay.

MADAM HEARING EXAMINER: - - YOU keep

steering her away from that, but I don't think

that you can ignore prior qualifications just

because she didn't have her --

MS. GRADY: Right.

MADAM HEARING EXAMINER: -- Ph.D. at that

time.

So I'll let you go on, but I just wanted to

let --

MS. GRADY: Okay.

MADAM HEARING EXAMINER: I wanted you to

understand that, you know, I will be considering

her pre-doctoral as well as post.

BY MS. GRADY:

Q. When you were with the Florida Department of

Environmental Protection or DER, what areas would you

have been accepted as an expert in those hearings?

A. Basically the same areas as the ones I was

proffered for today; hydroecology, plant physiology --

well, maybe not pathology. That may have been the only

one that was post Ph.D.

Water chemistry, aerial photo interpretation. I

actually used aerial photo interpretation as part of my


Master's level research. And botany and wetlands and

aquatic ecology. And that was all -- they used me

extensively when I had only my Master's degree.

Q. So you're saying that you were found an expert

by administrative law judges in those cases in

hydroecology, plant physiology, aerial photography?

MADAM HEARING EXAMINER: Interpretation.

THE WITNESS: Interpretation.

MS. GRADY: Interpretation.

THE WITNESS: Right.

BY MS. GRADY:

Q. And wetland?

A. And aquatic ecology.

Q. And aquatic ecology. Not botany.

A. No, botany, botany was -- I mean that was part

of my Master's research and my Master's degree.

Q. Now, what was your degree in your Bachelor's

degree?

A. My Bachelor's degree was in general, the general

sciences.

Q. And your Master's degree?

A. It was also a B.S. in science. And those -- and

that's described in detail in my CV. And that was

received from Florida State University and the dates

are in the CV.


Q. Your Master's degree is a B.S., a Bachelor's - -

A. My Bachelor of Science, Bachelor of Science, and

my Master's degree is a Master of Science.

Q. Master.

A. Okay.

Q. And your Ph.D.?

A. I believe I had already testified that it was a

multidisciplinary degree that encompassed ecology,

hydrology, and pathology.

And I actually did the equivalent course work of

a single focus degree in each of those fields, so I --

it took me a very long time because it was basically a

triple, similar to a triple degree.

Q. What is -- what is a hydroecologist?

A. Hydroecology is a field of science that studies

the interaction between water and life forms.

In my particular case, it -- I have specialized

in natural plant communities, specifically depressional

wetlands and how alteration of the natural water

conditions, both water chemistry and natural

hydroperiod, affects those living systems.

Q. Is there a license that one receives when

they're a hydroecologist?

A. I don't believe the State licenses

hydroecologists. That's -- that's not licensed in the


state, but it is a -- I actually worked for quite a few

years for the United States Environmental Protection

Agency in their Athens, Georgia research lab, which

basically was responsible for any activities in

Florida, Georgia, Alabama, Mississippi, Tennessee,

North Carolina, South Carolina. I may have left out a

state, but it was basically the region for - - region of

EPA.

Q. Yeah, but I mean I understand what you're

describing is your job description, but was there any

licensing in Georgia for a hydroecologist?

A. I don't believe it is licensed.

Q. Anywhere.

A. It's -- well, I don't know, I can't speak. I've

never done, you know, a survey to see who licenses

various professions and who doesn't.

Q. Is there --

A. Basically, you know, like I said, I was hired as

a hydroecologist for the U.S. Environmental Protection

Agency and worked for them for at least six or maybe

seven years or maybe more. I don't remember exactly.

It's in my CV.

(2. Is there a certification process, such as a

planner receives American Institute of Certified

Planners and you have to take an exam, is there a


certification process to be a hydrologist?

A. There may be. I don't - - I'm not aware of one

in Florida, if that's what you're asking.

They may have them somewhere, but I don't think

Florida. Like I said, they don't regulate them.

Q. Is there a professional association of

hydrogeologists?

A. I don't really know what they do with

hydrogeology.

Q. Or hydroecology, I'm sorry.

A. What was your question again?

Q. Is there a professional association of

hydroecologists?

A. There may be.

Q. So you're not a member?

A. I'm not a member. I have never seen anything

about that profession.

Q. Your profession. A hydroecologist.

A. Yes.

Q. I said it correctly?

A. Yes, yes.

Q. Okay. Now, you're an expert in water chemistry?

A. I have been proffered and accepted as an expert

in water chemistry --

Q. In?


A. -- in numerous cases, testifying on behalf of

the State of Florida as an expert in water chemistry.

Q. Okay. What case was that and where and what

year?

A. What case? There were countless cases, like I

indicated previously. I actually was the initial

expert that the State of Florida used when the

Department of Environmental Regulation was handling

their administrative cases for enforcement of state

regs when I worked for them.

Q. Okay. And that's -- okay.

A. So I actually did --

Q. But let me -- okay. So you were declared an

expert in water chemistry by whom?

A. By the various - - they weren't called

administrative law judges then, they were called

hearing officers -- the various hearing officers that

heard all of those cases.

Q. So can you provide a case where you were found

an expert?

A. Yes, the case in -- the Florida Power case I

think was the very first one that I testified about

impacts of water quality.

And I think actually the hearing officer in that

one, or the administrative law -- the hearing officer,


yes, was Bentley. His name was Mark Bentley.

And I only remember that because he left and

went into private practice and was actually the

attorney that was handling the case for Apalachacola,

the TEATS case, in circuit court years later.

Q. And what year was that?

A. The original case?

Q. The case where hearing officer Bentley found you

an expert in water chemistry.

A. I think it was either seven -- it was shortly

after I went to work for the agency, so it would have

been somewhere maybe around '78 I'm thinking, '78 or --

somewhere right around '78.

And that it was probably water quality, I think

is the general term they used for it. Rather than

water chemistry I think it was called water quality.

Q. So you would have been qualified as an expert in

water quality in that case.

A. Not water chemistry. I think it was wetlands,

wetlands ecology, aquatic biology and water quality.

Q. All right. So let me ask you for a case where

you were qualified as an expert in water chemistry.

MADAM HEARING EXAMINER: Beverly, I need to

move this along. I mean if you're going to hit

everything that she's been offered for --


MS. GRADY: All right.

MADAM HEARING EXAMINER: -- all the way

back to the 1970s, we're going to be here until

Saturday morning --

MS. GRADY: Right.

MADAM HEARING EXAMINER: -- before we even

get her qualified.

I think you've got enough information at

this point in time to be able to make an

objection or an acceptance of her and offering - -

her being offered as an expert. So I need you to

step up to the plate here.

MS. GRADY: At this time I would object,

but I would preserve the opportunity. She has

offered to provide this information that she

cannot remember that's on her computer, and that

I would be able to bring this up at tomorrow's

hearing before she presides, if I could have

additional questions once she provides it.

And I've not actually heard of these

experts in - - such as an expert in hydroecology.

Actually I never heard of aerial interpretation

either as an expert.

So I would like to register my objection

and request the hearing examiner not rule, permit


the testimony to go on, and then permit me

tomorrow, after I've received the information

I've requested, that they have but haven't

provided, and be able to renew that objection.

MADAM HEARING EXAMINER: Okay. The only

thing is, because this is a quasi judicial

proceeding, we typically do not go into this kind

of depth on a qualification procedure. You know,

I mean most of the experts are accepted with, you

know, very minimal questioning, as long as

they've had the years of experience in the field

or been accepted elsewhere, without having to

prove up, you know, every comment.

So I understand what you're asking, but I

think for my purposes alone, I'm satisfied that

she is what she, you know, has professed to be,

and is requesting to be recognized as an expert

in that field, in those fields.

I do have some - - Mr. Hart's reservations

on the aerial photography interpretation, because

I'm not sure how that ties into this case, T, so

you're going to need to explain to me how that

ties into this case.

MR. HART: I think Dr. Bacchus' testimony

is going to be the best way to explain that to


you. She derived some of her opinions from

looking at aerial photographs.


MR. HART: And I think she'll tell you

this, but I believe that's an integral part of

doing wetlands analysis, is looking at aerial

photos and determining from those aerials what

you're looking at; is it wetlands, is it upland,

that sort of thing.

Maybe Dr. Bacchus would know the answer to

that.

MADAM HEARING EXAMINER: All right. I'll

tell you what. I'm going to reserve ruling as

far as the aerial photograph interpretation is

concerned until, you know, you can tie it up.

Somebody's phone's ringing, they need to

turn it off.

Hang on Mr. Serrano, I see you standing.

But I think I'm going to accept her. I

mean her Master's is in hydrology, geochemistry,

water quality. Her - - I'm sorry, that was her

pre-doctoral under the department of geology.

But her Ph.D. is in hydroecology. You

know, she's got botany and ecology, water

chemistry, as far as her Master's. Chemistry and


biology and design were her Bachelor's.

I think she -- plus the fact that she's

been in the field for 30 years I think is plenty

experience enough, as far as I'm concerned, to

accept her as an expert.

I'm sure we did not give your experts this

kind of grilling before they were accepted as

experts in their fields, so I don't -- 1, YOU

know, do not believe that we need to go through

her everyday situation.

MS. GRADY: I'll respond. I would renew my

objection and I think it is a denial to due

process.

One, the experts we've provided had already

been recognized in this jurisdiction in this

form.

MADAM HEARING EXAMINER: With very little,

with very little. I mean I remember when these

guys came up. I've been here 16 years, so I know

when these guys were recognized as experts and

there was -- there was not this in-depth grilling

of them to determine whether or not they were

accepted on -- at face value.

MS. GRADY: One thing I would say.

One, they had the credentials, and the


field they were requesting was a commonly

understood field that is common to Lee County

land use planning and zoning.

These fields, having worked in this area

for 30 years, I am not familiar with ever hearing

of a hydroecologist, photo interpretation - -

MADAM HEARING EXAMINER: Well, I have

concerns about that one.

MS. GRADY: -- and the others, such as

water chemistry, as a -- when they're not at

hydrologist and not a chemist. And the Ph.D. was

a multidisciplinary.

MADAM HEARING EXAMINER: Right.

MS. GRADY: So I am offering that I don't

believe these are fields of expertise that are

recognized, certainly not in -- I don't think

they're fields of expertise that are recognized.

MADAM HEARING EXAMINER: Okay. All right.

Kim, hang on a second.

Mr. Ciccarone has been standing for three

and a half minutes here. Did you have a comment

you would like to make for the record.

MR. CICCARONE: I have some brief voir dire

that I would like to make.

MADAM HEARING EXAMINER: Okay. Are you


representing someone in this hearing?

MR. CICCARONE: Yes.


MR. CICCARONE: Do you want me to take --

MADAM HEARING EXAMINER: Yeah, if you - -

MR. CICCARONE: -- the podium.

MADAM HEARING EXAMINER: -- come up, come

to the front, because I don't know the that the

machine is going to pick you up clearly back

there at the back.

And before you start, let me find out what

Kim Trebatoski's comments are.

MS. TREBATOSKI: I just --

MADAM HEARING EXAMINER: Kim. Okay, you

need -

MS. TREBATOSKI: For the record, Kim

Trebatoski. I just would like to, from an

ecologist standpoint, let you know that aerial

interpretation is an integral part of wetlands

ecology and it is a recognized field of

expertise, I would say.

And there's been much more differentiation

in earlier than -- or more recent years. I would

say that ten years ago someone would have come in

and just been recognized as an ecologist whether


they were a plant ecologist or -- or dealing with

water resource management and things like that.


MS. TREBATOSKI: So some of these new terms

you're hearing are because the fields have

expanded so much.

MADAM HEARING EXAMINER: Everybody

specialized.

MS. TREBATOSKI: And that -- and that there

are now interdisciplinary programs.

And my Master's degree was one of the first

interdisciplinary programs that was combined with

political science, geology and -- and ecology.

So sometimes those are difficult for people

to recognize.

And the other thing is is that most

biological fields do not have licensure; that is

to say your Master's degree, your experiences,

your doctorate are what would be considered

licensure in a sense. And you know, it's not a

legal license, but I did want to say aerial

interpretation is an integral part of being a

wetlands ecologist specialist, just to get that

on the record.

MADAM HEARING EXAMINER: Okay. Thank you,


Kim.

Mr. Ciccarone, you have questions of this

witness.

MR. CICCARONE: Yes. My name is --

MADAM HEARING EXAMINER: Hang on.

C-i-c-c-a-r-o-n-e. First name is Michael.

VOIR DIRE EXAMINATION

BY MR. CICCARONE:

Q. Dr. Bacchus, my name is Michael Ciccarone, I an

attorney. I represent the property owner on the south

side of Corkscrew Road directly opposite of the subject

property. That would be Schwab Industries.

I also represent the folks that are pursuing the

next mining application, and I can't remember if it's

east or west of this one, but it's on the north side of

Corkscrew.

Have you been engaged as an expert to testify in

either of those cases?

A. Either of which cases?

Q. The two cases -- I'm sorry. I'm also

representing the Schwab Industry people who are

pursuing a mining application on the south side. Have

you been engaged as an expert in either of those two

cases?


A. I have not been contacted about those cases.

Q. All right. Are you being paid for your

testimony here today?

A. I was given payment to come from Georgia to

appear.

Q. Is your compensation in any way dependent upon

the outcome of this case?

A. No, it's not.

Q. With respect to the testimony that you're going

to provide, I understand per Mr. Hart correctly that

it's going to be on the environmental impacts of

mining, particularly in the DRGR area; is that correct?

A. Well, it's going to focus on the area at issue

today. I have specific expertise on that area.

I've actually published peer reviewed paper in a

very highly respected journal on that very area, so

I'll be addressing that with specific emphasis on this

location.

But I have also done extensive evaluations in

other areas of the DRGR, most of which I will not be

addressing today.

Q. So in other words, the answer to my question is

yes, you're going to be testifying as to the

environmental impact of mining in the DRGR; is that

right?

- MARTINA REPORTING SERVICES

(239) 344-6545

A. Yes, primarily focusing on this specific area.

I -- I recognize the fact that the DRGR is very large.

Q. By this area, do you mean the general area where

this property is located or this specific property?

A. This -- the specific property of the proposed

mine.

Q. All right. Are you also testifying as to water

quality in relating - - relating the mining situations,

I believe was the language I heard?

A. Well, maybe I could clarify to calm the concerns

about water quality. That will be a very minor aspect

of my testimony today.

It will be primarily addressing the facts that

certain types of activities, specifically the type of

activity proposed for this mine, affect the water

quality and water chemistry of the natural systems that

I'll be addressing.

Q. Will your testimony involve any discussion of

some of the various groundwater and surface water

modeling programs that are available?

A. I don't believe. So really, it's addressed very

briefly in a paper that I did that's been published,

but I hadn't really intended to address that in my

testimony because of the limited time available.

Q. Are you familiar with the model called Mod-Flow?


A. Yes.

Q. Are you familiar with the model called Mike Shee

(phonetic) ?

A. Called what?

Q. Mike Shee.

A. I don't know that I'm familiar with that one.

Q. With respect to your curriculum vitae, you've

listed a very impressive number of peer reviewed

publications and I commend you on it, but I'm not sure

from looking at these that I can identify any one that

relates to the subject you're testifying on today,

mining, let alone mining in this area. Am I

overlooking something here?

A. I think so. If you'd let me see that and verify

that it's what I think it is --

Q. You don't have your own curriculum vitae with

you?

MR. HART: We used them all. We gave them

all out.

THE WITNESS: I mean I can't -- I can't see

what you're looking at.

MR. CICCARONE: We're going to hand you one

right here.

THE WITNESS: All right. I think if your

- - if you have the same copy I have and you turn


to page 3 and you look at the second publication

in the list which is nonmechanical dewatering of

the regional Florida aquifer system --

MR. CICCARONE: Okay.

THE WITNESS: -- perspectives on -- that

publication deals specifically with this site

we're addressing today.

BY MR. CICCARONE:

Q. Any others?

A. Well, let's see here.

The 2005 one did, the two thousand -- let's see.

There are three that were published in 2005, and - -

let's see here.

MS. COLLINS: . Pertaining to mining?

THE WITNESS: Let me see. I believe the

2005 one on sources and flow paths addressed --

yes, that one addressed mining. The 2005,

discriminating sources and flow paths, that one

addressed mining.

The - - let's see. I believe the 2005 one

on chronic water stress also addressed mining.

I'm looking at the 2000 -- the 2003 one,

that one may or may not have addressed mining. I

don't recall.

BY MR. CICCARONE:


Q. All right. In these cases where you previously

testified --

A. Do you want me to just stop there or --

Q. Yes, that's fine.

In these cases where you've previously testified

and been qualified as an expert, were any of those

mining cases?

A. Yes.

Q. Any of the federal cases mining cases?

A. I don't think the federal cases were mining

cases.

Q. Any of the state court cases mining cases?

A. Let's see. The very first one I did was not a

mining case, but it involved excavations that were not

considered mining. They were smaller excavations that

caused similar impacts.

Q. All right. Thank you.

MR. CICCARONE: That's all I have.


I understand the applicant's objections to

Dr. Bacchus being accepted as an expert in the

fields offered, but with the comments made by the

county's environmental expert, I'm going to

accept her in all fields offered, except

possibly botany, because I ' m not sure that she's


indicated anywhere in her history that she was

actually accepted in botany.

So we'll accept her for everything else,

though.

MR. HART: Thank you, Madam Hearing

Examiner.

Ms. Bacchus, is there any need to be

qualified as an expert in botany for your

testimony?

THE WITNESS: I don't really think so. I

don't think that's really that --

MR. HART: We could go there, but we don't

need to.

DIRECT EXAMINATION (SYDNEY BACCHUS)

BY MR. HART:

Q. Ms. Bacchus, have you been to the site of the

proposed mine?

A. Yes, I have.

Q. And you have a presentation you'd like to make

to the hearing examiner?

A. Yes, I do.

Q. Appreciate if you'd do that.

MS. GRADY: Do you have copies of the

report for --


MR. HART: I think we do. We're working on

it.

THE WITNESS: So just hit the red?

All right. I'd like to -- oh, okay --

provide some background to help -- help explain

how I was able to come to the conclusions and

form the opinions that I have formed. And in

order to do that I have to provide a certain

amount of information to help you understand how

these natural systems, both these depressional

wetlands that are the focus of my expertise and

the surrounding uplands function, and the

characteristic constraints of those natural

systems and how all directions affect those

natural systems.

So I would like to begin by showing the map

and aerial views of the existing Westwind mine

and we're going to talk about the wetlands there.

Is there a pointer here, Kevin, or do I

need to do a manual pointer? Will the arrow

point? I ' m sorry, this is not my computer, so

I'm --

Okay. Boy, that's great.

All right. So this is the Westwind mind

site. This was an application that was submitted


to the county, and in its original permitted

application showed a wetland, Wetland Number 5

here, that was taken off the original

application.

And the subsequent application that came in

later, Wetland 5 should have been in this area

right here, but it was not identified as a

wetland.

Now the importance of that is that they did

identify some wetlands here -- Wetland 1,

Wetland 2, Wetland 3, Wetland 4 -- those were,

under the permit conditions, supposed to be

preserved.

And this aerial view here will help orient

you. This is Corkscrew Road. The north arrow is

pointing off in this direction here, whereas in

the plan view it's pointing up.

So Corkscrew Road is here. Wetland Number

1 is here. I'll be showing you some

on-the-ground photographs in a little while. And

so I want to you to be able to orient yourself.

At the point of time when this was taken,

this was in 2003, the mine was not as extensive

as it is today.

And here were the other wetlands. This was


the - - Wetland Number 2 is here. Then these

wetlands were off site. This is a north and

south wetland that were actually off-site

wetlands, and of course I'm sure I don't have to

explain that there are supposed to be no off-site

impact from these mining activities.

Now the next -- this is actually a view of

Wetland 5. Under that second permit where

Wetland 5 was not identified, it was actually

possible for Wetland 5 to be mined.

Of the wetlands that I looked at on that

site in 19 -- I ' m sorry, in 2003, Wetland Number

5 was actually in the best shape at that

particular time.

This is -- it had a fairly consistent

understory of native vegetation, which tells you

that the natural hydroperiod had not been

severely altered at that particular point in

time. And then it also had a canopy.

Thank you. So much better.

So this is another view of the Westwind,

existing Westwind mind. Here again is Wetland 1,

Wetland 2, Wetland 5.

Now these little circular features here,

those were in fact other depressional wetlands,


natural depressional wetlands. They were, for

one reason or another, determined to be not

significant enough to classify them as wetlands

that were going to be preserved during the mining

operation.

MS. GRADY: Madam Hearing Examiner, this is

not the subject property, this is not the

application.

MADAM HEARING EXAMINER: And she's laying a

foundation here for what she's getting into when

she gets to the subject property. I think that's

what she's doing.

THE WITNESS: That's correct. That's

correct.

MADAM HEARING EXAMINER: So that's what I

understood her to say when she started this.

THE WITNESS: That's correct.

Thank you, Your Honor.

This is a soils map by what used to be the

Soil Conservation Service, and it also shows

these wetlands. They have certain soil types.

Here are the same wetlands that are on that

sheet. And you can see that this area that had

these other wetlands that were not identified as

wetlands, those wetlands were in fact mined, they


weren't preserved.

Now the characteristics of these

wetlands -- and this is actually an excerpt from

the U.S. Geological Survey topographic quad

sheet. Now that shows the relationship of the

existing Westwind mine immediately adjacent to

and to the west of the proposed Estero mine.

Also note that the King property, which is

now the Golf Rock property. In 2003 when I did

this site inspection it was called King property,

and at that time this parcel here was the Schmidt

property.

Now these greenish areas here that have

symbols that look like little tufts of prairie

grass, that's actually a wetland symbol. And

these are, although they're identified on the

application as distinct separate depressional

wetlands, in fact historically what was happening

is these -- this whole wetland system connected.

During historic times of high water you would get

historic sheet flow, in addition to the

underground subsurface connection between these.

MADAM HEARING EXAMINER: Okay. So it

operated more as a slue?

THE WITNESS: That's exactly right.



THE WITNESS: In fact, that is another term

of for this type of wetlands. They're

depressional wetlands that are linked together

and they do call these slue systems. Now these

are not unique to Lee County. They occur

throughout the entire southeastern coastal plane,

which is all of Florida, the southeastern coastal

plane of Georgia which is approximately half of

that state, and extend up a little bit into South

Carolina.

So you have two major * flow way systems;

coming down, north of the proposed site and

extending through the Westwind site and down in

this direction, and then you have a second system

which -- actually a second slue flow way system

that extends down through the proposed Estero

mine, down through here and to the south.

Those systems are flowing into the

Corkscrew sanctuary that -- the Audubon held

property.

Now the next shot, this is a cross-section

of -- the theoretical cross-section of what these

wetlands were perceived to be many years ago,

prior to 1990. They were perceived to have a


thin, some variable depth of organic material

here at the surface, then a sandy layer which is

known as the surficial aquifer, which can vary

from location to location, may have a little

shell mixed in, but very highly permeable.

Then they would have what's known as a

lower permeability layer underneath that, which

you may have heard the term "perches." It

perches or retards the downward flow of water

through the surficial through the underlying

Florida aquifer system.

So they thought this was the typical

cross-section of these depressional wetlands.

Then they found that these systems were

very easily dewatered by well fields that were,

according to Mod-Flow model predictions, were not

going to be affected by the withdrawals from

these systems.

So they went out and did -- in 1990 this

publication came out, it was a detailed study

that was actually commissioned by the Southwest

Florida Water Management District with the

University of South Florida, their department of

geology. And they did extensive bore holes with

wells or bore holes of varying depths in varying


locations, specifically at the margins of these

wetland and in the interior of these wetlands.

They also used geophysical analysis to get

a view of below the surface of what these various

layers were doing. And from these soil borings

they actually pulled up the cores and took soil

samples showing what these various layers were.

And they were able to determine that these layers

were not continuous under these depressional

wetlands.

What happened was these were relic

sinkholes that formed basically during the

Pleistocene when the sea levels were fluctuating

dramatically. And so these -- these sinkholes,

these old sinkholes had filled up with

depositional erosional material over the hundreds

of thousands of years.

And so these low permeability zones,

instead of going all the way through as a

continuous layer through the underneath side of

these wetlands, actually were disconnected.

So what that meant was you did not have

that safety layer preventing interaction from

whatever was happening in a lower zone from the

surficial aquifer.


Now later -- and I'm not going to elaborate

on every single citation here, but I will note

that the bulk of these citations that are listed

under here were publications that were actually

done through the U.S. Geological Survey. This

one was not. This one was actually done through

the University of South Florida's Department of

Geology in conjunction with the Water Management

District, but this one was a USGS publication.

Now what this shows is, this is another one

of those depressional features. They did a

seismic analysis and they -- you may not be able

to detect this sinking area here. This was

actually another relic sinkhole that was over --

this one was in the northeastern part of Florida.

But the important feature here is that

these red lines here represent fractures. They

are called "stress fractures." And they commonly

occur around the margins of those depressional

wetlands. In this case this wasn't a wetland,

because this was a subsurface feature.

But what they have found also in the same

area, they had problems with their well fields.

Some of the wells that were actually a very

considerable distance from the coast line,


further inland than some of those wells close to

the coast, were pulling up salt water. And they

were pretty shocked. They knew that it was not

salt water intrusion laterally, or it would have

affected the near shore wells.


THE WITNESS: But what they determined was

is these fractures, very similar again to these

stress fractures on the perimeter of these relic

sinkholes, were in fact going through those

layers, which originally some people referred to

as confining layers or confining zones.

And in reality, in the karst setting of

Florida, those confining layers are more

accurately described as semiconfining layers

because they are full of * breaches. And those

breaches can occur as these vertical flow ways or

they could also occur horizontally.

Now in this particular example you see all

these little circular features. And it has been

documented through the literature that those

circular features, which are basically the

depressional wetlands down here, all of those

small circular features that then connect during

high water to a slue system, that those circular


features in fact are aligned on fractures, and

they're fracture networks that intersect, so that

if you actually were doing something around this

wetland up here that affects the groundwater, you

could in fact, through these series of fractures,

be affecting wetlands way over here, in some

cases miles from where you're actually doing your

groundwater impacts here, or it could be moving

in this direction through that series of

depressional features that are interconnected

with those fractures.

And this was just another study that showed

that these fractures occur throughout what's

called carbonate platform, which is the State of

Florida. And they also occur offshore in areas

that were exposed during portions of times when

the sea level was much lower.

Another important factor with the

depressional wetlands is that these contour lines

here represent zones of vertical hydraulic

connectivity that actually in order of magnitude

increased as you get toward the center of those

wetlands.

So what the means is, if you were

monitoring and say, for example, you have


monitoring wells, pretend that this is an upland

up here and you have monitoring wells located in

the upland, that you will not be able to

determine how the interior of these wetlands are

being affected, because the -- the flow of water,

as you move from the exterior of these wetlands

to the interior, changes greatly.

So if you want to monitor the impact on

these wetlands, you actually have to monitor in

the interior of those wetlands, not by placing

monitoring wells somewhere in the uplands.

And this is just to show one example of the

karst rock, lime rock or limestone that makes up

the lower aquifer system. It has large voids

which are called preferential flow paths.

So this was an illustration that was done

by another - - from another USGS publication which

shows that basically you have these depressional

features here that are relic, and you have

fracture systems, you also have bedding plains.

All of these inconsistencies can operate as

preferential flow paths so that water can be

moving very rapidly through those systems, either

by being pulled out, if you're doing pumping or

mining, or if there are contaminants in the


groundwater, those contaminants can move through

those underground super highways.

Now here is another illustration. This was

actually published by the State of Florida by an

assortment of agencies that were dealing with

groundwater impacts. And it shows you a

cross-section.

Here again are those depressional wetlands,

just like the depressional cypress wetlands out

here. And here are some herbaceous-like wet

prairie wetlands, some are some open water

systems.

Here is a mine operation over here. And

what you see here is a cross-section of all these

fractures, these larger preferential flow paths,

and how you can connect under the surface through

these systems. And something, maybe a mining

activity way back here, can actually affect

underground the impact of an off-site wetland

here, an off-site natural water feature here,

another herbaceous wetland considerable distances

off-site from the actual mine location.

This was just another illustration to show

the very high tech modeling that was done in

Tallahassee.


This was the Wakulla Spring systems where

they actually mapped this underground

preferential flow path using cave divers. And

then they followed that up with dye tracer

studies to show that the spray field that was

being used by the City of Tallahassee in Leon

County was affecting Wakulla Springs in the next

county . So I'm showing you this to show you

basically the magnitude of impact that can occur

below the surface from preservation through those

natural hydroperiods.

This is primarily to show you the extent of

the Florida aquifer system which was basically

the subject of my doctoral research. And again,

it extends throughout all of Florida, the

majority of the coastal half of Georgia. And

although it was set up -- this again was a USGS

study, it was divided into subregions when they

did their modeling.

But basically I have done -- researched and

published research within all of those

subregions. And the natural system which

happened to coincide with the extent of the

Florida aquifer system, those natural systems


react exactly the same, whether it's a mine in

this subregion, a mine in this subregion, a mine

in this subregion, a mine in this subregion, it

does not matter to these natural systems, because

they are linked in underground and so their

response is basically the same.

Now this is a simplistic cube drawing that

will give you an idea of what happens when a

substrate is mined. It really doesn't really

matter whether it's a sand substrate, whether

it's a rock substrate, whether it's for phosphate

mining, or whether it's for road construction.

If you have a cube and you have your

groundwater at the surface, in this case that

little inverted triangle represents the surface

of the groundwater, this would be the surficial

aquifer, and here inside your cube is filled with

sand particles or shell particles or whatever

solid material that you're going to mine. And

generally you can use a porosity of about .2,

which means about 20 percent of this material is

going to be void space, which is, in this case

that void space is filled with water because the

water is sitting up here at the surface.

Now if you take this cube and water cannot


flow in or out of that cube and you mine out all

of the solid material from that cube, then your

water, it's impossible for that water to be

suspended in air at the level that it was before

you mined that solid material. So it's going to

drop. And it's going to drop down to, in this

case I've shown it at approximately 20 percent of

where it was before the solid material was mined.

Now we know that in real life when these

pits are mined that the sides of those pits are

not impermeable, that water flows into and out of

those pits.

So what that means is water is moving in

from any given direction, depending on what the

general groundwater flow is, from off-site,

property that may be to the north or to the south

or to the east or the west

And so if you look at - - now this is a

schematic to show basically what the impact is on

the environment, both the wetlands, these -- this

little drawing here is supposed to illustrate the

cypress. You've got little cypresses here. And

then right next to the cypress wetlands you've

got our native pines, whether they're slash or

long leaf. Both are very sensitive to changes in


the natural hydroperiod.

So in the before excavation example, you

have approximately 54 inches of rain a year. You

get approximately ten inches of recharge per

year. You have historic evaporation and

transformation of ET about 44 inches per year.

Here's your aquifer. You're basically recharging

your aquifer at ten inches of recharge per year

per acre.

Now, once you -- and I do want to point out

that there was some misconception. I read the

report, the groundwater report by Raw1 and

Voorhees, and they had a very impressive

introduction talking about how all of the systems

in Southwest Florida, all of the environmental

systems rely on water. Have to have water.

And then they went in -- on to say that

these natural systems are adapted do the cyclical

change between wet season and dry season, which

was very accurate. But then they went on to

state that those natural systems, meaning the

wetlands and the uplands, are xeric in nature and

that's why they are not affected by the dry

season.

And that is not accurate. It's - - it's a


gross misunderstanding, because these systems in

fact are not xeric.

What happens is their root zones are

intimately linked to that surficial aquifer and

that is how they thrive during the dry season,

because that surficial aquifer is maintaining the

water they need to survive.

If that surficial aquifer drops out from

under their root zone, that's it. They go into

severe stress and when they go into severe stress

they get fungal pathogens come in, it starts a

very, very slow chronic decline. It basically

takes the trees -- could take them from 10 to 15

to 20 years before they actually fall over.

But within the first several years of that

chronic stress, they will be put into such a

state that they are susceptible and actually do

attract beetles that come in and attack them. A

lot of people in the area of this mine have lost

trees to beetle attacks. Well, it's not the

beetle that's killing the tree, it's the chronic

stress from the altered hydroperiod that has

occurred from the mines.

So again, here in our after-excavation

mined pit you maintain a constant rate of


rainfall that you had, presuming you have the

same rainfall conditions. But what happens is,

you increase -- your pit evaporation changes from

44 inches per year, which was over a land surface

area, it increases to 63 inches per year, and

that's over the open pit.

Now on the sides of the pit, what happens

is because your pines start dying off, they're

one of the first to go, the cypress actually hang

in there longer than the pines, but because of

that altered hydroperiod you get invasions of

melaleuca, massive invasions of melaleuca.

Melaleuca has a higher ET rate. They transpire

more water than the native vegetation. So your

ET rate creases to 51 inches per year.

So you're losing additional water on the

surrounding areas that weren't mined, including

areas that were off-site, and you're also

increasing the loss of water from the pit area.

So that instead of having ten inches of recharge

per year per acre, after the mine you actually

have minus nine inches of recharge per year. So

you have actually lost 19 inches of recharge in

the area that's mined, both the associated area

where you have increased ET from a change in


vegetation type.

So this -- and this - - there's more detail

provided in this in the paper that I will hand

you copies of now. This was a publication that

came out in the Geological Society of America.

Who else gets copies?


Sydney, hang on just a second.

Go ahead, you could go ahead and give it to

him, but we just have to wait a second. The

court reporter's got to change paper.

THE WITNESS: I'm sorry.

MADAM HEARING EXAMINER: She's run out of

paper.

THE WITNESS: And I guess I should identify

this paper. Could you --

MADAM HEARING EXAMINER: Okay, just hang on

just a second.

Okay. All right. So now we have this

paper that you have provided us which is from the

Geological Society of America.

THE WITNESS: And the title of the paper

is, "Nonmechanical Dewatering of the Regional

Florida Aquifer Systems," and that was published

in 2006. It includes this figure that I have up


right now that I've just provided testimony on.

And it also -- it addresses specifically

the existing Westwind mine which is adjacent to

the proposed mind.

And when it talks -- when it refers to the

Floridan aquifer system it is not talking

specifically about the rock that is identified as

the Floridan aquifer, but it addresses the

Floridan aquifer system as incorporating the

overlying aquifers as well. And that is because

those overlying aquifers are intimately connected

to the underlying aquifers.

So you cannot separate the surficial

aquifer from the under like aquifer systems. And

that is primarily because of all of these

breaches that connect.

In fact, you wouldn't have deeper

groundwater if those systems weren't

interconnected, because there would be no way

that fresh water could have gotten into that

aquifer system. It got there from rainfall

infiltrating through those systems.

So do I need to identify this paper

further?

Just one clarification. I think when I

MARTINA REPORTING SERVICES 1239) 344-6545

referenced that Raw1 and Voorhees study that came

out in 2005, I think they had used the term

"xeric." And in case - - you know, I just

probably should have explained that term.

"Xeric" is something that really does not

require water or requires very little water. If

you can think of, you know, cactuses basically in

a desert. Cactus are xeric. We have native

cactus and they are xeric, but these natural

community types in the DRGR are not xeric. They

are in fact intimately tied to and reliant on the

surficial aquifer for their survival.

Do you want me to continue, Your Honor?

MADAM HEARING EXAMINER: Uh-huh.

THE WITNESS: Okay. So -- like I said,

there are more details provided in that document.

Now, this is an illustration of an

excavation up on the southeast coast of Florida.

In this particular case I just used it to

simplify this large stand of melaleuca that has

come in. It's basically the same in Lee County,

in Collier County, in Naples, the Naples area,

all over the southern part of Florida.

As soon as you alter the natural

hydroperiod, whether it is by excavating a large


(239) 344-6545

stormwater system or excavating a mine pit or any

other means of altering the natural hydroperiod,

melaleuca comes in with a vengeance.

Now this was actually first documented in a

very comprehensive study by USGS in, I believe it

was Miami-Dade, where they did detailed baseline

monitoring. In this case they were putting in a

new well field and they were going to have a

pumping well. And before they put that in there

they had wetlands that were basically identical

to the wetlands that we have here in this

specific area of the proposed Estero mine and the

Westwind mined and through the DRGR.

And they documented that these wetlands

were devoid of, you know, evasive alien species.

And then they put in the well and they

start pumping and they got a very profound

conversion of that natural habitat to - - and

actually they were also monitoring hydroperiod.

And the natural hydroperiod inundation in the

wetlands was completely and permanently altered

because the well field was continuing to pump.

And it was converted in fact from a wetland to an

upland, melaleuca invaded, and then they lost all

of their native wetland species and it was


actually converted to an upland.

MADAM HEARING EXAMINER: Okay. Let me ask

you a question here.

Now, in previous cases I have received

testimony that the melaleuca comes in and because

the melaleuca comes in, that's when the wetland

suddenly becomes compromised, it sucks up all of

the -- the melaleuca sucks up ail the water and

then all of your wetland species start to die.

So what you're telling me is that even

before the melaleuca gets there, the wetland

species are already being impacted by a draw down

of water somewhere else that's pulling the water

out from under their ties, and then the melaleuca

can now come in and suck up what's left, I guess.

THE WITNESS: Yes, Your Honor, that's

exactly what I'm telling you.


THE WITNESS: I'm telling you that the

reason that the melaleuca invades is because the

natural hydroperiod has been altered and it's

been altered by some surrounding activity,

whether it's immediately adjacent or whether it's

linked through those series of fracture zones

several miles away, that's what triggers the


invasion of the melaleuca.

And then the melaleuca, as it becomes

established, further dewaters the system because

it increases the loss through evaporation.

MADAM HEARING EXAMINER: Okay. So now, can

this happen naturally? Can it happen naturally?

I mean, in other words, it doesn't have to

have an outside influence as far as a man or, you

know, human induced, but actually in the natural

occurrence, say something happened and the little

fissures closed up, the little fractures closed

up and all of a sudden this little guy doesn't

get anymore water, okay, I mean is that -- is

that, you know, a possibility? I mean does --

does it work both ways, not just by someone

interfering with the system, but by the system

itself making, you know, changes, you know,

through -- through what the heck ever it does,

you know, I mean.

THE WITNESS: Well, Your Honor, in my

extensive years of field work dating back to

approximately 1973, I have never once seen a

situation where melaleuca has invaded in an area

that has not had all hydroperiod alterated

circumstances in that vicinity.



THE WITNESS: And in addition to that, you

can see areas in close proximity, certainly

within close enough proximity to have melaleuca

seed dispersed by air into areas where there have

not been hydroperiod alterations, yet those areas

which certainly are within the range of having

melaleuca invade have not invaded.


THE WITNESS: So in addition to the

literature that was - - I think that study, it was

done jointly between the South Florida Water

Management District and USGS. That study was one

of the most impressive studies that I've ever

seen as Ear as thoroughness.

And since that time, you know, I have

specifically looked, every time I'm out in the

field, to try to f i n d a n y situation where it

appears that melaleuca came in without a

hydroperiod alteration - -


THE WITNESS: - - and I have never seen one.

MADAM HEARING EXAMINER: All right. But

now, now what - - I think most of the gist of the

testimony has been that the hydroperiod


alteration is being caused by the mining activity

or some other man-made impact.

You know, my question is, can this

alteration occur naturally? I mean with nothing

around it for miles. And I understand that it's

connected, you know, 14,000 miles up here to

someplace in north Georgia or south Georgia. But

can it happen on its own without any, any

influence from a man-made activity?

THE WITNESS: In my professional opinion,

Your Honor, no.

MADAM HEARING EXAMINER: Okay. That's what

I needed to hear.

THE WITNESS: No.

MADAM HEARING EXAMINER: I just needed to

hear your professional opinion on that. Okay, go

ahead.

THE WITNESS: All right. The next slide,

now we're actually adjacent. If you recall the

property immediately to the west of the existing

Westwind mine, which is of course similar to the

property on the east, which is where the proposed

mine is located, in 2003 I did extensive field

work. I spent days and days and days and came

multiple times to do field work actually


throughout the DRGR.

This was -- at that time it was called King

property, now it's Golf Rock. And what I could

see here is very young melaleuca. This melaleuca

is just coming in. That initiation of melaleuca

immediately adjacent to the Westwind mine side,

the timing of that invasion of melaleuca is

consistent to the mining activities on Westwind.

In other words, there has been agricultural

activities, agricultural irrigation in that area

since, my understanding from documents that I've

seen and individuals I've spoken to, back in the

70s.

Yet now, now in 2000, the melaleuca decides

to invade. And of course I don't think that's a

coincidence. I don't thing that it just waited

until then to invade. I think the cause of that

invasion was the mining activities on Westwind.

Now this of course is off-site again.

Now there are a series of wetlands. Here

you can see various melaleuca coming in. Very,

very new invasions.

And if you look here, you still have -- now

this is what the interior of these natural

wetlands should look like, except the areas that


have a more prolonged inundation period like

Wetland Number 5 that I showed you that had the

thick leather leaf fern, that shows you it has a

deeper standing water and a longer hydroperiod of

time.

But these are basically herbaceous -- I

think we may be losing my point pointer. Anyway,

these are herbaceous species, very open

subcanopy, basically no small trees in these

wetlands.

And then this very sparse ground cover in

these wetlands, that's what these wetlands are

supposed to look like. That's what they look

like throughout the entire southeastern coastal

plane. But what you're -- that was back in 2003.

The mining impacts, the melaleuca hadn't invaded,

Brazilian pepper hadn't invaded.

And now what you're seeing, this is --

we're down --

MADAM HEARING EXAMINER: Okay, hang on.

Hang on two seconds before we go to the Schmidt

property.

All right. Now, you equated the

infestation or the beginning infestation of the

melaleuca on that Golf Rock property with the


excavation and mining activities on the property

to the west, which is the Westwind property.

But there are also mines north and west

of --

MS. COLLINS: East. Yeah.

MADAM HEARING EXAMINER: West. Yeah, north

and west of that property, that would they not

have -- I mean since what you had indicated in

one of the first photographs is the slope, the

slue, the flow way coming through. So clearly

any effect up here, even though this is down

here, if your theory is, you know, followed

through to the ultimate or whatever, the impact

of the mines up here could also be impacting this

Golf Rock property and it wouldn't necessarily

have to be just or a direct result of the

Westwind, is that a correct --

THE WITNESS: It's possible. What I -- and

that's where the aerial photo interpretation came

in. Because what I did is, you know, you can't

really determine everything you need to determine

by just field site inspections.

MADAM HEARING EXAMINER: Okay, okay.

THE WITNESS: And you really need to look

at aerial photographs.


MADAM HEARING EXAMINER: And that shows you

then the transition? I mean, it doesn't start

here and somebody comes up here. You'll see it

as it moves its way.

THE WITNESS: Well, what you can do with

aerial photos is you can determine everything in

a broad general area surrounding the site of

interest, and you know, all of the various

possibilities that could, you know, come into

play.

And so you use that as kind of your

starting point to say okay, now you need to

consider the possibility of impacts from this and

this and this and this and this, and then you do

more specific field work to, you know, broaden

your base of knowledge, and then you go back to

aerial photographs. And so that's the process

that in fact you use typically --


THE WITNESS: -- to attempt to form your

opinions.

Now, in this particular case, these were

the northern wetlands on the Schmidt property,

and these were within that flow system that went

through Westwind. And they were south of the


Golf Rock property and south of the Westwind

property.

And what was -- what I was seeing in these

areas, these are a little tiny cypress area that

if you looked on the surface you wouldn't think

it was connected to anything. You would think it

was this little insignificant just blob.

MADAM HEARING EXAMINER: Isolated.

THE WITNESS: Exactly right. But in fact,

it's part of that big flow way system.

So what was actually happening in this case

is they were getting areas of subsidence in that

small wetland, where that wetland was actually

sinking into the ground. And that's very

characteristic, it happens in every single mine

site that I've seen regardless of where it is in

the state.

And so What that does is that shows you

that the natural hydroperiod is being affected.

Now the thing that is very difficult for a

lot of people to understand is that in those

depressional wetlands you will get the subsidence

first. That's the first place it starts

happening. So you can actually get deeper water

in those wetlands, because the --


MADAM HEARING EXAMINER: Oh, I see.

THE WITNESS: - - the land surface is not

saying constant. The land surface is dropping.

MADAM HEARING EXAMINER: Sinking.

THE WITNESS: And if it's dropping to the

point where it's keeping up with where the

groundwater is, the surrounding uplands, those

pine areas, are not getting that water, but those

cypress are still getting that water.

And in the dry season they're very happy.

In the wet season, because the land surface has

lowered, they get flooded, they get much deeper

water, and in some cases water for a longer

period of time than they're accustomed to having.

And ironically, it's that impact that will

often kill the cypress faster than if the cypress

is subjected to less water.

MADAM HEARING EXAMINER: Okay. Now, in

looking at this -- and I know this is all

connected by the slue and what not. But

translating some of this to the subject property

and excavation around a wetland, and specifically

the wetland that we've got that's shown in the

northeast corner up there, okay?

If, if that's the -- if that's the typical


-

effect when the hydroperiod has been altered, the

mining around that wetland, is that going to

cause that wetland to drop?

Because I mean the water, the mine - - the

water is going to be there because the dirt is

being taken out. Okay? But the water level

should stay essentially somewhere in there. All

right? But it may drop some underneath that

wetland. Is that going to cause that wetland to

bottom out?

THE WITNESS: Eventually. And the thing

that is most difficult in doing these assessments

is that they don't all -- they aren't all

affected at the same time.

MADAM HEARING EXAMINER: Oh, I see. Okay.

THE WITNESS: So you may have -- and that's

what was so perplexing when they were doing --

when the University of South Florida was doing

their study with Southwest Florida Water

Management District, they had certain wetlands

that didn't seem to be affected, according to,

you know, a geologist's eye looking at a wetland.

They had other wetlands that were obviously

affected. They were getting, you know, huge

cracks in the organic material, it looked, you


know, like giant crevices where it was being

dewatered.

And so because -- and they -- what was even

more perplexing was, it was not consistent with

respect to the distance from the pumping well.

So you can't just take a linear distance and say,

well, you've got zone of influence or a cone of

influence. So if you have, say, a hundred feet

from the well or 200 feet from the well or, you

know, for 500 feet from the well they're going to

be safe, but if anything closer than that, that

was not the case.

They had wetlands that were, you know, way

further away from the pumping well than other

wetlands that appeared to them not to be

affected. But those further away ones were

affected.

And that's when I think they finally

realized that the water was flowing through these

various fracture systems. And you could actually

have a wetland that was very close to a pumping

well that might not be on a fracture line with

the well. And then you would have a wetland, you

know, a mile away that was on that fracture

system and that was the wetland that was being


affected.


THE WITNESS: So -- and I think that's

important with respect to the other approach that

was used in the study by Raw1 and Voorhees, is

they specifically addressed groundwater level

assessments with a technique called kriging, and

that isn't just some term that's reserved for --

MADAM HEARING EXAMINER: Cam you spell

that?

THE WITNESS: It's k-r-i-g-i-n-g. Kriging.

It's actually a scientific -- it's a means

of assessing scientific data, so it's not just

used in the field of geology or hydrogeology to

connote a field of science, but it has a very

important presumption. And that presumption is

that any given point that you select in your area

of interest, in this case it was DRGR, every

single point is exactly like any other single

point you select.

And when you've got a karst system, you

already saw the examples of what happens with

depressional wetlands. They have these enhanced

connection points to the underlying groundwater.

So if you take groundwater data that's


collected, almost always it's collected from

uplands, from points in the uplands, wells that

have been located in the uplands, and you attempt

to infer that that's what's happening with any

other point in that area, the DRGR, then you

violated that assumption, because those points

are not all the same.


THE WITNESS: The upland points may all be

the same, but those upland points are not

representative of what's happening in the

wetlands.

MADAM HEARING EXAMINER: In the wetlands,

okay.

THE WITNESS: So next, this is what the

uplands looked like in the Schmidt property. Now

these are native pines here that were killed when

I was back doing the work in 2003. There was

also an area -- this was their entrance drive

right here in the center of the center photo.

And then to the left-hand side of that

photo there was a large area that, you know, to

me immediately looked like an area of subsidence.

And when I spoke with the Schmidts -- now that

was now again an area that was pine, not


wetlands. Pines. Their wetlands was actually

way, way back further south.

But when I brought that to their attention

and I asked them, you know, how long that area

had been that way, they were really quite

startled. They said, well, you know, we've

noticed over the past several years that area has

been getting really deep water. When it rains,

you know, it used to -- it didn't used to have

standing water there, and now it has deep

standing water.

So in fact what was happening on their side

is, not only was the depressional wetland back in

the background of the center photograph, not only

was that cypress, little cypress wetland sinking,

but there was an area probably, my guess is that

that was a long fracture zone that happened to be

running through the upland, and not only was that

the reason that those trees were dying, but that

was the reason that area was getting deeper

water, because the land surface was actually

singing.

MADAM HEARING EXAMINER: All right. So in

the fracture zone situation, it doesn't have to

be a wetland.


THE WITNESS: No.

MADAM HEARING EXAMINER: All the property

in between, all the uplands and stuff are -- the

wetlands would be one of the things that you

would actually see the difference maybe quicker,

or it would be more noticeable in the wetland

because it had been a wetland, but it does

actually affect upland areas as well by dropping

the water.

THE WITNESS: Yes, Your Honor.

If you think back to that illustration that

I showed from the publication that showed all of

those little circular areas and they were all

connected by fractures, in between each of those

little circular areas, that's uplands.

So along that fracture zone running through

an upland you can have a preferential impact.

And that is what is causing the deaths of all

those trees, just in certain areas. So you look

at a property and you'll see - - you know, and

usually it's kind of a linear alignment of the

death of trees. And then you look around and you

say, well, that's really strange, because those

other trees are doing okay or they're not as

stressed, and that's why, because they're


associated with those karst features.

So now, this is what it looks like in 2007.

I think it's relatively easy to see that the

damage is much more severe.

MADAM HEARING EXAMINER: So this is the

area that was the left or the right photograph in

the previous -- on the previous slide or whatever

that thing is.

THE WITNESS: Yes, yes.


THE WITNESS: So in the previous slide,

let's see if I could go back here. Now all of

this is their front -- well, I take it back. The

slide on the far right here --

MADAM HEARING EXAMINER: Yeah.

THE WITNESS: - - that was the eastern part

of their property.


THE WITNESS: But this tree that she has

her hand on, actually where the hand is was a

large clump of, they call them greenfly orchids,

it's an epidemic -- or it's an epiphytic orchid

that grows - - -

THE COURT REPORTER: I'm sorry?

THE WITNESS: Epiphytic. E-p-i. "Epi"


means on, so it's a plant on a plant. Epiphytic.

MADAM HEARING EXAMINER: P-h-e-t-i-c for

the rest of it?

THE WITNESS: P-h-y-t-i-c.

MADAM HEARING EXAMINER: P-h-y, okay.

THE WITNESS: So what happens is these --

those particular orchids have a very specialized

microclimate or microhabitat that they require

and that habitat has to be very humid and very

moist.

And what I suspect has happened from all of

my observations in that area, this orchid was

completely dead and the orchid had dried up. And

I what has happened is because that area has been

dewatered from the mining activity on the north

side of the road, that not only was that

microclimate destroyed, but that's what ended up

killing the pine trees.

So the center shot and the left shot are

actually the same area as this photograph.


THE WITNESS: There's the entrance road of

the lower right-hand corner shows the gate.

MADAM HEARING EXAMINER: I see it now.

THE WITNESS: All of these pines now are


dead. So there's a just massive area of pines

that have died since the field inspection that I

did in 2003.

So the next shot, now we're actually --

this is the Wetland Number 1 on the Westwind

property, the preserved wetland, the wetland

required by permit conditions to be preserved.

And you see that actually the ground cover

doesn't look too bad in this case. You see the

right-hand photograph is -- I think maybe the

battery is dead. Did I kill it?

Maybe it hasn't had such intensive use

before, I'm sorry. But we'll go back to the

spassy little arrow up here.

Now this is a knee. Now you can see in

this cypress knee, if you look here under the

foot, this is all exposed. Under normal

circumstances you will never see those little

roots underneath a cypress. That's like the --

like gum recession where the roots of your tooth

are exposed.

And based on my research, that appears to

be very similar to when you have gum recession.

Because in gum recession you don't have a

protective enamel coating on your root. And when


it's exposed and when the gum is back and it's

exposed, then it decays very easily and your

teeth fall out.

And that's very similar to what happens to

the cypress. A little bit of subsidence here is

apparent, but it was not as critical as now.

What's happening now is you're actually

seeing this green stuff, this light green stuff

that's all throughout that wetland, is dog

fennel. And that's an indicator of uplands

actually when you have dewatered a wetland and it

is beginning to make the conversion from a

wetland to an upland, you get dense stands of dog

fennel .

Now the stands here, this is - - the

lighting is poor with this photograph on the

left, but the dog fennel actually comes up to

here. The dog fennel was taller than I am. So

it's pretty robust dog fennel. That tells me

that this wetland has been dewatered.

So it may still get wet in the rainy

season, it may have standing water in the rainy

season, but what's happening is these trees are

under chronic stress that subjects them to fungal

pathogens which come in and start to increase the


decline of those trees. Again, they're real

hearty and they hang in there sometimes for

15 years before they start falling over.

In this particular case the trees, you see

one right there, again this is Wetland 1, their

preserved wetland, this cypress tree right here

you see it's already leaning.

The pathologists have a term for that,

highly technical, it's called "wind throw." Wind

throw. Has nothing to do with the wind. What it

means is that the roots actually rotted out under

the tree and they rot out because that

hydroperiod is very flashy. It's no longer the

normal hydroperiod of cyclical wet season to dry

season, it's flashy, going up and down up and

down, depending on whatever is happening adjacent

to the wetland.

So the next shot, this is back to 2003 now,

here, this is Conservation Wetlands 2 and 3 on

the Westwind site. And the northern King site

you can see here are some cypress that are

already down. This one also is getting ready to

go down.

Now, this particular cypress is exhibiting

what I was explaining with some areas that


actually have more water, deeper water or water

for longer periods of time. And my assessment of

this particular area is that that wetland is

doing exactly what you were asking about for that

northern wetland. Is it sinking?

My assessment of this wetland is that yes,

you're getting land mass subsidence where that

wetland is slowly sinking into the ground

because -- and the reason I say that is because

these plants here are the type of aquatic plants,

submerged aquatic plants that you would see in

areas characteristic of very prolonged

hydroperiods. No longer are you seeing that

characteristic wet prairie herbaceous, you know,

grass-like area. You're seeing a combination of

dog fennel and deep water plants, and that tells

me that that hydroperiod is not even close to

natural any longer.

In this particular picture you see

subsidence that is actually under this cypress.

The soil level or the substrate level used to be

here, and now you've got probably four to six

inches of subsidence that has occurred underneath

that cypress. And that's very typical of these

types of alterations.


Now, these pictures were actually taken

from that study that I referenced earlier with

the Department of Geology at the University of

South Florida and the Southwest Florida Water

Management District.

What they did, here was a wetland that they

came in -- now this is after the well field has

been pumping -- and they put in an observation,

well, a bore hole right here and they put in

another one here. This was where the land

surface was when they started the study.

A year and a half after they started the

study, they came out and they photographed it.

And this is a meter stick. Meter stick is three,

approximately three feet tall. So you can see

that about half a meter of subsidence had

occurred in this - - oh, this is -- this area

around the base of this PVC monitoring well is

grout. They had grouted that when the ground

level was here, a half a meter higher.

MADAM HEARING EXAMINER: That was how many

years difference?

THE WITNESS: One and a half years after

they started the study.

MADAM HEARING EXAMINER: Right. Now this


is the one where they were checking the

underground flow because of the pumping in

Tallahassee?

THE WITNESS: No, no. This one is

actually, it was a well field in Pasco County.

MADAM HEARING EXAMINER: Pasco County.

Okay. I missed the connection.

THE WITNESS: Pasco County is supplying

water to Tampa. And in that particular case

they - - it was an ideal situation to do research.

Because, unlike the DRGR, they don't have other

uses like mining or agricultural or residential.

They have this huge area that is called the

Starkey Wilderness Park and Well Field.

So the only thing it's used for is people

hiking and bird watching and drawing water.

MADAM HEARING EXAMINER: Okay. Water --

THE WITNESS: And it's very large.

So there is very little question as to what

was doing it. They knew it was the pumping well

and they were just trying to figure out why

certain wetlands close to the well weren't being

affected, others further away were.

And when I get -- that was actually one of

my research sites for my doctoral research. I


had research sites throughout the entire State of

Florida, including down here.


THE WITNESS: Actually the cypress.

MADAM HEARING EXAMINER: Hang on, Sydney,

hang on a second.

MR. CICCARONE: Madam Hearing Examiner, it

occurs to me that Dr. Bacchus' cross-examination

would go much quicker if she were to identify and

authenticate the photographs that she is

displaying. Some of them are property that

belonged to my client, presumably offered to show

you proof of the condition of the property. But

I have not heard any attempt at authentication.

I don't know how we know those in fact are

photographers of the property that they're

purported to be.

And we could establish that by going

through all of these photographs all over again

on cross-examination, but it occurs to me that it

would be much simpler if they would be

authenticated as each one comes up.

In this case where it's taken from a

publication, there's no argument. But I just saw

one a minute ago that was a 2007 photograph taken

-


by somebody, and I don't know who. It's

purported to be of my client's property. I don't

know if that's my client's property.

MADAM HEARING EXAMINER: All right. Let me

ask.

Sydney, did you take the photographs

that --

THE WITNESS: Yes.

MADAM HEARING EXAMINER: The 2007

photographs.

THE WITNESS: Yes.

MADAM HEARING EXAMINER: Are you - - did you

take or did someone take at your request and with

your guidance, knowledge or whatever, the other

photographs that are taken in here, the ones that

are not taken from publications with the --

THE WITNESS: I have taken all of the

photographs that I have shown.

In fact, they - - I actually took -- I

took -- went back to the exact site where these

photographs were taken.

These photographs, the upper left

photograph and the lower right photograph in this

instance were actually photographs from their

publications, so I did not take those.


The center photograph at the exact same

site was taken by me, so I actually went back and

visited those sites.


THE WITNESS: All of the rest of the

photographs have been taken by me.

MADAM HEARING EXAMINER: All right. And

they were taken of the sites that you have

indicated? I mean, you know, you didn't take a

picture from one site and move to it another

site?

THE WITNESS: No.

MADAM HEARING EXAMINER: You know, identify

it as another piece of property?

THE WITNESS: No, no, no.


MS. COLLINS: Someone is raising their

hand.

MADAM HEARING EXAMINER: Yes, sir?

MR. SCHMIDT: I'm Richard Schmidt and I was

with her when she took the photographs and I can

vouch for the --

MADAM HEARING EXAMINER: All right. Thank

you, Mr. Schmidt.

Sydney, how much longer do you have? The


court reporter is falling apart over here.

THE WITNESS: Do you need a break, is that

what you --


THE WITNESS: This would be a good time I

guess to take a break.

MS. GRADY: Could we ask how much longer,

though?

MADAM HEARING EXAMINER: Do you have any

idea how much longer?

THE WITNESS: It should be -- should be

pretty close to the end, maybe a quarter of the

way from the end I believe.

MADAM HEARING EXAMINER: All right. Okay.

THE WITNESS: I don't have a slide number

on that.

MADAM HEARING EXAMINER: Okay. Well, let's

take a quick 10-minute break, folks, so be back

at 20 minutes after four. Prompt, please. Water

only in this room and we'll resume.

(Thereupon, a brief recess was taken.)

MADAM HEARING EXAMINER: All right. We're

going to finish up your testimony today. All

right?

T, how long is it? I've got public that


needs to speak, too. So we may have to do --

(Discussion was held off the record.)

MADAM HEARING EXAMINER: So let's go back

on the record. We were discussing the ignored

impacts of subsidence here on the Starkey

Wilderness Park and Well Field, about what was

affected and what wasn't. Then you supplied --

we got just before.

Okay. So where are we now?

THE WITNESS: So we were explaining, there

was a question about the authenticity,

authenticating the photos that I had taken and

the fact that I neglected to say, even though I

think the slide said on the bottom "Bacchus

2003," I should have clarified that that meant I

took these photos in 2003.


THE WITNESS: And the only photos I believe

that I have shown so far that I actually did not

take were the upper left and the lower right

which were from the publication from Rochow 94,

and they actually sent me a copy of those

photographs. And those photographs were taken in

the research wetlands that I was doing my

doctoral research on at that particular well


field.


THE WITNESS: That's one of numerous sites

throughout the state.

On the -- I want to draw your attention now

to -- well, first let's go over and look at this

graph here. This graphic data was extracted from

their 1994 report. And what they showed here was

this red horizontal line in both the upper graph

which says unaffected, and the lower graph which

says affected, represented ground surface

elevation at the time they were conducting their

monitoring, which of course was not baseline

pre-pumping monitoring. It was after pumping had

gone on.


THE WITNESS: That's correct.

So they -- the geologist had determined

that this wetland, that the data in the lower

graph was taken from, was an affected wetland.

And the graph here you see is not bouncing

up above that red line. Now what that means is

there was no surface water. There was no longer

a surface water component of that hydroperiod.

All of that water was bouncing up and down and up


(239) 344-6545

and down and up and down below the surface of the

ground.

MADAM HEARING EXAMINER: All right. So now

what this graph shows, are both graphs, top and

bottom, are they both of the same area? In other

words, that he didn't take one in the northwest

corner and then the other one is regarding the

conditions in the southwest corner, I mean he --

THE WITNESS: These are two different

wetlands on the well field.


THE WITNESS: The well field.

So what he did, the geologist, went out

there and then basically said, okay, they picked

wetlands. They said this wetland next to this

pumping well is unaffected --


THE WITNESS: -- because of whatever

reasons. And this other wetland that they picked

- - and they picked numerous wetlands. It wasn't

just two. They picked numerous ones. They

determined that some were unaffected, some were

affected.


THE WITNESS: And I think part of the basis


for determining what was affected and unaffected

was whether their -- the water levels were coming

above the surface of the ground or whether they

were just bouncing around below the surface.


THE WITNESS: Now, you can see that this is

in feet. This scale here is in feet. So you can

see that the variation in those water levels

ranged over several feet below the surface.

Now that, again, you have systems. The

cypress systems generally are rooted very

shallowly. They don't have to have deep roots

because the water table is fairly -- it does not

vary as sporadically as you see here once it's

altered. So it has a very limited range of

variability.

MADAM HEARING EXAMINER: And this is over a

period of time now, this is not just a snapshot.

THE WITNESS: That's right. They

started -- this was in I believe '89 that they

started here, in January of '89 on the X axis

near the -- at the zero point, and then it went

through '91.


THE WITNESS: So that's your period of time


for both graphs.

Now what happened is, in the unaffected

wetlands, they again made that determination that

it was unaffected by the fact that, here this

hydrograph shows that above that red line,

that in fact the area that's colored in here is

indicative of surface water. So it's fluctuating

back and forth between water that is above the

ground level and water that is below the ground

level.

And that is what an actual hydroperiod

looks like. During the wet season you get

standing water, flowing water. During the dry

season you have no standing water or flowing

water.

Now in reality, this photograph in the

upper left-hand corner is what they called the

unaffected wetland. You can see it doesn't have

half a meter of grout sticking up in the middle

of the air. So they thought, uh-huh, you know,

it gets some standing water, that's an unaffected

wetland.

And in fact, if you look at the shadowy

form behind that monitoring well there, that is

in fact what the center photograph is that I


took. And this is a cypress tree.

In this particular case, you probably never

seen a cypress tree with this thing. It looks

kind of looks like a hovercraft. And the reason

it looks like a hovercraft is because the ground

surface used to be up here. Up there.

So, in effect, the unaffected wetland also

experienced approximately half a meter of

subsidence. It just occurred before they started

their monitoring.


THE WITNESS: So that's all happening in a

relatively small area around a single pumping

well in that Pasco County well field. So that's

what that is meant to illustrate.

Now, now we're going to get to Mr. Hill's

property. We're now moving westward from --


THE WITNESS: -- the King property.

This, Mr. Hill's property, is actually

approximately a half a mile west of the Westwind

mine site. Mow I looked at that indication at

the bottom that says Bacchus 2007, I took these

photographs in 2007.

You can see here on you're facing -- in the


left photograph you're facing a south direction.

You're looking standing from near his house

looking towards Corkscrew Road, which is this

line that runs across the bottom of the

photograph here.

This large white fill area was fill that he

had to dump on his road to elevate it high enough

so that he could actually drive in and out of his

driveway during the wet season. Because his

property now is getting so wet, has so much water

during the wet season that he could no longer

drive in and out to his property.

So that's what that white area is now. You

can see a couple of trees here. There's one

that's dead, there's several dead here. All back

in the back there are numerous dead trees on

the -- on the east side of the property closer to

the mine.

And this is a pile of pine trees that he's

had to pile up here that died, and he's cleared

this area here and just piled the pines up.

Now this is another shot. This is

actually -- oh, and I need to mention that I

actually looked at historic photographs of that

same area, the pines in his yard, when they moved


to the property in approximately 1988 -- and of

course that was before the mine was

established -- and they were some of the lushest,

greenest, healthiest looking pines I've seen.

Those are going to be put into the record. I

believe his wife took those photographs. She's

going to introduce them into the record I believe

tomorrow. So I have seen those photographs and

they were the same area.

Now, this is directly across on the other

side of Corkscrew. There's a road, it's called

Lazy D Road that comes to -- it's along this

left-hand side of the photograph.

And these, all these dead pines, which look

very similar to the dead pines and are in

approximately the same location as the ones in

the front of the Schmidt property, which would be

the northern part of those properties.

And I want to just mention at this point

the relevance of all this discussion of these

preferential flow paths, these underground

conduits for flow of water, I do have a copy of

Judge Hoeveler's ruling. Now this is talking

about similar movement of water through this

Florida aquifer system instead of on the


southwest side of the state, on the southeast

side, and I would like to enter his ruling into

evidence so that you can actually read

discussions, very similar to the discussions that

I've been having about the encroachment of

melaleuca once the hydroperiod is altered.

And in this particular case he concluded

that the severe benzene contamination that

occurred in the vicinity of the well field was

due to the blasting that was occurring from the

mine.

Now again, I realize that the proposed

mine, Estero, is not presuming to conduct

blasting now.


THE WITNESS: But as the public comment

attested to, that was also the situation with

Westwind. And initially they were proposing no

blasting, and then blasting was occurring.

So I wanted to make a point that this

contamination in this case that Judge Hoeveler

ruled on on the 13th, last Friday, they were

getting impacts in approximately 3,000 feet from

where the blasting was occurring.

And in this particular case, Mr. Hill's

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property is much closer than that. It's less

than 3,000 feet.

MADAM HEARING EXAMINER: Let met ask you

where you got the copy of the decision. Did you

take it off the computer or --

THE WITNESS: No, no. It was sent to me by

the attorney for the case.

MADAM HEARING EXAMINER: Okay. And the

attorney for the case submitted that to you, and

that is the only document that's on that disk.

THE WITNESS: That's the only document on

that disk. It's actually a four-part file

because it's so large. They broke it up into

four P D F ' s , which I've not altered at all. It's

just burned on this CD.

MADAM HEARING EXAMINER: Beverly?

MS. GRADY: I would object, because this is

a case on another set of facts and another

section of Florida and has no relationship to the

cases before the hearing examiner.

MADAM HEARING EXAMINER: Okay. All right,

I understand.

County Attorney, comments?

MS. COLLINS: I'm not certain the - - she's

submitting it to you --


MADAM HEARING EXAMINER: Substantiate her

testimony.

MS. COLLINS: - - to reinforce her testimony

as to the connectivity --


MS. COLLINS: -- of the underground

generally? Is that what --

THE WITNESS: Well, actually, there is

testimony on here that basically corroborates my

opinion of the fact that these mines result in

hydrologic alteration, the changes of the natural

hydroperiod, which then prompt the invasion of

melaleuca, which destroys the integrity of those

natural areas.

MADAM HEARING EXAMINER: Let me ask you one

question. In his ruling, did he relate that

degradation or alteration specifically to the

blasting or was it just mining activity, you

know, sandblasting or, you know, I mean without

the blasting?

THE WITNESS: Your Honor, I don't -- I

don't recall him identifying that the melaleuca

problem had anything to do with the blasting.

The blasting was simply what he had determined

was the source of the benzene.


MADAM HEARING EXAMINER: Of the benzene.

THE WITNESS: Right.


THE WITNESS: So I'm not attempting to

offer myself as an expert in benzene.


THE WITNESS: And I want to clarify that

for the record.

MADAM HEARING EXAMINER: Well -- hang on T,

we've got a thing from Mike.

MR. CICCARONE: Madam Hearing Examiner, I

need to join in Mrs. Grady's objection to the

extent that this evidence is being offered in the

way of collateral estoppel type testimony in

future cases. I'm not even sure it's admissible

in this case, let alone in future cases.

Because as I understand it, it's intended

to prove that the karst interconnectivity

phenomenon described as being relevant in this

case is -- has been found to exist on this coast

because it may have been found in this particular

case on the east coast, and I think Mrs. Grady's

objection is perfectly sound and well taken. I

don't see how you could possibly in this case

take that into evidence as proof of anything.


And to the extent that's how it's being

offered, which is exactly what I understand it is

being offered for, I think that the objection

should be sustained.

MADAM HEARING EXAMINER: T?

MR. HART: Madam Hearing Examiner, this

case is about 300 acres and 25 feet, but as we've

all discussed during the last couple of days,

this is a first case. We know there are other

mines out there. We know this subject is on the

commissioners' minds. We know that that decision

in Miami is going to be something they're going

to hear about. If not because of this case,

because they may have already heard about it.

I don't feel strongly about it, but I don't

see any harm in your taking it for the purpose

that it's been offered, which is to show that

somebody else has said the same thing that this

witness, this expert has said.

And also because we're making a record,

we're all making a record here. Commissioners

are one day going to want to see all of that

record and maybe this is the day.

MADAM HEARING EXAMINER: Right. All right.

Let me look at it this way, folks.


I have authority to take judicial

recognition of this case simply because it is a

prior decision. You know, a judicial decision.

And I have the authority and the right and

generally the obligation to look at and be

governed by the prior court decisions in the

State of Florida whether they be federal or

whether they be the state courts or county

courts.

So, as support for your position or as

substantiation for your testimony regarding what

might be happening in this area, I won't take it

for that. But what I will do is take it to read

and to understand. I think you've already

indicated that this karst system runs through the

whole State of Florida.

THE WITNESS: Yes, Your Honor.

MADAM HEARING EXAMINER: Okay? So I can

acknowledge that, you know, or recognize that

pursuant to that case that this is a situation

that is being found in other parts of the state,

you know, but not necessarily use it as a support

for your testimony about this specific request or

this specific area. All right?

But I do think that under the rules and


regulations I could look at the case without --

THE WITNESS: Okay.

MADAM HEARING EXAMINER: -- having it

submitted in the record.

So I will accept it with a very limited

scope. All right? And that scope would not be

to substantiate your testimony, but in

recognition of the fact that there are other

instances and that, you know, this is the finding

in another court regarding similar cases, but not

identical. So you know, it sets a small

precedent, but not a controlling precedent.

THE WITNESS: And Your Honor, I should

clarify. It sounded like there was some

misunderstanding that I was implying that the

melaleuca situation could only occur because of

karst features. And of course that's not the

case.

The melaleuca problem can occur, even if we

presumed there was no karst, no preferential flow

ways in this area at all, you would still expect

to have a melaleuca problem invading in adjoining

properties associated with this proposed mine,

even in the absence of karst features.



THE WITNESS: So I wanted to clarify that.

MADAM HEARING EXAMINER: Okay. I will take

that as your Exhibit Number 3. As soon as I find

my paper to write on. Oh, here it is.

Yes. Your article is Number 2. Bacchus

resume is your Number 1. So this will be your

Number 3, Bacchus Exhibit Number three, and that

will be the 7/07 - -

MS. COLLINS: What was 2?

(Bacchus Exhibit 3, Hoeveler Ruling -

marked for identification.)

MADAM HEARING EXAMINER: Okay. And you're

going to hand me that little thing right there.

THE WITNESS: Yes, I am. And I don't know

what the provisions are for making copies here.

MADAM HEARING EXAMINER: If we need to make

copies, I will have my secretaries -- I'm sure

you could put this on - - they're going to have to

do it for me anyway -- put it on the computer and

print it out or whatever. I get -- you know, I

read better in hard copy.

THE WITNESS: Me too.

MADAM HEARING EXAMINER: I read better in

hard copy. So it's better to get it in hard copy

for me.


So if I do that, if I have them do that

first thing in the morning, I'll distribute

copies to anybody that wants it. So just let me

know if you want a copy of it.

All right. So we have that. And what's

the "flying pigs" now?

THE WITNESS: Well, I'm so glad you asked.

And I think this would be a good time for

me to take the opportunity to clarify that I do

realize that the proposed mine is shallower than

the mine that I have been using as my example

mine, the -- roughly half the depth is what the

proposed depth is.

But I wanted to make the point that this

hydroperiod alteration happens even with very

shallow excavations. You don't have to have a

giant deep mine.

And my point is, with the flying pigs, is

that I think what I've seen in the documents that

I have reviewed, particularly when I was

reviewing all of the documents in the regulatory

files, all of the application documents and

everything, there were a lot of assurances that

those wetlands would be protected, the wetlands

that are designated to be protected are going to


be protected, there will be no off-site impact.

Those assurances are all there and they may have

been very sincere assurances, but, Your Honor, I

think I could sit here and tell you that I could,

you know, produce blind pigs and I could be very

sincere about the fact that I could produce

flying pigs, but the fact is, you know, flying - -

pigs don't fly.

And there is a higher probability of

producing flying pigs than there is of protecting

those wetlands that are associated both on the

mine sites and off the mine sites, in addition to

the wetlands -- the uplands.

MADAM HEARING EXAMINER: Let me ask you a

question now, Sydney. We've talked about

excavation. Most of your presentation has dealt

with the consequences of excavation.

Would an agricultural operation on this

property that -- I mean it skirts the wetland,

okay? I mean it doesn't get into the wetland, it

skirts the wetland, so the wetland is protected

in that manner.

Would an agricultural operation, with all

of the ditching that goes along with that, cause

the same kind of effect as the actual excavation


would?

THE WITNESS: Well, Your Honor, that's a

very good question, too. And I guess maybe I can

point to that Estero Group Ltd. aerial flex map

there, and you could see that wetland there, on

the existing Westwind mine there were -- as part

of the permit requirements, there was a

requirement that they put in a ditch actually

around the wetlands. And those ditches were

supposed to be ditches to maintain the

hydroperiod.

What they would do is they would

actually --

MADAM HEARING EXAMINER: They were flooding

them, weren't they?

THE WITNESS: Yes, yes. But you have to

realize that it's all the same water. I mean,

hopefully by this point in my presentation we

realize that groundwater and surface water is all

the same water. So the more groundwater you pull

up and dump in those ditches, you're just simply

pulling water out from under those wetlands.

MADAM HEARING EXAMINER: Okay. Okay.

THE WITNESS: So in the case of these

ditches, if the ditch is located immediately


around the wetlands like that, it can actually

dewater the wetland because water will flow out

into those ditches. And that has been -- in

fact, that was the early part of my research, was

working on these types of depressional wetlands

that had stormwater ponds excavated next to them.

And the stormwater ponds, despite the fact

that they were not 25 feet deep, were still

dewatering those wetlands. Because during the

dry season, that water is flowing out of the

wetland. At the time that the groundwater water

level would be very near the surface, maintaining

those root zones in a wet state, you now have

that water, if you think about that box that I

showed that had been mined, that water is now

flowing out of that box.


THE WITNESS: Or into that box from the wet

MADAM HEARING EXAMINER: From the sides.

THE WITNESS: From the wetland.

MADAM HEARING EXAMINER: Yes. Okay.

THE WITNESS: So you know, once you have no

water, when you don't have the wet season and

you're not pumping water into those ditches


that - - they're called rim ditches is what

they're called -- those will alter the

hydroperiod of those wetlands, even though they

may be, you know, six feet deep, ten feet deep.

If you're talking about a linear ditch,

like a lot of times alongside the road you'll

have a linear ditch?

MADAM HEARING EXAMINER: Like a swale.

THE WITNESS: Right. Those do very little

with respect to dewatering. I think that's what

you were referring to with the agricultural areas

where there are ditches through there.

That was actually one of the first things

that the Department of Environmental Regulation

way back in the 70s was looking at, is whether

those linear ditches were really dewatering those

groundwater -- I mean those depressional wetland

features.

And in reality, the surface water

alterations from ditches is minuscule compared to

the dewatering that comes from underneath that is

happening from the groundwater from subsurface.

So did that answer your question?

MADAM HEARING EXAMINER: Yes. Yes, it did

okay.

>


THE WITNESS: Okay. And so you know, you

could have some -- agricultural irrigation can

range from the gargantuan water canons that are

used in the Everglades, you know, that spew out

these geysers, to, you know, very fine drip

irrigation systems. And the drip irrigation

systems will have very little impact on

surrounding areas; whereas, opposed to the kind

in which irrigation they do with water canons in

the Everglades or in parts of south Georgia,

those are, you know, detrimental.


THE WITNESS: SO --


THE WITNESS: All right. So we're getting

close to our wrap-up here.

Now this actually was a map that was from

recall Rawl's presentation often June the 5th

and he was showing Map 5 - 8 , which is "Proposed

Mitigation Restoration Preservation Sites" and

those were these areas in blue.

Now if you focus on this area over here,

that's the proximity of where this proposed mine

is located. This also is from Rawl's

presentation. And you'll notice this is his


title, this is his map, I've just simply imported

it.

"Potential Future Mining Activities," those

are the dark areas here. And the mitigation map

area is in blue. And again this is the area

where the Westwind and proposed mine is located

here.

And these areas that are being proposed as

either mitigation or conservation or

preservation, not going to happen. That's the

flying pig. It is impossible. Impossible to

have mines with these areas located adjacent to

them.

You saw the Schmidt's property, you saw the

Golf Rock property, you saw Kevin Hill's

property. It is not possible to have mitigation,

conservation, preservation, in the areas where

mines are located.

MADAM HEARING EXAMINER: And that's

specifically wetland.

THE WITNESS: Wetlands or uplands.

MADAM HEARING EXAMINER: Or uplands, okay.

THE WITNESS: Or uplands. In fact, I

think, if I'm not mistaken here, I should have a

slide addressing specifically that. I mean


-

you've seen what it's doing to the pines, you

know those are uplands.

And I just wanted to very quickly touch on

some of the salient points from their report.

They actually stated that the DRGR was

designated and the applicable land has remained

unchanged since 1990.

Not the case. I mean just in the short

span of time that I showed you these photographs

between 2003 and 2007, there have been

catastrophic changes as a result of the mining in

the DRGR, just in the area that I focused on.

And I actually have visited all of the mine

areas in the DRGR and it's the same situation in

each one. It's just much easier to figure out

what the impacts were in this specific area

because of the limited interactions.

They also quoted Policy 1.4.5 from the

DRGR, which says "land uses must be compatible

with maintaining surface and groundwater levels

at their historic levels."

Well, you know, we don't have the wonderful

historic records available to us, but what we do

have is the historic ecosystems telling us what

the historic water levels have been for years and


years and years and years, and aren't anymore

because these alterations of hydroperiods have

occurred.

So again, that gets back into the approach

that they use, which is very broad approach,

looking at monitoring wells basically from

uplands, kriging, assuming that every single

point in the DRGR is going to be responding

exactly the same as every other Point, which we

know isn't the case.

So then, basically, they said the impact of

the DRGR land use on water level is determined by

average water levels for kriged surfaces, and

that's where I just explained to you that that

approach really is not relevant where you've got

depressional wetlands that are relic sinkhole

features.

And then DCA, of course, requested that

cumulative analysis of the mining activities in

the DRGR occur. And that hasn't happened.

Because every time the county considers a mine,

they consider only that mine on that specific

location, and you're not allowed to look beyond

those boundaries of that site.

So I think they were actually pointing out


that, yes, cumulative effects do need to be

considered.

This was actually from Stewart, an

association that was addressing cumulative

impacts. They actually were looking at well

fields, the impacts in the well fields, then they

have impacts for the golf course overlay.

So this is where cumulative impacts are

being addressed, they're being talked about, but

they haven't been analyzed. Nobody has gone out

and said, okay, what is the impact from the well

fields that we have in the DRGR, combined with

the mine sites we have in the DRGR, combined with

the proposed mine sites that we have in DRGR,

compared to the golf courses that we might have

or want to have in the DRGR, and what is that

impact on the environment. So that hasn't

happened.

And this is the slide that I think best

illustrates that. This is that wonderful

wildlife corridor that the taxpayers have paid a

lot for to keep the panthers off the highway. I

think two were just killed recently.

You see the habitat here? These were --

this was actually a forested area. All these are


native pines and now they're sticks. And I can

assure you that that area is not going to become

revegetated by a pine forest that was providing

panther habitat. Not going to happen.

MADAM HEARING EXAMINER: All right. Where

is this taken now?

THE WITNESS: This is taken - - the wildlife

corridor is on Corkscrew Road. It's the Alico

Road intersection. In fact if you look over

here, here's Alico Road coming down, here's

Corkscrew, and then I think, if I'm not mistaken,

this is the - - the area where the -- yeah, should

be right there I think. Right near that.

MADAM HEARING EXAMINER: I'm sure I've

driven past it, I just don't recognize it.

THE WITNESS: Right. And for the court

record, there's a little bend in the road on

Corkscrew that is occurring just east of the

Alico Road intersection.

And so this photograph taken by me in 2003

is facing north, northeast. And this is facing

it standing here for scale and her husband

standing here for scale.

Here's the large fence that was constructed

to keep the panthers out. No panther habitat.


The panther habitat is gone. It's gone. And

they put that wildlife crossing there, the

barrier, so that the panthers who were using this

corridor to migrate back and forth, that wildlife

corridor is gone.


THE WITNESS: Because of cumulative

impacts.

And my professional opinion is that that is

not going to be able to be restored. Even if

they went in and attempted to restore that

habitat, they will not be able to restore that

habitat.

Yeah, that is -- this is -- actually,

that's an area that has a combination of the

Corkscrew well field, which I think I'll show

right here. Here's the Alico Road corning down,

here's the Corkscrew Road here, and you'll see

there are some -- each one of these little

lollipop looking things in Section, I think it's

22. Each one of those is a pumping well.

And so here's an area where they were

assuming that water was going to be supplied for

the municipal use and already they have dewatered

those both uplands and wetland that were in the


DRGR, serving as panther habitat.

I also might mention, Your Honor, that the

wetlands that are on the Estero proposed mine

site, as were the wetlands on the Westwind site,

were removed from federal oversight. So that

review process that would have occurred as a

combination of the Army Corps of Engineers, in

consultation with the Fish and Wildlife Service,

did not happen.

So we have no idea what the impact of

Westwind and Estero are on, for example, the

federally listed panther, the federally listed

wood stork, indigos, we have no idea what is the

impact on those because those did not -- those

two projects did not go through that federal

review process.

In my opinion, those wetlands were in fact

within the jurisdiction of the Army Corps of

Engineers, but that review did not happen because

they got a letter indicating.

Now this, this shot was taken from a nature

conservancy document. These large circles that

intersect are actually the foraging ranges of the

wood stork. You could see now here's the DRGR

area down in here, you could see the foraging

.


area from the wood storks are huge and take into

account those areas where these proposed -- the

proposed mine and the existing mine are located.

So they have rookery area to the south of

those --

THE COURT REPORTER: I'm sorry, they have

what areas?

THE WITNESS: Rookery. Rookery, nesting

areas for the wood stork, although they nest in

those wetlands which are immediately south of the

existing mine and the proposed mine where those

flow ways are being affected.

Those birds don't stay right in those

wetlands. When they get ready to eat, they fly

all over the DRGR to feed. And they feed in

those depressional wetlands. And when those

depressional wetlands are converted into uplands,

they don't eat anymore.


THE WITNESS: So that is a cumulative

impact that hasn't been considered.

This is just to show that there has been

consideration about destruction of critical

habitat. Critical Habitat for the panther,

critical Habitat for the wood stork, yet none of


those evaluations are being done on these mining

projects. They weren't done for Westwind, they

will not be or have not been done for the

proposed well field.

This again talks about mining land use and

then the DRGR watershed, basically showing you

where they're located.

And this was the review report that was

done by McLane. And McLane looked at supposedly

all of the documents that are available to

determine, you know, what assessments have been

done in the DRGR.

And they concluded on page ES-9: This

project team also found that there were a few

major components of the overall character of the

DRGR lands that were not described in sufficient

depth in the documents reviewed as part of this

project." And they specifically highlighted

ecological impacts associated with mining

activities as a major void in what we have

available.

So in wrapping this up, this is actually a

graph of that done by US EPA Scientific Advisory

Board in 1999. They looked at 33 environmental

stressors. They ranked those stressors. Of


those stressors, the number one stressor was

hydrologic alteration. It wasn't, it wasn't

global climate change, it wasn't -- it wasn't UV

light, it wasn't DO and BOD, dissolved oxygen or

biological oxygen demand. It was hydrologic

alteration, the number one environmental

stressor.

I've highlighted in yellow here Number 3,

habitat conversion; Number 7, habitat

fragmentation; Number 9, disease and pest

outbreaks; Number 11, physical habitat

destruction; number 14, altered fire regime. All

of those are linked to hydrologic alterations.

And I would like to present one other

exhibit into record at this point in time with

regard to the impact of fire at that panther

crossing zone that we looked at. There was fire

that went through there.

And this paper, Your Honor, was another

publication. This was a peer reviewed document.

It's entitled - - I published this paper, and it

was published in January of 2007. The title is

"More Inconvenient Truths: Wildfire and

Wetlands." SWANCC and Rapanos.

And this deals with these -- specifically


with these depressional wetlands and how the

hydroperiod alterations result in catastrophic

destructive wildfires. Not good wildfires. Not

wildfires that we have to have to maintain these

natural communities, that these natural

communities are adapted to - -


THE WITNESS: -- and thrive under. These

are wildfires that kill the very trees that

they're supposed to protect. And they do that

because the hydroperiod has been altered, the

groundwater has been pulled out of from under the

roots, and the fires kill the trees. So that, I

guess, is number four, Your Honor.


THE WITNESS: This is my last slide and

this hopefully will put into perspective the

various magnitude -- magnitude of impacts of

various land uses in the DRGR. This is a little

graph that shows graphically, here in the lower

left corner we have natural habitat. Little

panther sitting up there in the tree. That's

very low impact.

The DRGR, if it was protected for panthers,

it would cost the county very little to maintain


it, because it basically maintains itself, and it

would very little impact on the present and

future resources of the county.

The next largest impact are these rural

residences out here. And you can see they don't

have a lot of pavement, don't have paved parking

lot, they don't have big paved entrance roads,

don't have sod. They're not irrigating sod, so

they're not pulling up water forever use on sod.

Very little impact.

Then the next largest impact will be the

golf course facilities. Because what do they do?

Well, they excavate these water hazards and those

water hazards are miniature pits, so you've got

the impact from that and you've got the impact

from irrigating their grassed areas.

Then the next largest impact in the DRGR

will be the more high-end developments where you

have a lot of concrete and asphalt that is

preventing the recharge of the aquifer, because

you're increasing runoff. You're actually

maintaining a lot of landscape areas with

irrigation.

And then finally, the largest impacts you

have, the largest cost of services, you've heard


testimony about the roads being damaged, you've

heard information about the damaged property,

about the damage to windshields, all of those are

costs of services and impacts on present and

future resources from these mining activities.

So I'm hoping that that will give you a

visual representation of where in the order of

magnitude the proposed Estero mine and similar

mines will have on the DRGR.


MR. HART: I have no questions.


So we're going to hold cross-examination on

Dr. Bacchus until tomorrow. Then we're going to

now take testimony from Mike Roeder and from this

gentleman here.

Sir, did you want to testify before

Mr. Roeder or --

AUDIENCE SPEAKER: I could do it after him.

MADAM HEARING EXAMINER: You don't mind

waiting?

AUDIENCE SPEAKER: I could go after him.

MADAM HEARING EXAMINER: You don't mind

waiting?

(Witness excused.)


MADAM HEARING EXAMINER: All right. Now I

have received a printed copy of the Powerpoint

presentation. I'm going to put this in as

Bacchus Exhibit Number 5.

(Bacchus Exhibit 5, Powerpoint Documents,

received in evidence.)

Dr. Bacchus: What was Number 1, Your

Honor? Oh, the CV?

MADAM HEARING EXAMINER: No, Number 1 was

your resume.

Dr. Bacchus: Okay.


Dr. Bacchus: Thank you so much.

MS. GRADY: Is it possible to get a color

copy from e-mail?

Dr. Bacchus: The file is about

130 megabytes. But if you -- I'm sure if -- I'm

wondering if maybe we could supply you with a CD.

Is that -- oh, is that it?

MR. HART: We can get you one tomorrow.

(Discussion was held off the record.)

t + * * END OE EXCERPT * + * *


C E R T I F I C A T E

- - -

I, Andrea J. Stefanick, Registered Professional

Reporter and Registered Merit Reporter, for the 20th

Judicial Circuit of Florida, do certify that I was

authorized to and did stenographically report the

foregoing proceedings and that the typewritten

transcript of proceedings is a true record.

Dated this 22nd day of July, 2007.

---------------- &&@ay Andrea J. St fanick, RPR, RMR, CRR


M....Bacchus Exhibit 1, Resume 4 Bacchus Exhibit 2, Article 4 Bacchus Exhibit 3, Hoeveler Ruling 114...

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Transcript of M....Bacchus Exhibit 1, Resume 4 Bacchus Exhibit 2, Article 4 Bacchus Exhibit 3, Hoeveler Ruling 114...