KTR00175

Page 1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION

CONSOLIDATED LITIGATION
NO. 05-4182 "K"(2)
PERTAINS TO: JUDGE DUVAL
ROBINSON, Number 06-2268 MAG. WILKINSON
Videotaped deposition of JOHN W. DAY, JR., Ph.D.,

School of the Coast & Environment, Department of
Oceanography & Coastal Sciences, Louisiana State
University, Baton Rouge, Louisiana 70803, taken
in the offices of Bruno & Bruno, 855 Baronne
Street, New Orleans, Louisiana 70113, on
Wednesday, the 28th day of January, 2009,
beginning at 9:11 a.m.
APPEARANCES:
ANDRY LAW FIRM
(BY: JONATHAN ANDRY
KEA SHERMAN
610 Baronne Street
New Orleans, Louisiana 70113
AND
GAINSBURGH, BENJAMIN, DAVID,
MEUNIER & WARSHAUER
(BY: GERALD E. MEUNIER)
Suite 2800
1100 Poydras Street
New Orleans, Louisiana 70163-2800
ATTORNEYS FOR THE PLAINTIFFS
(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

ONE SHELL SQUARE,#250 CERTIFIED COURT REPORTERS NEW ORLEANS, LA 70139
Page 2 Page 4
1 APPEARANCES CONTINUED: 1 INDEX
2 UNITED STATES DEPARTMENT OF JUSTICE 2
(BY: SARAH SOJA) 3 EXAMINATION BY: PAGE
3 1331 Pennsylvania Avenue, N.W.
Post Office Box 888 4 MS. MILLER 7
4 Benjamin Franklin Station 5
Washington, D.C. 20044 6 EXHIBITS:
5 7 Day Exhibit Number 1 10
ATTORNEY FOR THE DEPARTMENT OF Notice of Videotaped Deposition
6 JUSTICE AND THE ARMY CORPS OF 8
ENGINEERS
7 Day Exhibit Number 2 16
UNITED STATES DEPARTMENT OF JUSTICE 9 Expert Report - Effects of the
8 (BY: ROBERT M. MITSCH Mississippi River Gulf Outlet on
KARA K. MILLER) 10 Coastal Wetlands and Other
9 1331 Pennsylvania Avenue, N.W. Ecosystems in Southeastern
Post Office Box 888
10 Benjamin Franklin Station
11 Louisiana
Washington, D.C. 20044 12 Day Exhibit Number 3 17
11 Supplemental Report to Expert
ATTORNEY FOR THE UNITED STATES 13 Report, Effects of the Mississippi
12 CORPS OF ENGINEERS River Gulf Outlet on Coastal
13 CHAFFE McCALL 14 Wetlands and Other Ecosystems in
(BY: ALAN R. DAVIS)
14 Suite 2300
Southeastern Louisiana
1100 Poydras Street 15
15 New Orleans, Louisiana 70163-2300 Day Exhibit Number 4 22
16 ATTORNEYS FOR LAFARGE N.A. 16 John W. Day, Jr. Résumé
17 ALSO PRESENT: 17 Day Exhibit Number 5 32
18 DAVID R. DYER Figure 2.3 MR-GO Channel Cut and
Assistant District Counsel
19 Office of Counsel
18 Spoil Deposition
CEMVN-OC 19 Day Exhibit Number 6 61
20 UNITED STATES ARMY CORPS OF ENGINEERS 1990-2000s USGS 7½ Topographic
Post Office Box 60267 20 Map Mosaic
21 New Orleans, Louisiana 70160-0267 21 Day Exhibit Number 7 122
22 LOUIS D. BRITSCH Figure 4.8 Cypress Tree Map - 1930s
Assistant District Counsel
22
23 Office of Counsel
CEMVN-OC Day Exhibit Number 8 128
24 UNITED STATES ARMY CORPS OF ENGINEERS 23 Figure 4.2 Habitat Map - 1950s
Post Office Box 60267 24
25 New Orleans, Louisiana 70160-0267 25
Page 3 Page 5
1 APPEARANCES CONTINUED: 1 INDEX
2 ASHLEY GREMILLION COKER 2
SHER GARNER CAHILL RICHTER KLEIN & HILBERT 3 EXHIBITS: PAGE
3 28th Floor Excerpt of State of Louisiana
909 Poydras Street 5 Department of Conservation
4 New Orleans, Louisiana 70112 Geological Bulletin No. 8, Lower
5 GARY P. SHAFFER, Ph.D. 6 Mississippi River Delta Reports on
6 SARAH MACK, Ph.D. the Geology of Plaquemines and St.
7 7 Bernard Parishes
8 VIDEOTAPED BY: 8 Day Exhibit Number 10 159
9 JOHN WADSWORTH Ecological Monographs, Plant
9 Communities in the Marshlands of
Legal Video Specialist Southeastern Louisiana
10 HART VIDEO OF LOUISIANA, L.L.C. 10
Bay 5 Day Exhibit Number 11 183
11 1185 Robert Boulevard 11 Environmental Atlas of the Lake
Slidell, Louisiana 70458 Pontchartrain Basin
12 12
14 13 Various documents
15 Map of the Southern Part of
16 REPORTED BY: 15 Louisiana, Vegetation Types of the
17 CAROL VALLETTE SLATER Louisiana Marshes
Certified Court Reporter 16
18 Registered Professional Reporter 17
19 18
20 19
20
21
21
22 22
23 23
24 24
25 25
2 (Pages 2 to 5)
Page 6 Page 8
1 STIPULATION 1 the United States in this case, Robinson v. U.S.
2 IT IS STIPULATED AND AGREED by and 2 We met at your last deposition a
3 between counsel for the parties hereto that the 3 little more than a year ago. So, I know that you
4 deposition of the aforementioned witness is 4 have been deposed at least once before. Have you
5 hereby being taken under the Federal Rules of 5 been deposed other times?
6 Civil Procedure, for all purposes, in accordance 6 A. Since the last time?
7 with law; 7 Q. Well, in general.
8 That the formalities of reading and 8 A. I have several times at several
9 signing are specifically not waived; 9 legal suits.
10 That the formalities of sealing, 10 Q. Okay. And have you had any
11 certification and filing are specifically waived; 11 depositions taken since our last deposition?
12 That all objections, save those as 12 A. No.
13 to the form of the question and the responsiveness 13 Q. So, you understand that I'll be
14 of the answer, are hereby reserved until such 14 asking you questions and you are under oath to
15 time as this deposition, or any part thereof, may 15 answer them fully and completely?
16 be used or sought to be used in evidence. 16 A. Yes.
17 17 Q. Right? And as I ask questions, if
18 * * * * 18 you do not hear the question or otherwise do not
19 19 understand the question, you will ask me to
20 CAROL VALLETTE SLATER, Certified 20 clarify that; is that correct?
21 Court Reporter, Registered Professional Reporter, 21 A. Yes.
22 in and for the Parish of Orleans, State of 22 Q. Okay. And, again, just a reminder
23 Louisiana, officiated in administering the oath 23 for the written transcript to always use a verbal
24 to the witness. 24 response rather than head shaking. And as we go
25 25 along, I know you indicated you may need to take
Page 7 Page 9
1 THE VIDEOGRAPHER: 1 some breaks. Just speak up whenever you want to
2 This is the videotaped 2 take a break and we can do that. And if there's
3 deposition of John Day. This 3 any reason as we go along that you become unable
4 deposition is being taken In re: 4 to testify accurately, you will let us know.
5 Katrina Canal Litigation, Robinson 5 Is there any reason right now that
6 case. We are at the law offices 6 you are unable to testify today?
7 of Bruno & Bruno, located at 855 7 A. No, not at this time.
8 Baronne Street, in New Orleans, 8 Q. Okay. So, you understand all these
9 Louisiana. Today's date is 9 instructions and are ready to go?
10 January 28, 2009. My name is Ken 10 A. Yes.
11 Hart, Certified Legal Video 11 Q. Okay. Would you state your full
12 Specialist, with Hart Video of 12 name for the record, please?
13 Louisiana. The court reporter is 13 A. John W. Day, Jr.
14 Carol Vallette, with Johns 14 Q. And what is your current employment?
15 Pendleton & Associates. 15 A. I am a professor emeritus in the
16 Would Counsel please 16 Department of Oceanography and Coastal Sciences
17 introduce themselves. 17 at Louisiana State University, in Baton Rouge.
18 (Introduction of Counsel.) 18 Q. Is that your sole employment right
19 JOHN W. DAY, JR., Ph.D., 19 now?
20 after being first duly sworn in the cause by the 20 A. No. I also -- I mean, I have
21 court reporter, testified as follows: 21 part-time employment in a consulting --
22 EXAMINATION BY MS. MILLER: 22 environmental consulting firm.
23 Q. Dr. Day, good morning. As I just 23 Q. What's the name of that firm?
24 said, my name is Kara Miller, and I'm an attorney 24 A. Comite Resources, C-O-M-I-T-E.
25 with the U.S. Department of Justice, representing 25 Q. And is that a company that you own?
3 (Pages 6 to 9)
Page 10 Page 12
1 A. Partially. 1 that information.
2 Q. Okay. How long has that company 2 MS. MILLER:
3 been around? 3 Okay.
4 A. About ten years. 4 MR. ANDRY:
5 Q. And were you part of the group that 5 I'm looking at this sheet.
6 started it? 6 My understanding, that all of this
7 A. I was. 7 was already provided to the United
8 Q. I'm just going to mark this as our 8 States and the United States had
9 first exhibit. 9 it and we were not to make any
10 MR. ANDRY: 10 productions at the depositions.
11 What is it? 11 If you have a different
12 MS. MILLER: 12 understanding from Robin, please
13 This is the Notice of 13 let me know, and Mr. Smith. In
14 Deposition. 14 addition to that, it was my
15 MR. ANDRY: 15 understanding from Mr. Bruno and
16 Okay. 16 the depositions I've been in
17 (Whereupon, Day Exhibit 17 previously that all invoices
18 Number 1 was marked for 18 prepared or submitted by the
19 identification.) 19 deponent regarding work performed,
20 EXAMINATION BY MS. MILLER: 20 that that was out of the box and
21 Q. Have you seen that before today? 21 that there wasn't going to be any
22 A. No. Do I need to read it? 22 questioning about that. So, if
23 Q. Yes. If you would just read that. 23 you intend to go through each of
24 On the third page, there's a list of items that 24 those items and ask him what he
25 are -- we requested that you bring today. You're 25 brought with him, he brought with
Page 11 Page 13
1 saying you were not shown this before right now; 1 him his supplemental report and
2 is that correct? 2 the stuff that you have not been
3 A. That's correct. 3 produced thus far.
4 Q. Okay. So, did you bring any of 4 MS. MILLER:
5 these items or were you asked to bring any of 5 Okay. We'll start with
6 these items? 6 that.
7 A. We -- most of the items we have 7 EXAMINATION BY MS. MILLER:
8 today were part of the earlier deposition. We -- 8 Q. So, you were beginning to list that,
9 there's a supplemental report and a couple of 9 and we have so far identified that you've made a
10 minor things, I think. 10 supplemental report and then you've brought a
11 Q. What are the minor things? 11 publication of some sort by Clara Brown; is that
12 A. There's a copy of a state -- some 12 right?
13 writing by Claire Brown, who used to be a 13 A. (Nods head affirmatively.)
14 professor at LSU in the Department of Botany just 14 C-L-A-I-R-E.
15 stating -- it's about vegetation composition of 15 Q. Claire Brown?
16 the wetlands in the study area that we're talking 16 A. Claire.
17 about. 17 Q. Oh, okay. And, otherwise, are you
18 MR. ANDRY: 18 saying that the photography and these other
19 I've been in expert 19 things on the table here have already been
20 depositions of the experts in this 20 produced in the litigation?
21 case, and it's my understanding 21 MS. MILLER:
22 that we made a wholesale 22 Is that, Mr. Andry, what
23 production of everything he relied 23 you're representing?
24 upon, with the exception of the 24 MR. ANDRY:
25 supplemental report, and he has 25 Yes. Ask me that question
4 (Pages 10 to 13)
Page 14 Page 16
1 again. I'm sorry. 1 I have a copy.
2 MS. MILLER: 2 MR. ANDRY:
3 Other than the supplemental 3 That's fine. Just give us
4 report that we have been given 4 that copy back.
5 today and the publication that Dr. 5 MS. MILLER:
6 Day referenced by Claire Brown, 6 Well, if he wants to use
7 everything, you're representing, 7 that one to refer --
8 are things that have already been 8 MR. MEUNIER:
9 produced? 9 Keep that one.
10 MR. ANDRY: 10 EXAMINATION BY MS. MILLER:
11 Yes. My understanding, we 11 Q. I'm handing you what I've marked as
12 provided his expert report months 12 Exhibit 2. Is that -- do you recognize that as
13 ago, and that Bob Warren, with Mr. 13 your report?
14 Bruno's office, has worked with 14 (Whereupon, Day Exhibit
15 the United States and has provided 15 Number 2 was marked for
16 all materials upon which his 16 identification.)
17 opinion is based to the United 17 A. Yes, I do.
18 States, with the exception of 18 EXAMINATION BY MS. MILLER:
19 those photographs and supplemental 19 Q. Do you want to thumb through and
20 report which we have here today, 20 make sure that all the things that you consider
21 and that we had an agreement where 21 components of your report are included in there?
22 there wasn't going to be any 22 A. I assume it is.
23 questioning associated with the 23 Q. Okay. You can just hang on to that.
24 amounts paid to the experts. And 24 And I'm going to put another sticker, Exhibit 3,
25 to the extent that that doesn't 25 on what you've given us today as your
Page 15 Page 17
1 comport with your understanding, 1 supplemental report.
2 then, we can check with Mr. Smith 2 Okay. Does the report that you
3 and Mr. Bruno, as they're the ones 3 produced on July 11th, 2008, and this
4 that reached the agreement as 4 supplemental report dated yesterday, January
5 liaison counsel and counsel for 5 27th, 2009, the two of those, will those together
6 Robin -- I guess, chief litigation 6 constitute your complete opinions in this case?
7 counsel for the United States. 7 (Whereupon, Day Exhibit
8 MS. MILLER: 8 Number 3 was marked for
9 Okay. That's fine. 9 identification.)
10 A. Do I need to do something with this? 10 A. Yes.
11 EXAMINATION BY MS. MILLER: 11 MR. ANDRY:
12 Q. You can just set it aside. I just 12 Yes.
13 wanted to introduce it for the record. 13 EXAMINATION BY MS. MILLER:
14 Okay. Do you have with you a copy 14 Q. I see you looking to Counsel for
15 of not your supplemental report, but your report 15 that answer.
16 that was produced on July 11th, 2008? 16 And do these reports together
17 A. Yeah. 17 basically supersede the report you produced in
18 Q. Okay. So, we'll basically just 18 2007 that we discussed at your last deposition?
19 look -- I guess I'd like to introduce your report 19 A. Yes.
20 and your supplement as exhibits. Did you want to 20 Q. Okay.
21 maintain this copy for yourself and we'll 21 MR. ANDRY:
22 introduce a copy -- 22 Except to the extent, I
23 MR. ANDRY: 23 think, and for the purposes of the
24 We'll get copies of it made. 24 record, I think his report issued
25 MS. MILLER: 25 in July specifically states it
5 (Pages 14 to 17)
Page 18 Page 20
1 incorporates the 702(c) expert 1 contributed in a large extent to all parts of it.
2 report. I don't want to make a 2 So, when I say I was -- perhaps took the lead on
3 speaking objection, but the 3 something, you know, it's real fuzzy, the
4 documents speak for themselves. 4 difference.
5 It says in his July 11th report 5 Q. Okay.
6 that it contains everything and 6 A. I think Classification of Coastal
7 adopts everything in his other -- 7 Wetlands, we probably both contributed equally to
8 in his 702(c). 8 that. Likewise, Coastal Basins and Vegetation
9 EXAMINATION BY MS. MILLER: 9 Zones in the Mississippi basin. Development of
10 Q. To your knowledge, Dr. Day, is there 10 the Mississippi delta, I probably took the lead
11 anything in what Counsel's referring to as the 11 on that. Likewise with Delta Deterioration.
12 702(c) report that was produced in 2007 -- is 12 Swamps for Hurricane Protection, I would say Dr.
13 there anything in that report that is not 13 Shaffer probably took the lead on that, as with
14 included in the two reports we are discussing 14 storm buffer and effects of wetlands. Also, Dr.
15 today? 15 Shaffer took the lead on the Negative Effects of
16 A. Not to my knowledge. 16 Saltwater Intrusion. We probably both
17 Q. And both of these reports, Exhibit 2 17 contributed equally to, more or less, to Pre-MRGO
18 and your supplemental report as Exhibit 3, you 18 Hydrology. He probably took the lead on Coastal
19 produced jointly with Dr. Gary Shaffer; is that 19 Forested Wetlands of the Pontchartrain and Breton
20 correct? 20 Sound Basins. I would say Conditions Prior to
21 A. That's correct. 21 MRGO Construction, probably more or less equally.
22 Q. Dr. Shaffer is with us here today, 22 Water Budget After MRGO -- Before and After MRGO,
23 right? 23 I took the lead on that. Measurement of
24 Are you able to identify portions of 24 Salinity, I think, Dr. Shaffer. Salinity in
25 the reports that are more your work versus Dr. 25 MRGO, we're probably equally responsible.
Page 19 Page 21
1 Shaffer's, and vice versa? 1 Salinity Control Measures, the same, equally
2 A. In a general way. I mean, the 2 responsible. Measuring Wetland Change, probably
3 report was produced in an iterative fashion and 3 both of us did that. Likewise for Wetland
4 we read each other's sections. So, after a 4 Habitat Change and Loss Caused By MRGO
5 while, it becomes a unified report, but, to some 5 Construction. Likewise, Specific Estimates of
6 extent, I could do that. 6 Wetland Loss Related to MRGO. Logging, that's
7 Q. Okay. Well, as we go along today, 7 probably more Dr. Shaffer, same with Ghost
8 if there are issues that we discuss that are -- 8 Cypress. Dredging, Methods of Dredge Operation,
9 all right. We can go -- I guess it would be 9 we're probably equally responsible. Likewise --
10 helpful to go ahead and go through the report, 10 all of the dredging, I would say both of us did
11 but as we do go along, to the extent we discuss 11 that. Other Impacts of MRGO, we probably more or
12 things that you feel would be more appropriately 12 less equally there, although, I think Dr. Shaffer
13 addressed by Dr. Shaffer, if you will let me 13 a little bit more than me in effect of Lake
14 know -- will you do that? 14 Pontchartrain and more or less the same on the
15 A. I will. 15 effect of heavy metals in the sediments and the
16 Q. Can we quickly go through Exhibit 2 16 conclusions. That's -- again, that's a very
17 and can you go section by section and describe 17 general statement.
18 whether one of you took the lead on each section? 18 Q. Okay. Could you describe your
19 Can we do that again? 19 expertise?
20 A. Yes. 20 A. I'm a coastal ecologist, a marine
21 Q. We can probably skip the 21 biologist, and I'm an expert in wetlands, coastal
22 qualifications section. 22 wetlands and other wetlands. I've done work in
23 A. But I want to state that, I mean, 23 the human impact in wetlands and management of
24 this report was produced over a number of weeks, 24 coastal and wetland ecosystems. And some extent,
25 if not months, in an iterative way. So, we both 25 I've worked quite a bit with what's called
6 (Pages 18 to 21)
Page 22 Page 24
1 biogeochemistry of coastal and wetland areas. 1 these measurements and you know how to make them.
2 That's the interactions, the chemical, 2 So, almost in every -- not every one, but at
3 biological, geological interactions that take 3 least half of my publications, I've had to make
4 place, nutrient chemistry and, to some extent, 4 measurements of aspects of the hydrology of these
5 wetland hydrology as it affects the studies I'm 5 systems.
6 involved in. 6 Q. And in terms of quantifying changes
7 With you asking if we provided any 7 in land forms and wetland habitat types, is that
8 additional information, I just -- we've provided 8 something that you do in your work?
9 a complete copy of my résumé, which was rather 9 A. Yes.
10 abbreviated in the -- in the expert report. 10 Q. And how then does your expertise
11 Q. Okay. I'm just going to mark that 11 differ from that of Dr. FitzGerald?
12 as Exhibit 4. I guess, is this an extra copy? 12 A. Well, he -- in working with --
13 May I keep that? 13 tradition, his various expert reports, his role
14 (Whereupon, Day Exhibit 14 was to actually look at -- factor the patterns of
15 Number 4 was marked for 15 land change in the study area for the purpose of
16 identification.) 16 this case. Then, my role was more explaining why
17 A. You want it? 17 those changes took place.
18 EXAMINATION BY MS. MILLER: 18 Q. And that then, I guess, what you say
19 Q. May I take that? 19 as your role, that would include Dr. Shaffer's
20 A. Yeah, you can. 20 role as well?
21 Q. Okay. How does your expertise then 21 A. That's right.
22 differ from that of Dr. Shaffer? 22 Q. What do you consider to be the study
23 A. Dr. Shaffer, I would say, has many 23 area?
24 of those same areas of expertise, but he has a 24 A. Well, you know, in a broad sense,
25 more detailed knowledge of forested wetland 25 it's the Louisiana coastal zone. The next level
Page 23 Page 25
1 ecosystems in coastal Louisiana and elsewhere in 1 down is Pontchartrain Basin, which includes all
2 terms of the details of the effects of salinity 2 of the areas east of the Mississippi River.
3 and factors affecting their growth rates. 3 Then, within that, you have the Breton Sound/Lake
4 Q. Are you an engineer? 4 Borne Basin, and within that, the area that
5 A. No. 5 includes the Central Wetlands Unit and Lake Borne
6 Q. So, you don't -- have you studied -- 6 and associated areas, the area through which the
7 you haven't studied engineering in a degree 7 MRGO was constructed.
8 program? 8 Q. Okay. So, by associated areas, you
9 A. Not at all. 9 mean the area through which the MRGO was
10 Q. So, that would include hydraulic 10 constructed that may extend outside the Central
11 engineering? 11 Wetlands Unit in the Lake Borne area?
12 A. It would. 12 A. In all my work on this, Central
13 Q. Great. Okay. You described that 13 Wetlands Unit was described -- was that area
14 you have expertise in wetland hydrology as it 14 between the MRGO and its spoil and the back levee
15 affects studies that you are involved in. What 15 in St. Bernard and Orleans Parishes, the so-
16 did you mean by that? 16 called Forty Arpent levee, the Bayou La Loutre
17 A. Well, if you study coastal and 17 ridge to the south, and the areas actually came
18 wetland ecosystems, you make measurements of 18 together with the Intracoastal Waterway. We
19 hydrology all the time. I took courses, a number 19 brought a few maps if we ever need to refer to
20 of courses, that dealt with hydrodynamics, 20 them there. They're just commercial maps. So,
21 hydrology, and I've made -- in practically all of 21 that's the Central Wetlands Unit, as we've
22 my studies, I've made measurements of hydrology, 22 understood it, and it was defined decades ago by
23 water flow, water budget, sediment into water 23 a study by -- I think the first time, a study by
24 interactions, these kind of things. It's part 24 the Coastal Environments, and that has been
25 and parcel of doing wetland ecology that you make 25 generally what was called the Central Wetlands
7 (Pages 22 to 25)
Page 26 Page 28
1 Unit, but it's not fixed. Other people have 1 going on in the more specific area.
2 described Central Wetlands Unit as a larger unit, 2 Q. Okay. So, the LaBranche Wetlands
3 but -- 3 are north of the GIWW; is that correct?
4 Q. Okay. So, for purposes of your work 4 A. The LaBranche Wetlands are -- border
5 for this litigation, the area you've described 5 Lake Pontchartrain, and they -- if you look at a
6 essentially is bounded on the west by what's 6 map, they are to the west of the developed area
7 referred to as the Forty Arpent levee; is that 7 of New Orleans on the east bank of the river --
8 right? 8 Q. Oh, okay.
9 A. No. That's just the Central 9 A. -- between Kenner and the Bonnet
10 Wetlands Unit. I mean in our expert report, we 10 Carré Spillway.
11 dealt with the whole coastal zone, but we dealt 11 Q. Okay. I thought you mentioned
12 with the, I would say, the more particular areas, 12 something in New Orleans East. Maybe you didn't.
13 the Lake Pontchartrain Basin, because there's 13 A. I didn't. No.
14 other areas in there. The Central Wetlands Unit, 14 Q. You just meant the east bank of the
15 there are wetlands on the east of the MRGO, 15 river?
16 between that and Lake Borne, there are areas to 16 A. The east bank of the river, yeah.
17 the south of the La Loutre ridge, the Bay Eloi -- 17 Q. Okay. So, those areas west of New
18 MR. ANDRY: 18 Orleans and surrounding Lake Maurepas were used
19 Eloi. 19 as comparisons to what you described as the more
20 A. -- and MRGO actually goes out to -- 20 specific area relevant to this litigation; is
21 through the barrier islands, but we didn't deal 21 that right?
22 with the barrier islands in our report. 22 A. Yes.
23 EXAMINATION BY MS. MILLER: 23 Q. And that more specific area includes
24 Q. Okay. So, for purposes of your 24 Central Wetlands, the area around Lake Borne and
25 report, I understand you to say that you include 25 some area south of the La Loutre Ridge; is that
Page 27 Page 29
1 descriptions of the entire coastal zone, but -- 1 right?
2 that's correct, right? 2 A. Yes.
3 A. Yes. 3 Q. Okay. In my understanding of your
4 Q. But for the area that you consider 4 report that's Exhibit 2 -- I have not had a
5 to be the focus of this litigation, it's really 5 chance to look at Exhibit 3, but the report had
6 what you've described as the Central Wetlands 6 Exhibit 2 -- my understanding is that with
7 Unit, the area slightly south of that to -- 7 respect to the more specific area, your opinion
8 between Bayou La Loutre Ridge and Bay Eloi? 8 for this litigation is that there was an
9 MR. ANDRY: 9 immediate increase in salinity in that area after
10 Eloi. 10 the MRGO was constructed?
11 A. Eloi. 11 A. By immediate, you know, in terms of
12 EXAMINATION BY MS. MILLER: 12 weeks or months, yes.
13 Q. Eloi. And then the areas 13 Q. Okay. So, you would say by
14 surrounding Lake Borne; is that right? 14 immediate, you would mean less than a year?
15 A. And other areas in the Lake 15 A. Yes.
16 Pontchartrain Basin. 16 Q. By less than a year, I understand
17 Q. Which other areas? 17 that -- what's your understanding of the time
18 A. Well, there are extensive swamp 18 frame within which the channel was constructed?
19 systems, forested wetland systems, in what's 19 A. More or less from the late 1950s, I
20 called the LaBranche Wetlands. That's between 20 think -- I think about 1957, the first work on
21 the developed area of New Orleans on the east 21 the -- on the MRGO was started, and it was '63,
22 bank and the Bonnet Carré Spillway. There's an 22 more or less, '63-'64 when it was fully finished
23 extensive swamp around Lake Maurepas and parts of 23 and opened, I think, actually opened for traffic
24 Lake Pontchartrain, and we made comparisons with 24 in '64-'65.
25 those areas in trying to understand what was 25 Q. Okay. So, when you describe an
8 (Pages 26 to 29)
Page 30 Page 32
1 immediate increase of salinity that occurred in 1 Could we mark that as
2 less than one year time frame, which -- what are 2 Exhibit 5?
3 you -- what's the starting point for that? 3 THE WITNESS:
4 A. Well, this is Page 32 of 56 of our 4 It's in our supplemental
5 report. This graph, it shows that increase in 5 report.
6 salinity for two locations, at Bayou La Loutre 6 MR. ANDRY:
7 and the GIWW/Paris Road. And this is the kind 7 Just mark that as Exhibit 5.
8 of -- there are other studies that showed that 8 To the extent that you refer to a
9 salinity increase. 9 part on a drawing, if you could
10 Q. Okay. I'm just trying to pin down 10 tell us specifically where it is
11 what -- you know, you described the channel being 11 for the purposes of the record and
12 constructed over a -- 12 maybe show it to the video --
13 A. It's my understanding that the La 13 (Whereupon, Day Exhibit
14 Loutre Ridge was first cut in 1961, and that 14 Number 5 was marked for
15 allowed then water from the south to move in, 15 identification.)
16 move past the La Loutre Ridge, and into the areas 16 THE WITNESS:
17 in the Central Wetlands Unit and the areas 17 Okay.
18 surrounding Lake Borne. 18 MR. ANDRY:
19 Q. Okay. So, the cutting of the La 19 -- so when we're either
20 Loutre Ridge in 1961 was the key event that 20 watching it or reading the
21 resulted in the salinity increase; is that right? 21 deposition, we know exactly where
22 A. Yes. 22 you're talking about.
23 Q. And it's your opinion that within 23 THE WITNESS:
24 approximately one year or less after 1961, the 24 Okay.
25 impacts of that salinity increase were being 25 A. Well, it would be the wetland areas
Page 31 Page 33
1 observed? 1 north of the La Loutre Ridge, between the MRGO
2 A. Yes. The cypress started to die. 2 channel and Lake Borne, and that would be
3 Q. The cypress in which area? 3 approximately between Marker 300 and 1400 on
4 A. In the Central Wetlands Unit and on 4 Figure 2.3.
5 the east -- east of the -- east of the MRGO 5 EXAMINATION BY MS. MILLER:
6 channel. 6 Q. And we've marked that as Exhibit 5?
7 Q. In what areas east of the MRGO 7 A. Yes. This is Figure 2.3 from the
8 channel was cypress located? 8 FitzGerald report.
9 A. This is the subject of our 9 Q. And you said between -- on this --
10 supplemental report, but cypress had been 10 the numbers that you're looking at on this
11 identified all through that area, more dense 11 document where --
12 closer to the river, less dense as you moved 12 A. These numbers here.
13 away, and that's based on aerial photos, on 13 Q. In orange.
14 discussions with people who were in -- who were 14 A. Yes. 300 to about, you know, maybe
15 living there at the time and knew the area. 15 1400, 1300.
16 Q. When you say "east of the MRGO 16 Q. Okay. And, so, if I understand what
17 channel" -- 17 you've said, it's your understanding from this
18 A. The wetlands between MRGO channel 18 figure that we've marked as Exhibit 5 that
19 and Lake Borne. 19 approximately the 1400 number on this figure
20 Q. Are you familiar with the mileage 20 corresponds with the La Loutre Ridge?
21 markers on the MRGO channel? 21 A. Just north of the La Loutre Ridge.
22 A. Yes. 22 Q. Okay. So, you're saying that on the
23 Q. I'm wondering if we can kind of 23 east side of the MRGO, which is also often
24 narrow down the area you're talking about. 24 referred to as the north side of the MRGO,
25 MR. ANDRY: 25 between the two station numbers that you
9 (Pages 30 to 33)
Page 34 Page 36
1 mentioned, which correspond essentially to the 1 A. No. We called him.
2 area north of the La Loutre Ridge and south of 2 Q. Okay. You don't remember which
3 the GIWW, with Lake Borne as the border on the 3 other people were present?
4 east, it's your opinion that prior to the 4 A. I don't. Sarah Mack, I think, was
5 construction of the MRGO, there were cypress 5 in the room.
6 trees in that area? 6 Q. So, that was on Monday of this week?
7 A. Yes. 7 A. Yes.
8 Q. Okay. And that is what you've 8 Q. Was that conversation recorded in
9 expressed as your opinion in your supplemental 9 any manner?
10 report; is that correct? 10 A. No.
11 A. That's correct. 11 Q. And were the people who had talked
12 Q. And you're saying you base that on 12 with Mr. Livaudais who you then talked to, were
13 photography? 13 those people present on Monday at this meeting?
14 A. Yes. 14 A. Mr. Andry.
15 Q. And comments from people who lived 15 Q. Okay. So, the person who you
16 in that area at the time of the MRGO 16 received the information about what Mr. Livaudais
17 construction? 17 had to say, you received that information from
18 A. Also, we've talked to people who 18 Mr. Andry?
19 were there when the MRGO was -- residents of the 19 A. Yes.
20 area, yes. 20 Q. Did you speak with anyone else about
21 Q. What area would that be that they 21 Mr. Livaudais' opinions?
22 lived in? 22 A. No.
23 A. Well, I mean, they lived in St. 23 Q. Did you read any written transcript
24 Bernard Parish, probably along the river, but 24 of what Mr. Livaudais' opinions include?
25 they, you know, hunted and fished and traveled 25 A. I didn't.
Page 35 Page 37
1 and worked in these areas. 1 Q. Okay. Was -- so, the opinion that
2 Q. Okay. And who are those people that 2 you have that we were discussing that you've
3 you've spoken with? 3 included in your supplemental reports is based on
4 A. Two days ago, we talked with Henry 4 photography, the conversation you had by phone
5 Rodrigue -- 5 with Henry Rodriguez on Monday, Mr. Andry's
6 DR. SHAFFER: 6 representations about conversation with Mr.
7 Rodriguez. 7 Livaudais. Is there anything else that your --
8 A. -- the former parish president in 8 A. Well, I've worked down in that area
9 St. Bernard Parish, who I know personally. 9 since the 1980s, and even traveled in there in
10 EXAMINATION BY MS. MILLER: 10 the 1970s, and there were extensive dead cypress
11 Q. Have you talked to anyone else? 11 trees that, you know, slowly have been falling
12 A. I haven't talked directly to Mr. 12 over, but the whole area -- much of the area had
13 Livaudais, but I've talked to people who have 13 these ghost forests in them.
14 talked to him. 14 Q. When you say "much of the area," at
15 Q. Anyone else? 15 this point, you're just referencing the area to
16 A. Not that I remember at this time. 16 the north and east of the MRGO that you discussed
17 Q. And did you make any notes of your 17 in your supplemental report?
18 conversation with Mr. Rodriguez? 18 A. Well, they existed -- the main place
19 A. No. 19 I saw them were in the Central Wetlands Unit.
20 Q. Who else was present for that -- was 20 Q. Okay. So, from your own
21 that an in-person conversation? 21 observations from work in the area in the 1980s
22 A. Mr. Andry was here, Dr. Shaffer was 22 and traveling there in the 1970s --
23 here, and several other people were in the room. 23 A. And the '90s.
24 Q. So, you met here at the office where 24 Q. So -- okay. Your personal
25 we're having this deposition? 25 observations were in the Central Wetlands Unit
10 (Pages 34 to 37)
Page 38 Page 40
1 itself; is that right? 1 ridge and significantly increase the salinity.
2 A. Yeah. I -- I don't remember if we 2 Q. Okay.
3 actually went on the other side and if I saw 3 A. It's documented in various
4 trees east of the -- north of the MRGO. 4 publications.
5 Q. You don't remember going there? 5 Q. It's basically -- maybe I didn't
6 A. No. I went there. I just, you 6 phrase that very well. It's basically the
7 know -- 7 alignment of the channel that was problematic in
8 Q. You don't remember whether you saw 8 the salinity intrusion; is that right?
9 trees -- 9 A. Well, it was the cutting of the
10 A. Whether -- I saw trees, dead 10 ridge.
11 cypress, and whether they were there or not, I 11 Q. Well, maybe, then, we should look at
12 really can't remember. 12 Page 33. I think you also -- it's your
13 Q. Okay. When was the first -- or do 13 understanding, as you expressed in your report,
14 you recall the first time that you were in the 14 that the Corps of Engineers was aware that
15 Central Wetlands Unit? 15 cutting that ridge would have the salinity
16 A. It was sometime in the 1970s. 16 impacts that you described?
17 Q. Okay. So, that's basically when you 17 A. Yes.
18 began your work in this area? 18 Q. So, they were aware of that prior to
19 A. Yeah. 19 constructing the channel; is that right?
20 Q. So, you were talking about the 20 A. Yes.
21 severing of the La Loutre Ridge and that that 21 Q. And do you know whether the Corps
22 was, in your opinion, what caused the salinity 22 considered taking any action to alleviate that
23 increase north of that ridge after construction 23 problem?
24 of the MRGO, right? 24 A. We have an appendix in our report
25 A. It was certainly the major factor. 25 that lists a number of communications from public
Page 39 Page 41
1 Q. Okay. And would -- do you have an 1 agencies -- public resource agencies as well as
2 opinion on whether there would have been a way to 2 individuals, the St. Bernard government, that
3 construct the channel that would have avoided 3 made those statements and actually requested
4 severing that ridge? 4 something be done about it.
5 MR. ANDRY: 5 Q. Okay. So, it's your understanding
6 Object to form. 6 from those communications that the Corps was
7 You can answer subject to 7 aware of concerns over salinity before
8 the objection. 8 constructing the channel?
9 THE WITNESS: 9 A. Yes. They were -- they replied to
10 Okay. 10 them.
11 A. We outline a number of factors, a 11 Q. Okay. So, they not only were aware
12 number of things that could have been implemented 12 of it, but they considered -- considered those
13 that would have avoided that problem. 13 comments and concerns; is that right?
14 EXAMINATION BY MS. MILLER: 14 A. Yes. Well, Appendix A, beginning on
15 Q. And those are -- 15 Page 76, lists a number of things up through
16 A. Beginning on Page 33, continuing to 16 1960, on Page 77, all of these would have been
17 Page 37. 17 prior to the cutting of the ridge. And then
18 Q. I guess maybe I should back up a 18 Appendix B, beginning on Page 80, lists comments
19 little. Before getting to what could have been 19 from agencies and the response of the Corps.
20 done differently, it's the -- is it your opinion 20 Q. Okay. Do you know what these -- so,
21 then that it's the location of the channel 21 Appendix B that you have just referenced, it's
22 that -- through that ridge that resulted in the 22 your opinion that those were comments made prior
23 salinity intrusion? 23 to 1960; is that right?
24 A. The cutting of the ridge allowed 24 A. No. I think these actually came
25 saltwater to move into the area north of the 25 after -- after the -- these -- this came after,
11 (Pages 38 to 41)
Page 42 Page 44
1 I'm pretty sure. 1 freshwater generated runoff from the natural
2 Q. Do you know what these -- it looks 2 levee, treated disinfected municipal effluent
3 like these comments are reproduced from 3 could have been pumped into the area as a source
4 something. Do you know what the source of this 4 of freshwater. There's -- I think those are the
5 Appendix B is? 5 general nature of the suggestions.
6 A. I can't remember right now. We 6 Q. Beginning with the first one you
7 could find out. 7 said, do you know whether the Corps considered
8 Q. Did you put this together, Exhibit 8 including a structure at La Loutre Ridge in the
9 B? 9 initial construction of the channel?
10 A. We put it together. Dr. Shaffer and 10 A. It was suggested that the Corps do
11 I put this together. 11 this. Whether they considered it, I'm not sure.
12 Q. So, you selected which comments to 12 Q. Do you know then why it was not
13 reproduce here in Exhibit B? 13 included?
14 A. Yes. 14 MR. ANDRY:
15 Q. Okay. Going back to Page 33, this 15 Object to form.
16 is where you're listing alternatives that could 16 To the extent you can
17 have been implemented in construction of the 17 testify what the Corps might have
18 channel; is that right? 18 done or thought, you can do that.
19 A. Uh-huh. 19 A. You know, I think an environmental
20 Q. And these things, in your opinion, 20 or, you know, coastal professional scientist,
21 would have -- what would they have -- what would 21 group of scientists, would have generated
22 the results of implementing these things have 22 these -- in fact, many of these suggestions were
23 been? 23 made -- and, you know, to act responsibly, if you
24 A. It could have largely avoided 24 had a group of people who said how can we deal
25 saltwater intrusion into the area north of the La 25 with this problem, I think it would be very clear
Page 43 Page 45
1 Loutre Ridge and the death of a large area of 1 that a group of, you know, coastal scientists
2 wetlands. 2 would have said here are ways to avoid this
3 Q. So, would these things have needed 3 problem. It's clear it's going to happen. We
4 to have been done prior to 1961, when the ridge 4 can do these things. And not to do them, in
5 was cut? Is that right? 5 my -- you know, is irresponsible, in my opinion.
6 A. Well, the main one would have been 6 There were clear human and environmental
7 putting a structure at the La Loutre Ridge, and 7 health -- safety and health threats because of
8 it would have been done in conjunction with the 8 this and it was recognized before the MRGO was
9 MRGO construction. 9 done, and these -- these measures could have been
10 Q. What are the other things that you 10 implemented.
11 suggest as ways or alternatives that could have 11 EXAMINATION BY MS. MILLER:
12 reduced the salinity intrusion? 12 Q. So, to maybe address some of Mr.
13 A. Water control structures in the 13 Andry's concern, you've studied this issue not
14 spoil bank between the MRGO and the Central 14 only for this litigation, but also for part of
15 Wetland Unit, measures to avoid the erosion and 15 your career; is that right?
16 dramatic widening of the MRGO, which allowed more 16 A. Uh-huh.
17 water to flow through it, introduction of 17 Q. And you've included an appendix here
18 freshwater into the Central Wetlands Unit and 18 that references a number of communications about
19 flowing and pass that out into the wetlands 19 this issue and suggestions about controlling
20 around Lake Borne could have buffered the 20 salinity; is that right?
21 saltwater intrusion, structures in the spoil bank 21 A. Yeah.
22 where it was cut by Bayou Bienvenue and Bayou 22 Q. So, to the extent you're stating
23 Dupre, which would have prevented saline water 23 opinions about what the Corps knew or didn't
24 from flowing into that area, the operation of the 24 know, what are you -- I guess -- are your --
25 Violet siphon or diversion, judicial use of 25 basing your understanding of what was suggested
12 (Pages 42 to 45)
Page 46 Page 48
1 to the Corps on the documents you've reviewed for 1 A. Again, I think, the best way to
2 this case; is that right? 2 state it is that professionals would have and
3 A. No. 3 did, in fact, recognize that there was a big
4 MR. ANDRY: 4 environmental and human health safety issue with
5 Object to form. 5 the construction of the MRGO as it was
6 A. What I'm saying is that -- is that 6 implemented, and the responsible thing would have
7 people did, prior to the construction of the 7 been to deal with those things. It wasn't just
8 MRGO, raise these issues, and it seems to me that 8 speculation. There was an understanding, a very
9 it, you know, would have been then professionally 9 clear understanding, what would happen and, in
10 responsible to say, look, we're going to have a 10 fact, those things happened afterwards. After
11 big problem here, and here are ways we can deal 11 the thing was done, it could have -- could have
12 with it, and it would have been fairly 12 come back and fixed it, but nothing was ever
13 straightforward to do that. This isn't the only 13 done.
14 place that saltwater intrusion because of a big 14 EXAMINATION BY MS. MILLER:
15 navigation channel has caused massive wetland 15 Q. So, the things that could have been
16 loss. It occurred in several places in 16 done -- well, I guess, the primary thing that we
17 Louisiana. It was understood. It was understood 17 have discussed that could have been done at the
18 what the salinity tolerance of cypress and 18 time of construction would have been building a
19 freshwater vegetation was. It was understood 19 structure at the La Loutre Ridge; is that right?
20 before the construction of the MRGO what impact 20 A. That's right.
21 it would have, and nothing was done. 21 Q. And then, also, some of the -- a
22 EXAMINATION BY MS. MILLER: 22 structure at Bayou Dupre or Bayou Bienvenue; is
23 Q. What were the other channels that 23 that right?
24 you mentioned as having -- 24 A. (Nods head affirmatively.)
25 A. The Calcasieu Ship Channel over in 25 Q. Would building a structure -- do you
Page 47 Page 49
1 southwestern Louisiana. The Houma Navigation 1 have an opinion on what impact a structure at the
2 Channel, very similar kind of thing south of 2 La Loutre Ridge would have had were it built some
3 Houma, there are extensive areas where cypress 3 number of years after construction, maybe ten
4 forests were killed because of saltwater 4 years?
5 intrusion. 5 A. Well, if the structure built after
6 Q. Do you know when those channels were 6 that, then, it would have -- the salinity would
7 constructed? 7 have decreased. Now, because of MRGO, there was
8 A. The Calcasieu Ship Channel was 8 loss of wetlands along the MRGO channel. So, you
9 constructed before MRGO, I think, in the early 9 would have to do careful studies to see how much
10 '50s, and I'm not sure when the Houma Navigation 10 it would come down. But, clearly, if they would
11 Channel was constructed. 11 have put -- you know, a decade later, put a
12 Q. Do you know if it was before or 12 structure there in the La Loutre Ridge,
13 after the MRGO? 13 salinities would have dropped down, cypress could
14 A. I don't know. I don't know at this 14 have been replanted, you could reestablish this
15 time. I could find out. 15 freshwater vegetation, or near fresh, that was in
16 Q. Okay. So, the -- so, the Corps knew 16 that area.
17 of these potential measures, but, for whatever 17 Q. Things that could have been done
18 reason, decided not to implement them; is that 18 after construction -- the things you've listed,
19 right? 19 which of these are items that could have been
20 MR. ANDRY: 20 done at any time -- or can you say what --
21 Object to form of the 21 A. All of them.
22 question. Again, you're asking 22 Q. So, any of these actions could have
23 what the Corps decided not to do 23 been taken after construction and had a
24 or chose to do. Again, object to 24 beneficial impact; is that right?
25 form of the question. 25 A. Yes.
13 (Pages 46 to 49)
Page 50 Page 52
1 Q. Have you reviewed the design 1 regenerate, during the first year, they really
2 memorandum for construction of the MRGO channel? 2 can't stand much flooding. So, if you flood them
3 A. Parts of it. You know, it's very 3 for more than a week or two, they die. So,
4 thick, and I've discussed it with people here. 4 that's true for cypress in general. So, you have
5 So -- 5 to have a dry period. That occurred once when
6 Q. Are you aware of whether the design 6 there was -- the logging of the old-growth forest
7 memoranda include discussions of the salinity 7 that took place in the late 19th and early 20th
8 impact? 8 century. All the cypress that are there now
9 A. I'm not aware. 9 essentially regenerated. So, their regeneration
10 Q. Are you aware of any information in 10 took place once. That would be one.
11 the design memoranda that explain why the Corps 11 Secondly, would you have to maintain
12 constructed a channel the way it did? 12 the area in a near-fresh condition. And as I
13 A. No. 13 say, we have this example right there in the
14 THE WITNESS: 14 Central Wetland Unit where those conditions were
15 Can we take a short break? 15 met and the cypress is still surviving.
16 MS. MILLER: 16 Q. Do you have a map where you can
17 That's what I was just 17 identify that location?
18 thinking. 18 A. Yeah. It's -- it's shown on --
19 THE VIDEOGRAPHER: 19 let's see. It's shown on all the maps of that
20 Off the record. 20 area yeah. This map of 2000 from the FitzGerald
21 (Whereupon, a discussion was 21 report shows an area of cypress here, and that's
22 held off the record.) 22 just in this area, there's an oxidation pond for
23 THE VIDEOGRAPHER: 23 municipal effluent, as well as a pumping station.
24 This is the beginning of 24 Q. Do you have a copy of this that we
25 Tape 2. We're back on the record. 25 could mark on?
Page 51 Page 53
1 EXAMINATION BY MS. MILLER: 1 A. I don't.
2 Q. Dr. Day, you were describing 2 MR. MEUNIER:
3 measures that could have been implemented after 3 Can you identify the map?
4 construction of the MRGO that, in your opinion, 4 THE WITNESS:
5 could have resulted in replenishment of cypress 5 This is -- this is -- I
6 trees that had been killed; is that correct? 6 don't know if it has a number.
7 A. It could have reestablished the 7 This is a map from the FitzGerald
8 conditions under which cypress can live, and they 8 report entitled 1990-2000s USGS 7½
9 may -- they may have regenerated on their own. 9 Topographic Map Mosaic.
10 It may have required that they be planted. An 10 MR. ANDRY:
11 example of this is there's one small area down in 11 Put a sticky on that and
12 the southern portion of the Central Wetlands Unit 12 we'll get a copy. That way, we
13 where a combination of a pumping station and 13 can make a copy of it.
14 oxidation pond, which treats municipal waste, 14 THE WITNESS:
15 flowed into the area, and it's the one area now 15 This is Page C5.
16 that there's still living cypress because of this 16 MS. MILLER:
17 continuous flow of freshwater into that area. 17 I have the same report, but
18 Q. And is that area one where the 18 it's a smaller --
19 cypress was regenerated or did it never die off? 19 A. Is that Page C5?
20 A. Well, they never died there. 20 EXAMINATION BY MS. MILLER:
21 Q. What factors would impact whether 21 Q. Yes. Is this large enough that you
22 regeneration of cypress would be successful? 22 could identify the area?
23 A. One, for cypress to regenerate, you 23 A. Let's see. It's right here.
24 have to have a drought year. You have to have 24 Q. I mean, like, I'd like to see if we
25 dry conditions because the seeds, when they 25 could just draw a little circle around it.
14 (Pages 50 to 53)
Page 54 Page 56
1 A. On here? 1 come to pass.
2 Q. Sure. I don't know if it will show 2 Q. Okay. Are there any other impacts
3 up -- do you have a color copier? 3 that you're referring to in that opinion?
4 MR. ANDRY: 4 A. Well, there -- there are other
5 I'm sure I can get a color 5 impacts that we address, effects on Lake
6 copy made. 6 Pontchartrain, remobilization of heavy metals,
7 MS. MILLER: 7 dredging and maintenance dredging over time
8 Okay. Maybe we could do 8 affecting salinity in the broader Lake
9 that at another break. 9 Pontchartrain Basin, leading to low oxygen
10 MR. ANDRY: 10 conditions in Lake Pontchartrain. All of these
11 I could get somebody to come 11 have been documented.
12 do it now, if you'd like me to 12 Q. All of these have been documented as
13 take it now. 13 impacts that have occurred, is that what you're
14 MS. MILLER: 14 saying?
15 Sure. That would be great. 15 A. Yes.
16 EXAMINATION BY MS. MILLER: 16 Q. And are they also encompassed in
17 Q. Do you know when the time frame -- 17 what your Opinion Number 3 states was understood
18 it's a sewage treatment plant, is that right, 18 before construction?
19 that's what produces the freshwater into that 19 A. I don't know if every one of them
20 area? 20 would have -- for instance, the remobilization of
21 A. Well, there's also a pumping station 21 heavy metals -- but most of those were outlined
22 there. It's the Gore pumping station, G-O-R-E, 22 and stated in various comments to the Corps of
23 and the River Bend oxidation pond. The oxidation 23 Engineers prior to the, you know, completion of
24 pond has been in operation at least since the 24 the MRGO.
25 early 1980s. The pumping station was there, I 25 Q. Okay. So, the -- where this
Page 55 Page 57
1 think, coincident and during the period when MRGO 1 statement refers to an extensive understanding,
2 was constructed. 2 who is it that had that understanding or that
3 Q. Okay. 3 this statement refers to?
4 A. I think that's the case. 4 A. The U.S. Fish and Wildlife Service
5 Q. I'm looking at Page 3 of your expert 5 provided comments, extensive comments. The
6 report that's Exhibit 2, and you state in that 6 Louisiana Wildlife & Fisheries Commission, which
7 first paragraph three numbered opinions. It 7 is now the Department of Wildlife & Fisheries,
8 seems to me that -- it seems that Numbers 2 and 3 8 provided comments. There were comments provided
9 are essentially what we've been discussing; is 9 by St. Bernard Parish repeatedly before and after
10 that right? 10 MRGO, and statements by scientists and
11 A. Yeah, I think so. 11 consultants. You know, the Coastal Environments
12 Q. And in Number 3 where you say: 12 and Dr. Woody Gagliano.
13 "There was extensive understanding of the impacts 13 Q. And those comments were made to the
14 of the MRGO, both before and after construction," 14 Corps is your understanding?
15 what are the impacts that that sentence 15 A. Yes.
16 references? 16 Q. And -- okay. Were there impacts
17 A. The impact? That cutting -- 17 that were expected before construction that
18 construction of the MRGO would have led to 18 differed from what actually occurred after
19 introduction of high salinity water into the area 19 construction?
20 north of the La Loutre Ridge, which it did, that 20 A. No.
21 that would lead to the -- would lead -- 21 Q. Where you say the Corps of Engineers
22 contribute to the death of large areas of 22 consistently ignored recommendations for
23 freshwater wetlands, including cypress-tupelo, 23 mitigation against detrimental impacts, which
24 and that the channel would lead to enhanced 24 recommendations are you referring to there?
25 problems with hurricanes. I think all those have 25 A. Well, in all those reports, they
15 (Pages 54 to 57)
Page 58 Page 60
1 called for controlling salinity intrusion. They 1 Q. In what context have you made these
2 called -- before that -- that was the main one. 2 recommendations?
3 They said that it was going to lead to salinity 3 A. Well, I recommended the use of --
4 intrusion, would lead to increases in salinity, 4 going back a good ways with St. Bernard Parish,
5 killing of vegetation. They also said this would 5 the upgrading and enhancement of that oxidation
6 amplify the effects of hurricanes. 6 pond. I was one of the coauthors on the NGO
7 Q. And the things that you listed as 7 scientist report that was produced after
8 alternatives that could have been implemented 8 Hurricane Katrina -- the Lake Pontchartrain Basin
9 after construction, is that the sort of thing 9 Foundation funded that -- about closing MRGO, and
10 that you mean by recommendations that were made 10 those recommendations, many of which were
11 for mitigation? 11 incorporated into law, and the Corps of Engineers
12 A. Yes. Even now, the State of 12 is implementing that right now, the closure of
13 Louisiana is getting ready to implement a 13 MRGO. Dr. Shaffer and I and many other
14 large-scale project in the Central Wetlands Unit 14 scientists and NGO people have proposed the use
15 using diverted river water and treated municipal 15 of treated effluent and enhancing the Violet
16 effluent to reestablish that cypress forest 16 diversion to get freshwater and sediments and
17 there, to restore those wetlands, to provide, you 17 nutrients back into the area, replanting the
18 know, the environmental and ecological benefits 18 cypress forest.
19 and also to provide flood -- hurricane 19 Q. Who's responsible for operating the
20 protection. 20 Violet siphon?
21 Q. And what -- that's a State program? 21 A. The -- I'm not exactly sure. I know
22 A. Yeah. 22 St. Bernard Parish was for a while, and whether
23 Q. Is anyone else involved in that, 23 it was a State responsibility or Corps
24 other agencies? 24 responsibility, I'm not sure.
25 A. Well, it's funded by CIAP, Coastal 25 MR. ANDRY:
Page 59 Page 61
1 Energy -- Coastal Impact Assistance Program. The 1 Miss Miller, here.
2 State's involved, a number of NGOs, a number of 2 MS. MILLER:
3 universities. I bring that up because it's an 3 Oh, okay. Thanks. I guess
4 example that still things are being, you know, 4 we could have just used that one.
5 proposed and implemented to correct the damages 5 EXAMINATION BY MS. MILLER:
6 caused by MRGO. 6 Q. So, this is the map -- I'm going to
7 Q. When -- do you have a sense of a 7 mark this as Number 6. This is Figure -- I guess
8 time frame when that sort of program -- not 8 it's not necessarily labeled as a figure, but the
9 necessarily that specific program, but you say 9 bottom of the page says C5, and this is the map
10 things are still being implemented to correct 10 that you identified from the Duncan FitzGerald
11 these problems. When did things begin being 11 report that shows where the cypress had survived
12 implemented to address these problems? 12 because of freshwater input. If you could just
13 A. Well, the -- the Violet siphon was 13 circle the area that you were discussing.
14 operated on and off during the period after MRGO 14 (Whereupon, Day Exhibit
15 was constructed. This project I was just talking 15 Number 6 was marked for
16 about was -- construction will begin on that 16 identification.)
17 probably next year. Closure of the MRGO is 17 A. (Complying). I also have photos of
18 taking place now. I mean, that's the ultimate 18 that area, if you want me to produce them later.
19 action that validates all of these statements 19 They are of the Gore pumping station and the
20 that were made about the Mississippi River Gulf 20 cypress swamp there.
21 Outlet. If they weren't true, they wouldn't be 21 EXAMINATION BY MS. MILLER:
22 closing the thing now. 22 Q. What has your involvement been with
23 Q. Have you yourself been involved in 23 the CWPPRA?
24 making these recommendations for mitigation? 24 A. CWPPRA program?
25 A. I have. 25 Q. Right.
16 (Pages 58 to 61)
Page 62 Page 64
1 A. Sort of minimal. 1 Q. And is -- what is the connection
2 Q. Can you describe what that program 2 between CWPPRA and the Coast 2050 plan?
3 is? 3 A. Well, there's been a -- there's been
4 A. CWPPRA is the -- 4 an evolution over the last two decades of plans
5 MR. ANDRY: 5 and programs to try to restore the Mississippi
6 I don't mean to interrupt 6 delta and, in general, I think, if you -- I would
7 you, but could you put your hands 7 characterize it as one -- this -- this trajectory
8 down? 8 as one where there's been a growing realization
9 THE WITNESS: 9 of the effort that's needed to restore the
10 Sorry. 10 Mississippi delta. The CWPPRA mainly funds
11 MR. ANDRY: 11 rather small projects. By that, I mean less than
12 Your hands are in the way. 12 $50 million perhaps or, you know, very, very
13 A. CWPPRA is Coastal Wetlands 13 site-specific projects, but there was a
14 Protection and Prevention -- 14 realization that those projects were not going to
15 DR. SHAFFER: 15 restore the coast.
16 Planning. 16 Then, there was Coast 2050 that
17 A. -- Planning and Prevention -- 17 evolved into what was called the LCA, the
18 Restoration. Something. It's commonly known. I 18 Louisiana Coastal Area program, that the Corps of
19 always get it mixed up. But it's a program of 19 Engineers, I think, was primarily responsible
20 the State to implement projects to help restore 20 for, but the State was very strongly involved. I
21 the Mississippi delta and, you know, there are 21 was the chair for a couple of years of a group
22 numerous CWPPRA projects. 22 called the National Technical Review Committee
23 EXAMINATION BY MS. MILLER: 23 that liaisoned with the Corps and the State. As
24 Q. Is that something that the Corps of 24 they made recommendations, we critiqued those
25 Engineers also participates in? 25 recommendations, and it was a committee made up
Page 63 Page 65
1 A. The Corps participates, along with a 1 of about 12 people, very eminent scientists from
2 number of other federal agencies along with the 2 around the U.S.
3 State of Louisiana, and they interact with local 3 After Hurricane Katrina, both the
4 governments to either plan and implement these 4 Corps and the State have new initiatives and
5 projects. Dr. Shaffer is on the Scientific 5 bigger initiatives, you know, multi-$10 billion
6 Advisory Committee of the CWPPRA program. 6 programs to try to restore the coast, and if I --
7 Q. Okay. So, this may be something 7 they have acronyms -- there's the -- I just don't
8 that would be better addressed to him. 8 remember specifically, but LACPR, Coastal
9 A. I think so. 9 Protection and Restoration, and one of, I think,
10 Q. You're not very much involved with 10 the main things was the recognition that coastal
11 the CWPPRA program? 11 protection from hurricanes and restoration needed
12 A. I've been involved in promoting 12 to be a unified program, and both the Corps of
13 certain projects, but I've never been -- when it 13 Engineers and the State of Louisiana are actively
14 was first being implemented, I did attend 14 involved in that effort now.
15 meetings about how we analyze the different 15 Q. And these programs include directly
16 projects and recommend them, but I really haven't 16 addressing some of the problems that resulted
17 been involved deeply in that. 17 from the MRGO?
18 Q. So, CWPPRA, though, as far as you 18 A. Yeah. As part of the -- you know,
19 understand, is one avenue through which these 19 the whole -- the effort to address the problems
20 sort of recommendations for mitigation might be 20 raised by the MRGO, caused by the MRGO, there's
21 made? 21 an effort to get CWPPRA funding to fill in low
22 A. That's right. 22 areas and bring it up to the elevation in which
23 Q. And it's also an avenue for 23 cypress could be planted, for instance, and
24 implementing them; is that right? 24 there's -- there's an effort to -- to enlarge the
25 A. Yes. 25 Violet diversion to provide more freshwater and
17 (Pages 62 to 65)
Page 66 Page 68
1 sediment to that area and the area around Lake 1 agency handling that?
2 Borne. There's this CIAP program which is the 2 A. No. I'm not sure. I mean, the
3 beginning of the effort to replant the area -- 3 Corps is one of about six federal agencies that
4 freshen and replant the area with cypress. 4 are involved in the CWPPRA program.
5 Q. So, it sounds like these programs -- 5 Q. And what about the LCA plan?
6 I know they probably are administered 6 A. Well, it was similar to that. It
7 differently, but the general idea is -- it's a 7 was a variety of federal agencies involved. The
8 interagency collaboration and State and federal 8 State was involved in it.
9 collaboration to identify projects that can 9 Q. And you also describe in your
10 provide mitigation, I guess, for some of the 10 opinions on Page 3 of your report, where you talk
11 wetland damage that's occurred over the years; is 11 about the -- Number 2, the significant widening
12 that right? 12 of the MRGO Reach 2 channel over nearly 50 years.
13 A. Wetland damage, the increase in 13 That same opinion was included in your earlier
14 salinity, providing enhanced hurricane 14 expert report from 2007, but you've added that
15 protection. 15 section on the widening of the channel. Why did
16 Q. So, there's the step of identifying 16 you add that section?
17 potential projects and then a separate step, I 17 A. The widening of the channel would
18 guess, of getting funding for those projects; is 18 allow more water flow.
19 that right? 19 Q. So, what -- are you saying then that
20 A. Well, you know, there are a number 20 the channel itself is wider, as in the deep part
21 of programs there and, so, they -- they function 21 of the channel, or is it --
22 in different ways, for instance. 22 A. Channel has deepened and widened as
23 Q. Maybe Dr. Shaffer can describe a 23 it eroded. It was originally authorized, I
24 little more about the way CWPPRA functions, but 24 think, 650 feet, and it's widened up to, in some
25 for the LCA, you said you were on a technical 25 cases, 3,000 feet.
Page 67 Page 69
1 committee for that. What is your understanding 1 Q. And what about the depth of the
2 of how you move from a project being recommended 2 channel?
3 to it being implemented under the LCA plan? 3 A. There's a figure in the FitzGerald
4 A. Well, the LCA is morphed now into 4 report that shows an example of this.
5 this other larger program that sort of unifies 5 Q. An example of what?
6 protection and restoration. The process of 6 A. Of the -- of the widening and
7 getting these approved and implemented -- 7 deepening of the MRGO.
8 Q. Right. 8 Q. Okay.
9 A. -- I guess, they have to be 9 A. We can take a look at that, if you
10 proposed, they have to be vetted through -- 10 like.
11 through a, you know, a technical series of steps, 11 Q. Well, I'd just like to get your
12 and then they have to be appropriate -- Congress 12 description of it initially. So, the -- the
13 has to approve them and fund them and then they 13 widening, you mean the banks of the channel are
14 have to be built. 14 eroding?
15 Q. So, the LCA are federally funded -- 15 A. Yeah, they've eroded back.
16 A. No. It's a State match. Funding is 16 Q. And why do you call it significant
17 coming from the State and the federal government. 17 widening?
18 Q. Okay. So, sort of like a cost-share 18 A. Well, a fivefold increase in the
19 agreement? 19 width of a channel seems to be a significant
20 A. I guess so. 20 condition.
21 Q. Do you know when the LCA program 21 Q. Just by virtue of the ratio, or have
22 came into being? 22 you --
23 A. I think it was in the '90s, but I 23 A. Well, it was designed to be a
24 don't know specifically. 24 certain width, and now, in certain cases, it's
25 Q. And you said the Corps is the lead 25 five times wider. That allows much more water to
18 (Pages 66 to 69)
Page 70 Page 72
1 flow through, much more salt to come in. 1 MRGO.
2 Q. Would there be an amount of widening 2 Q. So, the widening by three, four or
3 that's considered insignificant? 3 five times the original width, that isn't
4 A. I guess, none. 4 something that happened instantly, right?
5 Q. So, to have -- so, any widening of 5 A. No.
6 the channel, in your opinion, is significant? 6 Q. Do you have an opinion on what
7 MR. ANDRY: 7 caused the channel to expand like that? You just
8 Object to the form. 8 mentioned hurricanes. Are there other causes?
9 A. I guess the point is is that -- is 9 A. Boat wakes, big ships that go
10 the widening hadn't been minor. It's been a 10 through it make big wakes, and the wakes led to
11 major -- major thing. It's widened very 11 the erosion of the channel. As the channel
12 significantly. It's led to the destruction of 12 itself eroded, the fetch, the distance over which
13 wetlands, very significant destruction of 13 the wind blows to create waves, becomes longer.
14 wetlands along the MRGO channel, so that you've 14 And, so, you can build up larger waves.
15 had the loss of additional wetlands and the 15 Especially if you have a deep channel, you can
16 larger channel carrying more water, more salt, 16 make deep-water waves when they move across the
17 into that area, make it more difficult to 17 channel. So, you have more wave activity just
18 implement projects to offset the detrimental 18 from winds striking either side of them.
19 effects of the MRGO. 19 Q. By that, you're not referring to
20 EXAMINATION BY MS. MILLER: 20 hurricane conditions, are you?
21 Q. So, the initial intrusion of 21 A. No, just -- well, hurricane
22 saltwater caused, in your opinion, the death of 22 conditions would certainly contribute to the
23 some of the cypress trees; is that right? 23 event. I mean, you know, normal winds, frontal
24 A. Well, it started it, for sure. 24 passages, sea breezes.
25 Q. And the initial cut of the channel, 25 Q. And, so, those things caused it to
Page 71 Page 73
1 and now you're saying that the widening 1 widen. The use of the channel by ships
2 contributed to making it more difficult to repair 2 contribute; is that right? Are there other
3 that damage; is that right? 3 factors that you think contributed to this
4 A. And it contributed to the 4 expansion of the banks?
5 continuing -- the death of the cypress over the 5 A. One of which would be killing
6 next few years. 6 freshwater vegetation on -- that would have
7 Q. Well, so, the widening of the 7 been -- initially existed along the channel. You
8 channel, though, your -- have you studied how 8 kill the vegetation, you don't have the anchoring
9 much it widened each year? 9 by the roots.
10 A. I haven't studied it myself. 10 Q. Was all of the vegetation along the
11 Q. So, are you getting this -- you 11 channel, the freshwater vegetation that was
12 referred to the FitzGerald report. Is that where 12 killed, wasn't it replaced in some parts by
13 you're getting this information? 13 brackish or other types of marsh?
14 A. Well, there are a number of reports 14 A. It was. In some cases, it turned to
15 down over the past several -- couple of decades 15 open water.
16 that have all pointed that out. 16 Q. And, presumably, in constructing a
17 Q. But you can't say how much the 17 channel like this, the expansion of the banks
18 channel widened on a yearly basis. 18 would have been expected before it was built; is
19 A. Not off the top of my head. 19 that right?
20 Q. But, presumably, it widened 20 A. I don't know.
21 gradually year to year over a 50-year period; is 21 Q. So, that's not part of what you
22 that right? 22 refer to as one of the impacts that was
23 A. It may have. It may have been 23 understood prior to construction?
24 episodic during hurricanes, for instance, when 24 A. Yeah. I think the widening was one
25 there were massive flows of water through the 25 of the things that was predicted and that it --
19 (Pages 70 to 73)
Page 74 Page 76
1 that it would -- whether or not it -- to the 1 information related to your opinions?
2 extent -- the dramatic widening, whether that was 2 A. Well, that dredging was a continuous
3 predicted, I don't know. 3 and major activity, that because the erosion and
4 Q. Okay. And do you know whether the 4 in-filling of the canal was taking place, they
5 Corps took -- took the anticipated erosion into 5 had to -- they had to dredge an enormous amount
6 account in designing the channel? 6 of material out of it.
7 A. I don't know. 7 Q. It was expected as part of building
8 Q. Are you aware of any bank protection 8 a navigation channel that dredging would be part
9 being built on the channel? 9 of the maintenance of the channel; is that right?
10 A. They -- in the lower reaches, there 10 A. My understanding is that they didn't
11 are rock jetties up because the Reach 3 channel 11 expect to do that much dredging, and that they
12 tended to fill in so rapidly. 12 didn't expect the thing to widen so dramatically.
13 Q. And was that part of the initial 13 Q. That the Corps did not have that
14 construction? 14 expectation?
15 A. I don't know. I know the amount of 15 A. That's my understanding based on
16 dredge material, maintenance dredging that took 16 general discussions with people both as part of
17 place out of MRGO during the period it's been in 17 this case and in a -- broader discussions.
18 existence, has roughly doubled the amount that 18 Q. So, what is your -- but you
19 was initially taken out of the channel in its 19 understand that in maintaining navigation
20 construction. 20 channels, in general, that it's generally done by
21 Q. Where do you get that statistic 21 dredging, right?
22 from? 22 A. Yeah.
23 A. I was given in the last couple of 23 Q. So, that was anticipated. It's just
24 days a sheet that has been provided to the 24 your opinion that maybe the extent of dredging
25 government that lists every single dredging event 25 that would be necessary was underestimated?
Page 75 Page 77
1 during construction and during maintenance 1 MR. ANDRY:
2 dredging. 2 Object to form of the
3 Q. So, someone else put that together 3 question.
4 and summed it up and you recently reviewed it? 4 If you can answer it, you
5 MR. ANDRY: 5 can.
6 Yeah. It was a summary of 6 A. My general impression in discussing
7 the dredging evidence that was 7 with a lot of people is that the dredging and the
8 provided to the United States as a 8 erosion were both much greater than what was
9 summary of evidence of dredging 9 expected. That's about all I can say to that.
10 activity. I think it was attached 10 EXAMINATION BY MS. MILLER:
11 to our Motion For Summary 11 Q. Okay. And you mentioned, I guess,
12 Judgment. It's basically a 12 we -- well -- in Opinion Number 2, you've already
13 summary of the dredging activity 13 talked about how the severing of the La Loutre
14 in the different reaches of the 14 Ridge quickly and directly impacted the cypress.
15 MRGO over time. 15 Does the description of quickly and directly
16 THE WITNESS: 16 killed, does that also apply to the widening of
17 I think it's right there, 17 the channel, in your opinion? Maybe that
18 that -- yeah. Is that it? No. 18 question wasn't very clear. But I'm just trying
19 No. It's the last thing on top of 19 to understand what you're saying happened quickly
20 Gagliano's report there. Yeah. 20 and directly.
21 That's it. 21 A. It's my opinion that had the MRGO
22 A. So, it's my understanding the 22 not cut the La Loutre Ridge or if they had
23 government already has this document. 23 implemented control measures, that much of the
24 EXAMINATION BY MS. MILLER: 24 cypress swamp would be alive today.
25 Q. And this is just -- how is this 25 Q. So, where you say previously
20 (Pages 74 to 77)
Page 78 Page 80
1 thriving extensive habitat, on Page 3 of your 1 exposure to saltwater; is that right?
2 report, that's referring to cypress swamp? 2 A. Yeah, extensive and continuous, that
3 A. And freshwater marshes. 3 gets down in the root zone, in the soil.
4 Q. Why do you describe them as 4 Q. Can you describe -- I guess you have
5 "previously thriving"? 5 included in your report a description of the
6 A. Well, they had existed in that area 6 delta as a whole and the section on its
7 for decades, if not centuries, and we know, based 7 development, if I understood correctly, covers a
8 on what the knowledge -- it's known that cypress, 8 period -- a time period of several thousand
9 if the salinity is not high, will exist for 9 years; is that right?
10 decades to centuries. You know, you can cut a 10 A. That's right.
11 cypress forest down, but if you want to kill a 11 Q. And then you have a section on the
12 cypress forest, you can raise the salinity. It 12 deterioration -- how -- at what -- in terms of
13 will kill it very quickly. I mean, on the 13 thousand-year increments, at what point of the
14 order -- depending on the salinity level, on the 14 cycle does the deterioration -- I guess, at what
15 order of months to a few years. And it has to do 15 point are we now relative to where deterioration
16 with the salt balance within the Central Wetlands 16 of the delta began?
17 Unit, for instance. But those cypress would 17 A. In the whole delta?
18 largely be alive today if the salinity hadn't 18 Q. Right.
19 gone up. Cypress are very good at surviving 19 A. Well, I mean, you know, delta
20 hurricanes. 20 formation is a very complex process. It involves
21 Q. What makes you say that? 21 a number of things, and delta deterioration is,
22 A. They -- it's the structure of the 22 also, and under natural conditions, the
23 tree, the structure of the root system during 23 Mississippi River, as is true of all deltas,
24 Katrina and, you know, right in the eye of the 24 switches courses from time to time. So, you have
25 hurricane, greater than 90 percent of cypress 25 a deltaic load development, and then as it
Page 79 Page 81
1 were -- stayed up, and we give several examples 1 extends further out, the river will seek another
2 in our report of that. They're just very 2 course to the sea, and this deltaic load will
3 resistant to what's called windthrow, or being 3 slowly deteriorate due to subsidence, saltwater
4 blown down. 4 intrusion, lack of riverine input. So, on
5 Q. What about saltwater intrusion that 5 average, before massive changes in the
6 occurs with hurricanes? 6 Mississippi delta, mainly in the last century,
7 A. Well, if an area is -- 7 the river still flowed widely over the delta
8 MR. ANDRY: 8 through numerous small distributaries and
9 I object to the form of the 9 maintained this fairly large delta, but there
10 question. 10 were always places that were undergoing
11 Go ahead. Go ahead. 11 deterioration. And the St. Bernard delta is, you
12 A. If -- it's the soil salinity that 12 know, is most active over 2,000 years ago,
13 really directly affects for the most part wetland 13 something along that line, but there was fairly
14 plants that are fresh or near fresh. So, if a 14 significant riverine input into that area up
15 hurricane can come in, even if a fair amount of 15 until, you know, the first part of the 20th
16 water with higher salinity rolls over the area 16 century. They've recorded what's called
17 and drains out quickly, the cypress can survive 17 crevasses into that area.
18 that. If that weren't true, there wouldn't be 18 Q. But at this point, the delta is in a
19 any cypress in that area at all. They would have 19 period of decline; is that right?
20 gone a long time ago. So, if that comes out very 20 A. In general.
21 quickly and, you know, rain flushes it out and it 21 Q. In general. And that applies to the
22 goes back to normal levels, then, the cypress 22 St. Bernard area, right?
23 won't be killed. 23 A. That's right.
24 EXAMINATION BY MS. MILLER: 24 Q. And that's just part of the natural
25 Q. So, it's a function of the extent of 25 cycle of the river and the delta building
21 (Pages 78 to 81)
Page 82 Page 84
1 process? 1 A. Well, they began as -- as New
2 A. Well, it is, but humans have gotten 2 Orleans was founded.
3 involved in that. 3 Q. Okay. And that's -- I understand
4 Q. But, say, we take out human activity 4 you've made a distinction between the levees that
5 for hypothetical, the delta would still be in a 5 were built after the 1927 flood, but it's the
6 period of decline; is that right? 6 building -- that's the first critical human
7 A. Yes, but that -- those cypress 7 activity, in your opinion, that --
8 swamps in the Central Wetlands Unit would have 8 A. Which one?
9 persisted, you know, a century from the time the 9 Q. Building the levees along the river.
10 MRGO was built, you know, decades and decades. 10 If I understood what you said correctly -- I'm
11 As long as that freshwater input would have 11 trying to distinguish the ways in which the human
12 existed and if it was completely natural, there 12 activity that you've described, you know, began
13 would have been no artificial levees along the 13 to impact the wetlands, and it -- it's my
14 river and, so, there was regular over bank 14 understanding of what you said that river levee
15 flooding and crevassing into that area, these 15 construction once New Orleans was settled was the
16 swamps -- they would have been alive today, 16 first big human activity that contributed to the
17 actually. That's -- my opinion is they wouldn't 17 decline of the wetlands; is that right?
18 have died out massively. There would have 18 A. Well --
19 perhaps been some slow death out on the fringes, 19 MR. ANDRY:
20 but they wouldn't have died over a period of, 20 Object to form of the
21 say, a decade. It almost completely disappeared 21 question.
22 except where there was some freshwater input, as 22 A. No, that's not right, because the
23 in this map from the FitzGerald report that we 23 levee system was not continuous. You know, the
24 spoke of earlier. 24 levee -- building of levees during the 19th
25 Q. If we could -- you have mentioned a 25 century was a patchwork thing, and there were
Page 83 Page 85
1 few different changes over -- you know, the flow 1 continuous failures. There were -- during the
2 of the river and the human activity that 2 historical period, a man named Don Davis at LSU
3 impacted, and your report discusses a number of 3 has documented hundreds of crevasses, that is,
4 things. I wonder if you could just describe your 4 where the river broke out of its channel during
5 understanding of what the landscape and the 5 floods and, you know, had massive flooding of the
6 wetlands condition was, say, a hundred years ago. 6 coastal wetlands. They occurred over and over.
7 You mentioned it was about a century ago that 7 And in the early 20th century, for instance, into
8 maybe the human activity began to have a greater 8 that area, below New Orleans, in the east area,
9 impact. 9 there were six, seven, eight fairly major
10 A. Do you mean under natural 10 crevasses that happened up until 1927, and that
11 conditions? 11 was an artificial crevasse where the levees were
12 Q. Okay. Sure. Under natural 12 dynamited to lower the flood levels in New
13 conditions, say, a hundred years ago, what was -- 13 Orleans.
14 A. Well, a hundred years ago, the 14 EXAMINATION BY MS. MILLER:
15 construction of the levees had -- you know, had 15 Q. Did you mean on the west bank of the
16 been undergone -- underway for over a century, 16 river?
17 but these levees -- it was only after the 1927 17 A. East bank.
18 flood that the levees were upgraded along the 18 Q. Okay. So, the east bank --
19 whole length of their modern standards, and that 19 A. Is where our study area is.
20 eliminated -- essentially after that, we haven't 20 Crevassing occurred on the west bank, too, but
21 had a big introduction of riverine input into 21 I'm referring to the east bank.
22 that area above where the levees end now. 22 Q. Okay. I was confusing my east and
23 Q. So, the initial construction of 23 west. Okay. So, then, after the river levees
24 river levees, you're saying, began in the early 24 were built after that flood and then those have
25 1800s? 25 been more effective in eliminating the crevasses
22 (Pages 82 to 85)
Page 86 Page 88
1 and the flooding of the area; is that right? 1 Q. But it's -- you're saying it's
2 A. That -- I would say that by 1930 -- 2 enough to maintain the salinity balance that the
3 after 1930, there hasn't been a big crevasse into 3 cypress needs there?
4 the area we're talking about. 4 A. Yeah. Basically, there was enough
5 Q. And if you were -- if that were the 5 freshwater to maintain the salinity conditions
6 only human activity that impacted the wetlands, 6 that allowed those -- those -- those freshwater
7 are you able to estimate, you know, how quickly 7 systems to exist, as in the Central Wetlands Unit
8 the wetlands would have declined just from the 8 before the Bayou La Loutre Ridge was cut.
9 existence of the river levees? 9 Q. I think the last time that you were
10 A. Absent the MRGO and an intact La 10 deposed, you mentioned that Dr. Shaffer has done
11 Loutre Ridge, it's my opinion that much of the 11 a lot of work on restoring the cypress in Lake
12 freshwater levels would still be in existence 12 Maurepas; is that right?
13 today. 13 A. Yeah.
14 Q. Much of the wetlands in the Central 14 Q. And why -- why is it needing to be
15 Wetlands Unit? 15 restored there?
16 A. The Central Wetlands Unit. 16 A. Well, there's this long-term
17 Q. And that's just assuming no human 17 deterioration of the whole coast, and over --
18 activities other than construction of the river 18 over a period of decades to centuries, we would
19 levees; is that right? 19 expect that swamp to disappear because it's not
20 A. No. I mean absent MRGO, because 20 regenerating, but there's also a short-term
21 that's the thing that brought the saltwater in. 21 threat from saltwater, and the big kills that
22 There are examples of very similar forested 22 have taken place up in the Maurepas wetlands are
23 wetland, fresh marsh systems upriver in the 23 because of drought and high salinity conditions.
24 LaBranche Wetlands we talked about in and around 24 Q. Okay. So, that longer term
25 Lake Maurepas where those systems are still 25 trajectory that has been observed in Lake
Page 87 Page 89
1 existing. You know, we had essentially, except 1 Maurepas, that could have been expected to occur
2 for small areas in the Central Wetlands Unit, we 2 in the Central Wetlands were it not for the MRGO;
3 had essentially 100 percent kill of cypress. 3 is that right?
4 And, whereas in the LaBranche Wetlands, similar 4 A. Yes.
5 conditions, similar salinity conditions, most of 5 Q. So, rather than a quick kill, in a
6 the swamp is still intact. 6 couple of years, it would have been, you know,
7 Q. And is that where the Bonnet Carré 7 over decades, it would gradually decline; is that
8 Spillway empties into? 8 right?
9 A. Well, the Bonnet Carré is just 9 A. Or longer.
10 upstream of the LaBranche Wetlands, and the 10 Q. But from what you've described, it
11 developed area of New Orleans is just downstream. 11 sounds like it's hard to estimate with too much
12 Q. Okay. So, that spillway provides 12 certainty -- it depends on the -- sounds like it
13 freshwater to those wetlands? 13 depends on drought conditions and other weather
14 A. Well, it -- about once a decade, it 14 impacts; is that right?
15 does, when they open it, but -- and there is a 15 A. Yeah. Well, the fact that the --
16 little bit of leakage through it. 16 the freshwater wetlands persisted in the Central
17 Q. And what about the Lake Maurepas 17 Wetlands Unit, in that whole area, from up until
18 area, what are the freshwater inputs there? 18 MRGO was constructed and then disappeared rather
19 A. Well, there are small rivers from 19 quickly, you know -- it's very clear that the
20 the north -- north -- on the east side of the 20 MRGO was the main causal factor in the
21 Mississippi, the Amite -- the Comite, Amite, 21 destruction of those wetlands.
22 Tangipahoa, Natalbany and several other minor 22 Q. Right. I'm just trying to
23 streams provide, you know, freshwater input, but 23 understand what you've described about the
24 compared to the Mississippi River, it's 24 distinction between the long-term deterioration
25 minuscule. 25 versus what you attribute to the MRGO. You agree
23 (Pages 86 to 89)
Page 90 Page 92
1 there is a distinction between the long-term 1 regenerate?
2 decline and -- 2 A. Well, it would have -- as I said,
3 A. Yeah, right. 3 cypress has a fairly exacting conditions for
4 Q. So, from what I -- let's see. Your 4 regeneration to take place. You have to have
5 report describes a number of factors that impact, 5 fairly dry condition. And because of that, after
6 it sounds like, from what you've just 6 the clear-cutting of the cypress forest in all of
7 described -- well, I guess we can just turn to 7 coastal Louisiana in the late -- most of it took
8 them. On Page 14 and 15, you list a number of 8 place, the massive logging, took place in the
9 factors that have led to delta deterioration. 9 late 18th -- late 19th and early 20th century.
10 Are these -- these are things, from what I 10 There was logging as soon as, you know -- trees
11 understand, that if you exclude the MRGO, these 11 were started to be cut when New Orleans was
12 are all things that occurred that were having a 12 founded, but the big logging took place during
13 longer-term impact on the delta; is that right? 13 that period, and all of the cypress regeneration
14 A. It -- yeah, that's right. 14 are really strongly year class dependent and it
15 Q. So, maybe we can categorize these 15 was associated with droughts, you know, low river
16 chronologically, perhaps. We talked about the 16 water years, so that -- so that the seedlings
17 first one, the flood control levees along the 17 that germinated could survive. Once they survive
18 river, and that began prior to 1900, but after 18 a year, they grow up high enough so that they
19 1927, the much stronger -- or the levees were 19 weren't killed by the floodwaters.
20 more effective, I guess; is that right? 20 Q. Are you saying that the decision of
21 A. There has been no major crevassing 21 when to cut down the trees was made in time with
22 into this area since 1927. 22 a draught year?
23 Q. And, also, the decreased sediment in 23 A. Oh, no. No. No. No. Once they're
24 the river, when did that start happening? 24 cut, the regeneration takes place when conditions
25 A. The big decrease came in the 1950s 25 are right.
Page 91 Page 93
1 with the construction of the big dams throughout 1 Q. I see.
2 the Missouri Basin. 2 A. And a cypress, because of their --
3 Q. And prior to that, there was a more 3 because of the conditions of regeneration, they
4 gradual decrease? 4 don't regenerate continuously, like, say, oaks in
5 A. Well, there was -- yeah. Yeah. 5 an oak forest. There needs to be a dry period.
6 Meade that we cite here on Page 14 is probably 6 A little seedling flooded for about a week will
7 one of the better publications on that. 7 die, something on that order.
8 Q. So, what about -- you also talk 8 Q. What about if you don't have a dry
9 about logging that occurred in this area. What 9 season, will the seed -- does something remain
10 was the time frame that that happened? 10 for the following year that it still might
11 A. The old-growth forests were 11 regenerate, or are you just out of luck if
12 logged -- may have started fairly early, but the 12 they're cut in a wet season?
13 main logging was in the late 19th and early 20th 13 A. You know, you have to have some
14 century, and by the teens of the 20th century, 14 trees left over to produce seed, and whether it
15 that logging was over. 15 could happen from a seed bank, I just don't know.
16 Q. So, around the 1910-1920 time frame? 16 I think Dr. Shaffer would be better to answer
17 A. Yeah, between 1910 and 1920, it was 17 that than me.
18 over, but it started earlier than that. 18 Q. Okay. We'll talk about that
19 Q. And you have a section in here 19 tomorrow. So, your report describes this clear-
20 describing the logging. It sounds like the area 20 cutting as basically taking out -- well, I guess,
21 was essentially -- all of the trees were 21 can you say what clear-cutting is?
22 basically taken out? 22 A. Cutting down all the trees, or
23 A. That's right. Practically all of 23 practically all the trees.
24 them, yeah. 24 Q. And that's what happened in the
25 Q. And how long does it take cypress to 25 Central Wetlands Unit?
24 (Pages 90 to 93)
Page 94 Page 96
1 A. They often leave what are -- you 1 were so large that they wouldn't have had the
2 know, trees that are hollow or snapped off and, 2 value, I think, of timber of the somewhat younger
3 so, they're -- you can see those in all the 3 trees. That tree is, I think, 2,500 years old,
4 forests in Louisiana where regrowth is occurring. 4 something on that order, if my memory serves me.
5 You can see an occasional tree that they left 5 Q. What is the -- you've given us an
6 because it wasn't useful to cut it. It was 6 estimate of a 2,500-year-old tree's diameter.
7 hollow, the top had been broken off for some 7 Looking at the size of this room, it's very
8 reason, it had been hit by lightning. That's one 8 large. I'm not sure what the estimate would be.
9 source of new seeds for regeneration to take 9 But what is your estimate of the size of a
10 place. 10 1,000-year-old tree?
11 Q. And you mentioned that some of these 11 A. Well, it would be maybe half the
12 trees that were cut were as much as a thousand 12 size of this room. You can go still --
13 years old. 13 Q. Do you mean this width, about eight
14 A. Cypress certainly grows to a 14 to ten feet in diameter?
15 thousand years. They are really long-lived trees 15 A. Yeah. There are a few remaining
16 under good conditions. 16 old-growth cypress groves in the southeastern
17 Q. So, by the time the MRGO was 17 United States that you can still go and see and,
18 constructed, whatever cypress was there should 18 so, you know, that's -- they're on that order.
19 have been, I guess, less than maybe 40 or 30 19 Big, huge trees. There are photos of these
20 years old. Is that -- 20 forests.
21 A. No. It was -- it was -- it all 21 Q. So, where your report describes the
22 depends when the forest started regenerating 22 manner in which the logging is done, that they
23 because it wasn't cut all in one year. Anywhere 23 create logging runs, it sounds like -- can you
24 from probably 50 to 80 years old. But a tree 24 describe how it is that these are cut and removed
25 that size has all the characteristics that make 25 from the swamp area?
Page 95 Page 97
1 it a good storm buffer. It's high enough, it's 1 A. Well, it happens in various ways,
2 strong enough to -- to withstand the hurricane 2 but one of the ways is to -- they'll put a --
3 forces. 3 like a barge or something in a single spot and
4 Q. So, what happens to the tree between 4 cut trees around, you know, in a circle up to
5 age 50 years and a thousand years? 5 several hundred yards away from that spot, and
6 A. Well, it continues to grow. I mean, 6 you have a big winch there on a barge, and then
7 you know, the largest cypress tree in existence 7 the trees are cut and they're winched in. They
8 is up north of Baton Rouge and it has a base, I 8 are pulled in, and that creates, you know, five-
9 think, bigger than this room. 9 to six-foot ditches, and you can see these still
10 Q. Is that a tourist attraction? Is 10 remaining in the landscape. They're radial,
11 there one tree that's marked as the largest? 11 star-like patterns. Those things persist in the
12 A. No. It's a grove. It's in a place 12 landscape for, well, a century or more, you can
13 called Cat Island National Wildlife Refuge. It's 13 see them in Louisiana. There also were
14 rather inaccessible. So, you have to want to go 14 situations where little rail lines were built out
15 there. It's not something -- 15 on parts of cut trees and trains went out and
16 Q. I see. 16 they pulled them in from the sides like, you
17 MR. ANDRY: 17 know, this, so you could have lines of cut -- the
18 Off the record. 18 same idea, but it's not a star pattern. It's a
19 (Whereupon, a discussion was 19 pattern like this, you know, where the lines go
20 held off the record.) 20 out perpendicular from the little railway.
21 EXAMINATION BY MS. MILLER: 21 Q. And, so, where you say the star
22 Q. That's swamp has been identified as 22 pattern is created where they're taken out by
23 containing the largest living cypress tree? 23 barge, do they also make a canal in order to do
24 A. Yes. It was an isolated swamp, so, 24 that?
25 it was difficult to get in to cut. These trees 25 A. Well, they make a canal up to that
25 (Pages 94 to 97)
Page 98 Page 100
1 point. 1 was obviously in an area of constructing. This
2 Q. Okay. 2 is MRGO Photos 0000071. It's a picture of a
3 THE VIDEOGRAPHER: 3 bunch of dignitaries blowing up part of the
4 Excuse me. Need to go off 4 cypress forest. But you see the density here of
5 the record to change tapes. This 5 the trees and this is fairly typical of what they
6 is the end of Tape 2. We're going 6 look like there in the LaBranche Wetland and in
7 off the record. 7 the Maurepas Swamp. You get an idea of the
8 (Whereupon, a discussion was 8 density. You see here this is one tree that was
9 held off the record.) 9 left. That tree would have provided a -- this is
10 THE VIDEOGRAPHER: 10 in Photo 000109. It would have provided -- this
11 Beginning of Tape 3. We're 11 would have been a source of seed.
12 back on the record. 12 Q. Is this the one that we've marked as
13 EXAMINATION BY MS. MILLER: 13 an exhibit? Can you circle that tree that you're
14 Q. Okay. We were just talking about 14 talking about?
15 the cypress trees and the logging in the early 15 A. Okay. This is a photo, 19 January
16 1900s that generally involved clear-cutting, 16 1959. It shows the dredging of -- this is Bayou
17 taking out all of the existing trees, and you 17 Bienvenue -- to allow ships -- they came Bayou
18 described the manner in which the trees would be 18 Bienvenue to dig a channel. So, they enlarged
19 removed from the area, and you say in your report 19 Bayou Bienvenue. And I'm just circling one tree
20 that this impacts the hydrology of that area; is 20 out of thousands that we can see in this photo.
21 that right? 21 This tree would have provided -- trees like this
22 A. Yeah. Yes. 22 in the first cut would have been seed sources to
23 Q. And can you just describe how -- 23 allow that to regrow. So, you can see -- if you
24 what -- how it's impacted? 24 look here, and this is a photo dated 9 July 1958,
25 A. Well, those flow canals create the 25 MRGO Photo 0000127, you see a very extensive
Page 99 Page 101
1 permanent little small canals in the landscape. 1 forest here along Bayou Bienvenue. You see
2 They're dead-end canals, so, they pull them back 2 individual big trees along the bayou. And in the
3 to the boat. Those things, all over the coast, 3 background, there's -- there clearly seems to be
4 you will see these canals, these logging scars, 4 cypress trees. And then in our supplemental
5 where cypress were harvested. 5 report, we have numerous -- we have 35 photos, I
6 Q. And you can see these in the Central 6 think, all showing the distribution of this kind
7 Wetland Unit area as well? 7 of vegetation.
8 A. Yeah. Uh-huh. 8 Q. Well, I would like to go through
9 Q. In terms of the altered hydrology, 9 these in a little more detail later. I had one
10 that then contributes to what you describe as 10 question about the one you just circled. You've
11 changes in the flow of the water in that area? 11 identified one tree that now has a circle around
12 A. Well, that -- those things are local 12 it as an example of when logging occurred, that
13 versus the MRGO, which is huge. So, in terms of 13 one tree may have remained, and that that would
14 relative changes, the MRGO is overwhelmingly more 14 provide seeds. Isn't it true, though, right
15 important in changing the hydrology of that area 15 here, where that tree is, there are no other
16 than these local, dead-end canals due to logging. 16 trees in its vicinity, immediate vicinity?
17 In addition, they didn't affect regeneration. 17 A. This is a spoil area, and I think
18 You know, in our report, you know, you can see 18 most of the trees were cut down during the
19 pictures of dense cypress forests that 19 dredging process.
20 regenerated. You can see the size of the trees 20 Q. Why do you think that?
21 were anywhere from this size to this size -- 21 A. Well, there's another photo here to
22 Q. When you say "this size to this 22 illustrate what I mean. Here. You see, this is
23 size," can you indicate for the record? 23 the dredging of the MRGO. This is Photo 0000141
24 A. I would say a foot to two and a half 24 of our expert report. You see the channel here
25 feet. I'm not exactly sure where this is, but it 25 being dredged, and there are numerous trunks
26 (Pages 98 to 101)
Page 102 Page 104
1 lying on the ground that have been cut, and the 1 where you circled that tree is in an area that's
2 main reason they do that is allow the ease of 2 where spoil is being deposited. Is that what you
3 movement of the spoil pipeline as dredging takes 3 said?
4 place because it had to be pumped out of the 4 A. Yes.
5 channel and over into the spoil containment area. 5 Q. So, this area where spoil is being
6 And you can also see in this photo where the 6 deposited does not show any trees being cut down;
7 spoil material is filling in the swamp. But this 7 is that right?
8 gives you an idea, when you look at these dead 8 A. Well, I think they've already been
9 trunks, you know, of the density of trees that 9 cut, and you see a number of individual trees in
10 occurred here. 10 there.
11 Q. In this photo that ends in 141, 11 Q. Do you --
12 you're saying that these stump -- or tree trunks 12 A. I would -- I would assume that they
13 that have been cut are lying on the area that 13 have been cleared in that -- mostly cleared in
14 will then become the channel; is that correct? 14 that area.
15 A. Yeah. And, so, they'll likely be 15 Q. As part of the construction of the
16 moved, but, also, it's allowing the spoil 16 channel?
17 disposal pipe to be moved fairly easily, because 17 A. And as part of spoil disposal. It
18 if you have a dense set of trees, every time you 18 could have been a -- a mix -- there was a lot of
19 wanted to move it, you would have to completely 19 area out there that is mixed forest and marsh
20 disassemble it and move it to another place. So, 20 together, very common type of habitat in this
21 this opens the area up and allows that ease of 21 area, and it may well have been -- this may have
22 movement of the pipe. Also, they had to cut the 22 been a marsh before with trees interspersed in
23 trees down from where the channel itself would be 23 it. I'm not sure.
24 dredged. 24 Q. So, you cannot tell from this
25 Q. Right. So, that's -- that's where 25 photograph whether it was a marsh with trees
Page 103 Page 105
1 the channel itself will be. 1 interspersed or whether trees may have been cut
2 A. Well, part of it, and part of it is 2 at some point?
3 the spoil. You can see, this is the -- 3 A. No, not at this time.
4 Q. But -- I'm sorry. Go ahead. 4 Q. And you're speculating based on what
5 A. In this photo, it illustrates the 5 you see in the photograph what might have
6 total width, I think, of the spoil channel, and 6 occurred, but you don't know for certain how that
7 the dredge is dredging the last bit of wetland 7 channel was --
8 soils from the middle of that channel, and in the 8 A. Well, we know there are individual
9 upper part of the picture, only about half of the 9 trees out there now --
10 channel has been dredged. The other half is 10 MR. ANDRY:
11 still intact -- the sediments. 11 Object to the form. I don't
12 Q. And, so, where you're saying that 12 think you were speculating.
13 trees have been cut down, that's a -- because 13 Object to form.
14 of -- so that the channel can be constructed in 14 So, answer if you can.
15 that area; is that right? 15 A. There were trees in this area.
16 A. That's right. 16 There may have been more denser trees that have
17 Q. So, it's a direct consequence of 17 been cut, but trees occurred all through here.
18 needing to dredge that area, or precursor, I 18 You can see them. And it may have been a marsh,
19 guess? 19 also. Partially may have been a mixture of marsh
20 A. And also -- yeah. Yeah. 20 and trees.
21 Q. So, in that picture where the trees 21 EXAMINATION BY MS. MILLER:
22 have been cut, that's -- they're located in the 22 Q. At what time period are you saying
23 area that will become the channel. But in the 23 there may have been trees throughout that area?
24 first picture you described where you circled one 24 A. Well, if they were there -- on the
25 tree, and that's the picture that ends in 109, 25 other side of the bayou here, you see a fairly
27 (Pages 102 to 105)
Page 106 Page 108
1 extensive swamp. If that existed over here, 1 trees to regenerate?
2 then, they were cut. It could have been a marsh 2 A. They wouldn't regenerate right in
3 in here. I'd have to -- we'd have to look more 3 the canal because it's too deep, but there are
4 carefully into this and into some other maps to 4 examples of forest here and elsewhere where the
5 see what this looked like beforehand. 5 trees regenerated outside of those canals. The
6 Q. So, you don't know right now from 6 canals didn't -- you know, may have covered, I'm
7 having reviewed this photograph and the work 7 guessing, 10 percent of the area, but the trees
8 we've done -- you've done on your report so far, 8 regenerated all around them.
9 you don't know what the area that's reflected in 9 Q. So, it may have impacted the density
10 the picture that ends at 109, you don't know what 10 of the second-growth forest; is that right?
11 was in that area; is that right? 11 A. They wouldn't have grown in those
12 A. No, not specifically here. My main 12 canals.
13 point, I think, in general, is that there were 13 Q. Okay.
14 extensive forests in this area, a lot of the area 14 A. But there was -- there's abundant
15 that was the Central Wetlands Unit, and they are 15 photos here and in our supplemental report
16 evident on these pictures that were taken during 16 showing dense cypress forest throughout that
17 the construction of the MRGO. 17 area -- not in the whole area, but throughout
18 Q. So, it's reasonable to think that 18 that area.
19 this photograph that we're discussing reflects 19 Q. Well, we'll look forward to looking
20 the condition at the time the channel was being 20 at those.
21 constructed; is that right? 21 You also have a section in your
22 A. It may or may not be reasonable. I 22 report that talks about trees and their impact on
23 think we'd have to look into this more carefully. 23 storm surge. Is there a difference, in your
24 Q. So, where you can see trees in the 24 opinion, between a thousand-year-old tree versus
25 top maybe fifth of the photo and you can't see 25 a fifty-year-old tree and the impact it might
Page 107 Page 109
1 trees -- there are no trees apparent -- or the 1 have on a storm surge?
2 same density of trees? 2 A. I think it has more to do with the
3 A. There are quite a number in there, 3 density of the trees that are standing. As long
4 really. It's not as dense as on the other side, 4 as the tree is higher than the storm surge, it's
5 but -- 5 going to reduce storm surge and pretty much
6 Q. So, this photo doesn't allow you to 6 eliminate waves on top of the storm surge. Now,
7 make a determination about whether the area that 7 we would have to know the cross-section, the
8 looks kind of white in this photograph -- whether 8 total cross-section of the forest, to -- I would
9 that immediately prior to construction of the 9 have to know that to answer that accurately, but
10 MRGO had dense trees in there? 10 it's not necessarily the case. In other words, a
11 A. That's right. The white is spoil. 11 dense stand of younger trees could have the same
12 Q. Okay. So, you brought out that 12 impact as a not-so-dense stand of the large
13 photograph as an illustration of the fact that 13 trees.
14 trees did regenerate in that area after clear- 14 Q. And is that something that you have
15 cutting -- the trees did regenerate in the 15 tried to measure yourself?
16 Central Wetlands Unit after clear-cutting 16 A. No, I haven't measured it myself.
17 occurred in the early 1900s? 17 Q. Can you describe what you know of
18 A. Absolutely. I mean, they had to. 18 the development of St. Bernard Parish in the
19 These trees regrew after they were cut. This 19 early part of the -- from 1900 forward?
20 happened all over the coast. There's no doubt 20 MR. ANDRY:
21 about that. 21 Object to form of the
22 Q. And the very localized area where 22 question.
23 the trees had been logged, the canals and other 23 You can answer it.
24 impacts that altered the hydrology of that area, 24 EXAMINATION BY MS. MILLER:
25 does that have an impact on the ability of those 25 Q. Well, I guess we can look at some --
28 (Pages 106 to 109)
Page 110 Page 112
1 some maps might make it easier -- some of the 1 forced drainage. Water runs off of the natural
2 photographs, but maybe I can collect some of 2 levee and into a canal and pumped into the
3 those after lunch. But, in general terms, do you 3 wetlands. Most of the areas that were flooded
4 have any knowledge of the population of St. 4 during Katrina were above sea level. That's my
5 Bernard Parish over the last 100 years? 5 understanding. In St. Bernard. That's not true
6 A. Not much. I think before -- 6 in Orleans.
7 trying -- I don't have that on the top of my 7 Q. So, in terms of drainage of that
8 head. 8 area, does development impact the amount of
9 Q. And is it correct that the area of 9 rainfall that drains into the wetlands?
10 St. Bernard that is inhabited is primarily east 10 A. Well, in a highly urbanized area,
11 of the Mississippi River and west of the Forty 11 more of the rainfall would run off. That's only
12 Arpent levee location? 12 in the upper part of the parish. In the lower
13 A. All of St. Bernard Parish is east of 13 part, you still have a lot of green area and it
14 the Mississippi River. 14 would soak in. But there are a lot of ditches in
15 Q. Right. And the inhabited part -- 15 there that channel water down to the -- to the
16 A. The main place where people live is 16 ditch that's -- a canal that's in front of the --
17 on the elevated natural levees. 17 or adjacent to the Forty Arpent levee, and that's
18 Q. And is it correct that over the last 18 where the pumping stations are and it's pumped
19 100 years, the area that was developed has 19 over into the wetlands.
20 increased? 20 Q. So, there are specific areas where
21 A. Yeah. I don't know the exact 21 the pump stations deliver the water into the
22 number, but the population has increased. The 22 Central Wetlands area?
23 upper part of the parish is essentially urban. 23 A. Yeah.
24 Q. And was that the case in the early 24 Q. If we could go back to Page 14 of
25 1900s? 25 your report, where we were talking about your
Page 111 Page 113
1 A. I don't know. I wouldn't think so, 1 list of things that have impacted -- led to delta
2 but I really don't know. 2 deterioration, are you able to assign a
3 Q. Does development in general have an 3 percentage that you would attribute to the amount
4 impact on -- say, the development of that area 4 that the flood control levees along the
5 between the Mississippi River and the Forty 5 Mississippi River have led to deterioration of
6 Arpent levee, does that have an impact on the 6 the delta?
7 wetlands to the east of the Forty Arpent levee? 7 A. Of the whole delta?
8 MR. ANDRY: 8 Q. Sure.
9 Object to the form. 9 A. Or of the certain --
10 A. Not directly, because -- it doesn't 10 Q. Well, I guess both. Is there a
11 directly affect that because it's out of those 11 difference on the impact it's had on the whole
12 wetlands. The Forty Arpent levee then becomes 12 delta as compared with the Central Wetlands Unit?
13 basically a barrier that development takes place 13 A. Yeah. The -- I would say in the
14 inside the levee and not outside. There may be a 14 delta in general, it's one of the more important
15 few camps out there, you know, fishing camps and 15 things, and it's difficult to put a percentage on
16 such. 16 any of it because these factors are so
17 Q. Were there any areas in St. Bernard 17 interrelated, but -- so that stopping the river
18 that were drained for development, you know, land 18 input into the delta -- and this is true of many
19 that was reclaimed from the wetlands? 19 deltas around the world -- it may be one of the
20 A. If you look at the maps, most of the 20 most important things that can happen. But with
21 development, you know, seems to have taken place 21 respect to the Central Wetlands and the loss of
22 on the natural levee. It may have allowed 22 the freshwater marshes when they happened, that
23 development to take place on the lower distal 23 was due to -- that was due to the cutting of the
24 parts of the levee, but then that was truncated 24 ridge and the salinity. We lost those freshwater
25 by the Forty Arpent Canal. And the area is under 25 wetlands mainly because of that. This would have
29 (Pages 110 to 113)
Page 114 Page 116
1 led -- you know, the isolation of the -- from 1 A. Well, I think some people have
2 the -- by the Mississippi levees over a long 2 included areas on the east of MRGO and also
3 period of time would have affected the -- the 3 farther south in the Bayou La Loutre Ridge as it
4 wetlands in that area, the rapidity in which they 4 traverses from the Mississippi River out to the
5 were replaced. That's clearly due to the 5 MRGO levee.
6 saltwater intrusion and not due to the long-term 6 Q. Okay.
7 process, the submergence, the stopping of the 7 MS. MILLER:
8 river, the submergence. 8 Do you guys think this might
9 Q. So, you cannot distinguish a 9 be a good time to take a lunch
10 percentage that each of the factors you've listed 10 break?
11 on Pages 14 and 15 contribute to loss of wetlands 11 MR. ANDRY:
12 because they're all basically intertwined? 12 Yeah, it's quarter till.
13 A. Well, I think the major -- in the 13 THE VIDEOGRAPHER:
14 delta in general, the major things is lack of 14 Off the record.
15 riverine input, the ongoing subsidence and, you 15 (Whereupon, a discussion was
16 know, those are the two big, natural ones, as the 16 held off the record.)
17 load shifts away, and then the, you know -- the 17 THE VIDEOGRAPHER:
18 internal -- modifications of internal hydrology 18 We're now back on the
19 of the delta, very important. In this case, the 19 record.
20 overwhelmingly important modification is the 20 EXAMINATION BY MS. MILLER:
21 Mississippi River Gulf Outlet. Other than that 21 Q. Dr. Day, was the study area and
22 canal, there -- there are very few canals in that 22 quality of wetlands in the Central Wetlands Unit
23 area, relatively. There are sort of minor -- you 23 in decline prior to the construction of the MRGO?
24 know, it -- the MRGO is -- I don't know -- 99.9 24 A. Well, in a sense, they were, and in
25 percent of canals in that area, if you want to 25 a sense, they weren't. I mean, the cypress swamp
Page 115 Page 117
1 just do it by area and, you know, with the 1 was something that would have been there for
2 massive changes in hydrology. 2 decades into the future in the sense that the
3 Q. Have you made a measurement 3 river -- you've cut off the river for regular
4 comparing the percentage of canal area -- 4 input and the area is submerging, you could say
5 A. Well, I think, in our report, if 5 that, and over a long-term period without MRGO,
6 memory serves, there might have been something, 6 you would have seen a continued trajectory, but
7 50-something acres of other canals in the Central 7 you certainly wouldn't have seen the cypress
8 Wetlands Unit, as opposed to, you know, 25,000 8 swamps disappear like they did.
9 acres of direct impact of the channel due to 9 Q. And by "like they did," you mean as
10 dredging and spoil placement. 10 quickly as they did?
11 Q. And do you know how many acres are 11 A. Yeah.
12 in the Central Wetland Unit as a whole? 12 Q. Do you know how many acres of swamp
13 A. About 30,000. It depends on who's 13 were present in the Central Wetlands Unit prior
14 measuring it and what time. The measurements, 14 to construction of the MRGO?
15 the numbers that are published in the various 15 A. Well, we've reviewed a number of
16 reports range from about 28,000 up to over 16 different papers on there, and there are varying
17 40,000, depending on how you define the unit. We 17 numbers given, anywhere from about 7,800 acres up
18 use the definition that was initially put in by 18 to 12,000 or more, and --
19 the Gagliano report or Wicker report which 19 Q. So, that is, I guess, a difference
20 delineated the Central Wetlands Unit. Other 20 of over 4,000 acres between those two estimates.
21 studies have used a somewhat larger area, up to, 21 Do you have an opinion on what the accurate
22 say, around 42,000 acres. 22 estimate is?
23 Q. So, 42,000 acres, you would say, is 23 A. Well, those numbers vary because,
24 the high end of an estimate for the size of the 24 for one thing, the people studied different
25 Central Wetlands Unit? 25 areas. The Central Wetland Unit in the different
30 (Pages 114 to 117)
Page 118 Page 120
1 reports is defined differently. Secondly, the 1 A. It's right there, if you want to
2 different units are studied and defined and 2 refer to it.
3 quantified. Third, there's a whole issue of you 3 Q. Okay. Maybe I'll look at it at a
4 have a mixture of swamp -- you have trees and 4 break.
5 marsh growing together, and whether or not you 5 Can you turn to your report, Page
6 classify that as swamp, it's sometimes classified 6 40, you have a Figure 7, and you have included
7 as scattered trees. So, whether that's included 7 this as a photograph that shows the Central
8 in your swamp estimate -- so, if you want to -- 8 Wetlands Unit, right?
9 if you're asking me if there's a right number, 9 A. Yes.
10 then, you'd have to very carefully define, you 10 Q. And that is the -- so, this includes
11 know, what's the definition that you're using. 11 the area of interest for this litigation; is that
12 So, it isn't that any of those are right or wrong 12 right?
13 so much. It's just how they were derived. 13 A. Yeah.
14 Q. So, any of the studies over the 14 Q. Are you able to identify on this
15 years -- well, you reference, I guess, you said 15 photograph, maybe mark on there?
16 there were a number of different calculations, 16 A. In this document I have?
17 and that's where you come up with the range of 17 Q. Yeah. Are you able to mark on there
18 7,800 to 12,000. 18 where the acres of swamp were prior to the MRGO?
19 A. That's my recollection. I mean, the 19 A. Not really. This is not a good
20 numbers -- actual numbers in the reports may be 20 photograph. We have some much larger photographs
21 different. 21 that would be more appropriate.
22 Q. And which reports do you rely on to 22 Q. Is there one that would be good for
23 get those numbers? 23 identifying that?
24 A. Well, there's a report by Wicker, et 24 A. Yeah.
25 al. There's the FitzGerald. 25 Q. I guess Dr. Shaffer is helping you
Page 119 Page 121
1 Q. You mean the one for this 1 select one. I'll give him a minute.
2 litigation? 2 A. This is Figure 4.8 of the FitzGerald
3 A. Yeah. It's one of our documents we 3 report, Page 4-21, and this is an interesting
4 introduced earlier into evidence. There's the 4 photograph or map because it brings out some of
5 1999 Corps report or EPA/Corps report. There's 5 the issues I was talking about. This -- there is
6 the FitzGerald report. There are two reports 6 a solid line, which I'm tracing here, which is
7 produced by Britsch and Barras and some marginal 7 the location of the Forty Arpent levee.
8 estimates of land loss that studies part of a 8 Q. Before you go too far, is this
9 coast-wide effort. So, there are a number of 9 actual piece of paper something that we can mark
10 different studies that have taken place. I think 10 on for the exhibit?
11 you can say is that all of those studies show a 11 DR. SHAFFER:
12 dramatic decline in cypress swamp, essentially in 12 You have a small version of
13 that area -- 13 that somewhere that you brought
14 Q. And the Wicker report that you 14 out earlier.
15 identified, that's the one that's the Coastal 15 MR. ANDRY:
16 Environments' report for St. Bernard Parish? 16 Can we copy it like we did
17 A. Yes. 17 the other one?
18 Q. Do you know the year that that was 18 MS. MILLER:
19 made? 19 In a large format? You had
20 A. '81. Wicker? 20 indicated that you wanted
21 DR. SHAFFER: 21 something larger to write on.
22 '82. 22 THE WITNESS:
23 A. '82. 23 Larger than this. Here.
24 EXAMINATION BY MS. MILLER: 24 This is okay.
25 Q. Okay. 25 MS. MILLER:
31 (Pages 118 to 121)
Page 122 Page 124
1 That's in this -- I'll 1 of the current levee, the Forty --
2 locate it in here. 2 Q. By that, you're pointing to the dark
3 THE WITNESS: 3 black line?
4 Page 4-21. 4 A. The dark black line in this brown
5 EXAMINATION BY MS. MILLER: 5 pattern that is indicated as cypress swamp.
6 Q. We may end up using a few things in 6 Q. Okay.
7 this, but for now -- 7 A. So, that's the Forty -- this
8 A. It's just this Figure 7 -- 8 straight line going from the upper right, more or
9 MS. MILLER: 9 less in the picture, is the -- is the footprint
10 Do you want us to mark on 10 of the MRGO. It wasn't in place here. This was
11 this? 11 1930s. And then in the upper right of the
12 DR. SHAFFER: 12 picture is Lake Borne.
13 I'd rather put it back in 13 Q. Okay.
14 here. 14 A. So, this tan or dark brown, light-
15 MS. MILLER: 15 brown area indicates the distribution are of what
16 Okay. I'm just going to use 16 are called cypress swamps. There's also an area
17 this one page as Exhibit 7. 17 here that's light tan that's indicated as
18 (Whereupon, Day Exhibit 18 scattered cypress trees. So, the -- part of the
19 Number 7 was marked for 19 issue, I think, in how people classify this is
20 identification.) 20 most people classify what's called here scattered
21 EXAMINATION BY MS. MILLER: 21 cypress trees as marsh because it wasn't a closed
22 Q. Figure 4.8 from the FitzGerald July 22 canopy, although, there was, undoubtedly,
23 11th, 2008, report. 23 understory vegetation in what's indicated here
24 A. Page 4-21. Now what is it you'd 24 cypress swamp. And we have pictures here of that
25 like me to -- 25 area that shows --
Page 123 Page 125
1 Q. I had wanted you to show -- this 1 Q. I'd like to get into the pictures a
2 shows a slightly smaller area than the figure in 2 little bit later, but for now, you're
3 your report that reflects the Central Wetlands 3 indicating --
4 Unit. 4 A. Yours are different colors there.
5 A. I think if we use several images in 5 Q. It's just a different printer, I
6 a row, I can better answer your question. 6 think. But you're referring to the legend on the
7 Q. Okay. So, my question was: You 7 right-hand side of this figure; is that right?
8 indicated that there were between 7,800 to 12,000 8 A. Yes.
9 acres of cypress swamp in the Central Wetlands 9 Q. And, so, the black lines we're
10 Unit prior to construction of the MRGO. By 10 referencing are the boundaries of LCA Coast 2050
11 "prior," I mean immediately prior to 11 units?
12 construction, like, within the last, you know, 12 A. Yeah, but they also trace the
13 one or two years before construction -- 13 location of the future MRGO and of the more or
14 A. Uh-huh. 14 less the levees that were constructed.
15 Q. -- to the best you can estimate it. 15 Q. The Forty Arpent?
16 Can you draw on Exhibit 7 where those swamps are 16 A. The Forty Arpent levees.
17 located? 17 Q. Okay. And that -- the colors that
18 A. Well, this is the lower part of the 18 are added to this map -- well, who created this
19 Central Wetlands Unit. This is the Bayou La 19 map?
20 Loutre Ridge, I'm indicating here. This white 20 A. This is from the -- what's called
21 area traversing from the Mississippi over towards 21 the T-sheets, and I don't know if they were
22 the Mississippi River Gulf Outlet, and it crosses 22 colored originally or whether FitzGerald added
23 it down below here. 23 the color.
24 Q. Off the map? 24 Q. Okay.
25 A. Off the map. This is the location 25 A. But that -- that's the source of
32 (Pages 122 to 125)
Page 126 Page 128
1 this. 1 8, and we can use one that you're able to write
2 Q. And do you know the year of this 2 on if you're able to do that.
3 map? 3 (Whereupon, Day Exhibit
4 A. Well, it says 1930s. Mid-'30s, I 4 Number 8 was marked for
5 think it was. 5 identification.)
6 Q. So, this would be at least 20 years 6 A. Okay. And what you see on this,
7 prior to the construction of the MRGO? 7 here, in the FitzGerald report, the different
8 A. Yeah, but then if you look at this 8 areas are delineated by color, so, it's very
9 photo mosaic which is in our supplemental report, 9 clear. For instance, red is salt marsh. Blue is
10 you can actually still see that this area is 10 brackish marsh. The cypress swamp is delineated
11 pretty much the same in terms of the distribution 11 as brown. And clearly here, in this photo, you
12 of these elements on the map as -- and this is 12 can see the location of the Forty Arpent levee.
13 the mid-1940s. This is 1945. So, this is -- and 13 You can also see the location of the MRGO here.
14 then if we -- if you look at the photos that we 14 And this, in the lower part of the Central
15 have in our supplemental report, you can see that 15 Wetlands Unit, as defined here, you can see a
16 there is -- there are fairly extensive freshwater 16 distribution of cypress swamp which corresponds
17 marshes, high reeds and trees, vegetation in this 17 to Exhibit 7. If you follow this line, you see
18 area. 18 it's fairly close to this line. FitzGerald
19 Q. Okay. I think we're getting sort of 19 derived these maps from USGS, I think, quad maps
20 far ahead. I do want to talk about the 20 that showed -- and they're in the report here --
21 photographs in your supplemental report, but for 21 that showed a distribution in green of forest.
22 now, are you saying that Exhibit 7 -- all of the 22 So, but what doesn't show in Exhibit 7 is the
23 colored brown, whether it's light or dark, is 23 extensive cypress swamps that existed up in the
24 where you believe that these 7,800 to 12,000 24 northwest corner -- portion of the Central
25 acres of cypress swamp were located -- 25 Wetlands Unit.
Page 127 Page 129
1 A. This is the southern part. I'm 1 Q. Will you take your pen and draw on
2 trying to illustrate that when we're talking 2 Exhibit 8 where you think cypress swamp existed
3 about swamp, it's been defined differently, and I 3 that's not reflected on that --
4 think people map different things. This, 4 A. Okay. Let me go a little bit
5 everyone agrees, was the swamp. This, many 5 further before you ask me to do that and finish
6 people are calling marsh, even though there are 6 so that maybe you will want to change what you
7 trees, numerous trees in this area. If you look, 7 ask me to do. Then, there's a light-green
8 this -- 8 shading here, which is defined as fresh marsh,
9 Q. What do you mean by "numerous 9 and what the photos show in our supplemental
10 trees"? 10 report show very extensively is that there was
11 A. I can show you pictures of them, if 11 high reeds, oaks, cypress and other trees
12 you like. 12 throughout this area, but they weren't so --
13 Q. Okay. 13 Q. I'm sorry. Throughout the light-
14 A. In other words, when you look out, 14 green area?
15 there's not just ten or 20, there's hundreds of 15 A. Throughout the light-green area.
16 trees, elements in the landscape. 16 And, in fact, up to and beyond the MRGO. It
17 Q. Do you have photographs from 1930s 17 included some of the areas east and north of MRGO
18 that reflect those trees? 18 and the area -- and the wetlands between that and
19 A. No. No. I have photographs during 19 Lake Borne.
20 the construction of the MRGO in this area. These 20 Q. So, some of the areas that
21 were done by the U.S. Coast and Geodetic Survey 21 FitzGerald's exhibit -- or the Exhibit 8, which
22 quad sheets. Now, I'm referring to 4.2 of the 22 is FitzGerald's Figure 4.2, what he labels as
23 FitzGerald report, Figure 4.3 -- I mean, Page 23 brackish marsh --
24 4.3 -- 4-3. 24 A. No. Well, I'll draw here. Where
25 Q. Okay. So, I'll mark that as Exhibit 25 our photos indicate the presence of nonlow marsh
33 (Pages 126 to 129)
Page 130 Page 132
1 elements. In other words, Spartina alterniflora, 1 A. Well, there are oak trees, there are
2 marsh like that might be two or three feet high. 2 cypress trees, and there are shrubby-type
3 What we've identified, and I'll go ahead and draw 3 vegetation. There's a number of different
4 a circle here, in this big area, more or less 4 species, Iva frutescens is another one.
5 like that, obviously not out in Lake Borne, is 5 Q. What sort of estimate of quantity of
6 extensive elements, vegetative elements, that 6 trees have you made for that area?
7 include reeds of some kind, high marsh plants, 7 A. Well, I can show you the photos.
8 not trees, but grasses or cane-like plants, like 8 Since we've just gotten the photos in the last
9 Phragmites australis -- I don't know if you know 9 week and we were asked to produce this report, we
10 what this is -- it's a large -- it's a high 10 probably could produce estimates of density, but
11 reed -- through this area. Shrubs, oaks, dense 11 what we have now are the photos, and I could show
12 to not-so-dense cypress. So, that occurs 12 those to you.
13 throughout this area, and we can demonstrate that 13 Q. So, knowing that this Figure 4.2 in
14 on the photos. 14 FitzGerald's report -- you had seen -- when did
15 Q. Okay. So, throughout the area that 15 you first see this figure?
16 you've circled on Exhibit 8? 16 A. This figure?
17 A. Very rough, though, because I didn't 17 Q. Yes.
18 circle the whole thing. I mean, that's the 18 A. Well, when I got -- when I saw
19 general area, so -- 19 FitzGerald's report. My point is it's not that
20 Q. Okay. Had you seen any photographs 20 anybody is right or wrong. They're measuring
21 that reflected that type of vegetation in the 21 certain things, using certain techniques and
22 circled area prior to producing your supplemental 22 they're coming up with an answer. And I think to
23 report? 23 understand what happened in that area, you have
24 A. No. These -- these -- well, some -- 24 to look at all of these things and read the
25 yeah, some of the figures -- photos we had in our 25 literature and come to a reasonable conclusion,
Page 131 Page 133
1 initial report, but we were given these series of 1 and the reasonable conclusion is people are
2 photos that the government provided to the 2 classifying things as fresh marsh that have other
3 plaintiffs' attorneys sometime in December, and 3 elements other than low plants, low grasses in
4 we were asked to look at those. 4 them. And they occurred fairly extensively in
5 Q. But in -- and prior to seeing those 5 the area. And as I say, I can -- I can -- I can
6 photos, in your work in this area over the last 6 show you these photos and examples of it.
7 30 years and in producing your initial report, 7 Q. And had you included that in your
8 you did not have photographs that showed that 8 original report, the fact that those things
9 type of -- the vegetation you just described as 9 occurred extensively in the area?
10 being maybe two to three feet high? 10 A. Well, we included a few figures, but
11 A. Two to three feet high, yes, not six 11 we didn't receive these photos until a week
12 or eight feet high. 12 ago -- myself.
13 Q. So, you're saying you've now 13 Q. So, were you surprised when you saw
14 determined that there was vegetation prior to 14 these photographs?
15 construction of the MRGO in the area you circled 15 A. Well, I wasn't so much surprised,
16 on Exhibit 8 that was as much as six to eight 16 but it really -- it really brought out how
17 feet high? 17 extensive certain stuff was. I can -- let me
18 A. For the -- for the -- what you might 18 show you a few here. Yeah. For instance, this
19 call the herbaceous vegetation, nonwoody -- 19 is Figure Number 11 from our supplemental report.
20 nonwoody plants, like cane. Phragmites is called 20 It shows a dredge dredging one of the channels
21 roseau cane. It's not a grass, but it's not a 21 which would become the spoil retaining levee.
22 tree. 22 You can pass this around, if you like. It's a
23 Q. Okay. So, where -- would you 23 bucket dredge. It's digging up a channel and
24 describe what trees you determined to be in the 24 piling up spoil. There's a line running across
25 area that you circled? 25 the middle of the figure, dark, which is the
34 (Pages 130 to 133)
Page 134 Page 136
1 spoil deposit. And then you see a dredge in 1 there's a boat in there. I see you looking at it
2 front of it has two small boats attached to it 2 there. It's not as clear as this original.
3 and then a marsh in front of it. 3 Q. Okay. And based on what you're
4 Q. Where -- where -- can you place this 4 estimating from the size of the dredge --
5 photo along the location of the MRGO? 5 A. And the thing that it's sitting down
6 A. It says right here. It says near 6 in the water and part of it is obscured -- you
7 vicinity of Station 600. So, Station 600 is 7 know, if you look at this photo, you can see part
8 right in -- right in this area. So, it's in 8 of the edge of the dredge, which is absent here.
9 front of the upper lobe of Lake Borne, above 9 Q. Well, that is -- is that just a
10 where Bayou Dupre discharges into Lake Borne. 10 different angle on Number 11?
11 Q. Who -- that's another figure from 11 A. Well, it is a different angle, but
12 the FitzGerald report that you're referencing. 12 it means it's sitting down on the water and the
13 A. No. No. No. 13 vegetation is high enough to obscure part of the
14 Q. Exhibit 5, where you're getting the 14 dredge that is visible in the high -- in the
15 station numbers? 15 photo that's taken from higher up.
16 A. Yeah, this is from the FitzGerald 16 Q. Okay. And you're comparing this
17 report. It identifies station numbers in this 17 freshwater plant that you can see surrounding
18 area. But what I wanted to point out to you, 18 this little lake in the foreground of the
19 this is Figure 11. In Figure 12 is a close-up, 19 picture, you compare that to cypress trees?
20 ground-level photo. You see the dredge here, the 20 A. No. No. No. That's -- we believe
21 bucket dredge, and you can actually see -- in the 21 that's most likely to be Phragmites australis,
22 marsh, you can actually identify individual marsh 22 roseau cane.
23 plants and they're tall and they have a kind of a 23 Q. Okay. And what's the height that
24 tassel on them. And the interesting thing, too, 24 you think that gets?
25 is you don't see the bottom of the dredge, the 25 A. That grows anywhere from six to 12
Page 135 Page 137
1 boats around it, because it's sitting down 1 feet high.
2 partially obscured by the vegetation. So, what 2 Q. So, in this photograph, what are you
3 it says is this marsh vegetation is high. It's 3 estimating the height of it?
4 not this high. It's probably two meters high, 4 A. Six to seven feet.
5 and we think this is Phragmites australis, roseau 5 Q. Okay.
6 cane. 6 A. And we have seen in these photos,
7 Q. You're pointing on Number 12 -- 7 and we can go through them and they are
8 A. Figure 12 of our supplemental 8 extensive, you see this over and over throughout
9 report. 9 that area. So, that's one of the elements that
10 Q. And there's a small -- it's a lake 10 shows you that there's this fresh marsh in there
11 that you're pointing to? 11 had not just low -- not just low vegetation, but
12 A. Well, it's a small pond in here, and 12 high vegetation.
13 that's where you can really see individual plants 13 Q. But there are no cypress trees
14 which we think is most likely Phragmites 14 reflected in Number 12, right?
15 australis, a freshwater vegetation, like cypress. 15 A. Not in this particular photo --
16 But the other thing is just there's a man 16 well, actually in the extreme middle left, you
17 standing on the barge in the middle there below 17 can see some trees that are probably occurring
18 the two big windows, and it gives you a scale. 18 along a stream or a ridge.
19 The point is is you -- 19 Q. Do you agree that that looks like
20 Q. I'm sorry. Where do you see a 20 very small number of trees if they are trees?
21 person in this? 21 A. Well, it's not individual trees.
22 A. Right here. I think that's a 22 It's bunches of trees, and that's back a
23 person. 23 distance. So, it's hard to tell, but there are
24 Q. You think that's a person? 24 trees in this photograph.
25 A. Yeah, I think so. If not, I mean, 25 Q. But it's so far away, it's really
35 (Pages 134 to 137)
Page 138 Page 140
1 hard to make much of a judgment about that. 1 Q. So, that document by Claire Brown --
2 A. Other than that there are trees. I 2 A. Lists these species as occurring
3 mean, we can go through a lot of these photos, if 3 fairly extensively out in this area, and
4 you like. The trees show up over and over. The 4 specifically these reed-type plants occurred in
5 main thing I wanted to show here is that there 5 areas of several hundred acres.
6 was fairly high vegetation and big patches. In 6 Q. Okay. So, you're drawing a
7 fact, the report I referred to you -- Claire 7 conclusion based on Claire Brown's article --
8 Brown's report from 1936 referred to this species 8 when was the first time you read Claire Brown's
9 occurring in patches of several hundred acres. 9 article?
10 Q. Do you have another copy of that 10 A. Well, actually, I read -- I have a
11 document, the Claire Brown -- 11 copy of this document, which is the Lower
12 A. Yeah. It's sitting -- let's see. 12 Mississippi River Delta, Reports of the Geology
13 DR. SHAFFER: 13 of Plaquemines and St. Bernard Parishes,
14 I don't have it in this 14 Geological Bulletin Number 8 of the Louisiana
15 file. 15 Geological Survey, 1936 -- I have a copy of this
16 THE WITNESS: 16 and I had read it a ways ago, but it was brought
17 Not there? 17 back to my attention in the last couple of weeks.
18 MS. MILLER: 18 Q. Who brought it to your attention?
19 Can we introduce that as an 19 A. Ivor van Heerden.
20 exhibit? 20 Q. Is that his copy? It looks like
21 MR. ANDRY: 21 his.
22 Yeah. In addition to that, 22 A. That's his copy. I have a copy
23 make those Photographs 9 and 10, 23 somewhere in my office.
24 what you've been talking about, 24 MS. MILLER:
25 and tell us which one you're 25 Has this been produced to
Page 139 Page 141
1 making 8 and which one 9 and we'll 1 us?
2 get the report. 2 MR. ANDRY:
3 MS. MILLER: 3 I'm sure it has. It's a
4 You want us to make this 4 government document. We've
5 separately as an exhibit, separate 5 produced everything they've relied
6 from his supplemental report, 6 upon. I'm sure it has been. If
7 which is already an exhibit? 7 not, we'll give it to you.
8 MR. ANDRY: 8 MS. MILLER:
9 Yeah. 9 I don't recall having seen
10 MS. MILLER: 10 that. So, I think we'd like to
11 Do you have another copy of 11 get a copy of that whole booklet.
12 the supplemental -- report to make 12 MR. ANDRY:
13 an exhibit? 13 Okay.
14 THE WITNESS: 14 A. The Brown -- Brown says:
15 I made a copy of it, but it 15 "The marshes in the vicinity
16 comes out of this report right 16 of Lake Pontchartrain and Lake
17 here. 17 Borne vary from fresh to slightly
18 MS. MILLER: 18 brackish. Here, the Salt Reed
19 Okay. If we can get a copy 19 Grass," which is called Spartina
20 of the Claire Brown document, I 20 cynoseroides, "grows from six to
21 think we'd like to introduce that 21 twelve feet in height and in
22 as an exhibit. 22 nearly pure stands, often covering
23 MR. ANDRY: 23 hundreds of acres. The Reed
24 Okay. 24 Grass," which is Phragmites
25 EXAMINATION BY MS. MILLER: 25 australis, "in this region occurs
36 (Pages 138 to 141)
Page 142 Page 144
1 in large clumps from ten to twenty 1 photograph. This is Photo Number 23 from 30
2 feet in height." 2 March 1960.
3 So, this is one of the pieces of 3 Q. By Number 23, you mean --
4 evidence documenting the nature of the 4 A. From the supplemental report, and it
5 environment there, and what the photos show is 5 shows the MRGO under construction. This is a
6 those kinds of plants still existed while the 6 view looking north because you can see it comes
7 MRGO was dredged, because these are Corps photos 7 up and turns and you can barely make out some
8 that were taken during the dredging. 8 elements of New Orleans up here.
9 EXAMINATION BY MS. MILLER: 9 Q. Where -- where did you get this
10 Q. So, this -- your basic -- so, if I 10 photograph?
11 understand you correctly, you're saying that 11 A. This was in the photos that were
12 there may have been more fresh marsh than 12 supplied by the government in December.
13 FitzGerald reflects on his Figure 4.2, which 13 Q. Okay.
14 we've marked as Exhibit 8? 14 A. If you look here -- and I'll pass
15 A. No. My point is is that when 15 this around -- there are numerous trees almost as
16 different people look at this area, there's 16 far as you can see here.
17 nothing devious about any of this, they -- 17 Q. So, looking at this photograph, do
18 FitzGerald, et al used a series of quadrangle 18 you describe this as a swamp?
19 maps, and which outline areas of fresh marsh and 19 A. Well, that's -- that's my whole
20 swamp and, so, he delineated them like that. But 20 point. If -- running diagonally across the photo
21 some of the area that's -- well, all of that area 21 is a pipeline canal, and that is shown in the big
22 in the Central Wetlands Unit, or much of it 22 maps. That's one of the main elements to
23 that's delineated as fresh marsh also has 23 locate -- where you can locate yourself in -- in
24 elements in it that are nonmarsh in nature, very 24 this area, and this is the MRGO. You're looking
25 high reeds and a number of different species of 25 north. So, this is -- over to the left part of
Page 143 Page 145
1 trees that occur in clumps, they occur in ridges, 1 the photo is the Central Wetlands Unit. Over to
2 they occur in some areas that's almost randomly 2 the right part of the photo is what was called
3 dispersed in the landscape, and all these 3 the Golden Triangle. So, up in the distance, you
4 elements are nonuniform across this area. So, 4 see this line of trees here, almost at the top,
5 one has to be careful when one's mapping to say 5 just below the horizon, you can just make out
6 what you're doing. So you can understand where 6 Bayou Bienvenue. There's oaks on it. And then
7 it comes in. Nobody -- nobody's done anything 7 what you can see interspersed throughout this
8 wrong. It's just they've used different 8 figure are trees.
9 approaches and different criteria to determine 9 Q. Okay. Well, you're pointing to a
10 what different landscape elements are. 10 number of places, but the first -- one of the
11 Q. Your expert report focuses largely 11 things -- is it correct, you said this pipeline
12 on cypress trees. Does your supplemental report 12 canal crosses the whole photograph.
13 focus more on fresh marsh that's not trees? 13 A. Yes.
14 A. Well, the supplemental report 14 Q. Aren't some of the trees basically
15 focuses on the diversity of freshwater wetland 15 lining that canal?
16 marsh plants, and I say marsh in parentheses 16 A. That's right. They're growing on
17 because, you know, you have marsh that's two to 17 the spoil banks of that. In the lower left-hand
18 three feet high and marsh that can be 12, ten, 18 quadrant of the photo, behind that spoil bank and
19 even 20 feet high. So, it's not a -- when you 19 trees, there's an area of reed. The higher
20 see this thing about fresh marsh, it's not a 20 plants -- I think it's the same species we were
21 uniform landscape of one -- a few species of 21 just looking at in Figure 12. We haven't put an
22 freshwater grasses. It's a variety of different 22 exhibit number on this, but, also, there are
23 plants. 23 natural channels in here.
24 Q. Okay. 24 Q. Before -- to clarify, you mentioned
25 A. Let me just point out another 25 a minute ago the lower left of the photograph,
37 (Pages 142 to 145)
Page 146 Page 148
1 but you were pointing to the right-hand side. 1 Q. -- and 23. So, on Number 12, I
2 A. Oh, I'm sorry. Yes. It's the lower 2 think it's going to be hard to see too much. I
3 right. And you can see here just behind the 3 think it's pretty clear which little -- there's
4 spoil bank are these high reeds. 4 only one little pond in the left foreground of
5 Q. Well, can you see, is this another 5 the picture, and that's the one you were
6 channel of some sort crossing it? 6 discussing, but on 23, if you could use this
7 A. Well, since it's curved, I would say 7 copy, which is Exhibit 2, and mark where you were
8 that's probably a natural channel as opposed to 8 pointing to trees.
9 this straight channel. 9 A. Well, I pointed out several things
10 Q. Isn't it correct that on the banks 10 on this photo. One, there appear to be fairly
11 of both natural or dredged channels, the land is 11 extensive patches of high reeds, and I'll show
12 a little bit elevated? 12 you what I mean on this original and then I'll --
13 A. It is, but this -- this right here 13 you can see these whitish patches in here. So,
14 is not on the edge of a channel. I mean, this is 14 I'm just going to circle some of them. And I'll
15 the MRGO channel, but before this, this big patch 15 put an R in these just as a refer to reed.
16 of trees covered this area. 16 Q. Okay.
17 Q. Isn't this some kind of channel 17 A. And then there are also tree
18 crossing just above where you're pointing? 18 vegetation, in other words, higher than that, and
19 A. Yeah, but this patch of vegetation 19 you see that along the dredge pipeline canal.
20 goes well beyond that. You can see here on the 20 You also see trees in the -- bordering the left
21 extreme lower right where that channel runs off 21 side of the MRGO channel. This is -- Number 23
22 the figure, you've got, it looks to me, like the 22 is looking north, so that the Golden Triangle
23 reed vegetation, but you see patches of trees 23 would be to the right and the Central Wetlands
24 along -- here along the MRGO cut. That wasn't -- 24 Unit to the left, and there's a dredge in the
25 that wasn't on the edge of a channel before the 25 center of the photo dredging the MRGO channel.
Page 147 Page 149
1 MRGO. 1 And, so, trees occur in several places bordering
2 Q. So, can you -- is it okay to mark on 2 the MRGO, and I'll sort of circle some of those
3 these? I'd like to identify where -- 3 and put a T. They are fairly extensive trees
4 A. You have copies of this. 4 along the -- in the lower left-hand corner, and
5 Q. But on the photocopies, you cannot 5 I'll just -- I'll put "trees" for that. Some of
6 see what you're pointing to. 6 them along the dredged canal and some of them
7 THE VIDEOGRAPHER: 7 occurring in patches in the landscape. And you
8 I need to change tapes. I'm 8 can make out in this photo, if you know where it
9 sorry. 9 is, just at the top of the photo is Bayou
10 MS. MILLER: 10 Bienvenue, and you can make out some trees along
11 Okay. 11 there.
12 THE VIDEOGRAPHER: 12 Q. And those would be on the elevated
13 Going off the record. 13 banks of Bayou Bienvenue?
14 (Whereupon, a discussion was 14 A. Yeah. And I'll mark that up there.
15 held off the record.) 15 And this is MRGO.
16 THE VIDEOGRAPHER: 16 Q. Are you able to estimate how many
17 Beginning of Tape 4. We're 17 of -- how many acres of trees are visible in
18 back on the record. 18 Number 23?
19 EXAMINATION BY MS. MILLER: 19 A. Well, again, you would have to
20 Q. Okay. Just before the break, we 20 define how you're going to do that. I mean,
21 were discussing these photographs from your 21 how -- in some parts, there are obviously dense
22 supplemental report, which is marked as Day 22 patches there. Other parts, there are individual
23 Exhibit 3, and if we can just have you mark -- 23 trees in the landscape. So, we'd have to agree
24 you were talking about Numbers 11 and 12 -- 24 on a method of definition.
25 A. And 23 are the ones I referred to. 25 Q. Well, I mean, maybe we can just talk
38 (Pages 146 to 149)
Page 150 Page 152
1 about how much land is visible in this photograph 1 Q. Does it appear that in this
2 to begin with. Say, in the bottom right corner, 2 photograph there are basically two parallel
3 the part from what you've identified as an oil 3 canals, although, one is not straight? Is that
4 and gas canal, to the bottom of the photograph -- 4 right?
5 A. The lower right-hand quadrant. 5 A. Yes.
6 Q. What kind of acreage area is that, 6 Q. And then the area in between those
7 do you have any idea? 7 two canals --
8 A. Maybe 20 to 30, something like that. 8 A. Form part of the -- this would be
9 This is just a guess. And if that's true, about 9 the spoil disposal area of the MRGO.
10 25 percent of that quadrant is covered with 10 Q. And in that area, does it appear
11 trees, maybe a little bit more, probably 30 to 40 11 that what you identified to me as trees, that
12 percent, is covered with the high rush or reed, 12 many of them are not -- do not have any leaves on
13 and the rest is water and lower marsh vegetation. 13 them?
14 Q. And in those percentages, you're 14 A. It could be, but if you look very
15 just talking about from the -- 15 closely, you know, some of them -- cypress
16 A. The lower right-hand quadrant of the 16 growing in this type of environment has a very
17 photo. 17 sparse foliage anyway, and some of them -- it
18 Q. Okay. Okay. That's fine. If we 18 could be that some of them may be dead, some of
19 have time later, I may go through some of these 19 them may be -- but there are trees with
20 photographs, but I wanted to move on to a couple 20 vegetation, and you can see on here there are
21 other things. 21 more on the right side of the photograph, and if
22 A. Can I show you one more photo? I'm 22 you look where there's water behind, you can see,
23 just trying to make the point of a variable 23 for instance, this thing right here. That
24 environment, and I -- and I -- and the idea that 24 appears to have foliage on it.
25 we have to be careful. And Figure 29 of the 25 Q. So, there's a mixture, you agree,
Page 151 Page 153
1 supplemental report, it's a view southeast in the 1 right?
2 vicinity of Station 828, and what it shows is 2 A. Yeah. The main point in showing you
3 a -- this was before the MRGO was dredged, but it 3 this is that this is just another environment
4 shows the location of the spoil retaining dikes. 4 where there's a fairly uniform but just sparse
5 I will show you this, and if you look there, 5 collection of trees across this landscape.
6 there are individual trees scattered throughout 6 Q. Okay.
7 that photo. 7 A. And my main point is to show you
8 Q. And most of these, to me, look like 8 that it's not a homogeneous -- what's referred to
9 they don't have any leaves on them. Is that your 9 as fresh marsh is not a homogeneous landscape.
10 impression? 10 It has a lot of heterogeneity in it.
11 A. Well, this is early in the year. 11 Q. Does this photograph, which is
12 Well, no. You can see here, for instance, this 12 Number 29 of the photographs that are part of
13 tree is vegetated. 13 Exhibit 2, also show some of the logging tracks?
14 Q. Okay. So, do you -- 14 A. Yeah. And there's a canal here
15 MR. ANDRY: 15 which, in fact, probably is an old canal, or it
16 I got a message that the 16 may be coming in from the right. Here is where
17 IDEP people have problems with 17 you would have -- back when trees were --
18 video and audio connections. 18 these -- the trees were originally harvested, you
19 THE VIDEOGRAPHER: 19 can see that radial form of the canals caused by
20 Off the record. 20 dragging trees in to a central point here.
21 (Whereupon, a discussion was 21 Q. Does it appear to also be visible at
22 held off the record.) 22 the bend in the canal at the top of the
23 THE VIDEOGRAPHER: 23 photograph?
24 We're back on the record. 24 A. Yeah. There's one here and there's
25 EXAMINATION BY MS. MILLER: 25 one here.
39 (Pages 150 to 153)
Page 154 Page 156
1 Q. So, you can see at least three -- 1 Q. Okay.
2 A. At least three, yeah. 2 A. But there was regeneration in this
3 Q. -- areas where it clearly had been 3 area.
4 logged in the past. 4 Q. Okay. I -- before we go on to
5 A. And I would say that's the -- that's 5 anything else, you mentioned this article that
6 when they were originally logged. 6 you've now given a copy to me of by Claire Brown
7 Q. Can you also see -- it appears to me 7 from 1936, and I just marked that as Exhibit 9 to
8 that from each of the points where the canal on 8 your deposition. So, I just want to introduce
9 the right-hand side bends, there seems to be some 9 that so we have it in the record.
10 kind of -- is it a dark line extending to the 10 (Whereupon, Day Exhibit
11 right of the photograph? 11 Number 9 was marked for
12 A. That -- that may have been where 12 identification.)
13 either a train track was laid out on logs or a 13 EXAMINATION BY MS. MILLER:
14 canal that a barge came out to those points to 14 Q. Also, in your report, on Page 7, you
15 cut -- when they originally cut the forest in 15 mentioned a few minutes ago -- or some minutes
16 this area. 16 ago the Penfound and Hathaway article from 1938
17 Q. So, those are all things that have 17 that's cited in your report on Page 7. And
18 impacted the general landscape and those seem to 18 according to your quote, it talks about ghost
19 be permanent alterations? 19 forest in this region existing as of 1938; is
20 A. Yeah. But, I mean, those are a 20 that right?
21 century old, and you still have trees growing in 21 A. Yes.
22 this area, so -- 22 Q. And, so, that would include the
23 Q. Do you -- would you describe this 23 Central Wetlands area that we're talking about?
24 area where you can see the radial tracks as a 24 A. Well, based on the nature of the
25 healthy swamp? 25 Central Wetlands as indicated by all this, I
Page 155 Page 157
1 A. Well, it's certainly not pristine. 1 would -- I would say that they're talking about
2 Q. What do you mean when you describe 2 in the more distal areas, more located further
3 one as pristine? 3 away from the river than the Central Wetlands,
4 A. Well, unaffected by human activity. 4 for the most part.
5 Q. Okay. 5 Q. Okay.
6 A. But all of the second-growth cypress 6 A. Ghost cypress would be a common --
7 that regenerated in Louisiana did so in 7 or an element in a declining deltaic lobe, and
8 environments like this. 8 the further away you get from the river and the
9 Q. Okay. So, this shows the impact of 9 further out in the lobe, it sinks more -- you
10 human activity prior to the MRGO's construction? 10 know, it's lower in elevation, more likely to
11 A. This -- these canals caused by 11 have saltwater intrusion. So, I would say my
12 logging activity were not the primary cause in 12 guess would be that they were talking about going
13 any way of the loss of the entire cypress swamp. 13 far out on the distal lengths, areas of some of
14 Essentially, after the opening of the MRGO was. 14 the ridges. It's like along the Bayou La Loutre
15 Q. I understand that is your opinion. 15 Ridge, in the map that we were looking at earlier
16 I was just wanting to understand what you mean in 16 from the FitzGerald report, he shows cypress far
17 your report when you describe a pristine swamp 17 out on the La Loutre Ridge.
18 versus a healthy swamp versus a deteriorating 18 Q. So that -- and you were just
19 swamp. In which category would you put this 19 referring to the map from the 1930s that's in the
20 into? 20 FitzGerald report; is that right?
21 A. This is a swamp that's been impacted 21 A. No. No. That's the -- that's just
22 by logging and other canals in the past. 22 before the '50s, just before the --
23 Q. So, it shows some elements of 23 Q. Okay. So, as of 1938, though, the
24 deterioration; is that right? 24 Penfound and Hathaway article shows that there
25 A. I guess so, yes. 25 were ghost forests in some areas of this Central
40 (Pages 154 to 157)
Page 158 Page 160
1 Wetlands Unit that we've been discussing, right? 1 Q. If you look on Page 43 of that
2 A. Well, they didn't -- they didn't -- 2 article, I think that's where your quote comes
3 they never said where they were. They just 3 from, 43, last paragraph that begins on that
4 said -- 4 page, in the middle of the paragraph, it says:
5 Q. In this delta -- 5 "Ghost forests of
6 A. I'm saying, in the first place, 6 baldcypress are numerous in the
7 Central Wetlands Unit didn't exist then -- 7 Lake Pontchartrain/Lake Borne
8 Q. Okay. 8 region where this forest borders
9 A. -- the term or the MRGO which formed 9 the sawgrass marsh."
10 it, but they -- they talked about ghost forest, 10 So, that indicates that it is
11 and they -- they didn't say where they were, but 11 generally covering this area around Lake Borne;
12 they said they were occurring out in this area. 12 is that right?
13 And my guess would be that most of them were 13 A. Yeah. It occurs in this general
14 occurring out further, in the distal parts of 14 area.
15 this environment. 15 Q. And they continue to say:
16 Q. Okay. And this was -- their article 16 "There has been considerable
17 was published in 1938, so, their study was at 17 speculation as to the cause of the
18 least 20 years before construction of the MRGO 18 destruction of these trees. All
19 began, right? 19 the available evidence points to
20 A. That's right. 20 saltwater brought inland by the
21 Q. And, also, before its authorization, 21 historic hurricane in 1915 as the
22 obviously, since the authorization was only a 22 destructive agency."
23 couple years before construction began; is that 23 So, these authors attribute many of
24 right? 24 the ghost forests present in the 1950s from a
25 A. My understanding, it was authorized 25 saltwater intrusion from a 1915 hurricane storm
Page 159 Page 161
1 earlier than that, but I may be wrong. 1 surge; is that correct?
2 Q. The -- when they -- or when you 2 A. That's what they say.
3 refer to ghost forest, that means basically that 3 MR. ANDRY:
4 the trees have already died; is that right? 4 Object to form.
5 A. Standing dead trees. Yeah. 5 You can answer.
6 Q. Okay. I'd like to introduce this 6 THE WITNESS:
7 article, also, as an exhibit, which will be 7 What's that?
8 Number 10. 8 MR. ANDRY:
9 (Whereupon, Day Exhibit 9 Object to form of the
10 Number 10 was marked for 10 question as to the author's
11 identification.) 11 conclusion.
12 MS. MILLER: 12 You can answer the question.
13 Do you need a copy of it? 13 A. In the first place, if hurricanes
14 MR. ANDRY: 14 alone killed cypress, there would be no cypress
15 Yeah, please. What article 15 almost anywhere in the coastal zone. These
16 is that? 16 cypress are already stressed. They're out at the
17 MS. MILLER: 17 edge of their tolerance. A hurricane comes in
18 They have it right here, 18 and adds more saltwater to them and kills them.
19 too. Penfound and Hathaway 19 Obviously, the hurricane of 1915 didn't kill the
20 article. 20 newly growing cypress in the central -- up near
21 EXAMINATION BY MS. MILLER: 21 the river.
22 Q. If you will just take a look at that 22 EXAMINATION BY MS. MILLER:
23 and confirm that that's the one you are citing on 23 Q. Right, because it's visible in
24 Page 7. 24 photographs after the 1930s.
25 A. Uh-huh. 25 A. Right. And, so, if you have a
41 (Pages 158 to 161)
Page 162 Page 164
1 cypress out on a distal end of a ridge and it's 1 in the death of the trees?
2 already growing in saltwater and it's sort of on 2 A. Yeah, but I don't think that would
3 the edge, you're much more likely to kill it than 3 have been the case in the Central Wetlands Unit.
4 if it's growing up in fresher conditions up near 4 Q. Why -- you quote this article in
5 the river. 5 your report but leave out the reference to
6 Q. So, according to this statement by 6 hurricanes as the cause of the saltwater
7 these authors, even a single hurricane occurrence 7 intrusion. Was there a particular reason that
8 has the potential to bring enough saltwater in to 8 you left that out?
9 result in death of cypress trees. 9 A. No, not really.
10 MR. ANDRY: 10 Q. So, your point in your report, if I
11 Object to the form. 11 understand you correctly, is just to illustrate
12 A. Some cypress trees. I mean, again, 12 that saltwater, by whatever manner it's
13 it depends. There are many, many examples of 13 introduced, is a stressor to cypress trees?
14 hurricanes coming into a cypress forest and not 14 A. (Nods head affirmatively.)
15 killing them. 15 Q. So, it -- one of the ways it might
16 EXAMINATION BY MS. MILLER: 16 be introduced --
17 Q. But you agree that it, according to 17 A. And our other point of quoting
18 these authors, could have an impact on the 18 Penfound and Hathaway is to demonstrate that the
19 ability of the trees to survive? 19 salinity tolerance of cypress was known back in
20 A. Yeah, and I think you would have to 20 the 1930s, if not before, well known.
21 know where specifically those cypress were and 21 Q. And one of the ways that saltwater
22 what the environmental conditions were at the 22 may be introduced to a cypress swamp is through a
23 time of that hurricane. 23 hurricane storm surge; is that right?
24 Q. So, you're surmising from your 24 A. Yes.
25 knowledge and from this statement that, most 25 Q. And do you know how many times the
Page 163 Page 165
1 likely, they're referring to trees that have some 1 Central Wetlands Unit has been flooded by
2 other stressors and the hurricane saltwater also 2 hurricane storm surge after construction of the
3 contributes to those stressors? 3 MRGO?
4 MR. ANDRY: 4 A. After construction of the MRGO.
5 Objection. 5 Well, I mean, the -- the levee along the MRGO
6 Now, you answer to the 6 stopped the -- didn't allow -- the only time it
7 extent you understood the 7 was breached was in Katrina, I think.
8 question. 8 Q. Wouldn't it have been flooded during
9 A. Could you reask the question? 9 Hurricane Betsy before the levees were
10 THE COURT REPORTER: 10 constructed?
11 Question: So, you're 11 A. I thought the levees were in place
12 surmising from your knowledge and 12 then, but I may be wrong.
13 from this statement that, most 13 Q. Okay. What about prior -- do you
14 likely, they're referring to trees 14 know whether there were hurricanes that flooded
15 that have some other stressors and 15 that area in between the 1930s and the
16 the hurricane saltwater also 16 construction?
17 contributes to those stressors? 17 A. There was a 1947 hurricane.
18 A. Yeah, that could be the case. I 18 Q. So, that could likely have brought
19 mean, clearly, hurricanes acting alone don't kill 19 saline water into the Central Wetlands area?
20 cypress swamps because all of these swamps in the 20 A. It probably did, but at that time,
21 Pontchartrain basin have been affected by 21 there was no MRGO, so, it would have run out
22 hurricanes. 22 again.
23 EXAMINATION BY MS. MILLER: 23 Q. And like you had, I think, described
24 Q. But if that's enough of an added 24 earlier today, the impact of that saltwater may
25 stress to put them over the edge, that may end up 25 just depend on how quickly it drains.
42 (Pages 162 to 165)
Page 166 Page 168
1 A. Yeah. 1 information you ask could be obtained about this
2 Q. If you would turn to Page 17 of your 2 photo. This isn't the only example of cypress --
3 report, you have the image there marked as Figure 3 most cypress surviving the hurricane. I mean,
4 2. 4 this is just an example of a very common
5 A. Uh-huh. 5 phenomena.
6 Q. Can you tell me when that photograph 6 Q. Do you know whether the area in
7 was taken? 7 which this photograph was -- or the area this
8 A. That was taken shortly after the 8 photograph represents, was that inundated with
9 passage of Hurricane Katrina. 9 storm surge during Hurricane Katrina?
10 Q. Do you know who took it? 10 A. Yeah. It would have been probably
11 A. I don't. 11 between five and ten meters, maybe. This is
12 Q. Where did you obtain the photograph? 12 right -- right in the -- near the eyewall, where
13 A. From Dr. Shaffer. 13 the highest storm surge -- right along the
14 Q. Do you know where Dr. Shaffer 14 Louisiana/Mississippi line. It's -- the Pearl
15 obtained it? 15 River is the boundary between the two states.
16 A. I don't. 16 Q. You have another set of photographs
17 Q. Do you know anything about the 17 that you've marked Figure 4 that's on Page 25 --
18 altitude or other information about how the 18 or, I guess, it's just one photograph, and your
19 photograph was taken? 19 caption says this is from Lake Maurepas; is that
20 A. No. 20 correct?
21 Q. Do you know the exact location of 21 A. In that basin, yes.
22 the photograph? 22 Q. Do you know when this photograph was
23 A. This is in the Honey Island Swamp, 23 taken?
24 in the Pearl River Basin, just inland from the 24 A. I don't.
25 coast. The eye of the hurricane passed over this 25 Q. Is that something Dr. Shaffer would
Page 167 Page 169
1 area. 1 be able to tell me?
2 Q. Do you know the latitude and 2 A. Yes. It's an example of a, you
3 longitude coordinates or approximate coordinates 3 know, healthy, typical cypress-tupelo swamp,
4 for that swamp? 4 coastal forested wetland, Louisiana.
5 A. No. 5 Q. So, do you consider this photograph
6 Q. Have you or do you have a photograph 6 representative of what swamps in the Central
7 that reflects this same image or this same area 7 Wetlands Unit looked like prior to the MRGO?
8 prior to Hurricane Katrina? 8 A. The trees probably would have looked
9 A. No, but they exist. What the photo 9 similar. I don't know that you would have had
10 shows, basically, is all the oaks were knocked 10 this understory vegetation because there was a
11 down, practically all of them, and most of the 11 slight level of salinity in there. I'm not sure
12 cypress remains standing. 12 that this plants was tolerant of the salinity.
13 Q. And how do you know that the brown 13 Q. So, prior to the MRGO construction,
14 are oaks? 14 there was some level of salinity in the swamp
15 A. Well, the -- the people who took the 15 area of the Central Wetlands Unit?
16 photo identified them. 16 A. Yeah, one to three parts per
17 Q. To Dr. Shaffer? 17 thousand.
18 A. Yes. 18 Q. So, these smaller plants in the
19 Q. I asked that question because, to 19 foreground of Figure 4 that look like they have a
20 me, it's hard to make out anything about the 20 few big leaves on each plant, that's a freshwater
21 brown area in this photograph. Do you agree? 21 plant?
22 A. Well, that's the reason I'm 22 A. I think it is. I believe so. But
23 explaining to you, the green areas are cypress 23 cypress, you know, can live indefinitely in
24 along channels, and the brown areas are downed 24 salinities of one to three.
25 oaks away from the channels, but all the 25 Q. So, what -- approximately what time
43 (Pages 166 to 169)
Page 170 Page 172
1 frame prior to the MRGO construction would you 1 spring, and even though there's green vegetation,
2 think the swamps in the Central Wetlands Unit 2 the actual growth slows down a bit and then the
3 looked like Figure 4? 3 trees lose their leaves in the fall. They're
4 A. Oh, right up until the salt came in. 4 deciduous. I think the real details of this
5 You know, we have pictures that show fair -- a 5 aspect of cypress ecology is -- Dr. Shaffer can
6 forest that has a density something like this. 6 help you out.
7 Q. You have pictures from the Central 7 Q. Okay. Well, we'll talk about that a
8 Wetlands Unit? 8 little more tomorrow.
9 A. Yes. We -- there are pictures among 9 So, was it Dr. Shaffer that selected
10 this -- these sets of photographs, yeah. 10 this photograph to include as Figure 4?
11 Q. Are they only taken from aerial 11 A. I think it was.
12 views? 12 Q. You think it was?
13 A. Some of them are at ground level. 13 A. I think it was. We both have
14 Q. Okay. Would the one to three parts 14 extensive libraries of cypress photos.
15 per million -- is that the salinity? 15 Q. Did you provide this photograph to
16 A. Parts per thousand. 16 any other experts working with the plaintiffs on
17 Q. Parts per thousand. One to three 17 this litigation?
18 parts per thousand salinity, would that be 18 A. I don't think so.
19 considered a stressor to cypress trees? 19 Q. On Page 54 of your report, just
20 A. No. Cypress can be considered as an 20 before the section on dredging, you reference --
21 intermediate plant species. It can live 21 well, first of all, you cite to yourself and van
22 indefinitely in that salinity. It can tolerate 22 Heerden -- I assume that's the same Ivor van
23 it. 23 Heerden that you mentioned a little while ago as
24 Q. Do you have an opinion on the 24 having thoughts -- the last sentence, really, of
25 maximum salinity that cypress can -- 25 the carryover paragraph on Page 54 --
Page 171 Page 173
1 A. If you get above five consistently, 1 A. Uh-huh.
2 then, the trees start to be stressed and -- and 2 Q. -- is that referring to Ivor van
3 would ultimately die. By ten, it's clearly 3 Heerden?
4 lethal. 4 A. Yes.
5 Q. And what length of period of time 5 Q. And it says that the two of you have
6 can a cypress tree individually or swamp as a 6 driven cores and pipes into the sediments of the
7 whole tolerate an increased level of salinity 7 Central Wetlands Unit.
8 without it being a stressor? 8 A. Uh-huh.
9 A. How much? 9 Q. When did that happen?
10 Q. Well, you said -- you just mentioned 10 A. Well, first, we didn't do it
11 five parts per thousand as being something that 11 together. He separate from me -- we set up -- we
12 they may be able to tolerate. 12 established -- back in the late '80s, early '90s,
13 A. Well, that's borderline. For 13 I conducted a study with Dr. A. J. England,
14 instance, if you -- if the saltwater would go in 14 Tulane University, on that swamp that exists
15 the winter when the trees were dormant -- it has 15 where the freshwater goes in from the pumping
16 to get down into the sediments. So, if the tree 16 station and the oxidation pond, and as part of
17 is dormant and not growing, it would probably be 17 that study, we took cores from the sediments to
18 more resistant, and if it occurred during the 18 analyze it for a number of things, and a little
19 growing season, it would have a stronger effect. 19 bit later, we also established what are called
20 And the higher the salinity, the more quicker the 20 sediment elevation sites in that area. That's
21 lethality would take place. 21 where pipes are driven down into the sediment
22 Q. What time of year is the typical 22 until what's called refusal, until they won't go
23 growing season? 23 any further, and you -- that pipe is fitted with
24 A. Spring -- you know, you have a -- 24 a cap that accepts a device that measures very
25 you have a high rate of growth through the 25 accurately the elevation of the surface of the
44 (Pages 170 to 173)
Page 174 Page 176
1 sediments. And when we were putting them in, we 1 there were channels. I've seen people take a
2 had to try a number of times because they were 2 long metal rod, be as high as this room, and they
3 underneath the soils, there were trunks, cypress 3 just put it down in the sediment, and when you
4 trunks, and it took us a lot longer than it would 4 hit one, it stops, you hear it.
5 in a marsh to find a place where we could drive 5 Q. There must be some disruption to the
6 those pipes in. You know, I drew the conclusion 6 marsh or existing swamp by trying to dig those
7 that there were extensive downed trunks buried 7 up; is that right?
8 under the sediment surface. 8 A. Yeah. Yeah. They -- you have to be
9 Q. Downed trunks, you said? 9 where a boat can go. So, you know, they don't
10 A. The dead trunks that had finally 10 just go across the whole wetlands because that
11 fallen over, because this was probably 30 years 11 would be very disruptive. This is a cottage
12 after the trees had died. And that's something 12 industry in Louisiana. You can see signs around
13 we've experienced in a lot of coastal swamps in 13 the Barataria -- Pontchartrain Basin, you know,
14 Louisiana, because with these -- I put in several 14 sinker cypress for sale.
15 hundred of these -- several hundred -- maybe a 15 Q. You referenced lawyers putting it in
16 hundred of these pipes in different areas of the 16 their office. Are -- some of the plaintiffs'
17 coast, and wherever you have places either -- 17 attorneys, do they have some of this in their
18 even where you have a living, healthy cypress 18 office?
19 swamp, there are still lots of trunks that have 19 A. I haven't looked carefully.
20 fallen over in the past and are buried in the 20 MR. ANDRY:
21 sediments to different depths. 21 Rumors.
22 Q. Could some of that relate to the 22 A. I only meant by that that it's very
23 old -- thousand-year-old trees that preceded -- 23 expensive. It's the most expensive cypress you
24 A. Yeah. There's an active industry of 24 can buy. Because it's very durable and it's very
25 digging up what's called sinker cypress. These 25 beautiful. It has a sheen to it. A biologist
Page 175 Page 177
1 are old-growth cypress that have died and got 1 couldn't afford it.
2 buried and people go out and look for them with 2 MR. ANDRY:
3 metal rods, like a rebar, and go out and wrench 3 Off the record.
4 them out and it is the most expensive cypress you 4 (Whereupon, a discussion was
5 can buy because it's old, red, it's been down 5 held off the record.)
6 there in the sediments. Very sought after. 6 A. The main point was that's common out
7 Lawyers put it in their office. Most of the rest 7 in the Central Wetlands. I experienced it myself
8 of us can't afford it. 8 trying to put down a pipe.
9 Q. How long has that practice been 9 EXAMINATION BY MS. MILLER:
10 popular? 10 Q. Before I forget, the article by
11 A. Sinker cypress? 11 Claire Brown that we introduced as Exhibit 9, you
12 Q. Digging them up. 12 said -- is that something you relied on for your
13 A. I think it's very old. It was very 13 opinions in your report?
14 sought after, too, for shakes because it was some 14 A. Well, only that it -- that it --
15 of the most durable cypress. It often has what's 15 he -- only that it corroborated the idea that
16 called pecky cypress look to it. 16 these freshwater species were common in that area
17 Q. So, how -- this involves driving out 17 and that they -- as he said, they offered stands
18 all over the wetlands to look for these spots? 18 covering hundreds of acres. That's on Page
19 A. To put in these sites? 19 424-425.
20 Q. To look for the fallen trees. Is 20 Q. Oh, of that article?
21 that what you're saying? 21 A. Of this article.
22 A. Oh, you mean the people who look for 22 Q. But you didn't list that as one of
23 it? 23 your references cited in your report?
24 Q. Uh-huh. 24 A. No, I guess we didn't.
25 A. They would often be, you know, where 25 Q. On that list of things that you did
45 (Pages 174 to 177)
Page 178 Page 180
1 cite, one of them on the last page is a Corps of 1 that the MRGO has caused these, you know,
2 Engineers publication. 2 widespread environmental damages. So, you know,
3 A. Which page? 3 there was constant -- not constant, but regular
4 Q. It's the last page of your 4 talk, and those are in our Appendix A, you know,
5 citations. It's in there twice. It's 75 and 5 after MRGO was, you know -- St. Bernard Parish
6 then it's repeated where you have your original 6 police jury on more than one occasion called for
7 signatures. 7 the closure of the MRGO. I can read some of
8 A. Oh, yeah. Uh-huh. 8 those off to you, if you'd like.
9 Q. It's called Salinity Changes in 9 Q. Well, we may get to that in a few
10 Pontchartrain Basin Estuary, Louisiana, Resulting 10 more minutes, but when you say "constant talk,"
11 From the Mississippi River-Gulf Outlet Partial 11 do you mean in the scientific community
12 Closure Plans With Width Reduction, and it's 12 generally?
13 dated 2002. Can you tell me what that 13 A. Well, scientific community, the
14 publication is? 14 people down in St. Bernard Parish, both public
15 A. I can't remember. 15 and private, among the resource agencies. It was
16 Q. Okay. 16 widely recognized, you know, what the cause of
17 A. I'm sure we reviewed it. I just 17 the problem there was and what the solutions
18 can't remember. 18 were.
19 Q. Do you know or can you recall 19 Q. And, presumably, the Corps of
20 anything about the study that it refers to? 20 Engineers must have been involved in some of
21 A. No. 21 these discussions; is that right?
22 Q. So, this is not something you were 22 A. Yeah. Yep.
23 involved with? 23 Q. Do you recall specifically
24 A. Yeah. I'm -- probably, you know, we 24 discussing closure of the MRGO with people from
25 may have discussed it. Dr. Shaffer may have put 25 the Corps of Engineers?
Page 179 Page 181
1 it in. 1 A. No, but I'm sure I did talk to
2 Q. The title refers to partial closure 2 people individually. I remember a lot of people
3 plans of the Mississippi River Gulf Outlet. Do 3 in the --
4 you know whether there was any study by the Corps 4 Q. Do you know anything -- the title
5 of Engineers regarding closure of the MRGO? 5 also references width reduction. Do you know
6 A. Well, this seemingly refers to one, 6 anything about a proposal to reduce the width at
7 but as I said, I really don't remember this 7 any time prior to Hurricane Katrina?
8 publication. 8 A. I know that that had been discussed.
9 Q. Do you remember any -- being 9 I don't know any more than that.
10 involved in any studies of the closure of the 10 Q. You don't know whether the Corps was
11 MRGO that involved the Corps? 11 studying that?
12 A. That involved the Corps? 12 A. Not -- not specifically.
13 Q. Uh-huh. 13 Q. And, I guess, it's true that neither
14 A. No. I was involved in a study that 14 a partial closure nor a width reduction were
15 involved university scientists and people from 15 implemented prior to Hurricane Katrina?
16 NGO community -- we produced a report about the 16 A. No, nothing was done.
17 full closure with MRGO right after Hurricane 17 Q. You also list in your references or
18 Katrina. 18 publications cited "The Environmental Atlas of
19 Q. But prior to Hurricane Katrina, did 19 the Lake Pontchartrain Basin." Is that a
20 you have any involvement in studies or 20 publication you were involved with?
21 discussions regarding plans to evaluate the 21 A. Which -- Lake Pontchartrain Basin
22 closure of the MRGO? 22 Foundation, I think, did that. What's the first
23 A. I don't know that I was ever 23 author?
24 involved in the study, but I was involved in lots 24 Q. I think it's Shea Penland, but I
25 of discussions because it was clear for decades 25 could be wrong. Let's see. It's your first
46 (Pages 178 to 181)
Page 182 Page 184
1 thing cited on Page 68. Abadie is the first 1 Q. Yes. And then following that is the
2 author, it seems. It looks like you're citing 2 Figure 1 that is referenced on the Central
3 one author. 3 Wetland area page. And in this figure, it has
4 A. Abadie and Poirrier. 4 color-coded sections that correspond to a lot of
5 Q. You cite a few things out of that 5 what we've been discussing today. It says
6 atlas. Is that a publication you were involved 6 that --
7 with creating? 7 A. This figure?
8 A. I wasn't involved in the preparation 8 Q. No. Keep going. There's -- I think
9 of it. I know it. I know Mike Poirrier very 9 that's called a -- I don't -- I'm not sure if
10 well. 10 they labeled that as something else. For
11 Q. There was one section I wanted to 11 whatever reason, that's called Figure 15, and on
12 look at. 12 the next page is Figure 1. Yes. So, you can
13 MR. ANDRY: 13 see, like, a light-green area that's the Central
14 Can we take a five-minute 14 Wetland area. Is that about the representation
15 break for restroom? 15 that we've been discussing today for the Central
16 MS. MILLER: 16 Wetland area?
17 Sure. 17 A. Well, two pages before, it says the
18 THE VIDEOGRAPHER: 18 Central Wetland area encompasses 42,500 acres.
19 Off the record. 19 So, this is a -- one of the larger descriptions
20 (Whereupon, a discussion was 20 of the Central Wetland Unit. It's been described
21 held off the record.) 21 as having 28,000 up to 42,000, and it depends on
22 THE VIDEOGRAPHER: 22 what you include in the Central Wetlands Unit.
23 We're now back on the 23 Q. It looks like from the color coding
24 record. 24 on Figure 1, that this one includes some area
25 EXAMINATION BY MS. MILLER: 25 that goes all the way down to La Loutre Ridge; is
Page 183 Page 185
1 Q. Okay. I was asking you about "The 1 that right?
2 Environmental Atlas of the Lake Pontchartrain 2 A. Yeah, it seems to. Some areas
3 Basin." I'm just going to introduce a few pages 3 include also part of what's in red there by Lake
4 from it as Exhibit 11. It's really long, so, 4 Borne.
5 start with that. 5 Q. The brownish red?
6 (Whereupon, Day Exhibit 6 A. Yeah.
7 Number 11 was marked for 7 Q. Okay. That's the next area I was
8 identification.) 8 going to ask about. They're calling that the
9 A. Is there something particularly you 9 south Lake Borne area, and that's what the next
10 want me to look at? 10 descriptive page refers to, and it gives the area
11 EXAMINATION BY MS. MILLER: 11 for that brown figure as 27,219 acres. And then
12 Q. Is that -- yes. Are you familiar 12 it also on this --
13 with this publication? 13 A. Okay.
14 A. Yeah. This comes out of the 14 Q. So, the page after this color coding
15 University of New Orleans, and I think it -- 15 map --
16 there are a number of reports that have come out 16 A. This one?
17 on this environmental atlas. I've seen a number 17 Q. Okay. Yeah. It also says on there,
18 of them on land loss and water quality. They 18 in 1949, all of the SLBA, South Lake Borne Area,
19 have a group of volunteer people that help sample 19 was brackish marsh, except for a small area of
20 water quality throughout the basin. 20 saline marsh at Proctor Point.
21 Q. If you turn -- I included the 21 A. Again, it depends on who -- which
22 Introduction section just because the front page 22 source you go to. Some people in '49 would have
23 didn't have a whole lot of information on it, but 23 classified that as an intermediate marsh. The
24 there's a section -- 24 problem is that earlier classifications -- we
25 A. On the Central Wetlands Unit? 25 have here the O'Neil map -- he left out some of
47 (Pages 182 to 185)
Page 186 Page 188
1 the classifications. 1 making generalizations --
2 Q. What do you mean, left out some of 2 A. When you say in 1949 all of the SLBA
3 the classifications? 3 was brackish marsh, well, there's a straight line
4 A. If you can open this map right here, 4 there where the MRGO is right now.
5 it depends on who you're -- which source you're 5 Q. Right.
6 looking at. Here is -- here is this area right 6 A. There was no straight line in 1949.
7 here. I think it's called fresh -- let me make 7 It was a gradation going across there. Some
8 sure -- this is freshwater marsh in here. 8 people were more conservative than others.
9 Q. The purple? 9 FitzGerald was conservative in what he called
10 A. Yeah. This -- yeah, it's kind of a 10 cypress swamp. But he called some that area
11 purplish -- no. No. Let's see. No. That's 11 fresh marsh. What you also see in both of these
12 intermediate marsh, and other people have 12 graphs is that the period that brackish -- when
13 classified that as freshwater marsh. 13 the MRGO was constructed, that's when the most
14 Q. Okay. 14 dramatic wetland loss occurred. I think that
15 A. So, in -- and, also, in some of the 15 reflects the opening of the MRGO.
16 maps, we have intermediate marsh goes further 16 Q. In some of that, do you know the
17 out. 17 number of acres that comprised the footprint of
18 Q. So, what's the date of this map 18 the channel?
19 you're looking at? 19 A. Well, yeah. That's -- along the --
20 A. This is the O'Neil map of 1949. 20 in the Central Wetlands Unit, because the whole
21 Q. Okay. And is that something we can 21 thing was 21,000 acres, I think, but that was
22 mark as an exhibit? 22 much larger. Maybe this was 10,000, maybe, and
23 A. I think this may have been in -- 23 this drops from 35,000 down to 20-something-
24 brought in last time. 24 thousand, and this is only talking about marsh
25 Q. Who brought this here today? Is 25 loss. It doesn't talk about habitat shifts, when
Page 187 Page 189
1 that something we can make an exhibit? 1 large areas of cypress swamp died and converted
2 MR. ANDRY: 2 brackish marsh and large areas of fresh marsh
3 The O'Neil map was an 3 converted another marsh type. So, there's marsh
4 exhibit to Enstringer's 4 loss and there's marsh change, and there's
5 deposition, and I think it's been 5 habitat change.
6 used in other depositions. 6 MR. ANDRY:
7 EXAMINATION BY MS. MILLER: 7 For the purposes of the
8 Q. Okay. So, the -- I guess you're 8 record, Miss Miller, I'm trying to
9 saying then that this O'Neil map is from -- 9 figure out where you're reading.
10 A. 1949. So, it reflects conditions -- 10 I thought you were reading about
11 that was the first statewide map. 11 the part --
12 Q. So, they're calling the area closest 12 MS. MILLER:
13 to the Forty Arpent levee intermediate marsh, 13 Sorry. Maybe I gave you
14 which they describe as being somewhere between 14 the --
15 brackish and fresh. 15 MR. ANDRY:
16 A. And other people have called that 16 I have a copy that talks
17 fresh. 17 about the MRGO bringing rapid
18 Q. Okay. And they're listing some, I 18 changes, et cetera, to the marsh,
19 think, of the species that you described seeing 19 and then I finally figured out
20 in some of the pictures, the roseau cane -- is 20 where you're reading. It appears
21 that what you were saying? 21 there are pages that are missing.
22 A. Uh-huh. 22 MS. MILLER:
23 Q. And your -- basically, if I 23 Well, the entire document is
24 understand your testimony, you say that all of 24 very long, so, I just wanted to --
25 these maps that show different habitat types are 25 you know, this is -- maybe you all
48 (Pages 186 to 189)
Page 190 Page 192
1 can tell me what -- what part of 1 Okay. Let me see. Maybe
2 this document you were citing when 2 I'm just --
3 you cited it in your expert 3 MS. MILLER:
4 report? 4 I think I gave you the one
5 A. Can you show me where we cited it? 5 that I had marked up, which is
6 EXAMINATION BY MS. MILLER: 6 fine, but --
7 Q. It's one of your first couple of 7 MR. ANDRY:
8 citations. 8 I don't have one that's
9 A. I know, but where do we cite it in 9 marked up.
10 the document? 10 MS. MILLER:
11 Q. That's what I'm asking you. You 11 I think it looked like there
12 have it listed in your report as something that 12 was highlighting on it.
13 you are relying on and citing -- 13 MR. ANDRY:
14 A. I think we were citing -- okay, 14 No. I highlighted it
15 yeah, it's the Poirrier report, and that had 15 myself.
16 main -- more to do in our report with the 16 EXAMINATION BY MS. MILLER:
17 environmental impacts in Lake Pontchartrain. 17 Q. Anyway, we can include all of this.
18 Q. Okay. 18 I mean, it would certainly be helpful if you all
19 MR. ANDRY: 19 could identify which, you know things you were
20 The reason I ask, the page 20 citing from this.
21 is missing, obviously, that I 21 A. Now, it's clear from that what we
22 don't have, talks about the MRGO 22 cited from this were the Abadie and Poirrier
23 causing damage, it appears. The 23 reports, and that had to do with the work in Lake
24 next page talks about restoration 24 Pontchartrain.
25 by strategically fixing the MRGO, 25 Q. Okay. So, you -- you agree that
Page 191 Page 193
1 and I don't have that page. So, 1 this atlas, FitzGerald's report, other
2 for the purposes of the record, I 2 publications have different interpretations from
3 think we should include that. 3 your supplemental report about what type of marsh
4 THE WITNESS: 4 you would categorize the area as --
5 It says the major habitat 5 A. FitzGerald would have really been a
6 types in 1949 were swamp and 6 conservative area of forested wetland loss
7 freshwater marsh, but the 7 because he -- they used maps that delineated
8 construction of the MRGO brought 8 certain areas, and he has those in his report,
9 rapid change in the 1960s. 9 and areas that had this -- we were talking
10 MR. ANDRY: 10 earlier -- the vegetation elements that had high
11 All right. If you go 11 stand -- fresh to low salinity marshes with very
12 farther along, Dr. Day, there's 12 high plants and also trees occur extensively
13 another page that's missing 13 throughout what he classifies as fresh marsh.
14 because from where y'all were 14 So, his estimate of the amount of trees in that
15 reading, the South Lake Borne Area 15 area is conservative.
16 appears to be Page 1, and then it 16 Q. Okay. And when you say "occurs
17 talks about -- then it says 17 extensively throughout that area," we
18 something about a significant 18 discussed -- in looking at the photographs --
19 factor, and I don't know if that's 19 that you mean in sporadic locations throughout
20 the same -- if that's both pages 20 the area?
21 or not. Did I have that wrong? 21 A. I wouldn't say sporadic. In some
22 MS. MILLER: 22 areas, it's rather uniform. In other cases,
23 I mean, these two pages go 23 there's patches of trees here. There are fairly
24 together. 24 large areas of reeds that, you know, Brown
25 MR. ANDRY: 25 occur -- talked occurring in hundreds of acres.
49 (Pages 190 to 193)
Page 194 Page 196
1 But you see those over and over all along the 1 A. We basically sort of sent out the
2 path of the MRGO. And you see oak trees, you see 2 word that we were looking for any information of
3 cypress trees, you see large plant -- what am I 3 this type which documented about enter -- you
4 looking for -- bushes kind of, like Iva 4 know, comments that were made either pre- or
5 frutescens and marsh elder and tall reeds in 5 post-MRGO concerning these kind of impacts.
6 addition to rather low elevation salt marsh 6 Q. So, this list does not -- is not
7 grasses. 7 something that you received from the plaintiffs'
8 Q. Right. Do you agree, though, that 8 attorneys -- I mean, the documents that --
9 the term extensive is -- maybe doesn't convey 9 A. We may have received some of the
10 very much information? I mean, what do you mean 10 documents, but we also dug them up. I think
11 when you say "extensive"? 11 Sarah dug up a lot of this.
12 MR. ANDRY: 12 Q. Okay. And when you produced your
13 Object to form. 13 report, there was something called a MRGO binder.
14 A. Well, I mean, it occurs in every 14 Is that what these things refer to?
15 photograph we look at. 15 A. I guess I really don't remember what
16 EXAMINATION BY MS. MILLER: 16 the MRGO binder was. Do you have a copy of it or
17 Q. Every photograph that you've looked 17 a picture of it?
18 at? 18 THE VIDEOGRAPHER:
19 A. Everyone of these photographs that 19 Go off the record to change
20 we have in our supplemental report, and that goes 20 the tapes. This is the end of
21 from the beginning of Reach 1 to almost the end 21 Tape 4. We're going off the
22 of Reach 2. There are these elements in every 22 record.
23 one of those photographs, and they -- they're not 23 (Whereupon, a discussion was
24 all the photographs that exist, but they occur 24 held off the record.)
25 all along Reach 1 and 2 of the MRGO and you see 25 EXAMINATION BY MS. MILLER:
Page 195 Page 197
1 them on both sides, the Lake Borne side and the 1 Q. Okay. So, I'm marking this as Day
2 Central Wetlands side. So, they were a common, 2 12. Is that something you recognize?
3 widespread element in what FitzGerald calls fresh 3 (Whereupon, Day Exhibit
4 marsh. 4 Number 12 was marked for
5 Q. Okay. And by "they," you just mean 5 identification.)
6 these different types of fresh marsh -- fresh 6 A. Well, these are, apparently, copies
7 vegetation? 7 of documents from -- that we took these quotes
8 A. These different vegetation elements. 8 from.
9 Q. Okay. Okay. I would like to ask 9 EXAMINATION BY MS. MILLER:
10 you about some of the appendices you have in your 10 Q. Is -- are those documents something
11 report. Appendix A seems like a logical place to 11 that you have seen before?
12 start. This is titled Correspondence Timeline. 12 A. I think this may have been provided
13 Did you put this together? 13 by some of the plaintiffs' attorneys in -- and
14 A. I put it together with Dr. Shaffer 14 also supplemented by stuff that Sarah Mack got.
15 and help from some people who are helping us with 15 Q. Okay. So, you yourself did not
16 this. 16 compile that group of documents in Number 12?
17 Q. What do you mean, people who are 17 A. No.
18 helping you with -- 18 Q. And looking through there, are these
19 A. Sarah Mack, who is at the table, she 19 things that you've read before today?
20 is, I guess, the biological equivalent of a 20 A. Sorry?
21 paralegal. I'm not sure what we would call her. 21 Q. Have you read those before today?
22 She did a lot of the research work. We got some 22 A. I think I've seen some of these,
23 of this from different agency people. 23 yeah.
24 Q. What do you mean, "some of this"? 24 Q. But you were not aware that this was
25 The documents themselves? 25 produced to us along with your expert report?
50 (Pages 194 to 197)
Page 198 Page 200
1 A. I probably was at one time, but I've 1 A. You know, I was just reading just
2 forgotten. 2 sort of the first letter in this stack that you
3 Q. Okay. And what's in Appendix A 3 gave me from a biologist with the Louisiana
4 looks like a summary of some of those -- at least 4 Wildlife & Fisheries Commission, and I think it
5 some of those documents; is that right? In 5 expresses some of the frustration that some of
6 Number -- Exhibit 12? 6 those people were feeling at the time because --
7 A. Yes. Uh-huh. 7 that their input was stymied. You know, he says:
8 Q. At the end, on Page 79 of your 8 "I only knew about the damn conference the day
9 report, you say: "Sources are provided in a 9 before the business happened and I give you
10 separate folder on the disk." Do you know what 10 herewith a transcription of the statements made
11 that refers to? 11 there. The place was loaded up with shipping
12 A. I expect it might refer to this 12 people and oil people and, so help me, I was the
13 material being available in a digital format. 13 only person who knew what a fish was," et cetera,
14 Q. Did you produce -- was there some 14 et cetera. This is somebody with the Louisiana
15 sort of disk that was part of your expert report? 15 Wildlife & Fisheries Commission trying to input
16 A. Yes. 16 to the process about the construction of this
17 Q. There was? 17 canal and its environmental effects, and you can
18 A. (Nods head affirmatively.) 18 see the frustration that he felt.
19 Q. And what else was on that disk? 19 Q. So, he is -- the author of this is
20 A. I don't remember. 20 James --
21 Q. You don't remember? 21 A. Is James Gowanloch, chief biologist,
22 A. I just don't remember. 22 and this is from the Louisiana Wildlife &
23 Q. Okay. What about Appendix B? You 23 Fisheries Commission.
24 said that earlier -- that begins on Page 80 of 24 Q. How do you know it is from --
25 your report -- that that's something that you and 25 A. He says at the top, here are two
Page 199 Page 201
1 Dr. Shaffer put together; is that right? 1 copies of the lease that I prepared for the
2 A. Yes, I think so. 2 commissioner's signature. The lease was sent by
3 Q. And do you know where these comments 3 the --
4 were pulled from? 4 Q. So, this is someone representing the
5 A. I don't. I think Dr. Shaffer is 5 State of Louisiana; is that right?
6 going to be able to address this tomorrow. 6 A. Yes. Uh-huh.
7 Q. Probably. Probably so. I imagine 7 Q. Okay. And your impression of this
8 someone might look into it before tomorrow. 8 letter and the reason it's included as part of
9 A. I think the point here is is that 9 your Appendix A is because it reflects their --
10 before the construction of MRGO, there was 10 the State's interaction at a public meeting
11 widespread knowledge and comment on about what 11 regarding the MRGO; is that right?
12 the impact of the canal would be from a variety 12 A. That's my impression.
13 of organizations and individuals. This reflects 13 MR. ANDRY:
14 that. I mean, I'm sorry that I can't remember 14 In looking through here, the
15 all the details, but that's what we're saying 15 majority of these documents have
16 here, that this was known. We understood. There 16 been produced. Some of them were
17 was an understanding supported by the 17 produced by y'all to us. But
18 understanding in the science at that time of what 18 they -- and it's my understanding,
19 the probable impact of the thing would be and, in 19 like before, that the majority of
20 fact, most of that came about. So, you know, we 20 these documents and other
21 can document all of this later. It's not -- but 21 materials have been provided to
22 it won't change the facts of what -- the 22 the government in conjunction with
23 situation that existed at that time. 23 the turning over the expert
24 Q. Okay. Just trying to understand 24 reports. Like, for example, I
25 where all this comes from. 25 know that certain of these
51 (Pages 198 to 201)
Page 202 Page 204
1 letters -- trying to find the one, 1 you'll take a look at the third document in
2 but there's the one from the 2 there, that's also --
3 Wildlife & Fisheries in Louisiana, 3 MR. ANDRY:
4 1957, saying, you know, please 4 I'll withdraw my
5 stop building the Gulf Outlet. 5 representation. The document
6 You need to do another study. And 6 speaks for itself. I didn't mean
7 there were several depositions 7 to characterize it.
8 that I think you and I 8 EXAMINATION BY MS. MILLER:
9 participated in and I know that 9 Q. What's the one following that one?
10 the fact documents, that these 10 These aren't --
11 documents were part of the corpus 11 A. The letter by Ford?
12 of these depositions. 12 Q. The one after that. That one you
13 MS. MILLER: 13 just were looking at is dated 1984, which seems
14 I'm not saying that we have 14 probably long after the fact, but the following
15 not seen these documents before. 15 one appears to be also from the Wildlife &
16 I was asking Dr. Day whether he 16 Fisheries Commission for the State of Louisiana
17 had seen them before and how they 17 to the Louisiana Congressional Delegation, dated
18 correspond to his expert report. 18 May 9th, 1956; is that right?
19 Is there -- 19 MR. ANDRY:
20 MR. ANDRY: 20 I don't want to testify, but
21 No. No. I was just under 21 since my characterization is at
22 the impression that you were 22 issue, it's the May 29th, 1957,
23 intimating with Dr. Day that he 23 document that I was referring to
24 wrote a report and you didn't see 24 from the statement -- it's the
25 these documents, but go ahead. 25 statement of the Louisiana
Page 203 Page 205
1 MS. MILLER: 1 Wildlife & Fisheries Commission
2 No. In fact, I was 2 relative to the New Orleans to the
3 representing to him that we 3 Gulf Tidewater Channel, and not
4 received these documents in 4 the letter you're talking about,
5 connection with receipt of his 5 but you could ask questions and --
6 report, and I was asking if he was 6 MS. MILLER:
7 aware that these were given to us 7 Okay.
8 along with his report because he 8 EXAMINATION BY MS. MILLER:
9 had not himself seen these or he 9 Q. My point is, you are aware that
10 didn't recall specifically. 10 there were many supporters of the MRGO outlet at
11 THE WITNESS: 11 the time it was being proposed, right?
12 Well, there was a lot of 12 A. That's right.
13 time spent on this and we had 13 Q. Including the State of Louisiana; is
14 resource people gathering 14 that right?
15 information like this for us, and 15 MR. ANDRY:
16 from this kind of information, the 16 Object to the form.
17 appendices and the expert report 17 A. But there were people who were
18 were produced. 18 opposed to it, too. This letter that you're
19 MS. MILLER: 19 referring to in 1956 is to the congressional
20 Right. I understand. 20 delegation who are getting this pork belly
21 EXAMINATION BY MS. MILLER: 21 project from the State of Louisiana. They're not
22 Q. And Mr. Andry was pointing out some 22 likely to, you know, bring up these issues I been
23 of the documents that are included in here, and 23 talking about.
24 comments, you know, about them, but I'm not sure 24 EXAMINATION BY MS. MILLER:
25 his representation was totally complete. If 25 Q. But the letter is written by the
52 (Pages 202 to 205)
Page 206 Page 208
1 Wildlife & Fisheries Commission. 1 Q. We can leave Mr. Andry out of it.
2 A. Yeah. 2 You agree that there were both supporters and
3 Q. You agree that there are -- 3 people in opposition of building the MRGO channel
4 A. They were supporters, yeah. 4 to begin with?
5 Q. That's all I wanted to confirm. 5 MR. ANDRY:
6 A. And in that letter, though, it says: 6 Object to the form.
7 "Presently, little is known 7 A. Yes. And over time, the people who
8 about the hydrology and 8 supported it became less and less and less and
9 hydrography of the project area. 9 less, and the people who opposed became more and
10 Louisiana coastal waters have 10 more and more.
11 undergone serious saltwater 11 EXAMINATION BY MS. MILLER:
12 intrusion in recent years" -- 12 Q. At the time it was authorized,
13 It says in this letter that you just 13 though, one side was going to be either
14 gave me: 14 disappointed -- well, right, I mean?
15 "Presently, there's little 15 A. I'll just restate that there was an
16 known about the hydrology and 16 understanding generally of the impact a canal
17 hydrography of the area -- project 17 would have. There were calls to have these
18 area. Louisiana coastal waters 18 impacts addressed, and they weren't, and that the
19 have undergone serious saltwater 19 impacts indeed occurred.
20 intrusion in recent years and 20 Q. Well, that leads me to -- I think
21 would appear as though this 21 you referenced -- I thought in your report you
22 problem will become worse in this 22 talk about a number of studies that were, in
23 area. By the time the problems 23 fact, done shortly after authorization; is that
24 such as this are recognized by the 24 right? Maybe Rounsfeld summarizes them. Does
25 general public, correction would 25 that sound familiar?
Page 207 Page 209
1 certainly be costly and perhaps 1 A. Yeah.
2 too late or impossible. The 2 Q. So, there were, in fact, studies of
3 commission feels very strongly 3 these issues done; is that right?
4 that resources valued upwards of 4 A. And those studies pointed these
5 $13 million, projected over ten 5 impacts -- probable impacts out, and some of them
6 years, over $130 million, more 6 continued after the opening and, in fact, they --
7 than enough to pay the project 7 they measured those impacts of the increased
8 costs and maintenance appear and 8 salinity.
9 justify the expenditures of a 9 Q. And after doing these studies and
10 reasonable sum of money for an 10 measuring them, someone had to make a decision
11 adequate study." 11 about whether to implement something in response
12 So, this letter is also calling for 12 to those studies?
13 an adequate study. 13 MR. ANDRY:
14 Q. Right, and it appears to be seeking 14 Object to the form of the
15 funding from Congress for that study; is that 15 question. I think we're kind of
16 right? 16 getting way away from the report,
17 A. Yeah. 17 but -- and we're talking about
18 Q. So, we can agree, even Mr. Andry may 18 letters and different things, but
19 agree, there were both proponents and opponents 19 I object to the form of that
20 of the project as a whole; is that right? 20 question, but go ahead.
21 A. Yes. 21 A. You know, there was a strong --
22 MR. ANDRY: 22 there were strong professional judgments that
23 Object to the form. 23 building the canal in the way it was built would
24 A. Yes. 24 lead to these problems, and those, you know --
25 EXAMINATION BY MS. MILLER: 25 those -- those weren't heeded. They were -- they
53 (Pages 206 to 209)
Page 210 Page 212
1 were -- there was an understanding that this was 1 1964 --
2 a threat to both human health and environment and 2 A. Well, by that time, by '62, the La
3 the health of the environment, and nothing was 3 Loutre Ridge had been breached.
4 done to alleviate that. 4 Q. Right. So, this was just -- okay.
5 EXAMINATION BY MS. MILLER: 5 Appendix D, why did you include that
6 Q. Okay. Appendix C of your report, do 6 in your report?
7 you know what that came from? 7 A. It's the timeline of -- of the -- of
8 A. That's the Texas A & M foundation 8 the MRGO. It just seemed to be an appropriate
9 research. I think that's Rounserfeld. 9 thing. You know, when it was started, when it
10 Q. So, that's one of the studies that 10 was finished.
11 was done after the MRGO construction to evaluate 11 Q. The source that you cite for that is
12 the impact of salinity? 12 dated 1973. Did you think there were any events
13 A. Well, it was pre and post. 13 after 1973 that were important to include in the
14 Q. Okay. I see. So, Figure 2 lists 14 timeline?
15 dates for -- okay. 15 A. Well, I expect that this essentially
16 A. Figure 1 shows that salinity of 3.5 16 included the whole period of the planning and
17 parts per thousand in the lower part of the 17 construction and completion of MRGO.
18 Central Wetlands Unit and in lower Lake Borne. 18 Q. And are you aware of some of the
19 Figure 2 shows the same area with salinities 19 other activities that occurred after 1973, such
20 between 11 -- ten and 12 in the Central Wetlands 20 as installation of foreshore protection along the
21 Unit. These are average salinities, indicating 21 channel?
22 that they were both above and below that. 22 A. Yeah, that -- I am aware that that
23 Q. Okay. So, Appendix C illustrates 23 happened.
24 some of the results from one of the studies of 24 Q. So that -- is that something you
25 the -- 25 consider relevant to your report?
Page 211 Page 213
1 A. It illustrates the increase in 1 A. In terms of -- in terms of the fact
2 salinities in the Central Wetlands Unit. It also 2 that the opening -- the breaching of the La
3 shows, you know, that there was very little 3 Loutre Ridge and the introduction of the salinity
4 change outside, you know. It was 17 and then 20 4 led to the -- the introduction of saltwater led
5 to 22 after this, but they were both high 5 to lethal levels of saltwater for fresh and
6 salinities south of the -- the La Loutre Ridge. 6 intermediate vegetation, no. They're trying to
7 Q. So, 17 to 22, you don't consider 7 stop, I think, the erosion. Largely, they're
8 that a very large change? 8 trying to minimize their costs. I'm not sure,
9 A. Well, in terms of the biota and the 9 though.
10 organisms living in the area, 17 or 22 wouldn't 10 Q. So, you don't consider the foreshore
11 be much of a difference. It would be within 11 protection relevant to your opinions?
12 their normal range. You go up into the Central 12 A. About what?
13 Wetlands Unit, going from 3.5 to 12 goes from 13 Q. The opinions you expressed in the
14 something that's tolerable to something that's 14 report in general.
15 lethal. 15 A. The foreshore protection would not
16 Q. And according to this, seems that 16 have affected salt.
17 the second figure, the post-project numbers seems 17 Q. Okay.
18 to range from dates from 1962 to 1964; is that 18 A. I think they're trying to limit the
19 right? 19 erosion along part of the canal.
20 A. No. I think this just talks about 20 Q. On Page 87, you have the title For
21 the whole thing. This says Post-Project 21 Appendix E and a number of photographs. You
22 Isohalines. So, that means after the MRGO was 22 again reference these pictures are contained on a
23 constructed. 23 disk in a separate folder. Is that the same disk
24 Q. Do you know what the Bureau of Sport 24 that Appendix A refers to?
25 Fishers & Wildlife, September, 1962 to September, 25 A. I think that all of the information
54 (Pages 210 to 213)
Page 214 Page 216
1 which was submitted on a disk. 1 maybe this is the Intracoastal Waterway and
2 Q. Okay. So, you intended for there to 2 they're widening it.
3 be a disk that was part of your expert report 3 Q. Does it look like there's a levee or
4 that included supporting documentation; is that 4 a road of some sort on the top portion of the
5 right? 5 photograph?
6 A. As far as I know, there was a disk. 6 A. Yeah. I think one of the main
7 I mean -- 7 things we wanted to point out is the extent of
8 MS. MILLER: 8 the dense forest in this area.
9 I'll have to track that 9 Q. But if this is Reach 1, then, that
10 down. I don't recall seeing a 10 dense forest area that you're showing is north of
11 disk that included these. 11 the GIWW; is that correct?
12 MR. ANDRY: 12 A. But it also occurs to the south, but
13 Again, you may not have been 13 it doesn't occur in the foreground because the
14 given the disk itself. I thought 14 trees have been cut.
15 you were. My understanding, you 15 Q. How do you know the trees have been
16 were, but you were definitely 16 cut?
17 given the materials that were on 17 A. Well, you see some stumps in there.
18 the disk. 18 Q. Where do you see stumps?
19 MS. MILLER: 19 A. Just the black dots that occur in
20 Okay. 20 there, and I'm assuming that there were trees
21 EXAMINATION BY MS. MILLER: 21 here because there are trees in the upper part of
22 Q. Who made the selection of 22 the photograph that they're getting ready to
23 photographs to include in Appendix E? 23 dredge into.
24 A. I think we did that as a group. We 24 Q. You agree it looks like it's Reach
25 selected these from a larger number. And then 25 1, what's been called Reach 1?
Page 215 Page 217
1 subsequent to that, just recently, we were given 1 A. This is Reach 1, and the Central
2 more photographs, which, I think, you know, 2 Wetlands Unit would be to the left.
3 corroborates the points we were making with these 3 Q. Okay. But not really visible in the
4 photographs. 4 photographs, is that right, except for that
5 Q. Who was part of the group that 5 little sliver?
6 helped you make those selections? 6 A. The edge of it is, yeah.
7 A. Well, it was Dr. Shaffer and I, 7 Q. The next one ends in 071. This one,
8 Sarah Mack, Ivor van Heerden was involved in it, 8 you've discussed, people blowing up something.
9 Paul Kemp was involved in it, I think some of the 9 Do you have any idea what part of the channel or
10 plaintiffs' lawyers. 10 where, if this is even on the channel, this
11 Q. Is there anyone else that you can 11 photograph shows?
12 remember specifically? 12 A. You know, I don't know, ma'am.
13 A. Not right now, but, you know, this 13 Q. Okay. And the next one, ending in
14 is a while back when this was all happening. 14 109.
15 Q. We've discussed some of these 15 A. That's Bayou Bienvenue.
16 photographs already, but if we could just go very 16 Q. So, this would be the northern --
17 quickly through them, the first one ends in 057. 17 A. Bayou Bienvenue was dredged -- this
18 Do you know what part -- the location of the 18 is the northern end, the northwestern part of the
19 channel that this photograph shows? 19 Central Wetlands Unit.
20 A. This -- I think this is the upper 20 Q. So, it's almost directly south of
21 part on Reach 1, and since the dredge is 21 Reach 1; is that right?
22 discharging to -- yeah. This is -- this is, 22 A. Yeah.
23 well, the upper part of Reach 2. It's got this 23 Q. And still interior -- well, okay.
24 curve up at the top, which, I think, probably is 24 A. You note extensive cypress forest in
25 where it ties into the Intracoastal Waterway, or 25 the background there.
55 (Pages 214 to 217)
Page 218 Page 220
1 Q. Can you tell which direction we're 1 Q. Okay. And it appears to be looking
2 facing in this photograph? 2 towards the east; is that right?
3 A. I think the photograph is looking in 3 A. Yeah. You can see the Paris Road
4 to the Central Wetlands Unit. 4 bridge, you can see the -- I think that's --
5 Q. Okay. And the next one seems to be 5 Q. So, it's looking to the west?
6 the same -- 6 A. To the east.
7 A. Well, the -- yeah, it is. It's 7 Q. Okay. Maybe I'm just a little
8 looking at that from -- that's the same -- the 8 disoriented on that one.
9 same two dredges. So, it's looking from the 9 A. You can see the big tower there, I
10 opposite direction. Bayou Bienvenue. This is 10 think, at Michoud, and you can just see where the
11 all within the Central Wetlands Unit. 11 MRGO is probably one of the initial small
12 Q. Okay. And this photograph shows 12 channels starts to cut off to the right. That
13 areas that are interior to where the hurricane 13 would be southeast.
14 protection levees ultimately were built; is that 14 Q. Do you think -- okay.
15 right? 15 A. The next photo is one where the
16 A. This is in the Central Wetlands 16 dredging is much -- it's more or less in the same
17 Unit. 17 picture, but with the dredging much of what is
18 Q. Which is in -- 18 still swamp and forestry in 133 is now largely
19 A. Inside. 19 dredged in 141.
20 Q. -- inside the levees? 20 Q. So, this is still -- this one tells
21 A. Yeah. 21 us we're looking east, so, it's still the GIWW.
22 Q. Okay. So, the next one ends in 133. 22 A. Yeah, and that curve, you can't --
23 It says: View east vicinity Station 110 GIWW at 23 it's not clear there, but right after that curve
24 right. 24 is where the Paris Road bridge doesn't show up
25 A. The GIWW is the big canal on the 25 clearly there.
Page 219 Page 221
1 upper left part of the photo. The bridge in the 1 Q. Well, if we're looking to the east,
2 distance is the Paris Road bridge. You can just 2 where would be Paris -- oh. So, this photograph
3 see where MRGO turns past the Paris Road bridge, 3 was taken from near the vicinity of the IHNC; is
4 turns toward the southeast so that that's -- I'm 4 that right?
5 not sure if that's the dimensions of the MR -- of 5 A. Well, just behind it would have been
6 the GIWW there in the upper left quadrant, but 6 behind where the GIWW came into the Inner Harbor
7 you can see at the bottom there's a dredge 7 Navigation Canal. You're looking down Reach 1.
8 widening that so that that whole thing is going 8 You can see the Paris Road bridge and Paris
9 to be widened dramatically. The cross-section of 9 Road -- parts of Paris Road.
10 the GIWW was increased by a factor of 12 when 10 Q. Are you looking at Photograph 141?
11 the -- in Reach 1. 11 A. No. I'm looking at 133. In 141,
12 Q. Okay. 12 the Paris Road bridge is not visible, and this
13 A. And then the Central Wetlands Unit 13 is -- this is -- this is a -- probably further
14 is to the left, and that narrow, white line, 14 up. We've backed up a bit because you've got
15 that's the spoil levee behind which the spoil 15 this -- an area that's fully dredged so that the
16 will be pumped when this area is dredged. 16 other photo was probably taken -- in fact, I
17 Q. Okay. So, this basically reflects 17 think you can see this -- the barge that is in
18 the GIWW and areas north of it; is that your 18 133 sitting against the swamp there.
19 impression? 19 Q. Uh-huh.
20 A. Well, there's only a small portion 20 A. That dredge is at the back of that
21 of the picture that's north of the GIWW. That's 21 part -- here.
22 the upper left-hand quadrant. 22 Q. Okay.
23 Q. Okay. 23 A. Right here.
24 A. The area to the right is in the 24 Q. So, then --
25 Central Wetlands. 25 A. We're backed up towards the mouth of
56 (Pages 218 to 221)

Page 222 Page 224
1 the Inner Navigation Harbor Canal here. 1 Q. I think you said to the left both
2 Q. So, we're looking -- 2 times.
3 A. East. 3 A. Oh, I'm sorry. To the right is
4 Q. Oh, I see what you're saying. Okay. 4 northeast. To the left -- because my
5 So, both of these photographs, the one ending in 5 recollection is is that canal on the right side
6 133 and 141, essentially show the GIWW area, 6 of the road is -- is on the right -- is on the
7 right, what became expanded of the GIWW? 7 down --
8 A. And in each case, to the left is 8 Q. The south side of the GIWW?
9 north of GIWW and to the right is in the Central 9 A. No. On the south side of the Paris
10 Wetlands Unit. 10 Road.
11 Q. Okay. And then the next one ends in 11 Q. Well, it looks to me like there's a
12 163. Also shows -- 12 canal on either side of Paris Road. Is that --
13 A. The GIWW looking north. So, you see 13 A. No. This is the GIWW.
14 the dredge is pumping spoil into the spoil area 14 Q. Right.
15 on the northern end of the Central Wetlands Unit. 15 A. These are just dredged canals. And
16 Q. Okay. 16 this one is -- in other photos, you can see that
17 A. And you can see stumps there in the 17 it's continuous along Paris Road. It's the
18 spoil levee and the forest on the other side of 18 borrow canal that was used to build the road, to
19 the GIWW, which is what the foreground would have 19 make the --
20 looked like before dredging. 20 Q. Okay.
21 Q. Well, why do you think that? 21 A. So, my recollection is this was on
22 A. Well, it was a forest. You can see 22 the east side of that road and it extends all the
23 in 133, for instance, forest on both sides before 23 way up to the --
24 it was dredged, and both sides of the GIWW. 24 Q. So, this photograph is looking
25 Q. What's on the right-hand side? 25 towards the north?
Page 223 Page 225
1 Isn't there a large lake or something on the top 1 A. Yeah, the north and east.
2 right? 2 Q. So, primarily, what you can see in
3 A. Well, I'm uncertain, but the forest 3 this photograph are trees north of the GIWW; is
4 here, it looks like it's merging into wetlands, 4 that right?
5 and this may have been where when this canal was 5 A. That would have been in -- yeah,
6 dredged for this spoil bank, it was probably 6 north of the GIWW, and then thick forest south --
7 spoil pumped in there, but it's hard to tell at 7 in the lower --
8 this distance. 8 Q. In the immediate foreground to the
9 Q. So, all you can tell for certain is 9 east of Paris Road?
10 that there's some trees kind of in the foreground 10 A. Yeah, in the shot, the lower right
11 of the picture, but it's hard to tell whether 11 cropping of the photo.
12 they extend -- 12 Q. Okay. So, all of these photos that
13 A. Quite a lot of trees. 13 we have just gone through basically show Reach 1
14 Q. That are going -- 14 of what's -- what we've been calling for this
15 A. In the foreground, yeah. 15 litigation Reach 1 of the channel; is that right?
16 Q. Okay. Right. But it's hard to tell 16 A. Right.
17 how far they extend; is that right? 17 Q. Okay.
18 A. Yes. 18 A. And that's the reason -- part of the
19 Q. Okay. So, we've talked about all of 19 reason we put in this supplemental report because
20 them except for the last one now that ends in 20 now there are photos along the whole Reach 1 and
21 266. What does this show? 21 Reach 2.
22 A. That's the Paris Road bridge, and to 22 Q. Prior to your supplemental report,
23 the left -- this is where the MRGO will be 23 had you not seen photographs for Reach 2 of the
24 dredged. To the left is going southeast, to the 24 channel?
25 right -- left is northwest. 25 A. We had.
57 (Pages 222 to 225)
Page 226 Page 228
1 Q. Why did you not include -- 1 decided to look at the area of Central Wetlands
2 A. I think these were just -- these 2 Unit and around Lake Borne and further south
3 photos were put in to show the nature of the 3 because that was the area that clearly had the
4 forest in the area. 4 major impacts.
5 Q. But only in the area of Reach 1, 5 Q. And to the extent your report
6 right? 6 describes wetlands having an impact on hurricane
7 A. Yeah. 7 storm surge, would you say that the area north of
8 Q. You have mentioned working with Ivor 8 the GIWW is relevant to that issue?
9 van Heerden several times today. Can you 9 A. I guess so.
10 describe what his involvement in your work for 10 Q. How so?
11 this litigation has been? 11 A. Well, if there are forests there,
12 A. The work for this litigation? 12 that would have an impact, but there's also a
13 Q. Yes. 13 levee there that would have prevented direct
14 A. He's been a source of information, 14 impact of the water coming in in the normal flow
15 you know, also providing a lot of these photos 15 in MRGO, I think. We really didn't look at that
16 over time, helping us look at them and, you know, 16 area.
17 interpret what they -- what we were seeing. He 17 Q. Okay. And what about west of the
18 also from time to time given us information, 18 IHNC, was that another --
19 reports and such. He's the one who pointed out 19 A. West of the IHNC is the city of New
20 that -- just recently the Claire Brown report. 20 Orleans.
21 Q. What other reports has he given you? 21 Q. Right. So, were you looking at that
22 A. I can't recall specifically, but 22 at all?
23 he's been -- we've been -- and many discussions, 23 A. No.
24 also, we've had with him. 24 Q. And Lake Pontchartrain, your report
25 Q. Has he written -- has he himself 25 discusses the areas around Lake Pontchartrain a
Page 227 Page 229
1 written reports specifically for this litigation 1 fair amount. Is that something you consider
2 that he provided to you? 2 relevant to the issues in the case?
3 A. No, I don't think he's given us 3 A. Yes.
4 reports. He's given us information, you know, 4 Q. And that's because it's part of the
5 like these photos that are here, he's the one 5 broader environmental impact of the MRGO?
6 that pointed these out to us and he discussed 6 A. That's correct.
7 them with us. 7 Q. But, again, to the extent your
8 Q. And did he review your report before 8 report describes the impacts that wetlands have
9 you submitted it? 9 on storm surge, the wetlands surrounding Lake
10 A. I can't remember. I don't know. 10 Pontchartrain would not have been significant to
11 Q. Is it possible that he did? 11 the surge that's being evaluated for the
12 A. I don't -- I don't know. 12 plaintiffs --
13 Q. Okay. 13 A. To what now?
14 A. I see Dr. Shaffer shaking his head, 14 Q. Do you know where the plaintiffs in
15 but I just can't remember. 15 this case lived before Katrina?
16 Q. How are the areas north -- or do you 16 A. In St. Bernard Parish.
17 consider the areas north of the GIWW to be 17 Q. And, so, the -- whatever discussions
18 relevant to the issues in this litigation? 18 of how wetlands may impact storm surge, the area
19 A. In what sense? 19 of Lake Pontchartrain would not be -- would that
20 Q. Well, were you given a particular -- 20 have had an impact on the surge that impacted the
21 what was your direction, I guess, for what -- 21 plaintiffs' properties?
22 what you were to study and -- and produce in your 22 MR. ANDRY:
23 report? 23 Object to the form of the
24 A. Well, in general, it was the 24 question.
25 environmental impacts of MRGO. I think we 25 A. Our considerations for Lake
58 (Pages 226 to 229)
Page 230 Page 232
1 Pontchartrain had to do with the dead zone caused 1 Q. So, again, this is another
2 by the heavier saltwater, the effect of increase 2 environmental impact that you saw as a
3 in salinity in Lake Pontchartrain, and potential 3 consequence of the MRGO construction; is that
4 impacts on the swamps to the east -- the west end 4 right?
5 of Lake Pontchartrain. 5 A. Construction and maintenance.
6 EXAMINATION BY MS. MILLER: 6 Q. You say on Page 66 -- it talks
7 Q. Okay. Again, the broader 7 about -- your report talks about the Seabrook
8 environmental issues related to the MRGO was the 8 structure at that point and dead cypress trees
9 focus of -- 9 visible from Interstate 10. Do you know what
10 A. Yes. 10 part of Interstate 10 that's referencing?
11 Q. -- of your report in general and the 11 A. There's been saltwater kills in some
12 inclusion of Lake Pontchartrain; is that right? 12 of the -- along -- for instance, in the outer
13 A. Yes. 13 part of the LaBranche Wetlands.
14 Q. And not for evaluation of the storm 14 Q. That's the western part of the area
15 surge in this case; is that right? 15 that we've been talking about?
16 A. No. 16 A. Yeah. In the upper part of the
17 Q. You also describe a section 17 lake.
18 regarding heavy metals in dredge sediment, and 18 Q. And the Seabrook structure was one
19 you indicated that that was primarily Dr. 19 feature of the hurricane protection project that
20 Shaffer's -- well, an area that he was more 20 was intended to offer some mitigation for the
21 responsible for. Does that relate to initial 21 impacts from the MRGO; is that right?
22 construction of the channel? 22 A. The Seabrook structure would have
23 A. Initial construction and -- and 23 not have allowed water that came up the MRGO into
24 maintenance. Dr. Mack did most of the 24 the Inner Harbor Navigation Canal to flow then
25 information gathering on this section and helped 25 into Lake Pontchartrain. Seabrook is where the
Page 231 Page 233
1 us put it together. 1 Inner Harbor Navigation enters Lake
2 Q. And what is your basic reason for 2 Pontchartrain, and it's open.
3 including that section in your report? 3 Q. And construction of that would have
4 A. On heavy metals or dredging in 4 had some positive impact on the problems you
5 general? 5 identify in the Lake Pontchartrain area?
6 Q. Heavy metals. 6 A. It would have stopped the high
7 A. Well, heavy metals are toxic. They 7 salinity water from entering Lake Pontchartrain.
8 can bioaccumulate, and if you continue to dredge 8 Q. In addition to Ivor van Heerden,
9 and bring them up into the water column and 9 have you collaborated with other plaintiffs'
10 expose biota to them, you could have, you know, 10 experts in this case?
11 toxic effects. 11 A. Other?
12 Q. So, that's one more thing that might 12 Q. Other experts of the plaintiffs.
13 impact the ability of the wetlands to survive? 13 You mentioned Ivor van Heerden and Paul Kemp.
14 A. Well, it's not so much the wetlands. 14 A. Well, we -- I've talked to all of
15 It's the organisms, the animal populations. 15 the experts except the Dutch -- I don't think
16 Because plants are at the bottom of the food 16 I've met the Dutch people except maybe once. I
17 chain, and a lot of times, concentrations like 17 mean, we talked to Bob Bea. We talked to Paul
18 these, we're talking about the bioaccumulation, 18 and Ivor. Who else is there? I think that's who
19 you know, the clams and the organisms that live 19 I can think of at the moment.
20 in the sediments. 20 Q. Did you provide information to those
21 Q. Okay. So, the heavy metals would 21 experts?
22 impact those organisms rather than the plants 22 A. What kind of information?
23 themselves? 23 Q. Well, did you provide any
24 A. In general, it would have a greater 24 information to them?
25 impact on animals because of the bioaccumulation. 25 A. Well, I mean, they -- they could
59 (Pages 230 to 233)
Page 234 Page 236
1 read our report and we -- there was a lot of 1 Q. So, this is an attachment to your
2 discussion about it. Specifically, I think Dr. 2 report?
3 Shaffer provided them information on density of 3 A. Yes, that's an attachment. So, you
4 trees that, I believe, was used, but that's 4 have it.
5 something he can address tomorrow. 5 Q. Okay. And --
6 Q. Okay. 6 A. If it isn't, it should -- I mean, if
7 MR. ANDRY: 7 we didn't include it, it's one of the things that
8 Is this a good time to take 8 we would have included -- we had an A, B and C.
9 a little break? 9 Q. Well, okay. Let's see -- where --
10 MS. MILLER: 10 you have the exhibit.
11 Sure. 11 A. This is A, this is B and that's C.
12 THE VIDEOGRAPHER: 12 Q. And what are all those?
13 Off the record. 13 A. These are all the photos we were
14 (Whereupon, a discussion was 14 looking at earlier.
15 held off the record.) 15 Q. So, most of them didn't get labeled,
16 THE VIDEOGRAPHER: 16 as far as I can tell.
17 This is Videotape 6. We're 17 A. No. We -- we -- in other words, the
18 back on the record. 18 photos --
19 EXAMINATION BY MS. MILLER: 19 Q. That has Figure A written on it.
20 Q. So, I was asking you about your work 20 A. These all are labeled with a number,
21 with the other experts in this case, and you 21 and then we had A, B and this is C.
22 indicated that Dr. Shaffer had provided some 22 Q. Okay. So, your text of your report
23 information to someone. Who was that, do you 23 refers to Figure A, Figure B, Figure C?
24 know? 24 A. Yeah. Let me make sure. Actually,
25 A. He provided information on stem 25 the photo mosaic should be B. So, this is B, and
Page 235 Page 237
1 densities of trees to the modelers, that group, 1 this is just -- we don't -- I didn't mention C.
2 and I'm not exactly sure who he gave it to in 2 So, let's -- we need to identify that. B in the
3 particular. 3 text is this photo mosaic.
4 Q. Okay. And did you -- didn't you 4 Q. Can you add a label to this to let
5 tell me earlier today that you had not calculated 5 us know what it is?
6 the density of trees in the vicinity of the 6 A. (Complying.)
7 Central Wetlands Unit prior to construction of 7 Q. Then, can you clip it on with
8 the MRGO? 8 your --
9 A. No. You asked me about these 9 A. Yeah. And one of the -- this -- I
10 photos, I think, that I was showing you, and you 10 don't even think this is referring to --
11 asked me had I calculated stem density -- the 11 actually, this is just to identify where these
12 density of trees. I don't know if you used stem 12 are. It should be included. But we haven't
13 density, the term. So -- and I didn't. And I 13 identified it in the text. It's just a locater
14 really wasn't involved in what Dr. Shaffer did. 14 of the different photos.
15 I knew he was doing it. I think we probably 15 Q. Okay.
16 discussed it, but he's the one who did that. 16 A. So, we can --
17 Q. Okay. Does your report include any 17 MR. ANDRY:
18 information about density of trees? 18 The big sheet that you just
19 A. Quantitatively, I don't think it 19 did, B, just say photo mosaic,
20 does. 20 Exhibit B to supplemental report
21 Q. Okay. There were a few more things 21 of -- so, that way, if it becomes
22 I wanted to introduce that haven't become 22 unconnected -- and in an effort to
23 exhibits yet, and one of them is this -- 23 help the court reporter, we'll
24 A. That's part of our -- already 24 just staple that whole thing. So,
25 introduced as part of our supplemental report. 25 all of it is stapled together.
60 (Pages 234 to 237)
Page 238 Page 240
1 So, the actual record itself, it's 1 A. Well, they -- they -- you know,
2 all stapled, and we won't have to 2 doing this for Katrina, they looked for markers
3 worry about pages. 3 of hurricane surge elevation where debris was
4 EXAMINATION BY MS. MILLER: 4 caught in trees, strand lines along elevated
5 Q. Have you or Dr. Shaffer made any 5 ground along the interstate, I-10 in Mississippi,
6 calculations of the relationship between the 6 and they were able to get hundreds of points
7 wetlands in St. Bernard Parish and the storm 7 where the elevation was and they measure the
8 surge generated by Hurricane Katrina? 8 width of hurricanes -- measured the width -- the
9 A. We've made no calculations. Our 9 height of the water. For the later hurricanes,
10 discussion was descriptive. Although, we did 10 they actually went out before the hurricanes and
11 refer to the -- that core relationship, showing 11 installed these portable water level gauges,
12 that general relationship between reduction of 12 pressure sensor gauges, and attached them to
13 storm surge and with the levees. 13 bridge supports, to utility poles, things like
14 Q. And that, what you just referenced, 14 that, and after they were attached firmly, the
15 is Figure 3 in your report, on Page 20; is that 15 storm surge just rolls over them. They go out
16 right? 16 and collect them. They collect probably 90
17 A. Yeah. 17 percent of them. They may lose a few of them.
18 Q. And this is from a report in 1965; 18 Q. Who are "they" that you're referring
19 is that right? 19 to?
20 A. Yes. 20 A. The USGS has done it. The people at
21 Q. And are you aware of whether 21 the Hurricane Center in Baton Rouge -- at LSU
22 modeling techniques have advanced from 1965 until 22 have done, it and I think other people have done
23 today? 23 that.
24 A. Well, I know that during Katrina and 24 Q. Okay. So, those are empirical
25 Rita and subsequent hurricanes, you know, people 25 measurements of high watermarks, essentially?
Page 239 Page 241
1 have made measurements of storm surge reductions 1 A. Yeah.
2 across wetlands and generally follow this same 2 Q. But in terms of numerical modeling
3 kind of pattern. 3 of storm surge, that's not something that you're
4 Q. Is this something that you do within 4 familiar with, the details of the models; is that
5 your general work? 5 right?
6 A. No, I don't do it myself. 6 A. No. No.
7 Q. Okay. So, this is something that's 7 Q. The tables that you include on Pages
8 generally outside your area of expertise? 8 43 to 50, I guess -- 43 to 50 --
9 A. Yeah. 9 A. Uh-huh.
10 MR. ANDRY: 10 Q. -- are these studies that other
11 Object to the form of that 11 people have done that you are just reproducing
12 question, just because I don't 12 the results here?
13 know what "it" is, but go ahead. 13 A. We -- we reproduced -- yeah. We
14 EXAMINATION BY MS. MILLER: 14 went to the literature and looked at the various
15 Q. Modeling of storm surge is outside 15 studies on the impact of the opening of the MRGO
16 your area of expertise; is that correct? 16 on wetlands, wetland loss and wetland change in
17 A. Yes. 17 there. You see the Wicker, et al report. There
18 Q. And measuring the impact of wetlands 18 are several tables from that. What's cited as
19 on the storm surge also is outside your area of 19 U.S. Army Corps of Engineers, '99, that was also
20 expertise; is that right? 20 sometimes referred to as the EPA report. We used
21 A. I've not done that. I'll just say 21 that in here, and then we also compared losses of
22 that. It would be fairly straightforward to do 22 swamp forest in -- we included information in the
23 it, but I haven't done it myself. 23 LaBranche Wetlands, the east Manchac land bridge,
24 Q. Why do you think it would be 24 the east Maurepas area, and north shore just to
25 straightforward to do it? 25 have some comparison.
61 (Pages 238 to 241)
Page 242 Page 244
1 Q. But you've said in your report that 1 differences between --
2 to the extent any of these numbers listed in the 2 A. Well, it was one of the later
3 tables you've included differ from what Dr. 3 studies because --
4 FitzGerald has in his report, you defer to his 4 MR. ANDRY:
5 calculations of the amount of wetland loss or 5 Object to the form of the
6 change over time; is that right? 6 question.
7 A. Well, he was -- I think he's 7 MS. MILLER:
8 conservative in terms of the swamp in the sense 8 Sorry. I'm trying to
9 that, as I've discussed before, some of what he 9 compare --
10 classifies as freshwater marsh, and as I said, he 10 MR. ANDRY:
11 used quad sheets that indicated the extent of 11 I don't think there was a
12 marshes -- swamps to determine those areas in the 12 question.
13 extent of fresh marsh, and as I've said, the 13 THE WITNESS:
14 area -- much of the area that he listed -- he 14 All right.
15 mapped as fresh marsh also had other wetland 15 EXAMINATION BY MS. MILLER:
16 elements in it, trees and very high shrubs and 16 Q. If you look at Page 46 versus Page
17 very high marsh vegetation, like the Phragmites. 17 48, where you have your Central Wetlands area --
18 Q. From what you've described about the 18 well, what -- how -- the summary table on Page
19 variations in descriptive categories of the 19 46, what -- which of these other tables does it
20 wetland types as well as the method by which 20 compare with?
21 these things are mapped and then measured from 21 MR. ANDRY:
22 digital maps, it seems that there is some 22 Object to the form.
23 uncertainty in any of these calculations; is that 23 A. Well, it provides estimates of -- I
24 right? 24 think it's summarizing the -- the EPA 1999 and
25 MR. ANDRY: 25 USACE 1999 are the same report, because there
Page 243 Page 245
1 Object to the form of the 1 were -- this is a copy of the report, and it says
2 question. 2 Prepared by the New Orleans District Corps of
3 You can answer it. 3 Engineers for the Environmental Subcommittee of
4 A. There's uncertainty in any 4 the Technical Committee Convened By EPA in
5 scientific measurement. 5 Response to St. Bernard Parish Council Resolution
6 EXAMINATION BY MS. MILLER: 6 12-98. Some people refer to this as the Corps
7 Q. Are you able to estimate any type of 7 report '99, some people refer to it as the EPA
8 error rate or level of uncertainty? 8 report '99. So, this is their summary, and it --
9 A. Well, in this kind of thing, there's 9 it basically talks about wetlands converted to
10 an error rate associated with the method you use, 10 open water and habitat shifts.
11 but, then, also, before you get to that, I think 11 EXAMINATION BY MS. MILLER:
12 you would have to understand what the different 12 Q. Are you familiar with the
13 studies were actually measuring and how what -- 13 methodology that was used to make those
14 the units in these different studies, they have 14 calculations?
15 defined the Central Wetland Unit differently, for 15 A. They -- I can -- I can look them up
16 instance. So, you have to understand that. But, 16 in this paper.
17 I mean, the bottom line here is all of the 17 Q. Have you evaluated it already?
18 studies show a rather dramatic loss of forested 18 A. Yeah, I did, but, I mean, you know,
19 wetlands and fresh marsh as well as an increase 19 I think they used -- in my recollection, is they
20 in open water area. 20 used DNR digitized maps and came up with these
21 Q. But to the extent you're trying to 21 numbers -- Louisiana Department of Natural
22 determine a particular number, I think you have a 22 Resources.
23 summary table on Page 46. Is this what you 23 Q. And in your opinion, is this study a
24 have -- do you interpret this summary to be a 24 reliable estimate?
25 best estimate, or -- why -- I guess, are there 25 A. Yeah. The thing is, again, until
62 (Pages 242 to 245)
Page 246 Page 248
1 you look at all of the different methods that 1 level rise in your report --
2 were used among these different studies, all of 2 A. About 15 centimeters in the 20th
3 these studies provide a general view of what 3 century.
4 happened in this area in the -- you know, and I 4 Q. So, in a 50-year period, it would be
5 think what we were focusing on was the loss of 5 about half of that, I guess?
6 fresh -- freshwater wetlands. 6 A. Roughly, you know.
7 Q. So, these tables should be used more 7 Q. So, seven centimeters?
8 for the general trends that they represent than 8 A. Seven and a half, maybe.
9 the specific numbers as certainties? 9 Q. And how many inches does that
10 A. Yeah. But taken together, 10 correspond to?
11 there's -- you know, a picture emerges of a 11 A. Seven and a half -- it's about two
12 wetland ecosystem that was predominantly fresh in 12 and a half centimeters to the inch. So, two --
13 certain parts that shifted almost completely away 13 two, three, inches.
14 from that. 14 MS. MILLER:
15 Q. Do you know -- 15 Can we introduce that map
16 A. We compared -- recently looked at 16 that you were rolling up as an
17 LaBranche. What we found was the LaBranche 17 exhibit?
18 Wetlands, it had a fairly similar salinity range, 18 MR. ANDRY:
19 lost about 10 to 15 percent of the wetlands over 19 Sure. Why don't we do this.
20 the -- from the 1956 to 1990, where you 20 We will take it out and make a
21 essentially lost 100 percent of your swamp forest 21 copy of it, and you can look at
22 in that same period in the Central Wetlands. 22 it. I have Ensminger -- same map,
23 Q. Do you know what the St. Bernard 23 but it's a smaller version.
24 resolution is that 1999 report resulted from? 24 MS. MILLER:
25 A. No, not specifically. My impression 25 Okay.
Page 247 Page 249
1 is it was asking that this analysis be carried 1 MR. ANDRY:
2 out. 2 Because this is actually my
3 Q. Do you know if it was asking for the 3 copy that was made off of the
4 MRGO to be closed? 4 actual 1949 map that Ensminger
5 A. I don't know if that specific 5 had. So, this is the only big
6 resolution asked for that, but I know St. Bernard 6 copy that I know of.
7 Parish on a number of occasions requested the 7 MS. SOJA:
8 closure of the channel. 8 That's not the one we had at
9 Q. And do you know if that's what that 9 the deposition. You were actually
10 EPA organized group was looking into? 10 using his that was torn up.
11 A. No. This was looking at habitat 11 MR. ANDRY:
12 impacts on the construction of the MRGO. 12 Correct. This is a copy of
13 Q. And do you know whether that had 13 that one that he had.
14 anything to do with evaluating closure of the 14 MS. MILLER:
15 MRGO? 15 Okay. Well, whatever, if we
16 A. I don't. 16 could just introduce so we know
17 Q. Has climate change negatively 17 what was being discussed as the
18 impacted the wetlands in the Pontchartrain Basin? 18 1949 habitat map.
19 A. That's not something we looked at, 19 EXAMINATION BY MS. MILLER:
20 but I would say, up to this point, climate change 20 Q. Were there areas of impoundment in
21 has been a fairly minor thing. It's been some -- 21 the Central Wetlands Unit prior to the
22 it's some climate-induced sea level rise 22 construction of the MRGO?
23 increase, but in the 20th century, it was not 23 A. I would say semi-impoundment. I'm
24 very much. 24 not sure if they were ever completely impounded,
25 Q. I think you give an estimate of sea 25 the area to the east of what is now the east bank
63 (Pages 246 to 249)
Page 250 Page 252
1 treatment plant and -- in Orleans Parish. That 1 acres, or something on that order.
2 happened after MRGO. And then to the west of 2 Q. I certainly understand your opinion
3 that, between that and Paris Road, there were two 3 is that the MRGO was the major problem in the
4 large square impoundments that, I think, were 4 area and had a significant impact from its
5 first leveed off in the 1940s. 5 initial construction, right? But you agree that
6 Q. So, those impounded areas are loss 6 there are a number of other factors that you have
7 of land or wetlands in those areas is related to 7 listed in your report and maybe some you haven't
8 the fact that they were impounded, right? 8 listed that, in combination, have contributed to
9 A. No. You wouldn't have to use -- 9 the deterioration of the wetlands?
10 lose the wetlands. I mean, the wetlands could 10 A. Oil and gas canals specifically have
11 continue to exist in them. They were just cut 11 been shown to be very detrimental where you have
12 off from the normal flow. There are a lot of 12 these dense oil and gas fields, not only is there
13 impounded wetlands in the coastal zone of 13 massive disruption of surface hydrology, often
14 Louisiana. 14 there's also enhanced subsidence due to
15 Q. Did you list -- I thought you listed 15 withdrawal of oil and gas from the subsurface.
16 impoundments and semi-impoundments as one of the 16 Q. Do you know if there was any
17 factors that contributes to wetland 17 withdrawal of oil and gas from the Central
18 deterioration. 18 Wetlands area?
19 A. It does, that's true, but cypress 19 A. I think the canals, the two canals
20 can live impermanently in impounded conditions 20 we're talking about, are pipeline canals and are
21 for decades, even centuries, if other things 21 not associated with producing wells.
22 being equal. 22 Q. Have you looked into that, whether
23 Q. But that's one -- one more -- one 23 there were any producing wells in that area?
24 stressor to a wetland area is the impoundment; is 24 A. Not particularly, but, I mean, there
25 that right? 25 are only two of them, and they go across the
Page 251 Page 253
1 A. Yes. 1 whole way. So, they probably -- they're pipeline
2 Q. And other -- okay. The oil and gas 2 canals.
3 canal construction, you pointed out one oil and 3 Q. And does the existence of pipeline
4 gas canal in one of the photographs we looked at 4 canals have any impact on the temperature of the
5 earlier. Do you know the time frame that those 5 water in that area?
6 were built in the Central Wetlands area? 6 A. I don't know. Not -- not -- not
7 A. Well, there's this one pipeline 7 much. That's not one of the factors that people
8 canal was there already when MRGO was constructed 8 think about when they think about the impact of
9 because we show in the photo of the canal 9 canals.
10 crossing that -- the MRGO construction crossing 10 Q. What about the role of nutria?
11 that canal. 11 That's something that has come up in other
12 Q. Are you aware of other pipeline 12 depositions. Do you have an opinion on whether
13 canals in that area? 13 nutria impacted the wetlands in the Central
14 A. There are about, I think, 56 acres 14 Wetlands Unit?
15 of canals -- pipeline canals in that area. 15 A. They probably did. I don't know
16 Q. And in addition to the existence of 16 that there are any particular studies. People
17 the canal itself, do they have other impacts on 17 have written about it for other areas of the
18 the area, like a change in temperature or 18 coast and definitely one of the impacts. Nutria
19 pollution related to this? 19 don't affect adult cypress trees. They will
20 A. Well, canals have indirect effect in 20 affect small cypress seedlings. They'll eat
21 that they disrupt the movement of water across 21 them, you know, pull them out of the ground and
22 the surface of the wetlands. In this case, you 22 eat the roots. So, when cypress are replanted,
23 have two oil and gas canals in the whole Central 23 they have to have the -- you have to protect
24 Wetlands Unit that cover about between 50 and 60 24 them. But nutria don't affect adult cypress
25 acres, and you have the MRGO that covers 25,000 25 trees.
64 (Pages 250 to 253)
Page 254 Page 256
1 Q. So, nutria may impact the natural 1 area. I mean, there were the larger land loss
2 regeneration of cypress; is that right? 2 reports, but many of those didn't deal with --
3 A. Yeah. 3 like, what happened to the swamp in the area.
4 MS. MILLER: 4 I'm not sure that would be that helpful. I
5 I can probably take a break 5 think, you know, my opinion is fairly clear what
6 and decide if I have any more -- 6 happened. You know, they opened -- they broke
7 MR. ANDRY: 7 the La Loutre Ridge, high-salinity water came
8 These are -- there were 8 into the area, there was a massive conversion and
9 three maps used in Ensminger's 9 loss of freshwater in the area, there was a loss
10 deposition, and we could provide 10 of this tree and larger plant elements that had
11 copies from this. But there were 11 high elevations that simply disappeared from the
12 49, 78 and, like, another map, but 12 area and it's become a saline-brackish marsh, and
13 these are the exhibits that were 13 I think it's -- the overwhelming evidence to me
14 attached to Ensminger's 14 points to the fact that it was that introduction
15 deposition. So, if you want to 15 that happened -- that caused that. MRGO was such
16 look at those, you can look at 16 a massive impact on the landscape.
17 those. One of them is this map 17 Q. And it's your opinion that that
18 that we've talked about, which is 18 introduction was the direct result of severing
19 the specific -- 19 the La Loutre Ridge; is that right?
20 MS. MILLER: 20 A. Yeah. The data are very clear on
21 We could take a break. 21 that.
22 (Whereupon, a discussion was 22 Q. And the severing of the ridge was
23 held off the record.) 23 part of the design of the channel, right?
24 THE VIDEOGRAPHER: 24 MR. ANDRY:
25 We're back on the record. 25 Object to the form of the
Page 255 Page 257
1 EXAMINATION BY MS. MILLER: 1 question.
2 Q. Do you intend to do any calculations 2 EXAMINATION BY MS. MILLER:
3 to measure the change in swamp in the Central 3 Q. Your answer was "yes," right?
4 Wetlands Unit based on your supplemental report? 4 A. Well, I mean, you could have had
5 A. I don't -- at this time, I don't 5 a -- you could have put a gate. It would have
6 intend to do that myself, no. 6 stopped it. I mean --
7 Q. Does someone else intend to do that? 7 Q. So, that would have been an
8 A. I don't know. 8 alteration to the initial design of the channel;
9 Q. Do you have any intentions to 9 is that right?
10 continue to evaluate your opinions and make any 10 A. I don't know.
11 additional supplements to your reports? 11 Q. But the way the channel was
12 A. I think that decision would have to 12 constructed did not call for a structure; is that
13 come from consultation with the legal team. I 13 right?
14 can't answer that right now. 14 A. I don't know. I don't know the
15 Q. So, is there a particular 15 details of it. I guess not, but I really don't
16 calculation of -- or a particular set of 16 know.
17 numbers -- we've discussed a few different 17 Q. But including a structure in your --
18 reports that have attempted to calculate the loss 18 at the La Loutre Ridge at the time of the initial
19 of swamp and the conversion of habitat types as a 19 construction would have been the best way to
20 result of the MRGO. Is there one of those 20 control the salinity; is that right?
21 reports that you adopt as the most accurate? 21 A. It would have been one of a suite of
22 A. Well, I don't know about most 22 ways that we outlined in our report.
23 accurate. We use the Corps EPA 1999 report 23 Q. And are there other ways -- other
24 because it was the latest one that we had at that 24 things that you outlined in your report things
25 point in time specifically dealing with that 25 that could have been -- I think you testified
65 (Pages 254 to 257)
Page 258 Page 260
1 earlier, those things could have been done at the 1 Q. And by "didn't exist there," do you
2 time of initial construction? 2 mean throughout the Central Wetlands Unit?
3 A. Or any time postconstruction. It's 3 A. Yeah.
4 going to happen in 2009 or 2010. It would have 4 Q. Okay. So, you don't think that
5 been much better if it happened in 1961. 5 there were any impacts from faulting in the
6 Q. But after the La Loutre Ridge was 6 Central Wetlands Unit?
7 severed and there wasn't initially anything built 7 A. I don't think that the -- this
8 to control the salinity intrusion, the impact on 8 massive shift and death of freshwater habitat and
9 the wetlands would have occurred and it would, 9 shift to higher salinity habitats had anything to
10 after the fact, been a matter of trying to 10 do with faulting.
11 rehabilitate them; is that right? 11 Q. Were there any more minor impacts
12 A. Well, I think it's -- well, if the 12 that could have related to faulting?
13 salt introduction was stopped, the area would 13 A. I don't know.
14 have freshened up to a salinity range that 14 Q. And do you have an opinion on
15 existed prior to the severing of the ridge, and 15 whether the loss of swamp that you've described
16 the area would have shifted back towards the 16 in your report contributed to the failure of the
17 fresher environment. Cypress could have -- may 17 levees during Hurricane Katrina?
18 have regenerated naturally. It certainly could 18 MR. ANDRY:
19 have been planted. 19 Object to the form.
20 Q. But all of those things you list in 20 You can answer.
21 your report would have required some sort of 21 A. It's my understanding that had
22 affirmative action to address the problem; is 22 the -- had -- my general understanding that the
23 that right? 23 result of the studies and modeling is that had
24 A. Yes. Yes. 24 the pre-MRGO environment been in place, the
25 Q. Okay. And in addition to -- 25 flooding would have been significantly less.
Page 259 Page 261
1 obviously, you have stated your opinion that the 1 EXAMINATION BY MS. MILLER:
2 MRGO was the primary cause of loss at least of 2 Q. What do you mean by "the pre-MRGO
3 swamp in the Central Wetlands Unit. Are there 3 environment"?
4 any other factors that impact the wetlands that 4 A. The vegetation, the structure of
5 we have not discussed today? 5 that vegetation community with extensive forested
6 A. No. I think we covered most of 6 wetlands and other three dimensional elements in
7 them. 7 the landscape.
8 Q. Okay. Are you -- you mentioned Dr. 8 Q. You mean --
9 Gagliano earlier. Are you familiar with work 9 A. High -- vegetation that has --
10 he's done studying faults in the area? 10 that's tall rather than short.
11 A. I'm generally familiar with his 11 Q. What about the existence of the
12 work, his work on faults, yeah. 12 channel itself? By pre-MRGO landscape, do you
13 Q. Is faulting something that can 13 mean before the channel was even there? Wasn't
14 result in a land loss or wetland impact? 14 following your answer.
15 A. Faulting would not selectively 15 MR. ANDRY:
16 affect freshwater levels as opposed to the other 16 Object to form of the
17 levels. 17 question.
18 Q. But, in general, it's another thing 18 You can answer if you can.
19 that may impact the loss of land in the coastal 19 A. I think you're getting beyond what I
20 area? 20 know right now.
21 A. It's unlikely that the changes that 21 EXAMINATION BY MS. MILLER:
22 we saw that happened in the Central Wetland Unit 22 Q. Okay. That's fine.
23 were due to faulting. Faulting has a particular 23 Do you have an opinion on whether
24 type of surface expression that doesn't exist 24 the widening of the banks of the channel had an
25 there. 25 impact on the levees during Hurricane Katrina?
66 (Pages 258 to 261)
Page 262 Page 264
1 MR. ANDRY: 1 to know what you really mean?
2 Object to the form of the 2 A. Well, I think it's entirely accurate
3 question. 3 to say that tens of thousands of acres of
4 A. What I understood is that the 4 wetlands in the Pontchartrain Basin were affected
5 widening allowed waves to regenerate to some 5 by MRGO. The effect was not only in that
6 extent, but, again, that's about my knowledge on 6 adjacent channel, but it extended all the way
7 it. 7 into Lake Pontchartrain and to wetlands
8 EXAMINATION BY MS. MILLER: 8 surrounding Lake Pontchartrain.
9 Q. Okay. So, you just had heard 9 Q. Okay. But like you said before, the
10 discussions and results of other expert reports? 10 tables with actual -- some people have tried to
11 A. Yeah. That was outside my area of 11 make specific quantifications. So, that would be
12 expertise. 12 the best place to look?
13 Q. Okay. How many hours have you 13 A. And, again, at specific levels, you
14 worked on this case since you were initially 14 know, narrow geographic areas to very broad
15 retained? 15 geographic areas.
16 A. Hundreds. You know, I could -- I 16 Q. Okay. What is your hourly rate?
17 could total them up for you, but, I mean, it's 17 A. Three hundred dollars an hour.
18 certainly in the hundreds. I mean, I spent a lot 18 Q. And have you billed for all of the
19 of time working on this. 19 hours that you worked?
20 Q. Right. Well, that actually reminds 20 A. Except for this last month, month
21 me. I had meant to ask, when you say "hundreds," 21 and a half that I've worked.
22 does that mean, like, 200, 800, 1,200? Is there 22 Q. Predict there will be a forthcoming
23 some more particular response you could predict? 23 invoice; is that right?
24 A. You know, I could go back -- I 24 A. (Nods head affirmatively.)
25 would -- I would say it's likely less than 1,000, 25 MS. MILLER:
Page 263 Page 265
1 but maybe not. You know, I've been working on 1 I don't think I have any
2 this thing now for two years and there are 2 other questions right now.
3 periods of intense work and then periods when I 3 MR. ANDRY:
4 did very little. So, I'd really have to go back 4 I don't have any questions.
5 and add them up. 5 THE VIDEOGRAPHER:
6 Q. What that reminded me to ask was 6 Off the record.
7 when you referenced tens of thousands of acres of 7 (Whereupon, a discussion was
8 wetlands or swamp in your report, can you be any 8 held off the record.)
9 more precise than tens of thousands? 9 MS. MILLER:
10 A. Well, those were numbers that came 10 Before we close it, I just
11 out of the different reports in that tens of 11 wanted to add Exhibit 13, which is
12 thousands of acres -- one of the reports has 50 12 the 1949 habitat map that was
13 to 60,000 acres in the whole Pontchartrain Basin 13 discussed, and it includes two
14 were affected in one way or another by the MRGO. 14 other maps related to it provided
15 Q. Okay. So, where you have 15 by plaintiffs' counsel.
16 quantified -- or where you make references to 16 (Whereupon, Day Exhibit
17 general numbers like that, if we wanted to 17 Number 13 was marked for
18 understand exactly what you meant, it would be 18 identification.)
19 represented in the tables where you have listed 19 (Whereupon, the testimony of
20 specific calculations? 20 the witness was concluded at 5:00
21 A. Yeah, and the reports that we took 21 p.m.)
22 those from. 22
23 Q. Okay. So, I don't know if I have an 23
24 example in front of me, but you agree that tens 24
25 of thousands could be a wide range and it's hard 25
67 (Pages 262 to 265)

Page 266
1 WITNESS' CERTIFICATE
2
3
4
5 I, JOHN W. DAY, JR., Ph.D., the
6 undersigned, do hereby certify that I have read
7 the foregoing deposition and it contains a true
8 and correct transcript of the testimony given by
9 me:
10
11
12 ( ) Without corrections.
13 ( ) With corrections as reflected on
14 the errata sheet(s) prepared by me
15 and made a part hereof.
16
17
18
19
20
21
22 JOHN W. DAY, JR., Ph.D.
23
24 DATE
25
Page 267
1 REPORTER'S CERTIFICATE
2
3
4 I, CAROL VALLETTE SLATER, Certified
5 Court Reporter, Registered Professional Reporter,
6 in and for the State of Louisiana, as the officer
7 before whom this testimony was taken, do hereby
8 certify that JOHN W. DAY, JR., Ph.D., after
9 having been duly sworn by me upon authority of
10 R.S. 37:2554, did testify as hereinbefore set
11 forth in the foregoing pages; that this testimony
12 was reported by me in the stenotype reporting
13 method, was prepared and transcribed by me or
14 under my personal direction and supervision, and
15 is a true and correct transcript to the best of
16 my ability and understanding; that I am not
17 related to counsel or the parties herein, nor am
18 I otherwise interested in the outcome of this
19 matter.
20
21
22 CAROL VALLETTE SLATER (CCR 78020)
CERTIFIED COURT REPORTER
23 REGISTERED PROFESSIONAL REPORTER
24
25
68 (Pages 266 to 267)

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A 84:12,16 86:6 180:15 43:11 58:8 248:18 249:1,11

Abadie 182:1,4 155:4,10,12 agency 68:1 160:22 alterniflora 130:1 254:7 256:24
192:22 actual 118:20 195:23 altitude 166:18 260:18 261:15
abbreviated 22:10 121:9 172:2 238:1 ago 8:3 14:13 25:22 Amite 87:21,21 262:1 265:3
ability 107:25 249:4 264:10 35:4 79:20 81:12 amount 70:2 74:15 Andry's 37:5 45:13
162:19 231:13 add 68:16 237:4 83:6,7,13,14 74:18 76:5 79:15 angle 136:10,11
267:16 263:5 265:11 133:12 140:16 112:8 113:3 animal 231:15
able 18:24 86:7 added 68:14 145:25 156:15,16 193:14 229:1 animals 231:25
113:2 120:14,17 125:18,22 163:24 172:23 242:5 answer 6:14 8:15
128:1,2 149:16 addition 12:14 agree 89:25 137:19 amounts 14:24 17:15 39:7 77:4
169:1 171:12 99:17 138:22 149:23 152:25 amplify 58:6 93:16 105:14
199:6 240:6 243:7 194:6 233:8 162:17 167:21 analysis 247:1 109:9,23 123:6
absent 86:10,20 251:16 258:25 192:25 194:8 analyze 63:15 132:22 161:5,12
136:8 additional 22:8 206:3 207:18,19 173:18 163:6 243:3
Absolutely 107:18 70:15 255:11 208:2 216:24 anchoring 73:8 255:14 257:3
abundant 108:14 address 45:12 56:5 252:5 263:24 Andry 1:16,16 260:20 261:14,18
accepts 173:24 59:12 65:19 199:6 AGREED 6:2 10:10,15 11:18 anticipated 74:5
account 74:6 234:5 258:22 agreement 14:21 12:4 13:22,24 76:23
accurate 117:21 addressed 19:13 15:4 67:19 14:10 15:23 16:2 anybody 132:20
255:21,23 264:2 63:8 208:18 agrees 127:5 17:11,21 26:18 anyway 152:17
accurately 9:4 addressing 65:16 ahead 19:10 79:11 27:9 31:25 32:6 192:17
109:9 173:25 adds 161:18 79:11 103:4 32:18 35:22 36:14 apparent 107:1
acreage 150:6 adequate 207:11 126:20 130:3 36:18 39:5 44:14 apparently 197:6
acres 115:7,9,11,22 207:13 202:25 209:20 46:4 47:20 53:10 appear 148:10
115:23 117:12,17 adjacent 112:17 239:13 54:4,10 60:25 152:1,10 153:21
117:20 120:18 264:6 al 118:25 142:18 62:5,11 70:7 75:5 206:21 207:8
123:9 126:25 administered 66:6 241:17 77:1 79:8 84:19 APPEARANCES
138:9 140:5 administering 6:23 ALAN 2:13 95:17 105:10 1:15 2:1 3:1
141:23 149:17 adopt 255:21 alignment 40:7 109:20 111:8 appears 152:24
177:18 184:18 adopts 18:7 alive 77:24 78:18 116:11 121:15 154:7 189:20
185:11 188:17,21 adult 253:19,24 82:16 138:21 139:8,23 190:23 191:16
193:25 251:14,25 advanced 238:22 alleviate 40:22 141:2,12 151:15 204:15 207:14
252:1 263:7,12,13 Advisory 63:6 210:4 159:14 161:3,8 220:1
264:3 aerial 31:13 170:11 allow 68:18 100:17 162:10 163:4 appendices 195:10
acronyms 65:7 affect 99:17 111:11 100:23 102:2 176:20 177:2 203:17
act 44:23 253:19,20,24 107:6 165:6 182:13 187:2 appendix 40:24
acting 163:19 259:16 allowed 30:15 189:6,15 190:19 41:14,18,21 42:5
action 1:4 40:22 affirmative 258:22 39:24 43:16 88:6 191:10,25 192:7 45:17 180:4
59:19 258:22 affirmatively 13:13 111:22 232:23 192:13 194:12 195:11 198:3,23
actions 49:22 48:24 164:14 262:5 201:13 202:20 201:9 210:6,23
active 81:12 174:24 198:18 264:24 allowing 102:16 203:22 204:3,19 212:5 213:21,24
actively 65:13 afford 175:8 177:1 allows 69:25 205:15 207:18,22 214:23
activities 86:18 aforementioned 102:21 208:1,5 209:13 applies 81:21
212:19 6:4 alteration 257:8 214:12 229:22 apply 77:16
activity 72:17 age 95:5 alterations 154:19 234:7 237:17 approaches 143:9
75:10,13 76:3 agencies 41:1,1,19 altered 99:9 107:24 239:10 242:25 appropriate 67:12
82:4 83:2,8 84:7 58:24 63:2 68:3,7 alternatives 42:16 244:4,10,21 120:21 212:8

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appropriately 126:10,18 127:7 32:25 35:1 47:3 25:6,8 92:15 42:24

19:12 127:20 129:12,14 55:22 65:22 87:2 243:10 252:21 aware 40:14,18
approve 67:13 129:15,18 130:4 111:17 112:3,20 Associates 7:15 41:7,11 50:6,9,10
approved 67:7 130:11,13,15,19 116:2 117:25 assume 16:22 74:8 197:24 203:7
approximate 167:3 130:22 131:6,15 128:8 129:17,20 104:12 172:22 205:9 212:18,22
approximately 131:25 132:6,23 140:5 142:19 assuming 86:17 238:21 251:12
30:24 33:3,19 133:5,9 134:8,18 143:2 154:3 157:2 216:20 a.m 1:13
169:25 137:9 140:3 157:13,25 167:23 atlas 5:11 181:18
area 11:16 24:15 142:16,21,21 167:24 174:16 182:6 183:2,17 B
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Page 1

UNITED STATES DISTRICT COURT

IN RE: KATRINA CANAL BREACHES CIVIL ACTION

Videotaped deposition of JOHN W. DAY, JR., Ph.D.,

ATTORNEYS FOR THE PLAINTIFFS

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

56 (Pages 218 to 221)

67 (Pages 262 to 265)

68 (Pages 266 to 267)

A 84:12,16 86:6 180:15 43:11 58:8 248:18 249:1,11

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

appropriately 126:10,18 127:7 32:25 35:1 47:3 25:6,8 92:15 42:24

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

167:24,25 176:1 class 92:14 125:10 127:21 199:25 completion 56:23

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

Conservation 5:5 117:14 123:10,12 58:1 18:20,21 27:2 146:16 150:10,12

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

55:17 93:20,22 189:1 194:3 267:8 define 115:17 depend 165:25

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

describing 51:2 diameter 96:6,14 65:15 77:14,15,20 disposal 102:17 203:4,23

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

90:7,20 93:20 258:5 259:22 183:19 195:15 homogeneous hydraulic 23:10

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

186:8,12,13,16 144:3 146:14 memorandum 50:2 53:16,20 54:7,14 missing 189:21

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

239:11 243:1 Oceanography 124:6,13 125:17 154:21 174:23 opposite 218:10

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

60:5 173:16 60:22 109:18 262:23 127:4,6 133:1 phenomena 168:5

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

150:11 153:15 11:14 providing 66:14 p.m 265:21 164:4

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

138:7,8 139:2,6 226:19,21 227:1,4 230:21 257:18 258:6,15 179:17 180:21

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

250:16 Shaffer's 19:1 238:11 siphon 43:25 59:13 200:14

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

75:13 198:4 surface 173:25 241:22 242:8 93:18 126:20 236:16

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

263:2 135:5,14,22,24,25 thousand 80:8 226:16,18,18 trace 125:12

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

104:25 105:1,9,15 trunks 101:25 U 158:25 199:17,18 2:20,24 8:1 12:7,8

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

237:23 wider 68:20 69:25 259:9,12,12 263:3 120:13,17,24 131:7 158:18,23

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753

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